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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 1 - Evidence, November 22, 2007

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OTTAWA, Thursday, November 22, 2007

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:35 a.m. for the review of statutory instruments.

[English]

Mr. Derek Lee (Joint Chair) in the chair.

The Joint Chair (Mr. Lee): We have quorum. Welcome to the first full business meeting in the new session. I would ask counsel to proceed with the first item on the agenda.

SOR/99-144 — ST. LAWRENCE SEAWAY AUTHORITY DIVESTITURE REGULATIONS

SOR/98-230 — PORTIONS OF THE DEPARTMENT OF NATIONAL DEFENCE DIVESTITURE REGULATIONS

SOR/98-231 — PORTIONS OF THE DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES DIVESTITURE REGULATIONS

SOR/98-232 — REGULATIONS AMENDING THE AIRPORT TRANSFER REGULATIONS

SOR/99-3 — PORTIONS OF THE DEPARTMENT OF CITIZENSHIP AND IMMIGRATION DIVESTITURE REGULATIONS

SOR/99-247 — PORTIONS OF THE ROYAL CANADIAN MOUNTED POLICE DIVESTITURE REGULATIONS

SOR/2000-1 — CERTAIN CANADA PORT AUTHORITIES DIVESTITURE REGULATIONS

SOR/2000-60 — PORTIONS OF THE CANADA PORTS CORPORATION DIVESTITURE REGULATIONS

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

Peter Bernhardt, General Counsel to the Committee: Under the Public Service Superannuation Act, where a portion of the public service is divested, the act continues to apply to any former public servants who become employed by the person or body to whom the divestiture was made. The Governor-in-Council then has the authority to make regulations respecting precisely how the act and regulations are to apply to those employees.

In all of these regulations, the act and the regulations have been extended not only to the person or body to whom the service was transferred but also to persons acting for them or on their behalf. The committee has concluded that this was unlawful.

In the chairmen's letter of May 14, 2007, a firm indication was sought from the minister as to when remedial amendments to the act would be introduced. Given the time that has passed since this matter was first raised with Treasury Board, the minister was also advised that, in the absence of a firm undertaking, the committee would consider whether to report the matter to the Houses.

In his reply to June 11, 2007, the minister states that he hopes to be in a position to bring forward remedial legislation within the next year. If this is an acceptable assurance and time frame, it would be a matter of following up progress.

The Joint Chair (Mr. Lee): Counsel, without a reference date, this matter will drift. When will counsel look at this again, in the ordinary course?

Mr. Bernhardt: In the ordinary course, we would follow it up after the meeting with a letter to Treasury Board to ask where things stand.

The Joint Chair (Mr. Lee): Are members agreed?

Hon. Members: Agreed.

SOR/99-256 — CANADA COOPERATIVES REGULATIONS

SOR/2001-513 — REGULATIONS AMENDING THE CANADA COOPERATIVES REGULATIONS

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

Mr. Bernhardt: Before commencing, Mr. Chair, I should indicate that the materials for the meeting today omitted the French version of the last item of the table that accompanied the minister's letter and deals with point 38. It has been circulated now to members on a separate sheet. I advise that this item of the minister's reply is to the effect that an appropriate amendment will be made when the fees under the regulations are next revised. In this instance, that would seem to be acceptable. With the committee's indulgence, I propose to proceed with the item.

The Joint Chair (Mr. Lee): Please proceed.

Mr. Bernhardt: In total, 38 points were raised by counsel in the letter dated September 17, 2004. Ultimately, amendments were promised or satisfactory explanations were provided for on 30 of the points. In respect of seven of the remaining eight points, the department indicated that a reply addressing the substance could not be provided because the precise wording of the amendments had yet to be determined. As the joint chairs pointed out to the minister in their letter of April 11, 2007, the committee had yet to be even told whether the department agreed with its views on these particular points and, in some instances, questions had been asked to which answers had not been provided. On the last of the 38 points, the reply was unsatisfactory in substance. This matter was pursued in the joint chairs' letter to the minister.

Accompanying the minister's reply is the table that sets out the department's position on each of the original 38 points. After reviewing this table, it would seem that the only ones that still give rise to some concerns are points 19 and 20. Point 19 deals with provisions that require a management proxy circular to include the information required to be included in a prospectus or similar document under the security laws of any of the provinces. The explanation has been given that this is intended to refer to the provincial security laws that apply to the particular cooperative. There is a proposal to clarify this by changing the reference to the relevant security laws of any of the provinces. I am not certain this clarifies things all that much. Perhaps a reference to the applicable security laws of the provinces might be better. This suggestion could be made to the department.

Point 20 concerns an amendment to harmonize the two versions. The only problem here is that the same discrepancy arises in a number of provisions. The reply only refers to one, so I suppose we should get confirmation of their intention to make the same correction to all of these provisions. It is suggested that these two points be pursued with the department. At the same time, we could ask for a progress report on what has already been promised.

The Joint Chair (Mr. Lee): Are there any comments?

Hon. Members: Agreed.

The Joint Chair (Mr. Lee): Counsel's suggestions are good. We are in agreement. Thank you.

SI/2006-121 — PROCLAMATION GIVING NOTICE THAT THE AGREEMENT ON SOCIAL SECURITY BETWEEN CANADA AND THE REPUBLIC OF ESTONIA COMES INTO FORCE ON NOVEMBER 1, 2006

SI/2006-122 — PROCLAMATION GIVING NOTICE THAT THE AGREEMENT ON SOCIAL SECURITY BETWEEN CANADA AND THE REPUBLIC OF LATVIA COMES INTO FORCE ON NOVEMBER 1, 2006

SI/2006-123 — PROCLAMATION GIVING NOTICE THAT THE AGREEMENT ON SOCIAL SECURITY BETWEEN CANADA AND THE REPUBLIC OF LITHUANIA COMES INTO FORCE ON NOVEMBER 1, 2006

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

Mr. Bernhardt: Under the Old Age Security Act, the Government of Canada is authorized to enter into agreements with other countries for making reciprocal arrangements for the payment of Old Age Security benefits. An order bringing an agreement into force must be tabled in Parliament within 15 sitting days after it is issued. The order then comes into force on the 30th sitting day after it has been tabled.

In all of these instances, Parliament was dissolved after 11 sitting days. The orders were tabled again when Parliament resumed. The decision to proceed in this way with the second tabling was apparently based on a 1988 letter from the law clerk and parliamentary counsel of the House of Commons. The letter stated that the dissolution of Parliament discontinues all affairs of the houses; therefore, any tabled documents still under consideration must be tabled again in the next session.

As the note explains, however, this fails to take into account section 20 of the Interpretation Act. Section 20 provides that where an act requires a document to be laid before Parliament, and this is done, nothing in the act shall be construed as requiring the same document to be laid before Parliament at any subsequent session.

Section 20, therefore, indicates that the Old Age Security Act should be read as only requiring that an order be tabled once. It would follow from this that the 30-day period for coming into force runs from the initial day of tabling and continues when Parliament resumes in the next session. In this case, the 19 sitting days that were left would have been the first 19 sitting days of the next Parliament.

The significance of this is simply that the agreements would have come into force on May 9, 2006, and not on November 1, 2006. The department, however, has asked the committee to confirm which interpretation of the act should be applied in the future. It is our suggestion that it should be the latter.

The only additional point is that there is a possible error in the French version of two of these instruments. The department replied that this was "likely the result of a printing error." The department should be asked to confirm whether this was simply a printing error or whether there is a discrepancy that will require an amendment to correct.

The Joint Chair (Mr. Lee): Are there any comments? Allow me to make one, then.

Having read this, I agree with counsel's interpretation. Had the original section 20 of the Interpretation Act contained an article — "a" Parliament or "the" Parliament — I might have come to a different conclusion. However, I am pretty sure that we have got the right handle on this and we should be prepared to stand on that. I know the department would like to have our confirmation; they have asked for it.

Because they are relying on a 20-year-old opinion from the chief parliamentary counsel, we do not want to be seen to be speaking with two different tongues here. I suggest that our counsel provide this opinion and position to the parliamentary counsel for comment. If he — I think it is a he — accepts it, either formally or does not want to comment, we can proceed and firm up with the department. That will be good for all of the other government departments. We are talking about the Privy Council here.

Is that an acceptable procedure, that we notify the chief parliamentary counsel of our position?

Senator Moore: With regard to the second issue, if a paragraph was omitted, I do not understand the significance of that. Even if it was likely the result of a printing error, does it not still have to be put in?

Mr. Bernhardt: If the error was simply in the version that the printer published in the Canada Gazette and not in the original Order-in-Council, it is not a problem. It is simply a printer's error and the law was correct.

Senator Moore: The original Order-in-Council is complete in both official languages, is that correct?

Mr. Bernhardt: Yes. The problem here is that they say it "likely" is not a problem. Was it a problem or was it not a problem? If it turns out yes, it was simply a printing error, there is no problem; but I think we need to be a little more definitive.

Senator Moore: Yes, we should nail that down.

Mr. Epp: I want to raise the question on a broader scale. In this particular case, there was a thirteenth-sitting-day-after-the-order-is-tabled rule. Is that a general rule in the standing orders, or was that specific to this issue?

Mr. Bernhardt: It was specific to this act. From time to time, you will see particular provisions in certain acts. Here, it was accompanied by a resolution procedure whereby, in the intervening 20 days, there was a provision whereby the House could pass a resolution that it not come into force. That is what the period was tied to.

Mr. Epp: I am just wondering whether our committee should make a recommendation to the government of the day to build into their legislation or their orders in perpetuity the contingency of Parliament adjourning early, or whatever.

Mr. Bernhardt: There seems to be a provision in the Interpretation Act, as we read it. I should add that it is not a case here where the Privy Council is disagreeing. They are simply saying that we are telling them one thing and 20 years ago someone told them something else. They are saying, "We are happy to proceed either way. Please tell us which is the correct way to go and we are happy to do it."

Mr. Epp: Thank you, Mr. Chair.

[Translation]

SOR/2007-23 — REGULATIONS AMENDING THE LAURENTIAN PILOTAGE TARIFF REGULATIONS

SOR/2006-339 — REGULATIONS AMENDING THE LAURENTIAN PILOTAGE TARIFF REGULATIONS

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

Mr. Rousseau: When SOR/2006-339 was examined, counsel to the committee noticed a discrepancy between the French and English versions concerning one of the fees payable under the regulations. This discrepancy was corrected when SOR/2007-23 was passed.

When SOR/2007-23 was examined, we realized that, in error, the governor in council did not approve the amendments numbered SOR/2006-339 as the act requires. These amendments were therefore unlawfully applied between January 1 and 30, 2007.

The department recognized the problem and indicated in the June 6, 2007 letter that the Laurentian Pilotage Authority proposed to reimburse the excess amounts collected.

Counsel to the committee recommend asking what the total amount reimbursable is. This information has not been provided despite the request made in the March 9, 2007 letter. Counsel also recommend that the committee ask how much has been reimbursed to date.

[English]

The Joint Chair (Mr. Lee): Counsel, this is something we love to do, give money back to the payers when they have been asked to pay illegally. I think counsel's suggestion is a good one. Let us confirm that the repayments, refunds, whatever, have been made in the manner counsel suggested. All agreed?

Hon. Members: Agreed.

[Translation]

SOR/2003-181 — COMMISSIONER'S STANDING ORDERS (GRIEVANCES)

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

The Joint Chair (Mr. Lee): We are moving to the next point, SOR/2003-181.

Mr. Rousseau: When these standing orders were examined, counsel to the committee, including myself, believed that the main enabling clause for passing these standing orders had not been mentioned. This was in fact an error because this clause is clearly mentioned.

As to the other enabling clauses, we can consider, as indicated in the letter of February 22, 2007, that they are all relevant and that there is no need to be concerned about whether they should be mentioned in the future.

If the committee is in agreement, this file can be closed.

[English]

The Joint-Chair (Mr. Lee): Are members agreed?

Hon. Members: Agreed.

[Translation]

SOR/2002-60 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PART IV)

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

Mr. Rousseau: The regulations require all permit or license holders to advise the department of any change in their permanent address. The committee feels that clear statutory authority is needed for such a requirement to be imposed.

In the letter of June 6, 2007, the department's reply attempts to show that the accreditation or licensing of people is an on-going process and that grammatical analysis of the English version of the enabling provision contained in section 4.9(a) of the act shows that, and I quote:

It was the legislator's intention to provide a frame of reference that applies not only to the concept of accreditation or licensing, but to everything that surrounds issuing a license or permit and maintaining its validity.

This is not a convincing explanation. If it were accepted, an explanation would be needed of why the government specifically provides, in subsection 4.9(s) of the act, the authority to make regulations about the keeping and preservation of records. If the department's explanation about the requirement to provide information to the minister is valid, the explanation must also be considered valid on the subject of keeping and preservation of records. Otherwise, it would have to be accepted that Parliament's provision on the keeping and preservation of records has no legal effect. But the assumption is that all provisions of Parliament have some legal effect.

The department has already attempted to justify the validity of its requirement to provide information to the minister using section 4.9(s) of the act. The committee rejected this explanation at its meeting of November 3, 2005. The department then attempted to justify the validity of this explanation by adding that it was also the result of a group of enabling clauses in addition to section 4.9(s), specifically subsections 4.9(a)(1) and (2), and the introductory language of section 4.9 of the act.

The committee rejected this explanation as well, this time at its meeting of March 1, 2007. If the committee is still not satisfied with the response before it today, counsel recommend that the joint chairs correspond with the minister on the matter.

[English]

The Joint Chair (Mr. Lee): Are there comments?

Mr. Epp: Mr. Chair, it seems eminently wise to require people seeking a licence to give their address and to change their address as needed. The issue is not a requirement but, rather, the way in which a requirement is achieved. Let us ask the minister to fix that part and we can move forward.

The Joint Chair (Mr. Lee): Counsel, what are the implications for a registrant if the registrant's address falls out of sync? Does the department say a registrant loses the registration?

[Translation]

Mr. Rousseau: The first consequence is the following: since it is required by the regulations, it constitutes an offence. A person who does not provide notification of a change of address has committed an offence under the regulations.

The committee has already suggested putting the requirement on the license itself. Following Mr. Epp's suggestion, if someone changes address, the license would indicate that the information had to be provided to the minister. If the license holder does not, thereby failing to conform to the conditions of the license, the penalty would be administrative rather than criminal. We are dealing with offences here. This is the fundamental difference between the two ways of requiring the information.

[English]

Mr. Wappel: The words of Justice Dickson are clear as well as broad. If one takes them at face value, it can be understood why the department is arguing its particular position. How can we counter that aspect?

[Translation]

Mr. Rousseau: It is true that this provision is, at first sight, extremely broad. My only hesitation is the one I mentioned just now. The argument should also justify the fact that, in its enabling legislation, Parliament made specific provision for the keeping and preservation of records. If the provision were so broad or if Parliament felt that it included that type of statutory authority, it would probably not have mentioned the keeping and preservation of records.

We cannot read everything in this enabling provision, which is also very broad. If it had been the only enabling provision, I accept that the scope is very broad and that it would be very difficult to contest such a provision.

[English]

Mr. Wappel: While I do not wish to prolong this matter, Mr. Chair, I assume that one must provide an address in the process of becoming accredited. Following from Mr. Epp, if they must provide an address to become accredited, it seems only logical to provide a change of address if their address changes. It seems that requirement would fall under Justice Dickson's definition.

The Joint Chair (Mr. Lee): Mr. Wappel is giving an odd lob to counsel.

Mr. Bernhardt: I think an answer lies in the position the committee has taken traditionally on information-submission and record-keeping requirements. As administrative as they may seem, the requirements impose a substantive duty on the citizen; they require the citizen to do something on pain of punishment. If we place a substantive duty on a citizen that needs either a clear enabling power or something that can be seen as an implied enabling power — these omnibus enabling provisions to carry out purposes and provisions of the act respecting sundry matters — in and of itself, that power is not sufficient to ground a regulation imposing that type of a substantive duty.

Leading further in that direction, the committee was swayed previously by the fact that there is indeed another means to accomplish this goal. That means would be simply to set out in the licence that the licensee is hereby required to notify of the licensee's change of address.

Should someone fail to do so, then the licence can be suspended or, in the case of repeat offenders, possibly cancelled. This requirement thus removes the possibility of someone being convicted of an offence for failing to give a change of address. I suspect the department's reluctance may be because the department likes to have the hammer of the penal sanction for these things.

Mr. Wappel: We can assume that when we write to the minister, the department will show the minister Justice Dickson's quotation. That is the reason I asked the question. In our letter, we should anticipate this situation and clearly state what our two counsels have told us today, pointing out clearly what may happen to a citizen. If something like a cancellation of a license will occur, the regulation or statute should state that clearly. I agree with the letter to the minister, but it should anticipate that Justice Dickson's quotation will be put under the nose of the minister. That will be the justification, so we should «unjustify» it in our letter.

Mr. Bernhardt: We all agree with the comment that this power is a broad enabling one. The dispute arises when trying to determine the exact meaning of "very broad" in this context. They seem to have a broader meaning of "broad" than we have.

The Joint Chair (Mr. Lee): Mr. Epp, Mr. Wappel and Mr. Justice Dickson are reaching out desperately for a common sense resolution. Our counsel has not found it. Committee members took a position on this earlier. The regulation seems to be technically incorrect and if we cannot find a way around it, we should ask the department to fix it. There is no point for the department to be stubborn. Almost every other registering licensing authority that I know of would have a viable enforceable rule that required a registrant or licensee to keep their personal record address up to date. Mr. Epp has found the wisdom to bridge the gap.

Mr. Epp: Mr. Chair, when you said there was no point for the department to be stubborn, it occurred to me that perhaps they are sitting around their table asking why committee members are so stubborn.

The Joint Chair (Mr. Lee): Technically, we are correct in law and they wonder what the problem is. This is so obvious — such a no-brainer. Let us continue.

Senator Moore: Will we send a letter, as suggested by Mr. Wappel?

Mr. Wappel: Mr. Chair, the letter would be sent to the minister.

The Joint Chair (Mr. Lee): Yes. Are members agreed?

Hon. Members: Agreed.

SOR/2002-145 — MANNER OF DISPOSAL OF DETAINED, SEIZED OR FORFEITED GOODS REGULATIONS (PRECLEARANCE ACT)

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

Mr. Bernhardt: A number of matters were first raised with respect to these regulations in 2004. As the accompanying note explains, the overall difficulty is that the regulations seem to bear little relationship to the Preclearance Act. There are provisions that require a preclearance officer to transfer to a Canadian officer goods other than those that can be designated under the Preclearance Act; provisions that authorize the forfeiture of goods in circumstances other than those set out in the act; provisions that can operate only with other regulations that have never been made; and provisions that apparently contradict the act.

In fact, the regulations do not provide in any way for the manner of disposing of detained, seized or forfeited goods, as the title suggests. Rather, the regulations state that certain goods are to be transferred to a Canadian officer for disposal. There has been considerable difficulty in obtaining a substantive reply. On January 7, 2007, a lengthy letter was provided that dealt with the first three of the seven items raised. When the January reply is boiled down, it amounts to no more than a statement that the concern in item one "likely means that the Regulations may have to be amended." They also advise that amendments will be made to resolve the matters raised in points two and three.

Following two further requests for a reply addressing the remaining matters, in its letter of June 11 the department replied that having carefully considered these issues, it has been decided that the regulations should be revoked and replaced by new regulations made under a different enabling provision, and that preparation of these new regulations will begin in the near future.

The substance of the four remaining matters, including questions concerning the intended application of certain provisions of the act, has never been addressed. This response is all a bit bizarre. Perhaps at this time a letter could go to the minister asking him for the requested explanations and information.

Mr. Wappel: I do not agree with that recommendation. This situation is a great opportunity to bring someone before the committee, perhaps Ms. Thomsen, and ask why the department has not responded to the questions of the committee and why counsel needed to send three letters before receiving a response. Many times, we have brought officials before the committee to educate the bureaucracy that this committee exists. When we invite officials to come before the committee, miraculously they are able to provide the answers prior to the meeting.

I recommend that we ask the relevant officials, with whom we have corresponded, to appear before the committee. We will advise them that we will expect them not only to give the committee the answers they have not provided but also to explain why it has taken so long and why they ignored the committee's correspondence.

The Joint Chair (Mr. Lee): Are members agreed?

Hon. Members: Agreed.

The Joint Chair (Mr. Lee): We will set aside time for an upcoming meeting. Counsel will make arrangements to invite the appropriate officials from the department, who deal with the goods and property of Canadians. We need to insist on a proper legal framework with clarity.

Mr. Epp: Mr. Chair, I recommend that we include a provision that unless this matter is satisfactorily addressed before a specific date, we will ask officials to appear before the committee. In that way, if they address the matter, the result is achieved and we save their time and our time.

Mr. Szabo: Mr. Chair, during the time that I was in the chair, I took note of files that contained one-line letters. This file is one of those that reflects a frustration. We are likely at the point where if we do not make arrangements now to have them before the committee, we will not hear this matter before Christmas. I suggest that we not show further extended courtesies but rather that we invite any persons, not only Michael Calcott, who are relevant to this file and have contributed to the problem, to appear at the earliest possible date before we rise for the Christmas break. Perhaps this item could be considered a test case to express the views of the committee for future consideration of similar items. I am not sure how thick the file is but I suspect that in its entirety, it is about ten times bigger than what we have before us today. We need to establish how to proceed in such instances.

The Joint Chair (Mr. Lee): The decision to be made is whether we proceed on this in 2007 or in 2008.

Senator Moore: Following up on Mr. Szabo's comment, we should look at having this resolved before the Christmas recess.

The Joint Chair (Mr. Lee): Counsel has informed me that we have some meeting time available. Mr. Epp, will you join the consensus that we proceed sooner rather than later on this item?

Mr. Epp: I suggest we could send the same message: either respond to the committee by a date in December 2007 stating that the matter is satisfactorily resolved or appear at the committee on that date.

The Joint Chair (Mr. Lee): Are members agreed?

Hon. Members: Agreed.

[Translation]

SOR/2004-221 — UNITED NATIONS IRAQ REGULATIONS

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

Mr. Rousseau: Under section 2 of the United Nations Act, the governor in council may make such orders and regulations as appear to him to be necessary or expedient to give effect to any of its decisions. The United Nations Security Council has invited Canada to arrange for one of its decisions to be implemented. One of the effects of the regulations is to protect oil from Iraq from legal proceedings in Canada in order to speed up the restructuring of Iraqi debt. Section 3 .1 of the regulations, for example, provides that no oil from Iraq can be seized. Section 3.2 makes it clear that the provision does not apply to judgments arising out of contractual obligations entered into after June 28, 2004.

As counsel to the committee noted in the letter of January 11, 2007, the relevant United Nations Security Council resolution provides that the deadline for applying the exemption affects judgments arising out of contractual obligations entered into after June 30, 2004, whereas the regulations stipulate judgments arising out of contractual obligations entered into after June 28, 2004.

The governor in council therefore seems to have exceeded the authority approved by Parliament. The department's reply was unsatisfactory for two reasons. First, the relevant provision in the United Nations resolution clearly mentions June 30, 2004 in this context. Second, the department does not address the matter of whether the regulations have been applied to judgments arising out of contractual obligations entered into on June 29 and 30, 2004. Counsel to the committee recommend that we write to the department once more to point out the reasons why the reply was not satisfactory and to request a complete response.

[English]

Mr. Wappel: I am sorry, again I am confused. Is the government correct that the text of the resolution uses the expression "by June 30"?

[Translation]

Mr. Rousseau: No, the date mentioned really is June 30, 2004.

[English]

Mr. Wappel: Mr. Rousseau, what is Ms. Thomsen saying, when she says:

The text of the Resolution uses the expression "by 30 June 2004"/"d'ici le 30 juin 2004" several times.

The Joint Chair (Mr. Lee): If insufficient documentation is in front of us here to deal with that question, we can ask counsel to go back and refresh the hopper.

[Translation]

Mr. Rousseau: The way I understood the letter is that the resolution certainly mentions June 30, 2004, but, as I was saying, when we get to the provision itself, which deals with legal proceedings arising out of contractual obligations, they are obligations after June 30, 2004. I admit that I should check and confirm the information on this point once more, but as I prepared for this meeting, I feel that I did check and saw that, on this very specific provision of the agreement, the date mentioned was definitely June 30.

[English]

Mr. Wappel: Again, not to belabour the point, if it does say «on,» of course; but if it says "by," Ms. Thomsen's argument is at least moderately reasonable. Perhaps Mr. Rousseau can double-check the wording of the resolution again. I would be surprised if she quoted from the resolution word-for-word and it was wrong. Maybe this item can be brought back at another meeting after you have had a chance to look at the wording, and perhaps we could have the text attached.

The Joint Chair (Mr. Lee): We can take another look. As a sidebar, this file, this department, and this public servant are the same ones we are dealing with on the prior file and the one on which she may come to see us. Therefore, we can kill two, three or four birds with one stone.

Mr. Wappel: If she is right on this item, that will give her an extra boost of energy when she appears on the other matter, and we do not want that.

The Joint Chair (Mr. Lee): We need to let the officials be right once in a while.

Mr. Wappel: That is fine.

The Joint Chair (Mr. Lee): Are colleagues happy with that?

Hon. Members: Agreed.

WEIGHTS AND MEASURES SPECIFICATIONS, SGM-1

WEIGHTS AND MEASURES SPECIFICATIONS, SGM-3

WEIGHTS AND MEASURES SPECIFICATIONS, SGM-7

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

Mr. Bernhardt: Mr. Chairman, these three specifications gave rise to a number of points of drafting. The points were to be addressed when the specifications were revised, following the completion of a review by the relevant international standard-setting body of its guidelines. The committee was advised of this situation in 2003.

This review by the international body has apparently been delayed. The intention is now simply to proceed with amending the specifications. In the case of the first two specifications, the anticipated completion date is said to be sometime in the next fiscal year.

The amendments to the third instrument, SGM-7, have been forwarded to the Department of Justice for review but there have been delays due to other priorities. The department anticipates they will be completed by the end of the current fiscal year. If this course is acceptable, the members will simply monitor progress as per usual.

The Joint Chair (Mr. Lee): Is that okay?

Hon. Members: Agreed.

CANADIAN FOOD INSPECTION AGENCY FEES NOTICE, AS AMENDED TO MARCH 30, 2002

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

Mr. Bernhardt: There were 33 points initially raised in 2004 and a number of amendments were promised. In certain instances, satisfactory explanations were provided. There were also a number of matters that merited pursuing, and these matters were dealt with in counsel's letter of March 8, 2006 to the Canadian Food Inspection Agency.

Amendments have been promised on all the numbered points — that is, 33 — with the exception of point number 19. At issue here are fees for inspections that are higher if carried out by the agency inspector than if they are conducted by an accredited veterinarian.

The agency explains that where the inspection is carried out by an accredited veterinarian, it is paid for by the exporter directly. Therefore, the cost to the agency is less. However, the act authorizes the minister to fix fees to be paid for a service or the use of a facility provided by the agency. Where an inspection is carried out by someone other than the agency and that person is paid directly by the exporter, what is the service provided by the agency and what is the cost to the agency?

The agency has explained that it provides laboratory testing for the samples collected by the outside vet and that it conducts subsequent inspections of the animals. This work is all covered by the one fee apparently. I suppose that explanation can be taken as satisfactory.

In counsel's letter of March 8, 2006, on the final page, two additional questions were asked. The second question concerns the wording of a particular fee item and the agency's reply does not deal with that question at all.

The first question related to a fee for the review of an advertisement that has been submitted voluntarily to the agency for an opinion as to whether it contravenes the regulations. The committee had asked for the agency's view as to what the value of such an opinion would be in the event of a prosecution.

The agency's reply explains the purpose of setting up this program of voluntarily giving opinions, but it does not address the question of the weight to be attached to the opinions — that is, their authoritativeness. I suggest that these two additional matters be pursued in a further letter and that a progress report be sought on the promised amendments at the same time.

The Joint Chair (Mr. Lee): I see agreement around the table.

Hon. Members: Agreed.

[Translation]

SOR/96-423 — PATENT RULES

SOR/2003-208 — RULES AMENDING THE PATENT RULES

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

Mr. Rousseau: Mr. Chair, as the explanation at the beginning of this file points out, the effect of passing SOR/96-423 was to correct a drafting problem in the previous regulations. The note immediately following the initial explanation lists the points on which the department promised amendments and those for which, in committee counsel's opinion, the department has provided satisfactory responses.

But there is one consistency problem between provisions of the act, and it is appropriate to ask the department to confirm that corrections are necessary and to indicate when the department thinks they will be made.

In the opinion of counsel to the committee, the department's response was not satisfactory on one point only, that is the first problem raised in point 7 of the letter of February 16, 2007. The note set out the problem in detail; it deals with requests to reinstate patents deemed to have been abandoned. Sections 98 and 152 of the regulations require that, where more than one failure to take an action have led to a patent being considered abandoned, a request for reinstatement be made for each failure.

Counsel to the committee wanted to know which provisions of the act permits the governor in council to require by regulation that a request be made for each failure. The department's first response, in the letter of August 2, 2006, states only that this invokes a requirement that is either implicit in the act, or is authorized by section 12 (1)(l).

In the letter of September 8, 2006, counsel to the committee asked the department to explain this statement. That explanation is provided in the letter of March 14, 2007 and uses an example. The department describes the case of an applicant who, in good faith, fails to reply to an examiner's request for information, and then fails to pay a periodic fee required under section 27.1 of the act. Both are grounds to consider the request abandoned.

In the department's example, the patent request would be considered abandoned following the failure to reply to the examiner on September 1, 2006. The request would also be considered abandoned on November 1, 2006 following the failure to pay the periodic fee.

From this, the department infers two scenarios that, in its opinion, are incompatible with the intent of Parliament if the applicant were not required to file a request for reinstatement for each failure. The note describes these two scenarios in detail and indicates why they are not acceptable.

The department suggests that, if an applicant for a patent does not make a reinstatement request for each failure, the effect would be that he could therefore avoid paying the periodic fee on November 1. It is not clear why he would pay this fee anyway, since his patent application is considered abandoned on September 1.

Second, the department claims that, by not requiring a request for each failure, it could lead to situations where a person would have a very short time in which to pay the periodic fee. That seems not to be a valid problem, since the governor in council has the regulatory authority to establish the time by which the fee must be paid, and can therefore make a regulation to that effect.

To sum up, the department's explanation in no way confirms the need to make a request for the reinstatement of a patent application for each failure to take an action on the part of the applicant. Counsel to the committee recommend writing to the department once more to explain why its example is not satisfactory.

[English]

The Joint Chair (Mr. Lee): That is a lot of work, counsel. You are doing a great job. Are there any comments? This file is back on top, and we will see it again after you have made some progress with the department.

Are members agreed?

Senator Moore: What are we doing, Chair? Will we write a letter to the department on those two points?

The Joint Chair (Mr. Lee): I thought there were about 30 points.

Senator Moore: Are we in agreement with any of them, or are we eliminating things?

[Translation]

Mr. Rousseau: There is a problem. The response is not satisfactory. As I said earlier, the department provided an example in an attempt to explain its position. The example does not work. So it is only on this point that we have to correspond with the department.

[English]

Senator Moore: We will seek clarification or correction.

That is great; that is good progress. I apologize for sounding so pessimistic. Keep working on it. We are good.

SOR/2001-132 — AGRICULTURE AND AGRI-FOOD ADMINISTRATIVE MONETARY PENALTIES REGULATIONS RESPECTING THE PEST CONTROL PRODUCTS ACT AND REGULATIONS

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

Mr. Bernhardt: Action has been promised on all 18 points raised in a letter of February 28, 2005, with the exception of point 14. The most recent advice from the agency is that the promised amendments should be made by March 31. Regarding point 14 itself, the enactment in 2006 of a new Pest Control Products Act has rendered the point moot so it may not be pursued further. Presumably, the provision in the regulations in question will be removed given that the provision of the act to which it relates no longer exists. Therefore we will monitor progress.

The Joint Chair (Mr. Lee): Are members agreed?

Hon. Members: Agreed.

[Translation]

SOR/2006-168 — CERTAIN RUMINANTS AND THEIR PRODUCTS IMPORTATION PROHIBITION REGULATIONS, No. 2

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

Mr. Rousseau: On this matter, counsel to the committee raised two points in the letter of November 16, 2006. The first point concerns the fact that the regulations were approved by the minister, whereas the committee looked at the question and considered that they must be approved by the governor in council. Under the act, the minister's authority is limited to prohibiting the importation of animals.

The minister has provided that the importation prohibition does not apply to an importer who fulfills the conditions set out in the regulations. The committee's position is that, by so doing, the minister is not prohibiting importation, he is regulating it. As the act delegates the authority to regulate the import of animals to the governor in council, the regulations that the minister has approved are not legal. In the letter of March 12, 2007, the agency announced that the regulation would be rescinded. It would be appropriate to ask when this will be done.

The second point deals with the fact that two ministers have approved the regulations whereas the act gives the authority to the Minister of Agriculture only.

In the letter of March 12, 2007, the agency indicates that, effective immediately — and those were the words used — the Minister of Agriculture is the only person authorized to approve a regulation within the meaning of section 14 of the act. That has always been the case, in fact. In spite of that, the department's response can be considered satisfactory because it recognized the problem, which should not occur again, and that the present regulations will be rescinded.

If the committee is satisfied, counsel will write to the agency to ask when the regulations will be rescinded.

[English]

The Joint Chair (Mr. Lee): Both those suggestions sound reasonable.

Are members agreed?

Hon. Members: Agreed.

SOR/2007-49 — FIFA MEN'S U-20 WORLD CUP CANADA 2007 REMISSION ORDER

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

Mr. Bernhardt: Mr. Chair, we have a promised amendment on the English-French discrepancy noted in point one of the correspondence. The second point concerned the difference between the remission of duties on certain equipment temporarily imported and certain athletic equipment imported and subsequently donated. The department's reply provides succinctly the requested explanation of this aspect of the operation of the order. At this time, all that is required is to seek a progress report on the promised amendments.

Senator Moore: I did not hear that, chair.

Mr. Bernhardt: Follow up on the promised amendments.

Senator Moore: Thank you.

The Joint Chair (Mr. Lee): That event was a great one, which has absolutely nothing to do with the regulations.

SOR /2004-312 — REGULATIONS AMENDING THE EMPLOYMENT INSURANCE REGULATIONS

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

Mr. Bernhardt: We are dealing with two points of clarification with respect to section 55.1 of the regulations. The department was reviewing this section with the aim of identifying how it could be improved. That review has now been completed and amendments are apparently being considered which, if approved, in the department's words, would resolve the committee's concerns. There is still the need for consultation with employers and with the Department of Justice. Again, in the department's words, the usual approvals normally associated with regulatory changes must still be obtained. This commitment is not the firmest the committee has ever received, but a letter at this point asking about progress should result in an indication as to whether things are moving ahead.

The Joint Chair (Mr. Lee): Good suggestion: Are members in agreement?

Hon. Members: Agreed.

[Translation]

TR-2006-137 — ORDER RESPECTING EX-GRATIA PAYMENTS TO PERSONS WHO WERE IN CONJUGAL RELATIONSHIPS WITH NOW DECEASED CHINESE HEAD TAX PAYERS OR TO DESIGNATED BENEFICIARIES

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

Mr. Rousseau: This order provides for payments to the spouses of people who paid the Chinese head tax or to their designated beneficiaries. In the first point of the letter of February 6, 2007, counsel to the committee asked the department to confirm that the clear intent was that all persons having been in a conjugal relationship with a now deceased person are entitled to the payment.

In the letter of May 8, 2007, the department confirmed that this is indeed the case. In the second point, counsel asked if the clear intent was to allow a person having been in a conjugal relationship to apply even if another beneficiary had been designated. The department confirmed this. The wording of the order reflects the intent of the writer.

If the committee is in agreement, the file can be closed.

[English]

The Joint Chair (Mr. Lee): Are members agreed?

Hon. Members: Agreed.

[Translation]

SOR/2003-376 — REGULATIONS AMENDING THE UNDELIVERABLE AND REDIRECTED MAIL REGULATIONS

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

Mr. Rousseau: Mr. Chair, this file deals with a drafting problem identified by the committee and that the corporation had promised to amend. In the letter of March 30, 2007, the corporation specified the nature of the correction to be made, and the date by which it will be done.

If the committee is satisfied, counsel will review the status and inform the committee of the actions taken in the usual manner.

[English]

The Joint Chair (Mr. Lee): Are members agreed?

Hon. Members: Agreed.

[Translation]

SOR/2005-30 — SECURE ELECTRONIC SIGNATURE REGULATIONS

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

Mr. Rousseau: I should start by pointing out that this file should have been included in the part action promised section. The confirmations requested in the second paragraph of point 1 and point 2 of the letter of April 30, 2007 were provided by Treasury Board in the letter of May 4, 2007. In addition, an amendment has been promised to correct the drafting problem pointed out in the first paragraph of point 1.

If the committee is satisfied, counsel will review the status of the file and inform the committee of the progress on the promised amendment.

[English]

The Joint Chair (Mr. Lee): Are members agreed?

Hon. Members: Agreed.

[Translation]

SOR/2006-196 — ORDER AMENDING THE EXPORT CONTROL LIST

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

Mr. Rousseau: Mr. Chair, counsel to the committee pointed out a difference in the French version of the order and wanted to know what justified the difference and why there was nothing similar in the English version.

In its response, the department wrote:

We agree that the distinction is quite subtle, but it is nevertheless necessary.

Even if the distinction seems quite subtle, the explanation provided can be considered satisfactory. If the committee is an agreement, this file can be closed.

[English]

The Joint Chair (Mr. Lee): Are members agreed?

Hon. Members: Agreed.

[Translation]

SOR/2006-333 — ORDER ADDING TOXIC SUBSTANCES TO SCHEDULE 1 OF THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

(For text of documents, see Appendix T, p. 1T1.)

Mr. Rousseau: Mr. Chair, the order in question adds three substances to schedule 1 of the Canadian Environmental Protection Act. These substances are numbered 83, 84 and 85 in schedule 1 of the act. But there are no substances numbered 80, 81 and 82. The department explains this gap by saying that the three numbers were used in Bill C-307, tabled in Parliament in the session then in progress. According to the department's explanation, those numbers were therefore not used in the order out of deference to Parliament and to avoid confusion should the bill be passed. If the committee is satisfied, this file can be closed.

[English]

The Joint Chair (Mr. Lee): Are members agreed?

Hon. Members: Agreed.

SOR/2003-75 — CANADIAN EGG MARKETING LEVIES ORDER

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

Mr. Bernhardt: As a result of delays in making this order and of later amendments made by SOR/2004-56, there was no legal authority to collect levies on eggs marketed in interprovincial or export trade from December 28, 2003, to March 25, 2004. Therefore, a letter was sent to ask whether any such levies had been collected during this period. The initial response was that no levies were collected in respect of interprovincial or export trade by the Canadian Egg Marketing Agency during this period, pursuant to the levy order.

This led the committee to ask whether such levies were collected during this period other than pursuant to the levy order. The committee was then told that, although no levies were collected, the provincial egg marketing boards "voluntarily forwarded monies to CEMA in return for continued services by CEMA in the management of the orderly marketing of eggs."

This led the committee to ask whether the provincial boards were aware that the money they paid was done so on a purely voluntary basis and whether the egg producers themselves were actually aware that any payments they made during this period were, in fact, voluntary.

The National Farm Products Council has advised that because the agency's board of directors is made up of representatives from the provincial egg marketing boards, the provincial boards may be taken to be aware of the situation.

As for the actual producers, it stated that it is difficult to say for sure that any requests for refunds or credits would cause serious administrative difficulties in terms of verification and, in any event, the period in question was relatively brief. In other words, they do not have an answer and they really could not find out even if they wanted to. However, there is an assurance that, if similar situations arise in the future, producers will be notified through the agency's website.

Given this assurance, as well as the time that has passed, it might be sufficient simply to write one last time to make the point that this all reflects a rather cavalier attitude to the taking of money by a public body and that it is hoped that greater care will be taken in the future. Perhaps there is no choice but to leave it at that.

Mr. Epp: Mr. Chair, I have a number of egg producers in my riding and I believe they understand that, by joining the marketing group, which is compulsory, each time they ship one dozen eggs a fee is deducted. They are aware of that just by implication because they are part of the marketing group.

Mr. Bernhardt: Mr. Epp, it seems that the issue is that we had a period of several months during which they were not required legally to do that. They kept doing it anyway because, in the course of business, they would just do it. The question for which the committee sought a response was: Did anyone tell the producers that they were volunteering to pay the money that was collected? If you are paying something voluntarily, it is always good to know that that is what you are doing.

The problem then becomes a legal right, I suppose, to a repayment of volunteer payment. The difficulty is that it seems impossible to verify just who paid what amount.

Mr. Epp: I would suggest that we drop the matter. If this were an issue, I would have heard from my constituents.

Senator Moore: They would not know about it — and that is the point.

Ms. Barnes: We would like a letter.

The Joint Chair (Mr. Lee): Perhaps these voluntary payments are not technically distinguishable from the voluntary payments that used to be paid on the New York waterfront. If you did not make the voluntary payment, your goods were not shipped or even off-laded. For the good services of the marketing agency, these producers paid levies, which the agency was not entitled in law to collect, because of a technical oversight. It was not a fee holiday but simply a technical oversight.

Mr. Bernhardt: They had a three-month gap.

The Joint Chair (Mr. Lee): There was a free month. If your cable supplier does not send you a bill for a month, do you still have to pay for it?

What year are we talking about?

Mr. Bernhardt: It was 2003 into early 2004.

The Joint Chair (Mr. Lee): As a rule, we have been strict about returning illegally collected monies back to the payers. The committee has always taken that stance. However, at times the costs of doing that are technically very high because of the need to ascertain who paid what amount and how much would be paid back.

I am looking for a consensus on how to proceed on the file. Counsel suggests that we let it go because we have made our point.

Mr. Epp: Mr. Chair, we could put on the website that anyone who wants a rebate can send in documentation to prove that the money was paid and then they will receive a rebate. I would venture to guess that perhaps 10 egg producers in the whole country would respond to that message

The Joint Chair (Mr. Lee): Would your office like to manage that?

Mr. Epp: No. We were talking about a technicality, but it is a fee that, despite the lapse of the technicality, every egg producer was prepared to pay because they were in that business and that is what they always did. They did it before, during and after.

Ms. Barnes: Counsel's suggestion to send a final letter is appropriate. We should not overlook something simply because it is difficult to make contact with the relevant parties. We have a job to do.

Mr. Bernhardt: The final letter would be to the effect that the committee was not entirely happy with the replies that it received. We can suggest that they post a notice. In the absence of that — if that is not feasible or if that would not elicit it — we can say that we hope that in the future they do a better job of these things, and in a timely fashion, so there are no gaps, and leave it at that.

Mr. Wappel: I would not use the word «hope.» I would say «we trust and expect that you will do a better job in the future.»

Mr. Norlock: I agree with counsel. I think the bottom line in the letter should be do not do it again. If it will cost more to collect the money, just say do not do it again.

The Joint Chair (Mr. Lee): Do we have a wrap on that, then? All right, thank you, colleagues.

SOR/2004-153 — REGULATIONS AMENDING THE UNITED NATIONS LIBERIA REGULATIONS

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

SOR/2005-127 — UNITED NATIONS CÔTE D'IVOIRE REGULATIONS

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

Mr. Bernhardt: Mr. Chair, with members' concurrence, I propose following the committee's traditional practice of dealing with the next three headings — that is, Action Promised, Action Taken and Statutory Instruments Without Comment — simply as three groups, if that is acceptable?

We have three amendments promised in connection with the two instruments under Action Promised and the progress on these will be followed up after the meeting.

SOR/78-936 — AIR REGULATIONS, AMENDMENT

SOR/2004-203 — REGULATIONS AMENDING THE RAILWAY INTERSWITCHING REGULATIONS (MISCELLANEOUS PROGRAM)

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

SOR/2007-62 — REGULATIONS AMENDING THE CONTRAVENTIONS REGULATIONS (MISCELLANEOUS PROGRAM)

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

SOR/2007-116 —REGULATIONS AMENDING THE INCOME TAX REGULATIONS (MISCELLANEOUS PROGRAM)

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

Mr. Bernhardt: Under the heading «Action Taken,» there are four instruments that make 17 corrections that were promised to the committee. In addition, as the note on SOR/78-936 explains, that file can be closed as a result of the revocation and replacement of the Air Regulations by the Canadian Aviation Regulations.

SOR/2006-103 — REGULATIONS AMENDING THE DENATURED AND SPECIALLY DENATURED ALCOHOL REGULATIONS

SOR/2006-194 — ORDER AMENDING THE SCHEDULE TO THE CUSTOMS TARIFF, 2006-1

SOR/2006-197 — REGULATIONS AMENDING THE MEDICAL DEVICES REGULATIONS (1484)

SOR/2006-201 — ORDER AMENDING SCHEDULE 1 TO THE FIRST NATIONS GOODS AND SERVICES TAX ACT (2006-1)

SOR/2006-211 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1184 — MODAFINIL)

SOR/2006-217 — ORDER AMENDING SCHEDULE 1 TO THE ACCESS TO INFORMATION ACT

SOR/2006-218 — ORDER AMENDING THE SCHEDULE TO THE PRIVACY ACT

SOR/2006-237 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (HEILTSUK BAND)

SOR/2006-251 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1421 — SCHEDULE F)

SOR/2006-255 — REGULATIONS AMENDING THE SAFETY MANAGEMENT REGULATIONS

SOR/2006-336 — ORDER AMENDING THE SCHEDULE TO THE SECURITY OF INFORMATION ACT

SOR/2006-348 — REGULATIONS AMENDING THE ASSETS (FOREIGN COMPANIES) REGULATIONS

SOR/2007-2 — REGULATIONS AMENDING THE CANADIAN FORCES SUPERANNUATION REGULATIONS (CANADA PENSION PLAN)

SOR/2007-9 — REGULATIONS AMENDING THE INTERNATIONAL LETTER-POST ITEMS REGULATIONS

SOR/2007-22 — ORDER AMENDING PART 1 OF THE SCHEDULE TO THE ACT

SOR/2007-30 — REGULATIONS AMENDING THE HAZARDOUS PRODUCTS (GLAZED CERAMICS AND GLASSWARE) REGULATIONS

SOR/2007-67 — EGMONT GROUP OF FINANCIAL INTELLIGENCE UNITS PRIVILEGES AND IMMUNITIES ORDER

SOR/2007-69 — ORDER 2007-66-02-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2007-70 — ORDER 2007-87-02-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2007-93 — REGULATIONS AMENDING THE COPYRIGHT REGULATIONS

Mr. Bernhardt: Finally, I would note simply for the record that under the heading "Statutory Instruments Without Comment" are listed 20 instruments that have been reviewed and found to comply with all of the committee's criteria.

The Joint Chair (Mr. Lee): We have no further business on our agenda. The next meeting is December 6. The committee accomplished a lot of work today, colleagues. Thank you very much.

The committee adjourned.

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