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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 2 - Evidence, March 12, 2009

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OTTAWA, Thursday, March 12, 2009

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

Senator J. Trevor Eyton and Mr. Andrew Kania (Joint Chairs) in the chair.

[English]

The Joint Chair (Senator Eyton): We have a full agenda but, as always, we will try to finish by ten o'clock. Before moving to our agenda, we will report on the steering committee meeting we had a few days ago. Mr. Kania was good enough to be there for the entire steering committee meeting.

The Joint Chair (Mr. Kania): In terms of the steering committee meeting, there were five items and, rather than have Mr. Bernhardt go through them, I will give you a quick update. The first item was an issue with the blues and whether they would be available before being corrected. Our position was that we do not have a problem making them available first. They can be corrected thereafter.

The more contentious issues were the relocation of the committee's secretariat. We mentioned that item briefly before. We understand that, at some point in time, members of the secretariat were informed they would be moving and they agreed, although they did not see the need to move. There is no reason they need to move. The Senate is still willing to accommodate them exactly where they are. However, they agreed that they would move as long as the facilities were adequate. At this stage, the move is to take place after Easter or during Easter in April when, obviously, we will be in need of their work since we are in session. The first problem we have is with the timing of the move.

In terms of the facilities, this committee and secretariat are supposed to be non-partisan and independent, given the nature of the work. Right now, they requested and do not have self-contained facilities; they are being located with Library of Parliament personnel.

We have recommendations on relocation. We have drafted two motions and the first one is with respect to having the joint chairs meet with the Library of Parliament personnel to discuss, generally, the relocation. However, our intention is to ensure that the secretariat is protected and remains as independent as possible.

The next issue is that one staff position for a lawyer should be filled and has not been. There is a long explanation of why this is the case: Someone left and may come back, we may require an interim position, et cetera. The bottom line is that we have confirmation that the person is not coming back. We need another person, so we have also drafted a motion to discuss hiring someone with the Library of Parliament.

The final issue was the Australia conference. The budget was prepared and is extremely high. Our understanding is that it does not need to be that high. Rather than discussing it in any detail today, it was agreed that we would simply ask them to work out a more reasonable budget and come back to us for another steering committee meeting. We would then report back next meeting we have after the break.

Obviously, if anyone wants to discuss anything in particular, we can. The two points are the hiring of a counsel, which I think is non-contentious, and the relocation.

Are there any comments? You have the motions, so we can debate them, if you wish, or discuss them. The proposed motions simply support discussing these issues with the Library of Parliament.

Mr. Lee: I will move the first motion dealing with the hiring to fill that vacant legal position.

I move that the Joint Chairs write to the Library of Parliament in order to request that the vacant legal Counsel position be filled by way of a competition as soon as possible.

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

Hon. Members: Agreed.

Mr. Lee: I move that the Joint Chairs meet with the appropriate officials of the Library of Parliament to discuss potential issues of concern in relation to the relocation of the Committee's secretariat.

Senator Moore: I second the motion.

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

Mr. Lee: In your remarks, chair, you tried to articulate the particular circumstances of our staff as they might differ from other Library of Parliament staff. You left out an important point, and committee members should be aware of the following: Staff members of this committee do not only conduct research and give us the benefit thereof. They also deal with government officials of every department across the range of government and, for the most part, take positions adverse in interest to that of the departments. They must take on government departments — everyone from the Prime Minister right down to the Halifax Disaster Commission, if it still exists. For this reason, their positions are different from other positions in the Library of Parliament or the public service, and they need to be protected by Parliament. Parliament must take steps procedurally and administratively to protect the careers and amenities of our parliamentary committee staff, for that reason. I add that information to the description of the circumstance that makes our staff different from other researchers or analysts.

The Joint Chair (Senator Eyton): That is a good point, Mr. Lee. We talked about that point in the past and we will carry it into our discussions.

The Joint Chair (Mr. Kania): Are there other comments? Are members agreed?

Hon. Members: Agreed.

SOR/2000-221 — REGULATIONS AMENDING THE LETTER MAIL REGULATIONS

SOR/2009-5 — REGULATIONS AMENDING THE LETTER MAIL REGULATIONS

(For text of document, see Appendix A, p. 2A:1)

Peter Bernhardt, General Counsel to the Committee: This file was before the committee at its final meeting of the previous Parliament. At that time, members decided that the minister responsible for Canada Post should be advised that, having heard witnesses from the Canada Post Corporation and from the Department of Transport, it remains the view of the committee that sections 3(4) to 3(6) of the Letter Mail Regulations are not authorized by the Canada Post Corporation Act. These provisions provide for an increase in the domestic basic letter rate based on the increase in the Consumer Price Index for the May to May period preceding the last increase. The joint committee has concluded that while this mechanism can be said to prescribe the manner in which the rate is to be determined, it cannot be said to prescribe the rate itself, as is required by the Canada Post Corporation Act.

At its June 12, 2008, meeting, it was the consensus of members that in the absence of an undertaking either to eliminate the automatic rate increase mechanism or to amend the Canada Post Corporation Act to provide clear authority for regulations putting this kind of mechanism in place, the joint committee would propose the disallowance of the provisions of the regulations in question. Copies of the disallowance notice and the letter to the minister accompany the note that was prepared for members for this meeting. In addition, counsel was instructed to prepare a draft disallowance report, which accompanies the note as well.

There have been developments since that time. On June 26, 2008, Canada Post announced proposed amendments to the regulations. These amendments would have eliminated the automatic increase mechanism and replaced it with a fixed rate that would be set out for each of the next three years. Obviously, these amendments would have completely resolved the committee's concern.

In August 2008, Canada Post made these amendments. By order-in-council dated September 6, 2008, however, the Governor-in-Council announced that she was refusing to approve the amendments, and so the automatic increase formula to which the committee has objected remains.

On October 18, 2008, yet another amendment was announced by Canada Post to suspend the application of the automatic increase formula for 2009 and enact for that period, a fixed rate of 54 cents. Presumably, the formula would kick in after that time. This amendment was made, and approved by SOR/2009-5.

The question this morning for the committee is whether it wishes to proceed with its disallowance report. If so, it would reissue the notice of disallowance and this notice would restart the 30-day period before the disallowance report could be tabled.

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

Mr. Lee: Having been down this road a couple of times before, and having heard witnesses in the previous Parliament, our position is spot on and we do not have the choice as a committee unless someone sees the law differently. We should proceed with the disallowance.

Under the previous situation, Canada Post would have lost their postage raising mechanism with nothing to back it up. Under the current situation, Canada Post changed course during the period in which we dealt with the issue, although it remains unacknowledged that this committee influenced their change of course, and there is now a fixed cabinet-approved postal rate increase in place for the current year ending January 2010. If the committee were to disallow the underlying background formula sections, as described by counsel, there would be sufficient time to put a new postal rate increase arrangement in place or simply for the cabinet to adopt postal rate increases next year, as they did this year.

I am strongly in favour of proceeding in the same direction by serving them notice of disallowance and proceeding with a report.

Mr. Hoback: As a new member, I want to ensure that we have exercised all options before we move to the level of disallowance. Can you enlighten us on that subject?

Mr. Bernhardt: Certainly; the committee spent time and attention on this issue in the previous Parliament. As I mentioned, the committee heard witnesses from Canada Post and from the Department of Transport, through which Canada Post reports to Parliament. The Minister of Transport is the minister responsible for Canada Post.

There was considerable correspondence back and forth. The matter was raised initially in 2003 by the committee, so things had progressed to the final outcome, as it were. At the meeting in June 2008, the committee agreed to proceed with a disallowance, and asked for the report to be drafted. It sent a notice of disallowance to the Minister of Transport, and then Parliament dissolved, short-circuiting the process. The committee is able to decide at what point in that process it wishes to take action now.

In a sense, the position is a little simpler because we have a proper fixed rate in place for January 2009 to January 2010, which was not the case in June 2008, as Mr. Lee mentioned. If the committee had disallowed then, there would have been an immediate need for Canada Post and the Governor-in-Council to step in to fill the void that would have been created. We no longer have a vacuum so if the mechanism were disallowed, the 54-cent rate would continue until January 2010. There would be plenty of time for Canada Post to work out what rate it wanted to charge in 2010, and amend the regulation to fix that rate.

Mr. Szabo: This committee is unique in that the history of these items continues from Parliament to Parliament. It is difficult for any one member to have all the corporate knowledge.

This issue is fundamental to what we do. It is about the fact that the regulation should be enabled in the legislation. There is an enabling provision to do something but that is not what the regulation says. It is a small technicality.

I remember those meetings we had. I had never experienced a witness come before us and say, you are absolutely right but we will not do it. The meeting was confrontational. No one around the table could believe it.

When I was chair and Mr. Bernhardt replaced Mr. Bernier, who went to another role, we talked about this committee and some of the reasons why we have deep backlogs and these kinds of battles. It is because, over the years, we have been receptive to exchanging letters, correspondence and other material, and giving every opportunity. However, people take advantage of it.

As Mr. Lee said with regard to the office, this particular joint committee plays a unique role. This item is probably the most vanilla case I have ever seen in all our work. It reflects the principles that the regulations, as they exist, are not enabled by the legislation.

There must be a change. They have had every opportunity. In this committee, they have five chances, and then they have an extra chance if they want it.

We have gone through the process. I am confident of that. There are remedies to this issue and it is a quick fix. It is not a big mess. One piece of paper will fix this issue if they only do what they should do under the laws of Canada.

I concur with Mr. Lee's assessment. This committee needs to establish its reputation further that we will discharge our responsibilities, and it will be up to both houses to determine whether they agree with us.

Senator Moore: Mr. Szabo covered most of the points I wanted to make, particularly with regard to the witnesses we heard. I did not understand their approach because the evidence was clear that we put before them. I agree that we move ahead with the notice of disallowance, as proposed by Mr. Lee.

Mr. Saxton: As a new member, I did not have the benefit of hearing the witnesses that my colleagues had, but we have a new minister now. I propose that instead of rushing to disallowance, we send one more letter, with a 30-day fuse; write to the minister and see what response we receive.

Senator Bryden: If I understood correctly, we had a fix that was turned down by the Governor-in-Council. Was any reason given for the rejection?

Mr. Bernhardt: We had no involvement in that rejection. Canada Post made the announcement and went ahead. Any regulations they make are subject to approval by the Governor-in-Council, and the Governor-in-Council issued an order saying she refused to approve. I have no idea what the background was to that refusal.

Senator Bryden: Maybe the witnesses that appeared before us were the people that were counselling the Governor- in-Council, because that was their position: We know you are right, but we will not do it.

Senator Moore: Exactly.

Mr. Masse: I have not participated in the hearings, but on a purely process basis, we should go forward on this item now. The issue is one of credibility for the committee and the work it has done in the past, but also an issue of process. They are aware of that situation. I think we have no option other than to follow through.

Mr. Lee: We should note that the procedure now involves, and has for the last few years, a 30-day notice. Although we give the notice, we will not finalize our disallowance until a future meeting.

I agree with Mr. Saxton that the new minister might have a new view of this item. I can say from personal experience that when I took up a matter involving postal rates and another issue with this particular minister, the response was favourable.

It is possible that within the 30 days, this minister may aggressively address — or not — the issues raised by the committee, and we can take a decision then. I still support going ahead with the notice of disallowance now in the normal procedure.

The Joint Chair (Senator Eyton): I have a question for counsel. Did you have any discussion around the one-year fix?

Mr. Bernhardt: No: When Canada Post's three-year replacement idea was vetoed, they went back to the drawing board and came up with a one-year temporary plan, and that was approved.

The Joint Chair (Senator Eyton): There was no discussion with you?

Mr. Bernhardt: No.

Mr. Lee: Chair, I can report that there was a telephone conversation between me and someone else. It was essentially, are you serious? I said yes, thank you.

I think we should still be serious about this item.

The Joint Chair (Senator Eyton): What is the proposal?

Mr. Lee: I think I moved it or came close to moving it. I propose we serve a notice of disallowance on this issue. Is that what you are looking for?

The Joint Chair (Senator Eyton): Yes, I am looking for the precise proposal.

Mr. Lee: I move that we serve notice of disallowance forthwith and proceed in the normal procedure for disallowance.

Mr. Bernhardt: If something is close to coming in the 30-day period, the committee can decide whether it wishes to disallow or not.

Mr. Lee: That is correct.

Senator Moore: Question.

The Joint Chair (Senator Eyton): Is it agreed?

Hon. Members: Agreed.

C.R.C. c. 954 — INDIAN ESTATES REGULATIONS

(For text of document, see Appendix B, p. 2B:1)

Mr. Bernhardt: Chair, section 14 of these regulations purported to authorize the minister to deem certain persons to be a widow of the deceased Indian for intestate succession. This action was typically taken to allow common-law spouses to inherit.

Following the committee's report number 65 in 1999, the government conceded there was no authority for this provision and it was revoked. At the time, the government also accepted that any solution would involve introducing a bill to validate the 3,000 orders that had been made in the past under section 14.

At one point, the government sought to back away from this undertaking, but the committee persevered. In the letter dated December 8, 2006, the minister again accepted that the deeming of widows under section 14, well- intentioned as it was, was illegal and he accepted to validate the section 14 orders in future legislation.

Most recently, the current minister advised that he expected to be in a better position to address the committee's concern following the completion of internal consultations last fall.

At this point, perhaps the minister can be asked if a conclusion has been reached as to how and when a resolution in the form of a bill is expected to be brought forward.

The Joint Chair (Mr. Kania): Was the last letter the one from September 18, 2008?

Mr. Bernhardt: Yes.

The Joint Chair (Mr. Kania): Why do we not follow up and ask for a response?

Mr. Lee: Counsel, can you advise whether the current legislation before the House of Commons from this minister addresses this issue in any way? I heard the minister in Question Period refer to his legislation, but I do not know whether it covers this issue.

Mr. Bernhardt: There was a bill that dealt with other aspects of succession in the last Parliament. I think it was Bill C-47. At one point, the committee suggested that this item might be added to that bill as a way to clean up the issue. That did not seem to be something the minister wanted to do, and Bill C-47 died on dissolution, in any event.

I do not believe the bill has been reintroduced but I will check. As far as I know, there is nothing to deal with the issue before the house.

Mr. Lee: Let us check. I agree we should correspond with the minister quickly. This item is a quarter-century file, for those who have not noticed the dating. We should be celebrating.

Senator Moore: In the event there is a bill by this minister before the house, can an amendment be made to cover this situation?

Mr. Bernhardt: That might be one possibility. Amending the bill was something suggested in the last Parliament.

Senator Moore: Maybe we can look at that possibility, as well, when we know whether it is covered. If it is not covered, we should add an amendment and clean up the item.

Mr. Szabo: Legislation is the only way to resolve the issue, but we have to wait until regulations are developed, adopted and promulgated because the department could change the regulation to address this issue, as well. We will not know.

The Joint Chair (Senator Eyton): We have heard counsel's recommendation. Are we agreed?

Hon. Members: Agreed.

SOR/2005-39 — REGULATIONS AMENDING THE VETERANS HEALTH CARE REGULATIONS

(For text of documents, see Appendix C, p. 2C:1)

Mr. Bernhardt: Section 16(1) of the regulations extends eligibility for housekeeping and grounds maintenance services to the primary caregiver — this term is used in the regulations — of a veteran who is in receipt of such services prior to the veteran's admission to a health care facility or the veteran's death.

Section 16(3) continues on to define the term "primary caregiver." In some detail, it is defined as "the adult person who, immediately before the veteran died or was admitted to the health care facility, was primarily responsible, without remuneration, for ensuring that care was provided to the veteran and who resided with the veteran or was maintained by the veteran for a continuous period of at least one year."

The enabling authority for these provisions in the Department of Veterans Affairs Act authorizes the Governor-in- Council to make regulations specifying persons or classes of persons from within those referred to in subparagraphs 4(a)(i) and (ii) who are entitled to receive benefits. The persons referred to in sections 4(a)(i) and (ii) are the veterans and dependents, and the survivors of veterans, and it is only these people who can be specified as entitled to receive benefits.

To go back to section 16(1) of the regulations, the validity of this provision rests on being able to conclude that all primary caregivers, as the regulations define this term, will be either spouses, survivors or dependents.

If it is possible that primary caregivers will not always be spouses, survivors or dependents, then the provision is ultra vires because it attempts to extend the classes of people that the act says can receive benefits.

Now, the Department of Veterans Affairs has had considerable difficulty in separating the legal issue from its policy goals. When things are boiled down to the essence, however, a caregiver could be someone who has no dependency whatsoever on the veteran. To the extent these people are authorized to receive benefits under the regulations, the regulations go beyond what the act allows.

It is still not clear that the department fully grasps this issue and, in the minister's most recent letter, he writes of the need to recognize situations of mutual financial dependency. This need has never been contested. The problem is that the regulations allow for continuation of benefits even when there is no dependency at all.

Nevertheless, the minister undertakes to amend the act to clarify and strengthen the enabling authority. Given that undertaking, perhaps the minister can be asked when it is expected that this legislation will be introduced and maybe, to provide some details as to the form these amendments might take.

The Joint Chair (Senator Eyton): Are there any comments?

Mr. Lee: Counsel, is there any definition in the statute of the term "survivor"?

Mr. Bernhardt: Yes, I believe there is. I think it is basically a spouse or dependent children.

Mr. Lee: Are you sure? I thought I could construct a good argument. I originally agreed with counsel on this item because it is not a new file for us. I thought if I were in the department, I could construct a good argument that this class of persons was really relationship survivors; survivors of a mutual dependency relationship. However, if "survivor" is explicitly defined only to include a spouse or a dependent child, then I am out of luck.

Mr. Bernhardt: I think there is a definition of either a blood or marriage relationship of a "survivor."

Mr. Hoback: The definition is right in the act.

Mr. Lee: Now we have the same problem that the department has; namely, separating the policy considerations from the legal considerations. We will end up removing benefits from these veterans.

Mr. Bernhardt: That is why it was proposed to amend the act to make it clear they have the power to do what they want to do. They were doing things for the right reasons. Unfortunately, they did not have the legal authority to do them. Therefore, the solution is to go to Parliament, obtain the legal authority and then everything is fine.

Mr. Lee: Let us keep working on it.

The Joint Chair (Senator Eyton): Are members agreed?

Hon. Members: Agreed.

SOR/2002-416 — REGULATIONS RESPECTING APPLICATIONS FOR MINISTERIAL REVIEW — MISCARRIAGES OF JUSTICE

(For text of documents, see Appendix D, p. 2D:1)

Shawn Abel, Counsel: As the covering note on this file indicates, it last came before the committee in December 2007. Following that meeting, counsel wrote again to the Department of Justice. The department's latest reply is extensive but contains little in the way of new arguments on the issues raised.

The first point concerns a procedural requirement included in the regulations that an application for ministerial review include a description of the new matters of significance that support the application. The provisions of the Criminal Code governing the ministerial review, however, expressly state that whether new matters of significance exist is merely a factor for the minister's consideration. In other words, there is no requirement that they exist and, even where they do not, the minister is obliged to make a full consideration.

The effect of this procedural requirement in the regulations is to preclude any application for ministerial review when new matters have not arisen. The department's argument is that the power to make regulations setting out the form for an application and prescribing the information that must accompany the form is sufficient to justify this provision.

Clearly, however, it cannot be the case that the power to prescribe the form of an application in the regulations could restrict the scope of review set out in the parent statute. This power alters the fundamental nature of the review that Parliament saw fit to provide. In effect, it amends the statute by way of regulation.

The second point concerns the requirement that an application include "any other documents necessary for the review." The department's replies have not been consistent as to whether these documents are a mandatory requirement. Currently, the department states that this provision requires the applicant to include necessary documents, and encourages the applicant to include other important documents. It seems difficult to imagine that an applicant, likely an incarcerated layperson, would discern what is required by this provision and what is not.

The current wording essentially allows the minister to decide at the minister's discretion what is necessary for the application to be considered complete, and the minister can refuse to provide a review until such documents are provided.

It is suggested that this wording goes beyond the power to prescribe documents, as set out in the act, as no type or class of document is specified. It would be preferable to require the minister to conduct a review based on the information that can be specified in the regulations and any other information provided in the application. If the department feels so inclined, the provision of important but unnecessary information can be encouraged by other means — administrative means such as a pamphlet or a note.

On the third point, concerning a clarification in the review process, the department's explanation in this regard is set out on page two of the note and appears satisfactory. However, the committee also recommended that the regulations set out expressly what action the minister must take if further information regarding an application is provided within the one-year period set out in the regulations. No reply was received in response of this suggestion.

On the fourth point, the committee previously considered that the regulations should set out expressly the criteria used to decide whether an application has been abandoned. The department's reply seems to miss the point in this respect. Perhaps the committee's recommendations should be communicated a second time.

If the members are all in agreement, counsel can draft another letter to pursue these issues.

The Joint Chair (Senator Eyton): Are there any questions or comments?

Mr. Lee: I am not in agreement, yet. I think counsel has been assiduous in pursuing this item but I tried to put myself in the position of the department. The question is whether they are legally correct, not whether we like the form of what they do.

Let us go to the first point. The Criminal Code explicitly refers to new matters of significance so what can possibly be wrong with putting those phrases into the form? It cannot be wrong because they use the wording of the Criminal Code.

Mr. Bernhardt: The difficulty arises because the Criminal Code says that the new matters of significance are one of the factors that the minister is to take into account. The regulations are drafted in such a way that unless there are new matters of significance, they are not entitled to a review.

Mr. Lee: Is that your inference or does the regulation state that?

Mr. Bernhardt: That was their response to our question.

Mr. Lee: It is your inference if the regulation does not explicitly state that.

Mr. Bernhardt: It is the department's interpretation of the regulations.

Mr. Lee: We are dealing with the regulations, not interpretations. If the form and the regulations do not state what you have articulated, then we have gone beyond them and are making an inference.

Mr. Abel: Specifically, the regulations require that the application include a detailed description of new matters of significance.

Mr. Lee: Is that provision ultra vires because it emulates the words of the Criminal Code? It requires a description of new matters of significance.

Mr. Bernhardt: In effect, it narrows the minister's discretion.

Mr. Abel: The effect of that provision, if it is a mandatory requirement, is that the application can never be considered complete under the law unless there are new matters of significance. The Criminal Code states that the minister must consider whether there are new matters of significance and other factors as well when coming to a decision in the review.

Mr. Lee: Have you referred to the provision in the regulations whereby the application cannot be considered unless there are new matters of significance? I do not recall reading that in your memo.

Mr. Bernhardt: It is worded such that an application cannot be considered until it is complete, and an application is not complete until it includes new matters of significance.

Mr. Lee: Where is that provision?

Mr. Bernhardt: It is stated in the regulations.

Mr. Lee: Why is it not referred to? Perhaps that is the ultra vires provision.

Mr. Bernhardt: I believe that provision has been questioned.

Mr. Lee: Members are getting an idea of the painstaking detail that we attach to these matters, and we are only at point one. I have comments about the other points as well.

Mr. Bernhardt: The other points are matters of clarification.

Mr. Abel: The third and fourth points are for clarification and the second point depends on the department's intent.

Mr. Lee: I will take issue with the second point and offer another perspective. Where it says, "in any other documents necessary," perhaps the word "necessary" can be in the view of the applicant, not only in the view of the department. Perhaps the applicant can make a judgment about what is necessary.

Mr. Bernhardt: The committee can reach that conclusion if they are satisfied that the provision is sufficiently clear. The challenge in connection with those points was not the legality of the provision. One of the committee's criteria is whether a provision is sufficiently clear, and under that criterion it was questioned. If members are satisfied that the provision is sufficiently clear, then the committee accepts that explanation.

I suggest that in the case of the first point, a legal issue is raised because they have done it in such a way so as to narrow the scope of the minister's discretion. They have turned a factor that the minister can consider into a requirement for the minister to consider in the first place. In a sense, they have taken away an option from the minister.

I do not dispute your conclusion on the other points raised.

Mr. Lee: On the fourth point in respect of the class of abandoned files, where there is no administrative measure to deal with files on applicants who walk away and do not pursue the review, those applications would continue until the offenders died.

Mr. Bernhardt: Absolutely.

Mr. Lee: Therefore, they need an administrative class of abandoned applications. In my view, this point says that they need to deal with "abandoned" applications, even though the statute does not say, thou shalt have an administrative procedure for dealing with abandoned applications. Common sense would dictate that in this extraordinary appeal or reconsideration of someone wrongly convicted, we have tried to codify it in some way. We are now trying to figure out, again, how many angels dance on the head of the pin of this appeal procedure.

I ask counsel to go through this item again carefully to ensure that the issues raised are truly substantial.

Mr. Bernhardt: As always, we are entirely in the hands of members. On the fourth point, the question was on the regulations' mention of abandoned application, and how to determine when an application is abandoned and whether that matter could be added to the regulations. If the committee is satisfied that such determination and inclusion are not necessary, then so be it.

Mr. Lee: In this case, it is not necessary, given the nature of the whole procedure.

The Joint Chair (Senator Eyton): Counsel, your recommendation was to go back to the department and ask for clarity.

Mr. Bernhardt: Yes, we could take the matter back to see whether they are willing to add a little more meat.

The Joint Chair (Senator Eyton): Has any practical issue come out of these reviews?

Mr. Bernhardt: I have no idea how these reviews have been conducted, which have been fairly few in number. Whether there has been an issue on any one review or application, I do not know.

The Joint Chair (Mr. Kania): The letters sent to date have not been to the minister.

Mr. Bernhardt: That is correct, and we are not proposing to send a letter to the minister. We would write to the department again.

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

Mr. Lee: I suggest that we accept the department's position on the fourth point, abandonment. The third point has been described as satisfactory by counsel. On the second point, I suggest we accept the department's position that the applicant is capable of deciding what is necessary. On the first point, counsel might be correct. I ask counsel to have another look at that point in view of my comments and those of other members, and if so advised, put the issue back to the department, leaving the others as reasonably informed comment for their consideration.

Mr. Bernhardt: If that is the will of the committee.

The Joint Chair (Senator Eyton): Are members agreed?

Senator Moore: I have the impression that counsel thought another letter was deserved in respect of the first point.

Mr. Abel: That is correct, senator.

Senator Moore: Points three and four seem to be consistent with what Mr. Lee suggested.

Mr. Abel: That was our initial suggestion. Counsel will proceed with the wishes of the committee.

Mr. Lee: I am happy with that resolution.

The Joint Chair (Senator Eyton): Should this response be done one at a time? We are a little confused.

Mr. Lee: Counsel would revisit the second point with the department.

The Joint Chair (Senator Eyton): Counsel's suggestion in the first point was that they go back to the department. Mr. Lee's point was that they should be a little more accommodating or understanding with respect to a resolution.

Mr. Lee: I suggested that the first point is the big one that counsel should have another look at it and go back to the department.

The Joint Chair (Senator Eyton): Do we take the same approach with the second point?

Mr. Lee: Senator Moore would like to see that point pursued. I agree with that, so I am prepared to accept that view.

The Joint Chair (Senator Eyton): Are we agreed that we can live with points three and four?

Hon. Members: Agreed.

SOR/2003-343 — CANADIAN ARTISTS AND PRODUCERS PROFESSIONAL RELATIONS TRIBUNAL PROCEDURAL REGULATIONS

(For text of document, see Appendix E, p. 2E:1)

Mr. Abel: As the covering note indicates, 11 points were raised with the tribunal concerning these procedural regulations.

On points six to nine and eleven, the tribunal promised to bear counsel's suggestions in mind if the regulations are amended in the future. Perhaps the tribunal should be asked whether there was actual agreement with the suggestions made and, if so, for a proposed timeline in which amendments will be made.

The remainder of the points deal with straightforward procedural issues. In each case, the reply seems to be based on an incorrect reading of the regulations, or simply provides insufficient information. The recommendation in each case, provided in full detail in the note, is to write back seeking reconsideration.

I draw members' attention to point three, which is so minor that it may not be worth pursuing; and point five, which deals with the scope of discretion granted to the tribunal by several provisions. On point five, suggestions are along the usual lines for the committee, namely that the regulations should set out the factors governing the tribunal's discretion, and remove phrases that unnecessarily import subjective elements into the tribunal's decision-making power.

If the committee finds all these points satisfactory, a new letter pursuing these matters could be drafted.

The Joint Chair (Senator Eyton): Are there any comments?

Mr. Lee: Again, chair, counsel has done a great job of trying to bring spit and polish into these regulations, but I think he has been overly hard on the tribunal. Not every agency will draft regulations that are perfect in appearance and function.

I thought the tribunal's answer on item two was acceptable, that a person has an application or a question "by way of an application for determination." I thought that answer was reasonable; there are two or three types of originating documents here and the framework of the legislation and the regulations make it clear that a person has questions or applications. Therefore, I do not think it was unreasonable for the tribunal to make rules that refer to questions separately.

It is another one of those cases where I think counsel has been precise, but I do not agree with the conclusion. We have four or five different issues here, so I will stand down. I do not want to take the next 10 minutes going through these issues point by point, which is too painstaking. However, I have reservations about pursuing all these issues aggressively with the tribunal because I think a case can be made on the tribunal's side.

Mr. Bernhardt: I do not think anyone was questioning what the tribunal is doing. Again, these amendments are all housekeeping amendments.

For example, on the second point, it was suggested they mean to include a question but it is not clear that question falls within the term of an application. If that is what they mean to include, would it not be simpler to add that meaning explicitly and then everybody is clear?

I do not think we would pursue aggressively any of these issues in the sense that one would shout "undemocratic" from the ramparts. The issues are minor housekeeping suggestions. As always, it is for the committee to decide whether to continue with those issues. However, a lot of the committee work involves making housekeeping suggestions.

Mr. Lee: In this particular case, chair, these points are all good suggestions. However, in number one, for example, if counsel's suggestion were to be accepted, we would impose a mandatory requirement on the rules to send out copies of notices to the other parties. That sounds fair, and it is. In fact, the tribunal acknowledges that they do that.

Mr. Bernhardt: Yes, they do it now as a matter of practice.

Mr. Lee: The difficulty is that when we impose our precise rules, or suggest these rules be included, we place little "gotchas" into the rules of these agencies. We impose our view of the legal universe, and suddenly they have an application or a question procedure that has a new rule.

If they fail to send out a notice to somebody — some person on the fringes in Vancouver who is becoming a nuisance at some point — the whole procedure will fail because they did not follow the rule that we said should be there. This tribunal is only trying to do a job, to be fair to everyone and to resolve conflicts outside of the courts.

On point five on page three of the English version, counsel is probably right in concluding that the purpose of the wording currently used by the tribunal is to shield the tribunal from judicial review by the courts. There may be an argument for that point, but the whole purpose of the tribunal is to provide resolution of these matters outside the courts.

Again, it is another case of counsel being too good by half. In other words, counsel is making excellent suggestions to have great rules. I will stop there.

The Joint Chair (Senator Eyton): I have two comments. First, counsel's recommendation was not aggressive. It was simply to bring these points to the attention of the department and see if they could work some compromise.

Second, the problem with deviating from a particular standard, and the standard our counsel would like to apply, is that once we deviate, the standard becomes a soft or mushy kind of standard; and who knows where that will take you.

Mr. Hoback: I am looking at it from outside, being a new member. Are we becoming involved in the process of how the tribunal operates? Is that our role — to decide the process, or even to make suggestions on the process?

I think our role is to evaluate a regulation and see if it is proper the way it sits right now. Maybe I am wrong, but that view is only from the outside looking in. It looks like we are trying to prescribe to them the process that they should follow.

Mr. Bernhardt: I would turn that around and say that we are not trying to prescribe the process. For example, in point one, they told us they have a process in place. That process is a perfectly good one.

The issue is that now the process is followed out of the good graces of the tribunal. It is their policy. They do not have to follow it; they follow it but they could stop following it tomorrow. If it is in the regulations, they are required to follow it.

They are following it now anyway. The question is whether a person should have the right to receive that notice or whether their right should be dependent solely on the discretion of the tribunal.

Similarly, in the other points, a fundamental cornerstone of this committee has always been that subjective discretions should be removed from regulations. There is a huge difference in law between allowing something to happen where the minister decides this is the circumstance, and saying that the minister is of the opinion that this is the circumstance.

If someone wants to challenge that issue in court in the second case, all the minister has to say is, that was my opinion. The test is satisfied. If the test is whether those circumstances existed, then the court can review whether they existed in actual fact.

The committee, over the past 30 years, has objected uniformly to those sorts of discretions wherever they have been included in regulations and, I would suggest, they have been taken out of literally dozens of regulations over the years.

That point may seem like a small technical, lawyer-type of thing but it significantly changes the rights of a person who may wish to challenge a particular decision, whether it is taken by a bureaucrat, a minister, a tribunal or whomever. I suggest in this case that, while some of these points are housekeeping suggestions, others have a principled reason for having been made and are consistent with positions the committee has taken over the years.

Senator Bryden: Over the years, I think we have tried to reach a balance where this committee is not picking at nits. The real reason is not that some of them do not deserve being picked but that we want to be sure, when we move on an issue, the issue is substantive, and something that needs to be dealt with.

I am in favour of our counsel bringing to us situations that may be somewhat controversial as to whether we can get by without bringing that issue to someone's attention because there is a question as to whether it is housekeeping or administration. Have counsel bring items to the committee if there is any question, rather than us developing a situation where there is a demand on almost every instance; that none of what counsel brings forward to us are things that perhaps are not of sufficient substance to take up the committee's time or, indeed, interfere with the functions of a body, department or whatever.

For that reason, I agree with the approach that counsel has suggested and proceed in that manner. Perhaps, we can end up with a cleaner and more workable result by moving that way.

I wanted to put that view on the record. I agree with Senator Eyton to some extent that we want to be cautious that we draw a line that is elastic; it moves a little bit today and, the next time, it moves a little further. I would rather that, if there is an issue, it comes here and that we deal with it significantly and as completely as we can.

I support the position that counsel has suggested.

The Joint Chair (Senator Eyton): Are there other comments?

Mr. Young: I served on one of these tribunals, a provincial tribunal, the Alcohol and Gaming Commission of Ontario. The overriding concern in the tribunals is procedural fairness for the applicants.

I have been reading through these suggestions. I think they all will lead the tribunal to have a fair and more open process. I have no problem with that result and I would recommend counsel's suggestions, as well.

The Joint Chair (Mr. Kania): In my view, as counsel suggests, we are trying to make things better and as reasonable and fair as possible. There is always a difference between working with departments, trying to improve things and then taking the final step of disallowance.

We may not ever need to take that final step. We may compromise and work with departments but that does not mean we should not try to improve things in the interim because, hopefully, we can accomplish this goal through cooperation in any event. I support the approach from that perspective.

I personally like counsel to be vigilant in bringing any potential problems or improvements to us, and we can always decide whether there is a problem that needs to be pursued. I would rather know that they have brought it to us rather than counsel having concerns about whether they should not bring forward something and something is missed because they have not done their job properly.

The Joint Chair (Senator Eyton): Are we agreed?

Hon. Members: Agreed.

SOR/2004-122 — REGULATIONS AMENDING THE CERTIFICATION OF ORIGIN OF GOODS EXPORTED TO A FREE TRADE PARTNER REGULATIONS

SOR/2004-127 — REGULATIONS AMENDING THE TARIFF ITEM NOS. 9971.00.00 AND 9992.00.00 ACCOUNTING REGULATIONS

SOR/2004-128 — REGULATIONS AMENDING THE TEMPORARY IMPORTATION (TARIFF ITEM NO. 9993.00.00) REGULATIONS

SOR/2004-129 — CCRFTA VERIFICATION OF ORIGIN REGULATIONS

SOR/2005-257 — DEFINITION OF "SETTLER" FOR THE PURPOSE OF TARIFF ITEM NO. 9807.00.00 REGULATIONS

(For text of documents, see Appendix F, p. 2F:1)

Mr. Bernhardt: I despair of trying to explain this one. The issue common to all these instruments is whether they were made on the recommendation of the appropriate minister. At the time of making, the enabling provisions expressly stated that the Governor-in-Council can make regulations on the recommendation of the Minister of National Revenue.

However, the first four regulations were made on the recommendations of the solicitor general and the fifth was made on the recommendation of the Minister of Public Safety. Subsequent to the making of these regulations, Parliament amended the two enabling provisions in the statute so the Minister of Public Safety now has the authority to recommend the making of all these regulations. However, these amendments do not apply to regulations made before Parliament amended the acts.

The Canada Border Service Agency maintains that the regulations were properly made on the recommendation of the minister authorized to do so because of a series of Orders-in-Council made under the Public Service Rearrangement and Transfer of Duties Act, which transferred certain portions of the Canada Customs and Revenue Agency to the Canada Border Services Agency.

For the agency, this also had the effect of transferring the powers of the minister to make recommendations under the Customs Act and the Customs Tariff. They say this transfer follows from the fact that employees responsible for advising on the regulations had been transferred and because employees can advise only their own minister, authority to recommend the regulations to the Governor-in-Council must also be considered to have been transferred by implication.

The note prepared for members this morning explains in some detail why this conclusion is dubious, to say the least. The Public Service Rearrangement and Transfer of Duties Act clearly distinguishes between transfer, control and supervision of a portion of the public service and transferring powers and duties. If the one flowed from the other, there would be no need to make this distinction. Indeed, there have been a number of similar transfer orders in the past that have been drafted so as to transfer control and supervision, as well as to specified powers and duties.

The simple fact is, that was not done here. The agency seeks to rely on a Federal Court judgment in the Branigan case. The note explains that the judge's reasoning in this case runs counter to two previous opinions of Federal Court judges and, therefore, seems to have been poorly considered.

In the end, I suggest that the agency's most recent reply includes little to cause the committee to change its opinion. It is already unusual for Parliament to permit orders made by the Governor-in-Council to modify a statute. It is difficult to accept that this modification can be accomplished moreover simply by implication, as the agency argues. Control and supervision of certain parts of the public service clearly was transferred. Powers and duties, including the power to recommend the regulations, could also have been transferred. Here it was not.

The simplest way of remedying the problem would be for the Governor-in-Council to re-adopt the orders. There are some issues, perhaps, as to what went on in the past. It is possible that some people benefited from reductions in duties that had to be paid based on illegal regulations. In that case, these people would still technically owe a debt to the Crown. This debt can be erased through a remission order adopted by the Governor-in-Council. Another possibility would be for Parliament to intervene through retroactive legislation correcting the matter.

At this point, I suggest it be drawn to the attention of the minister responsible for the Canada Border Services Agency.

Finally, there is another outstanding promised amendment on one of these files that should be followed up. That is SOR/2004-129. The retroactive application of this particular instrument is also at issue. The agency has declined to respond on this aspect, pending a resolution of the validity issue more generally. I suggest a reply dealing with this particular matter could be sought from the minister, as well.

The Joint Chair (Senator Eyton): Are there comments or questions?

Mr. Lee: I want to ask counsel something. By the way, the issue in this file is similar, if not identical, to the one that is in the following file.

Mr. Bernhardt: Exactly, yes.

Mr. Lee: Section 3 of the Public Service Rearrangement and Transfer of Duties Act seems to say that if a component of the public service is transferred from one department to another, which happened in this instance, then it is deemed that the powers of the minister also are transferred. I use the word "deemed" but as I look at it, I cannot find that word. The section purports to transfer the ministerial authority and power for that component of the department or ministry to the new minister who has the responsibility.

As I read it generally, is that not precisely what happened? Responsibility for this particular trade administration envelope was transferred from the Minister of Foreign Affairs to the Minister of International Trade. Before there was a formal reconfiguration of the departments, the Minister of International Trade purported to execute an instrument under the former minister's authority, but it was after the responsibility of the department was transferred.

In layman's terms, they have it covered in section 3. They describe the change in administration and, following the change in the administration, the new minister has the authority. The department said that the new minister exercised that authority in the absence of a formal regulation transferring ministerial authority from minister A to minister B. The transfer of the administrative components did not happen by regulation as a result of section 3, resulting in the transfer of the administrative authority under the statute. That is their interpretation.

Section 3 is not a regulation; it is a statute. We may take the position that section 3 is a no-go provision in the statute. However, if the statute lives and has the authority, then, as I read it, I am inclined to accept the departmental position. I put that to counsel.

Mr. Bernhardt: The short answer is that we read it differently than the agency reads it.

Mr. Lee: Where is the difference?

Mr. Bernhardt: The result of this transfer is to amend an act of Parliament by order and by implication. To say that the Governor-in-Council may amend an act of Parliament by implication is a highly significant power to give. Given two competing interpretations, a parliamentary committee should be careful before it interprets whereby the executive can amend statutes of Parliament by implication. They have the power to do it expressly; there is no question. If they wish to transfer the powers and duties, they can make an order transferring these powers and duties. There is no question they can do that.

We are saying that if they do so, it must be done clearly and expressly. They could have done it here as they have done it in many other orders. However, for some reason it was omitted in this instance, and we find that to be significant.

Mr. Lee: Does counsel not think that section 3 covers it?

Mr. Bernhardt: No.

Mr. Lee: Do you think that no matter how hard I read and parse section 3, I will not end up with a good legal basis?

Mr. Bernhardt: We could go through it. We have spent a great deal of time in meetings with officials from the agency to discuss this issue. It is significant from the government's side as well. Certainly, they would like to move these things around by implication and not have to worry about what the act states. We suggest that the power is an extraordinary one, and if it is to be exercised, it must be done expressly.

Mr. Lee: Counsel used the term "by implication," but it is a de facto result. For example, if I take this tribunal that we considered in a previous file and I flip it over and decide that it will be part of the Department of Public Works and Government Services, then the Minister of Public Works and Government Services will have the authority of the previous minister.

Mr. Bernhardt: Yes, that would be so for all matters administrative. However, if the minister is to exercise a law- making power given expressly to the minister by an act of Parliament, and if they want to change that, the presumption in the face of clear wording to the contrary in the Public Service Rearrangement and Transfer of Duties Act, which we have concluded is not present, then they have to say that in the transfer order. That has been the practice, but for some reason, it was not said in this instance.

I do not want to pile on the agency but their argument is ex post facto. It is my view that someone likely forgot to include it and, rather than fix the mistake, they are trying to mount an argument as to why they did not have to include it in the first place.

Mr. Young: I am new on this committee, as everyone knows. It seems to me that with most of these discussions, counsel presents an argument that goes to the agency or to the ministry, and the agency or ministry has someone who spends at least one week writing a letter back to counsel in defence of a position that is often non-defensible. Do they ever write back in agreement?

Mr. Bernhardt: Yes, the committee spends 99 per cent of its time on 1 per cent of its files. We present the good news at the end of the agenda. It is a bit misleading in that the committee will spend only 30 seconds on all that good news, having spent an hour and a half on all the bad news. Items under Action Promised on the agenda and items without comment have no problems in the first place. They are the successes.

Mr. Young: We deal with only 1 per cent.

Mr. Bernhardt: The unfortunate reality is that we come to the committee with all the problems or perceived problems, as the committee may decide.

Mr. Young: For the record, this problem is worth fixing.

Senator Hervieux-Payette: A few ministries are culprits year after year, and I do not understand why they have not made corrections. We never hear from some ministries whose regulations are kept in order as they go along. Other ministries are not as clear. For some departments I can understand there are political reasons for not being clear but for others, it is difficult to understand why the technicalities are not changed. Certainly, it would give us less work if these matters were dealt with appropriately.

The Joint Chair (Senator Eyton): Are there other questions or comments? We have heard counsel's recommendation. Are members agreed?

Hon. Members: Agreed.

SOR/2005-329 — ORDER AMENDING THE ALLOCATION METHOD ORDER (BEEF AND VEAL)

(For text of document, see Appendix G, p. 2G:1)

Mr. Abel: This file concerns the same issues as the last file. The instrument was made under the Export and Import Permits Act by the Minister of International Trade at a time when the minister designated under the act to make those orders was the Minister of Foreign Affairs.

Before this instrument was made, an order was made under the Public Service Rearrangement and Transfer of Duties Act, transferring control and supervision of the policy branch, advising on this matter to the Minister of International Trade, and transferring the powers of the minister under the Department of Foreign Affairs Act. The problem is that the order never addressed the Export and Import Permits Act and never transferred anything under that act.

The department's argument is that because control and supervision of the policy branch was transferred, then implicitly the ministerial powers designated under the Export and Imports Permits Act were transferred also. For the reasons we discussed on the previous file, we deem this argument incorrect.

On this file, the order has been replaced by more recent orders properly made by the Minister of Foreign Affairs, in which case the matter may be moot. It is up to the committee to decide whether the issue needs to be pursued under this file. If not, the file can be closed.

Senator Moore: They have eventually done what you wanted them to do, is that correct?

Mr. Abel: They have not taken any action on this item. However, before we dealt with it, they already replaced it by the new orders made by the proper minister.

Senator Moore: Yes, maybe we should write them back and thank them for doing that; they have done what we asked — to be on record.

Mr. Abel: I think in this case, the reason they did that is because, when they made the subsequent orders, the two departments had been merged back together at that time.

Mr. Bernhardt: It was an accidental fix, but it was a fix, nonetheless.

Senator Moore: I would let them know that the fix was in accord with what we suggested.

The Joint Chair (Mr. Kania): And that we will be watching.

The Joint Chair (Senator Eyton): Is it agreed?

Hon. Members: Agreed.

SOR/94-785 — RETIREMENT COMPENSATION ARRANGEMENTS REGULATIONS, NO. 1

(For text of document, see Appendix H, p. 2H:1)

Mr. Bernhardt: Four points were raised in the June 2007 letter. Amendments on the last two were promised. A progress report on these amendments appears to be in order.

The more recent April 21, 2008, reply responded to points one and two. These points are discussed in a covering note. Point one concerns section 12(2). We questioned the validity of this provision. It provides for the withholding of benefits in order to recover an amount owing under the regulations.

The department seeks to rely on section 15 of the act, which states that "Every person who is subject to a retirement compensation arrangement is required to" make contributions by reservation from "salary or otherwise." The department is of the opinion that the words here "or otherwise" implicitly authorize section 12(2).

It is suggested this is not correct because section 15 deals with how contributions are to be paid by the person, as opposed to how debts can be recovered by Her Majesty. These are two different things.

When the Crown acts as a creditor, it has the same rights as anyone else and only those rights, unless there is a statute clearly providing otherwise. Reservation from salary is a recovery method. I think it is distorting things to refer to it as a contribution method. That is that point.

Under section 20(7), some clarification was sought as to whether this provision duplicated section 24(1) of the act. The departments explained why this is not the case. However, the explanation seems to indicate that it is a duplication of part of section 25 of the act.

The department then went on to conclude that the regulations should be reviewed in light of sections 24 and 25 of the act. It is not clear whether this review applies to both these points or only the second one.

Perhaps we can write back to the department, raising these two concerns and seeking clarification as to whether this review is to involve both these points or only the second one.

The Joint Chair (Senator Eyton): Are there any comments?

Mr. Lee: In the first issue in this memo, counsel did not seem to give any recognition to the potential for common law right of setoff on the part of the government. I appreciate that our goal is to keep the regulations pristine and within the law, but the law also includes the common law. The department did not raise setoff as an issue, either. Is that not an issue here, if push comes to shove?

Mr. Bernhardt: We mentioned it in passing. We noted that, as a creditor, the Crown has the same rights as anyone else. Those rights include the general rights under common law to seek remedies through the courts.

Mr. Lee: Not even through the courts; they keep what they are owed. If party A owes party B money, and party B comes into some monies of party A, party B — subject to the contract between A and B — has the right to keep it as a setoff.

Mr. Bernhardt: I am saying if there was a dispute over that, it would be something one would take to the court to resolve.

Mr. Lee: They do not have to go to court; they just keep it. That is the point. The law allows them to keep it.

Mr. Bernhardt: Yes, but if I dispute your right to do it —

Mr. Lee: Anyone can go to court.

Mr. Bernhardt: You are right. We are outside the regulations and the statute at that point. We are dealing with remedies that will exist independently and are perfectly usable by the Crown in those circumstances.

Mr. Lee: I will go with the flow on this item.

The Joint Chair (Senator Eyton): Are there any other comments?

The Joint Chair (Mr. Kania): Are we agreed?

Hon. Members: Agreed.

SOR/2002-25 — REGULATION ADAPTING THE CANADA ELECTIONS ACT FOR THE PURPOSES OF A REFERENDUM

(For text of document, see Appendix I, p. 2I:1)

Mr. Abel: Eight points were raised on this file. In response to points one to three, seven and eight, Elections Canada has agreed to make promised amendments.

It is suggested that the replies to points four, five and six are satisfactory. The explanations show how their choices in adapting the act fit into the scheme of the act — quite well, actually.

All that we need on this file, if the committee agrees, is to follow up on the promised amendments.

The Joint Chair (Senator Eyton): Is it agreed?

Hon. Members: Agreed.

SOR/2003-39 — NATIONAL ENERGY BOARD PROCESSING PLANT REGULATIONS

(For text of document, see Appendix J, p. 2J:1)

Mr. Abel: Fifteen points of concern were raised in connection with these regulations with the National Energy Board. Amendments were promised to address points 4 to 6, 9, 10, 13 and 14, as set out in counsel's initial letter. These issues concern corrections or explanations for drafting issues, except for point 6, which is a more substantial issue. The department disagrees but they have agreed to revoke the provision anyway.

It is suggested that the board's explanation concerning the first point is correct, and that unsatisfactory replies were received with the remaining points. Points 2 and 3 concern French and English equivalency, and points 7, 11 and 12 relate to record handling and retention requirements. The board's answer seems to emphasize that clarification is needed in these provisions.

Point 15 deals with the terms "suspend" and "deactivate" in the regulations. The board's reply indicates that they have complex definitions of these terms. It would seem the terms also need to be explained in the regulations, that more robust definitions need to be applied.

Finally, in connection with the eighth point addressed on the second page of the note, an explanation was sought concerning the difference between the terms "quality control" and "quality assurance," which are not defined in the regulations. The board states they are distinct terms, and it provides somewhat vague definitions.

It seems that quality assurance means a set of standards applied to the products and services, and quality control means the programs designed to maintain that quality assurance. The question for the committee is whether the meaning of these terms are sufficiently clear to a person governed by the regulations, which most likely would be a plant operator.

The Joint Chair (Senator Eyton): What is your recommendation?

Mr. Abel: We find the terms somewhat vague, but it is a specific regulation directed only at people in the industry. I honestly cannot say whether people in the industry would have a proper understanding of these meanings, or whether it would be somewhat flexible.

Mr. Lee: I thought counsel's suggestions here were all good in terms of clarifying, but in terms of where the rubber hits the road, we are dealing with a sector that I think knows the difference between "deactivate" and "suspend." That situation appears to be the case. However, having the definitions in the regulations would probably help a lot.

I think the best route is for counsel to pursue that deactivate-suspend issue — and any of the others, with discretion. I thought some of this item was entering a micromanaging scenario that we did not need to enter, but the suggestions by counsel were all good.

If the National Energy Board wants to take up any of these suggestions, that is great. Otherwise, we can deal with the item at a later date. Counsel does not have any firm recommendations. I would stick with item 15 and walk from the rest.

The Joint Chair (Mr. Kania): Because we have only a couple minutes, let us skip to agenda item 5, Reply Satisfactory, and item 6, Progress.

Senator Moore: What did we decide with the last one? Are we writing a follow-up letter, a soft letter?

The Joint Chair (Mr. Kania): I assume we will do that.

The Joint Chair (Senator Eyton): Are we agreed?

Hon. Members: Agreed.

SOR/2006-50 — CANADIAN FORCES MEMBERS AND VETERANS RE-ESTABLISHMENT AND COMPENSATION REGULATIONS

(For text of documents, see Appendix K, p. 2K:1)

The Joint Chair (Mr. Kania): We will bring SOR/2006-50, Canadian Forces, back next time.

Mr. Bernhardt will give us a brief rundown of the rest.

SOR/2002-242 —REGULATIONS AMENDING THE LAURENTIAN PILOTAGE AUTHORITY REGULATIONS

(For text of documents, see Appendix L, p. 2L:1)

Mr. Abel: This order was a strange one in that it was made in a fashion we do not see regularly: It was a ministerial order published and registered amending proposed or draft regulations. In this case, the Privy Council Office explained that they took the benefit of the doubt in the registration and publication because it seemed to have a legislative character in that it restricted the pilotage authority's ability to then subsequently make the regulations. We think that this explanation makes sense and there is no harm in taking that action.

Senator Moore: Let us close the file.

The Joint Chair (Mr. Kania): Are we agreed to close it?

Hon. Members: Agreed.

SOR/2007-109 — ORDER AMENDING SCHEDULE 1 TO THE CANADA SHIPPING ACT, 2001 (MARITIME LABOUR CONVENTION, 2006)

(For text of documents, see Appendix M, p. 2M:1)

Mr. Abel: In this instrument, the issue concerns tabling. The tabling was not done in the houses in the required statutory time frame. The department replies that it was administrative oversight and they have taken corrective measures to ensure that it does not happen again.

We can close the file if the committee finds this reply acceptable. Counsel, of course, will always continue to monitor these obligations.

Hon. Members: Agreed.

The Joint Chair (Mr. Kania): Close it.

SOR/80-127 — NATIONAL PARK CAMPING REGULATIONS

SOR/96-169 — NATIONAL PARKS HIGHWAY TRAFFIC REGULATIONS, AMENDMENT

SOR/96-170 — NATIONAL PARKS GARBAGE REGULATIONS, AMENDMENT

SOR/96-245 — NATIONAL PARKS FISHING REGULATIONS, AMENDMENT

SOR/97-111 — REGULATIONS AMENDING THE NATIONAL PARKS FISHING REGULATIONS

SOR/98-268 — REGULATIONS AMENDING THE NATIONAL PARKS FISHING REGULATIONS

SOR/99-352 — REGULATIONS AMENDING THE NATIONAL PARKS FISHING REGULATIONS

SOR/97-102 — REGULATIONS AMENDING THE NATIONAL PARKS WILDLIFE REGULATIONS

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

SOR/2003-302 — REGULATIONS AMENDING THE NATIONAL PARKS FIRE PROTECTION REGULATIONS

SOR/2004-299 — REGULATIONS AMENDING THE NATIONAL PARKS AIRCRAFT ACCESS REGULATIONS

SOR/2004-301 — MINGAN ARCHIPELAGO NATIONAL PARK RESERVE OF CANADA SNOWSHOE HARE REGULATIONS

SOR/2005-204 — GROS MORNE NATIONAL PARK OF CANADA TIMBER HARVESTING REGULATIONS

SOR/2005-205 — GROS MORNE NATIONAL PARK OF CANADA SNOWSHOE HARE REGULATIONS

(For text of documents, see Appendix N, p. 2N:1)

Mr. Bernhardt: We have 14 items under Progress, all relating to the Parks Canada Agency. They have taken to replying to the committee's concerns all at once. All 14 before the committee this morning are to be addressed in an upcoming miscellaneous amendments order. There are 11 other files that will have more substantive concerns that will come back to the committee one at a time.

At this time, we suggest writing back and seeing where progress is on this miscellaneous order to close these 14 files.

The Joint Chair (Mr. Kania): Are we agreed?

Hon. Members: Agreed.

SOR/2000-290 — REGULATIONS AMENDING THE CANADA STUDENT FINANCIAL ASSISTANCE REGULATIONS

(For text of documents, see Appendix O, p. 2O:1)

Mr. Bernhardt: Again, progress on the amendments seems to be ongoing and we will follow up to see where they are at.

The Joint Chair (Mr. Kania): Are we agreed?

Mr. Lee: Agreed.

SOR/95-228 — GOVERNMENT AIRPORT CONCESSION OPERATIONS REGULATIONS, AMENDMENT

(For text of documents, see Appendix P, p. 2P:1 )

SOR/98-562 — REGULATIONS AMENDING THE AIRPORT VEHICLE PARKING CHARGES REGULATIONS

(For text of documents, see Appendix Q, p. 2Q:1)

SOR/2003-224 — REGULATIONS AMENDING THE PACIFIC PILOTAGE REGULATIONS

(For text of documents, see Appendix R, p. 2R:1)

SOR/2006-188 — REGULATIONS AMENDING THE CANADA LANDS SURVEYORS REGULATIONS

(For text of documents, see Appendix S, p. 2S:1)

SOR/2006-231 — REGULATIONS AMENDING THE CANADA LABOUR STANDARDS REGULATIONS

(For text of documents, see Appendix T, p. 2T:1)

SOR/2006-256 — REGULATIONS AMENDING THE LIFE SAVING EQUIPMENT REGULATIONS

(For text of documents, see Appendix U, p. 2U:1)

Mr. Bernhardt: Under Action Promised, we have 16 promised amendments in connection with these six instruments and we will ask for progress reports after the meeting.

The Joint Chair (Mr. Kania): Is that acceptable?

Hon. Members: Agreed.

SOR/2006-258 — REGULATIONS AMENDING THE PUBLIC AGENTS FIREARMS REGULATIONS

(For text of documents, see Appendix V, p. 2V:1)

SOR/2007-228 — REGULATIONS AMENDING THE CONTROLLED DRUGS AND SUBSTANCES ACT (POLICE ENFORCEMENT) REGULATIONS

(For text of documents, see Appendix W, p. 2W:1)

SOR/2008-112 — REGULATIONS AMENDING THE REGION OF WATERLOO INTERNATIONAL AIRPORT ZONING REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix X, p. 2X:1)

SOR/2008-140 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PART IV)

(For text of documents, see Appendix Y, p. 2Y:1)

SOR/2008-241 — REGULATIONS AMENDING THE ATLANTIC PILOTAGE TARIFF REGULATIONS, 1996

(For text of documents, see Appendix Z, p. 2Z:1)

Mr. Bernhardt: Under Action Taken, we have five instruments that make a total of five requested amendments and, in addition, the document required to be tabled in connection with SOR/2006-258 was, in fact, finally tabled shortly after the failure to do so was drawn to the attention of the RCMP.

SI/2008-21 — ORDER DESIGNATING THE PRESIDENT OF THE QUEEN'S PRIVY COUNCIL FOR CANADA AS APPROPRIATE MINISTER WITH RESPECT TO THE CANADIAN TRANSPORTATION ACCIDENT INVESTIGATION AND SAFETY BOARD FOR PURPOSES OF THE ACT

SI/2008-22 — SCOTT MITCHELL REMISSION ORDER

SI/2008-23 — CERTAIN FOREIGN MARINE CARRIERS REMISSION ORDER

SI/2008-24 — ORDER FIXING FEBRUARY 22, 2008 AS THE DATE OF THE COMING INTO FORCE OF THE ACT

SI/2008-28 — SALE OF THE DIGBY FISHERMAN'S WHARF REMISSION ORDER

SI/2008-29 — ORDER FIXING JUNE 1, 2008 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE EXPLOSIVES ACT

SI/2008-30 — ORDER FIXING MARCH 3, 2008 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

SI/2008-33 — ORDER FIXING MARCH 8, 2008 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

SOR/83-448 — CANADIAN TRANSPORT COMMISSION GENERAL RULES

SOR/88-23 — NATIONAL TRANSPORTATION AGENCY GENERAL RULES

SOR/2006-230 — INTEREST RATES (EXCISE TAX ACT) REGULATIONS

SOR/2006-294 — ORDER AMENDING SCHEDULE 1 TO THE FIRST NATIONS GOODS AND SERVICES TAX ACT (2006-2)

SOR/2007-81 — REGULATIONS AMENDING THE CERTAIN RUMINANTS AND THEIR PRODUCTS IMPORTATION PROHIBITION REGULATIONS, NO. 2

SOR/2007-172 — REGULATIONS AMENDING THE OFFICIAL LANGUAGES (COMMUNICATIONS WITH AND SERVICES TO THE PUBLIC) REGULATIONS

SOR/2007-185 — ORDER AMENDING SCHEDULES 1 AND 2 TO THE FIRST NATIONS GOODS AND SERVICES TAX ACT (INNUE ESSIPIT AND WHITECAP DAKOTA FIRST NATION)

SOR/2007-186 — REGULATIONS AMENDING THE ONTARIO HYDRO NUCLEAR FACILITIES EXCLUSION FROM PART II OF THE CANADA LABOUR CODE REGULATIONS (OCCUPATIONAL HEALTH AND SAFETY)

SOR/2007-193 — RADIOCOMMUNICATION ACT (SUBSECTION 4(1) AND PARAGRAPH 9(1)(B) EXEMPTION ORDER (SECURITY, SAFETY AND INTERNATIONAL RELATIONS), NO. 2007-1

SOR/2007-195 — REGULATIONS AMENDING THE TELEVISION BROADCASTING REGULATIONS, 1987

SOR/2007-217 — REGULATIONS AMENDING THE CANADIAN WHEAT BOARD REGULATIONS

SOR/2007-222 — REGULATIONS AMENDING THE BROADCASTING DISTRIBUTION REGULATIONS

SOR/2007-248 — REGULATIONS AMENDING THE BROADCASTING DISTRIBUTION REGULATIONS

SOR/2007-265 — REGULATIONS AMENDING THE CANADIAN WHEAT BOARD REGULATIONS

SOR/2007-266 — REGULATIONS AMENDING THE FIREARMS MARKING REGULATIONS

SOR/2008-1 — REGULATIONS AMENDING THE PUBLIC SERVICE SUPERANNUATION REGULATIONS

SOR/2008-2 — REGULATIONS AMENDING THE PUBLIC SERVICE SUPERANNUATION REGULATIONS

SOR/2008-19 — REGULATIONS AMENDING CERTAIN RUMINANTS AND THEIR PRODUCTS IMPORTATION PROHIBITION REGULATIONS, NO. 2

SOR/2008-28 — REGULATIONS AMENDING THE RETIREMENT COMPENSATION ARRANGEMENTS REGULATIONS, NO. 1

SOR/2008-32 — REGULATIONS AMENDING THE CANADIAN WHEAT BOARD REGULATIONS

SOR/2008-33 — ORDER 2007-87-11-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2008-36 — REGULATIONS AMENDING THE INTEREST RATES (EXCISE TAX ACT) REGULATIONS

SOR/2008-38 — REGULATIONS AMENDING THE MARINE MAMMAL REGULATIONS

SOR/2008-39 — ORDER AUTHORIZING THE ISSUE AND DETERMINING THE COMPOSITION, DIMENSIONS AND DESIGNS OF A TWO DOLLAR CIRCULATION COIN

SOR/2008-40 — REGULATIONS AMENDING THE CANADIAN WHEAT BOARD REGULATIONS

SOR/2008-42 — REGULATIONS AMENDING THE PARI-MUTUEL BETTING SUPERVISION REGULATIONS

SOR/2008-52 — REGULATIONS AMENDING THE CANADIAN WHEAT BOARD REGULATIONS

SOR/2008-55 — ORDER 2007-66-12-01 AMENDING THE DOMESTIC SUBSTANCES LIST

Mr. Bernhardt: To conclude, we have listed 36 instruments under Statutory Instruments Without Comment which have been reviewed by counsel and found to comply with all the committee's criteria.

The Joint Chair (Mr. Kania): Are there any questions or comments? Good job, counsel. Do we have a motion to adjourn?

Senator Moore: So moved.

(The committee adjourned.)

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