---

Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 4 - Evidence, April 2, 2009

---

OTTAWA, Thursday, April 2, 2009

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

Mr. Andrew Kania (Joint Chair) in the chair.

[English]

The Joint Chair (Mr. Kania): The first thing we will deal with is the Australia trip. We have a budget proposal and a motion for members. We had a subcommittee meeting this week to discuss the various options. Three options were presented and the unanimous consensus of the persons present was that we would recommend what is known as option 2, which is a modified amount. That consensus is reflected in the motion to travel that we have before us.

If people want a chance to look at it, then we are open for any discussion on this trip and to propose a motion.

Mr. Saxton: How did you come up with the notion of splitting the cost?

The Joint Chair (Mr. Kania): The amount is the usual split between the House of Commons and the Senate.

Maxime Ricard, Joint Clerk of the Committee: The usual split for expenses arising from this committee between the two houses is 70 per cent to 30 per cent.

The Joint Chair (Mr. Kania): If you recall from the last meeting, a sheet was provided that had three options. The first option was the most expensive at $18,102 per person. There were two additional options and this one was the option in the middle.

Mr. Masse: I move the motion.

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

Hon. Members: Agreed.

SOR/2002-309 — ORDER AMENDING THE BRITISH COLUMBIA VEGETABLE ORDER

(For text of documents, see Appendix A, p. 4A:1)

Peter Bernhardt, General Counsel to the Committee: Mr. Chair, in March 2008, the joint committee heard from representatives of the B.C. Vegetable Marketing Commission, the National Farm Products Council and the Department of Agriculture and Agri-Food in connection with the continuing absence of any valid order from the commission fixing and imposing levies on persons engaged in the production and marketing of vegetables in interprovincial or export trade, although levies were collected in respect of vegetables marketed outside the province.

In the course of the meeting, the commission agreed to prepare and to put in place a federal levies order. The levies imposed under this order would mirror those imposed under the provincial legislation in respect of vegetables marketed within the province. As indicated in the council's September 12 letter, this undertaking has now been fulfilled. The order in question was registered as SOR/2008-244.

The committee also asked for a description of the respective roles and responsibilities of the National Farm Products Council and the Department of Agriculture and Agri-Food in connection with the Agricultural Products Marketing Act, as well as whether there were other boards in similar situations. The two letters sent last May, together with the enclosures accompanying them, give the requested information.

In a nutshell, the department is responsible for policy, while the council administers the act and assists boards in dealing with the federal regulatory process.

The council has also explained the steps it has now taken to make boards aware of their responsibilities under federal legislation and to identify other boards that may be delinquent. Apparently, there are 13 boards that might potentially have problems. Therefore, it might be appropriate to ask where the matter stands vis-à-vis these other boards. As far as the particular problem goes with the B.C. Vegetable Marketing Commission, matters seem to have been resolved successfully and, in the narrow sense, this file could be closed.

The Joint Chair (Mr. Kania): Does anyone not want to close it?

Mr. Lee: I want to close it, but I want to thank counsel and the committee. For the benefit of newer members of the committee, this file is about three years old and we had to call the witnesses from British Columbia to appear. However, it was a great success for our staff to resolve this matter so that the illegality and the potential for litigation are much reduced.

The Joint Chair (Mr. Kania): Does everyone agree to close it?

Hon. Members: Agreed.

SOR/2005-103 — BEEF CATTLE RESEARCH, MARKET DEVELOPMENT AND PROMOTION LEVIES ORDER

(For text of documents, see Appendix B, p. 4B:1)

Mr. Bernhardt: Mr. Chair, the Farm Products Agencies Act makes preapproval by the National Farm Products Council a condition to the making of an order by a farm products agency.

In fact, the act expressly states that an order that is required to be submitted for approval, but that is made before the council approves it, is of no force and effect. This particular order was preapproved by the council on March 17, 2005. The approval motion, however, stated that approval would come into effect only on the date that certain amendments to the Canadian Beef Cattle Research, Market Development and Promotion Agency Proclamation were registered pursuant to the Statutory Instruments Act. This date turned out to be April 14, 2005.

On March 21, 2005, the agency purported to make the order in question. Here again the agency's motion stated that the enactment of the order came into effect only on the date the amendments to the proclamation were registered, which was on April 14. The obvious intent was that the amendments to this order and to the other proclamation would come into effect at the same time.

The problem is that, when it indicated that approval of the order came into effect only on the date of the amendments to the proclamation being registered, the council, in effect, delayed its approval until April 14. This being the case, SOR/2005-103 was made without the council's approval on March 21 because that approval was not yet effective.

I draw an analogy to a regulation that has been made but states it comes into force on a later date. Yes, there is a regulation but that regulation cannot be enforced or relied upon until the effective date. The council claims that, because the preapproval motion and the agency's order making the regulations were both stated to come into effect only on April 14, the whole package of things crystallized together on that date.

The flaw in this argument, of course, is that, at the time the agency made the motion, there was no effective approval order. The agency simply had no authority to make the order regardless of the date it stated the order it sought to make would have effect.

The result is that the order — which is suggested, is of no force and effect, meaning that any levies collected under it would have been collected without authority — at the least, should be properly remade to put the collection of levies on a sound legal footing.

There is a subsidiary matter here: The council has advised that, from a practical perspective, the agency cannot collect levies until agreement is signed with each provincial board, and, apparently to date, only four provinces have signed agreements.

There is no doubt the agency can enter into these agreements. The problem is that, under the order, the liability — the obligation to collect, deduct and remit the levies — exists regardless. There is no mention of these agreements in the order.

They have created a legal obligation to pay, deduct and remit the levies while there is no possibility that people can comply with that obligation. In effect, it is guaranteed that, in all but four provinces, people cannot comply with the requirement as a practical matter. However, if it is intended that the levies will be effective only once an agreement is signed with a particular province, that intention needs to be stated clearly on the face of the order.

Ultimately, we suggest a further letter pursuing these questions. There are also two minor amendments promised previously and we can ask for progress reports on those amendments, as well.

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

Mr. Lee: I agree with counsel on the second subsidiary point but, on the first point, I always try to find a way for the department to be right. In this case, I am not sure they have put their argument strongly enough, and on the issue of whether their order was made, or is effective — and counsel points out that issue in his memo — I think counsel may be too religious. We can argue about that point. However, the order made by the Beef Council — it was made pursuant to the preapproval — uses certain words for some crazy reason. For instance, they used the word ``approval.'' They were not approving anything. They were enacting.

Mr. Bernhardt: Yes.

Mr. Lee: In that enactment, they use words like ``that this approval shall only come into effect on the date'' that the later amendments come in. This wording is wrong. They are not approving but enacting. They are saying that their enactment does not come into place or does not come into effect. However, the enactment does not exist.

Mr. Bernhardt: It exists but it has no effect.

Mr. Lee: It is hanging on the barn door. It has no force and effect. It is in the future at some point.

Mr. Bernhardt: Yet, it has been made.

Mr. Lee: If they want to call something conditional, they can say it was conditional. I know why counsel is sticking to his guns on this issue, but I think the intention and the unfortunate use of words allow me to conclude that the enactment was made pursuant to an approval. An approval clearly was given even though you called it a preapproval. Preapproval has no statutory meaning.

An approval was given and the enactment was made. Neither came into effect until a date in the future clearly stated in both. When that date happened — when the proclamation was amended — the enactment came into play.

It is not clear to me. Counsel is not saying the whole thing is ultra vires in a technical sense; he is saying the second order would be void because of the operation of the section in the act that states that a non-preapproved motion would be null and void. Yet this motion was approved; and it did not come into effect in an ultra vires way.

I ask counsel to have another look at that point, and maybe we can have a telephone conversation, as well. I think the department's position is stronger than their correspondence to date has shown.

Mr. Bernhardt: I think the situation here is the same as if Parliament passes an act and, at the end of that act, says, ``This act shall come into force on January 1, 2010.'' There is no doubt Parliament has passed the act. There is an act; it has been passed by Parliament. It is a law and it has been made. However, it has no effect. It is not a nullity; it simply has no effect yet.

I suggest here that the approval is the same: Approval was given and approval was stated not to have effect until April 14. Therefore, I submit that, before April 14, no action can be taken pursuant to that approval because the approval was not effective.

Mr. Lee: I shy away from the analogy because the case here is that it was not in force, not that it was not in effect.

Mr. Bernhardt: I suggest in this case —

Mr. Lee: Parliament uses the words ``enforce'' or ``enforce date.'' However, in this case, they simply said it was not in effect.

Mr. Bernhardt: If you have no effective approval, you have not approved it.

Ms. Cadman: We should recommend that we write back to them for clarification and take it from there. There seems to be a problem. This problem seems to be an ongoing one now and it has been dragging on, so maybe we should have them write back for clarification.

The Joint Chair (Mr. Kania): Are there any other comments? We will follow counsel's recommendation and we shall write back.

SOR/2008-114 — ORDER AMENDING SCHEDULE 2 TO THE PERSONAL INFORMATION PROTECTION AND ELECTRONIC DOCUMENTS ACT

(For text of documents, see Appendix C, p. 4C:1)

Shawn Abel, Counsel to the Committee: Correspondence from the responsible department on this file confirms this order was registered with the Clerk of the Privy Council 10 days after it was made. Although it fails to meet the seven- day period required by the Statutory Instruments Act, the validity of the instrument is not affected.

The department apologizes for failing to meet the registration requirement. Apparently, the Minister of Labour rarely makes an order and the department overlooked the registration deadline. It is stated that the requirement will be borne in mind in the future.

If the committee is satisfied with this explanation, the file can be closed. Counsel will continue to monitor these types of obligations.

The Joint Chair (Mr. Kania): Does anyone not want to close the file? It is so closed.

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

(For text of documents, see Appendix D, p. 4D:1)

The Joint Chair (Mr. Kania): This item is listed under Reply Unsatisfactory.

Mr. Bernhardt: This instrument imposed a 4.5-per-cent tariff increase. Because of an error, however, the amendments were not approved by the Governor-in-Council, as the Pilotage Act requires. The end result was that the increase was applied illegally from January 1 to January 31, 2007, when the problem was solved.

Transport Canada indicated that the Laurentian Pilotage Authority would reimburse any overpayments. Apparently, the authority balked at this reimbursement. When a request was made as to the amount reimbursed and when reimbursement would be completed, the authority stated it had taken a final decision in accordance with its authority and the principles of good corporate governance.

When specifically asked what the decision was, it refused to say and advised that it considered the matter closed. The chief executive officer of the authority has offered to appear in person to answer questions.

The chair could write directly to the authority and perhaps the minister, indicating the committee sees no reason why the requested information cannot be provided in writing; or the committee could take up Mr. Lanteigne on his offer to appear.

Mr. Saxton: When I first read this letter, I thought what nerve these people had to be so evasive. However, on second thought, maybe they did not want to put something in writing and that is why they are offering to come here in person. I am moving toward the thought that maybe they do not want to put something in writing.

We could write another letter and receive a similar answer, or we could ask them to come here. Since it is expensive and time-consuming for them to come here, I see no harm in sending one more letter.

I think the letter previously came from counsel. This time it could come from the committee chair. Perhaps it will have a bit more force; we do not know. Maybe we should try one more letter from the chair and if that does not work, ask them to come before the committee.

The Joint Chair (Mr. Kania): What about scheduling a time for them to come? Then, perhaps we could say if they have something to tell us before they come, we can cancel the date. That might give them a little encouragement to cooperate rather than having to come before the committee, so they know we are serious.

Mr. Saxton: I have no problem with that suggestion.

Mr. Masse: I think we should tell them to come to the committee and answer these questions. We can inform them that it will be on the public record; it will be broadcast.

I do not know about this particular pilotage authority, but I could spend probably two and half hours talking about different port authorities and the number of different evasive behaviours they take in accounting to the public. If it is the case that they do not want to put something in writing, they will come here and put it on the record instead.

We have no credibility if they can write a letter back like this one and dismiss us. This position is basically an appointed position on an authority. We should invite them to come to the committee and ask them the appropriate questions; maybe we will have a simple answer.

The frustrating thing is that it will cost the public money to bring them before the committee. The authorities are funded by the public as well. At the same time, we made a simple request in the past. The question is one for which the authority is accountable, and to disregard it is to disregard any type of authority of this committee.

[Translation]

Senator Hervieux-Payette: I support the idea of sending a letter from the chair inviting them to provide the final answer we are expecting. I find the circumstances that gave rise to this situation in particular to be a little evasive. It would let us find out what led to their interpretation. We do not seem to have any specific background. I do not think that we will get that in writing. We will only get it from the Chief Executive Officer. I would be surprised if he did not come.

There is also the question of airport operations in smaller centres. I feel that it is more important that airports operate smoothly than that the CEO has to pay for a day's expenses.

Mr. Galipeau: Mr. Chair, this correspondence shows that the writer is not only evasive, but that his behaviour is condescending, to this committee and to Parliament. I feel that the letter you are going to write to him should be stern enough to make him understand that he is a servant, not a master.

[English]

Senator Moore: I wonder about the timing, Mr. Chair. Whatever we do, we should do it promptly.

The Joint Chair (Mr. Kania): I agree with your comments. We have a two-week break now, so I assume we can schedule something for shortly after we return.

Mr. Bernhardt: Let me check. Two weeks from April 23 is May 13.

The Joint Chair (Mr. Kania): May 13?

Mr. Bernhardt: No, sorry, May 7.

Mr. Saxton: Is that date for them to come before us or for the letter to be issued?

The Joint Chair (Mr. Kania): I would ask them to come for that date. If they wish to provide us with a substantive letter that will satisfy us before that date, then we can cancel their appearance.

Mr. Lee: Mr. Chair, clearly there is a will on the part of the committee to play hardball here, and I agree with that. The pilotage authority does not understand.

I also agree with Mr. Masse that bringing them here without a game plan will waste their members' money. It is naive to think they will not bring their lawyer as well, which will be more money. It will be a junket to Ottawa to stand up for their members.

I think we should aim at their reasons for not repaying the money, which we believe was improperly or illegally collected. The reasons they give us apparently are buried in a board of directors meeting of July 18, 2007.

Therefore, I suggest we write back to them and do two or three things. We will copy the minister and the Department of Transport. We will tell them why we do what we do. We will clearly explain the mandate of the committee so they will not be in any doubt.

Second, we should order them to provide the minutes of their meeting of July 18, 2007, by a date certain — whenever counsel schedules the matter for a meeting — and notify them that failure to produce the minutes could constitute contempt of Parliament. Then we will have a chance to read why they do not want to pay back the money. That approach will at least turn up the pressure.

My suspicion is that they do not want these minutes to be made known. If they say there are matters in the minutes that should remain confidential, we can offer confidentiality to them for the purposes of commercial confidentiality of their members or other purposes. We can let the joint chairs decide. I would take that approach, and it will not cost us $5,000 to have a meeting.

The Joint Chair (Mr. Kania): I like the modification in terms of requesting the documentation. Will we ask for a date still for them to come but make it later to give them an opportunity to respond and to see if they give us a satisfactory response? At least they will know something is coming and it will put pressure on them.

Mr. Saxton: That sounds fine to me. We should say in the letter that if they decide to give us the information requested, then their trip may not be necessary, should they wish to settle.

Senator Hervieux-Payette: I do not think they have much goodwill. They supply the information or they come, but I do not think we should open the door. They do not know the role of this committee and should be advised of its role. This problem is a long-standing one in that region; it is not the first time. They may apply the rules in a different way.

I am in that region every week. There were problems that required the government to make some interventions. Therefore, there may be a lack of good will. Let us request that they come or send the information, but do not open the door to not coming. We do not know what kind of information they will supply.

Five weeks is a long time in my life. May 13 is satisfactory because if we go later than that, this will —

The Joint Chair (Mr. Kania): Drag on.

Senator Hervieux-Payette: It has already dragged on since 2006.

Mr. Saxton: I have the impression that they want to come here. As Mr. Lee suggested, if we send them a letter demanding information and also requesting that they appear before the committee, I think they are not likely to give us anything before they appear at the committee. They will save everything for their appearance at the committee and not give us anything in writing ahead of time because they want to come here.

That is why we have to be clear. We offer a double option — they can settle in writing without appearing or they can come. They have made it clear they want to come. Therefore, they are not likely to settle the issue in writing. We need to be careful about using all of our ammunition or strength in one letter.

We need to decide, do we want them to settle in writing or do we want them to come before the committee?

Mr. Galipeau: Are we in a position to ask them to send ahead of time whatever written information they plan to table?

Senator Moore: Including minutes.

Mr. Galipeau: The minutes, of course.

Mr. Saxton: Then we need a date.

Mr. Galipeau: May 13.

The Joint Chair (Mr. Kania): Counsel has advised that the next scheduled date we have is May 7 and the one thereafter is May 28.

Senator Moore: I think it should be May 7; May 28 is too late.

The Joint Chair (Mr. Kania): What I am hearing, by way of consensus, is that we will write a letter to them specifically setting out the mandate of this committee so they understand what we are about; ask them to produce any written report or documentation they may wish to rely upon at least the week before May 7; respectfully demand the July 18, 2007 minutes and advise them of the power we have to compel documentation; and require them to come before us on May 7, 2009.

Mr. Lee: I do not think we should call them to appear until we look at their records and analyze their position. I agree with Mr. Saxton. We do not have to do two things at once. I think this issue will turn into an enforcement action anyway. Mr. Chair, you said we would ``respectfully request.'' I suggest we order the production under section 108 of the Standing Orders of the House of Commons or under the Rules of the Senate. I do not think we should pussyfoot around. We should tell them we want the minutes of that July meeting and we want them by a certain date. Then counsel will review them and give his advice to the committee.

The Joint Chair (Mr. Kania): Our three options are that we have a faster meeting, a later meeting or no meeting at all until we have the documentation.

Are there any further comments on that point?

Mr. Young: I am concerned about the cost for the committee and their travel costs as well. I want to give them the opportunity to provide the information first.

Mr. Saxton: They seem to want to come here. Why should we simply jump to what they want to do?

I agree with my colleague Mr. Lee that the best way to proceed now is with a strongly worded letter from the chair indicating that they must produce those minutes. We always have the option in our back pocket to force them to come here, but let us not necessarily take that action right away.

Mr. Masse: The reality is that they will call the bluff of the committee. I see no option other than bringing them here. We will have to confront that reality. It is an unnecessary cost. I would say that the response is a hostile one to the committee's request, which was reasonable. I think it is unfortunate that it will cost the public money to do bring them before the committee, especially from an organization that relies on public money to begin with.

However, I do not see how we can send any type of letter and gain any respect because they have already said — rightly so — that they want to come to the committee. It is a show-down at the end of the day. We will not be able to avoid it, so let us get it over with. Bring them here and have them explain. If not, we will have to proceed with further action.

The Joint Chair (Mr. Kania): In terms of the cost, I point out that they are in Montreal.

Mr. Lee: My gut tells me there is a strong possibility that the matter can be resolved if we firm up by demanding the minutes.

As Senator Hervieux-Payette pointed out, there is a history here. This is, perhaps, one pilotage authority that might not want its minutes to be public for many good, public interest reasons, et cetera. I think demanding production will cause them to go to good legal counsel — someone who knows what they are doing — and cause them to do the right thing and consult with the Department of Transport, which has already said the authority will pay the money back.

Demanding production of those minutes will lead to a resolution without them having to come before the committee. I do not see why we need to have them come. Do members believe that appearing before us is somehow disciplinary in its impact or a cold shower?

I think we have a mandate. That is why I am reluctant to send them the tickets to Disneyland.

Mr. Szabo: Mr. Chair, in the time I have been on the committee, and having served as chair, one thing that concerns me is significant delays in the turnaround of correspondence. We have had battles with people who, I think, do not know who we are or what we do; nor do they care.

We have rights and responsibilities. One of those is to call for persons, papers and records. We may be able to resolve our situation by seeing those minutes. I do not think we need to explain, threaten or tip any hands. They have offered the information and advocated a position: Yes, we will pay the money back and the board said so, et cetera.

We should execute a formal request for the records pursuant to the authority of the committee under Parliament's rules, and ensure they understand that authority. Let us see if they challenge the authority of Parliament to call for those records. That will be the nail that shows they want to challenge the system on this issue.

Mr. Lee: It will be.

Mr. Szabo: I raise this point because it is not the first time this has happened and it will not be the last. We need to vet a process that will allow us to do our job in a timely fashion. A letter can go out quickly on this matter simply requesting the designated documents.

Mr. Dreeshen: Given that these deliberations are public, perhaps they might get the message simply by listening to what we are talking about here today. I think we can emphasize that.

Senator Moore: Further to what Mr. Szabo mentioned, Mr. chair, there is an issue of timeliness. I want the minutes be delivered to us within 10 days. They are in Montreal; it is only a two-hour drive.

We should put time frames on this request so they know it is serious. We want those minutes here.

The Joint Chair (Mr. Kania): I hear further consensus for a letter with a short deadline for the production of documents without actually compelling attendance, yet.

Mr. Galipeau: We have referred to specific minutes of a board meeting. There may also be auxiliary meetings around that board meeting, such as executive committee meetings, that may have happened before or following the board meeting. We should request those minutes, too.

We ought to have any pertinent minutes surrounding the board meeting of July 18, as well as the minutes of July 18.

The Joint Chair (Mr. Kania): We want any other minutes or documentation relating to this issue and the refusal to comply.

Senator Moore: Agreed.

Senator Dickson: Chair, any correspondence they have with any users ought to be sent, and I support Senator Moore regarding the 10-day idea.

Mr. Szabo: In my experience, I caution that if we ask for too many things, one of them will delay the whole thing. The minutes are fine. They will have to reflect the facts represented. If we start fishing for more, we give them cause for not meeting our deadline for reasonable purposes.

Mr. Galipeau: I agree except for the minutes of any executive meeting that took place before or after the board meeting. These minutes are all in the same file. Let us not kid ourselves.

Mr. Saxton: If we apply a short fuse — such as 10 days — I think we have to isolate the request to those minutes. If we ask for more documentation, we will have to extend the time limit.

The Joint Chair (Mr. Kania): Can we say 10 days for the minutes and 30 days for the rest?

Mr. Saxton: Ask for the minutes and, if they are not sufficient, then we ask for the rest. Let us receive the minutes in 10 days.

Mr. Lee: We do not even know what ``the rest'' is.

The Joint Chair (Mr. Kania): Right now, we will write the letter requesting only the minutes.

Mr. Lee: No, Mr. Chair, this is an order for production. We are not requesting. I will move a motion.

I suggest a little longer than 10 days because they will have a lawyer on retainer who will want to chew some of that up and start the meter running. Let us give everyone a chance to work at this issue.

I suggest that we allow them until Friday, April 24. I will move:

That the committee, pursuant to the Standing Orders of the House of Commons and the Rules of the Senate, order the Laurentian Pilotage Authority to produce true copies, certified by the authority, of the minutes of the meeting of the Board of Directors of the Laurentian Pilotage Authority on July 18, 2007, and that they be delivered on or before 5 p.m. on Friday, April 24.

Senator Moore: Agreed.

Hon. Members: Agreed.

The Joint Chair (Mr. Kania): The motion is carried.

Mr. Lee: In the order, we should make it clear that those documents are to be delivered to the clerk. We must specify that; otherwise it will not be clear to them. Can I ask that the motion be amended to make it clear that the documents that we are ordering production of are to be delivered to the Senate clerk, and that the location of the Senate clerk be shown at the bottom of the order?

Senator Moore: Agreed.

SOR/2005-200 — VETERANS BURIAL REGULATIONS, 2005

(For text of documents, see Appendix E, p. 4E:1)

Mr. Bernhardt: The amendment in question was initially forecast for late spring 2007 as part of a larger package. This time frame became February 2008. Then, last June, the department advised it would proceed at the next available opportunity.

Since then, however, I was told by telephone that the amendment was to be included in a miscellaneous amendments regulation that would also deal with several other concerns raised by the committee with respect to other regulations. This initiative was to be completed over the summer.

However, we are still waiting. Therefore, at the least, a progress report should be sought and a firm completion date provided.

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

Hon. Members: Agreed.

SOR/2002-228 — REFUGEE PROTECTION DIVISION RULES

(For text of documents, see Appendix F, p. 4F:1)

Mr. Abel: I will take these three sets of rules one at a time, but there will be some overlap.

As the covering note for SOR/2002-228 indicates, 26 points were raised with the Immigration and Refugee Protection Board concerning these procedural rules, which govern the Refugee Protection Division, a subsidiary tribunal of the board. The board promises to consider suggestions made for amendments in relation to 11 points but has no plans to amend the rules in the near future. Given that the board does not dispute the suggestions, perhaps it should be asked to confirm that it recognizes there are deficiencies and that an undertaking normally is expected to address such matters within a reasonable time frame.

It is suggested that satisfactory replies were received in relation to seven points. That leaves eight outstanding points, as detailed in the note.

First, in connection to point 6, it was noted that the rules provide unequal rights to refugee claimants with respect to the disclosure of their personal information to another claimant who is under assessment by the division. The source claimant, whose information the division wants to disclose, enjoys a right of notification of the disclosure and to object, and may also request the personal information of the receiving claimant. When sharing the personal information of the receiving claimant with the source claimant, however, the receiving claimant has no right to notification or to object.

The board suggests that this scheme improves the integrity of the process but it is difficult to see how the opposite is not the actual result. There appears to be no justification for refusing to provide a receiving claimant with the right to know of, and to object to, the sharing of the claimant's personal information.

In connection with this point, counsel also questioned the use of two standards of probability in the English version of the rules concerning the determination of whether disclosure could endanger a claimant. As the note indicates, the board's reply is incomplete regarding the intended meaning of one of the standards and appears incorrect in suggesting there is no difference between the French and English versions. Grammatically, the English version applies both standards to the question of whether an injustice may arise, while the French version clearly applies only one standard to that question. There appears to be no reason not to clarify the meaning of the English version by way of amendment.

In connection with point 7, the rules grant the division discretion to refuse to allow a refugee claim without a hearing, notwithstanding that certain criteria have been met and the refugee protection officer has recommended that the claim be allowed. The reply identifies an internal policy document listing classes of claims that should or should not be allowed without a hearing, but conflicting advice is provided as to whether this document is binding on the division. If the document sets out factors to be considered in the exercise of this discretion, there appears to be no reason not to include those factors in the rules.

The latest rely also seems to indicate that, notwithstanding the policy document, the division still enjoys other discretion as to whether to allow a claim without a hearing.

Further information should be sought as to why this discretion exists, and under what circumstances it would be exercised.

Point 16 relates to a requirement that a person must state how a summons is provided, despite that a summons is already required to be provided by hand. The board suggests that this provision is required either to confirm that the summons was provided by hand or to require details as to how it was provided by hand. In either case, the provision seems to require an amendment to clarify the intended meaning.

Points 17 and 18 relate to discretion provided to the division under the rules to refuse to issue a warrant or to allow an oral application at a proceeding, despite that the criteria set out in the rules for doing so have been met.

The board suggests that the division requires broad discretion and flexibility in deciding whether to exercise its discretion, even where the criteria are met. The board also suggests that administrative guidance may be used in the exercise of this discretion.

Therefore, it should be asked whether any documents exist in that regard and, if so, to provide copies to the committee.

In connection with point 19, the board agrees it is unclear in the rules how and when the division would specify the time period for alternative dates for a proceeding requested by a party. It appears that administrative commentary to the rules exists, which would clarify these matters.

It can be suggested, therefore, that the rules expressly include that information that is provided by the commentary.

Point 24 relates to the requirement that a notice of constitutional question include ``the relevant facts relied upon'' when the intended meaning is that only the material or important facts be provided.

The dubious argument is made that ``relevant'' can be taken to mean the same as ``material'' or ``important.'' However, it seems likely that it can be taken to mean all facts, rather than only the important facts must be provided.

Given that the board desires to avoid the term ``material,'' as it thinks it will be confusing to some applicants, perhaps it can be suggested that the wording ``important'' or ``key'' would be more suitable and relevant.

In relation to point 25, it was suggested that the grant of a general and broad discretionary power to the division under section 69 of the rules should include an express requirement to inform the parties of its intention to exercise that discretion and to provide an opportunity to object.

The board suggests that the general statutory requirement to comply with the principles of fairness and natural justice is sufficient in this regard. The committee has generally considered, however, that a general requirement to act fairly is no substitute for a specific procedural requirement set out in the law, as this requirement helps to avoid the possibility that a person will have to incur the time and expense in judicial proceedings to determine the exact content of their procedural rights.

Setting out the factors that the division must consider when exercising its discretion would only promote consistency, certainty and the perception of fairness. It would not curtail the ability of the division to make a necessary exercise of its discretion. If the committee agrees, a further letter can be drafted pursuing these matters.

Mr. Dreeshen: I believe we should send that letter. Are you waiting for all three of these things before we arrive at that stage?

Mr. Abel: I will run through each file. There are unique points on each file, but the next two have a number of overlap points and I will refer back to these points as well.

The Joint Chair (Mr. Kania): Is it agreed we send a letter?

Hon. Members: Agreed.

Mr. Lee: Are you disposing of all three files here?

The Joint Chair (Mr. Kania): That was only the first one.

Mr. Bernhardt: We will go through the next two as briefly as possible, but indicate where the points are the same as on the first file. Then the committee's decision on that one can follow for the others.

SOR/2002-229 — IMMIGRATION DIVISION RULES

(For text of documents, see Appendix G, p. 4G:1)

Mr. Abel: There were 15 points concerning these procedural rules raised with the Immigration Refugee Protection Board. Suggestions for amendments were made in relation to 6 points. As with the previous file, it might be appropriate to seek a firmer commitment from the board to pursue the suggested amendments.

Replies received concerning point 1 and point 12 can be considered satisfactory. Seven points remain outstanding.

The first, point 2, relates to the use of the word ``evidence'' and what types of evidence are intended to be captured in its meaning. The board has ruled out a summary of witness evidence, but is reluctant to replace the term with ``documentary evidence,'' which counsel suggested might improve clarity. It should be asked then what other types of evidence besides witness evidence and documentary evidence are intended to fall under this term.

In connection with point 5, the wording of section 9(1) seems to indicate that a party must apply to have a detention review held within the statutorily mandated time frame for such reviews. The board states that the intention is that they simply must apply to have an earlier review within that time frame. This intention is not clear from the provision, however, and it seems an amendment to provide greater clarity is warranted.

Two issues were raised in connection with point 7. It was suggested with respect to the first issue that the term ``hearing'' could be clarified to indicate that it includes a conference. Second, counsel suggested that the requirement that the division provide notice of a hearing date should also specify that the division provide that notice within a certain time.

The board seems to feel that in some cases the division would not be able to meet a fixed time frame due to contingencies of how the division operates. However, this explanation does not seem to justify the complete absence of a fixed time frame; it seems one could be implemented, with an exception on the basis of necessity.

Points 9, 10, 14 and part of 15 deal with matters discussed in the previous file. If the committee wishes, these issues can be pursued in the same manner.

Point 10 deals with the discretion granted to the division to refuse to issue a warrant unless the specified criteria are met. Again, it is suggested that the board should be asked whether administrative guidelines concerning this exercise of discretion exist and, if so, to provide copies.

Finally, regarding part of point 15, point 15 deals with the provision that allows the rules to authorize the division, among other things, to shorten a time limit after that time limit has already passed. The board states that it does not believe the provision can be read to allow such an act. However, there does not seem to be any reason not to clarify the plain meaning of the rules to state that this could not be the case.

Again, if the committee is in agreement, a further letter can be drafted.

The Joint Chair (Mr. Kania): Are there any comments? Is it agreed?

Hon. Members: Agreed.

Mr. Lee: Colleagues will note that we have three large files here. I did not want to read them in preparation for the meeting, but I had to. I appreciate all the work that counsel has done on these three files. It is a lot of work. Every one of counsel's suggestions would improve the workability, fairness, legality and appearance of these rules. There is no question.

However, having gone through all three of these files, my first reaction was that we could have separated the wheat from the chaff before bringing them to the committee. It probably would have saved a couple of trees in terms of paperwork.

I know we have the current state of these files, and if members are to dig into them, we must have the records and the words. Maybe there was no other way to present these files, but a number of points in these files are more form than substance.

Personally, I would have preferred to see the files mature a little more to get rid of some of the lighter items. I know counsel needs direction in many ways to eliminate these items. Having raised a point, counsel would not easily walk away from it.

This issue is an administration one, as opposed to a substantive legal issue. Does counsel have any comment on how we could do this otherwise?

Mr. Bernhardt: Obviously, at some point, a file has to come to the committee for direction. We prefer to write once, receive the reply and, at that point, take the issue to the committee. We do not want to go too far; then it becomes counsel's file as opposed to the committee's file.

Having said that, we sometimes make a judgment: If we write one more time, I think we can wrap this whole thing up and send it as a finished package. We make that judgment as to whether that is an appropriate thing to do in that case.

Given the number of points here, I think we did write back once or twice on this file already, so things had reached a point where the file must come to the committee. Frankly, I think counsel would prefer not to wade through these rules of procedure as well, but there it is: They make the rules, we read them.

Mr. Szabo: A large amount of work is required to put these files together. I do not know what we would do without the expertise of our counsel and staff.

I will not make excuses; we all have other things going on in our lives. However, some of these files that come before members look a lot more dangerous than they are. I support the point that Mr. Lee raised about possibly helping us to identify the things that are most important for us to rate and that we need to know. Even if we have to use coloured papers, it could indicate to us that if we read anything in the file, read this one. Sometimes, it is only the first page. Sometimes, it is not the first page, but the response in the third letter of the file.

This point is simply a substantive one. The turnaround schedule on committee can make it difficult for people to prepare and participate properly. I looked for the issue and could not find it, so I thought this file will probably have to go around one more time. This point is about how to facilitate files for the members of committee to ensure members focus on key documents.

Mr. Bernhardt: That is something we try to do when we prepare the notes, which are an attempt to boil down the dozens of pages of correspondence into three or four pages. However, it is difficult when we start with 26 objections in a multitude of categories including objections, promises and different explanations. In the notes, maybe we can fine- tune and highlight whether the issue is drafting, form, clarification or a substantive legal issue.

Mr. Lee: Thank you, Mr. Chair and counsel.

SOR/2002-230 — IMMIGRATION APPEAL DIVISION RULES

(For text of documents, see Appendix H, p. 4H:1)

Mr. Abel: Thirteen points were raised with regard to these procedural rules. It is suggested that satisfactory replies were received concerning points 1 and 8.

Suggestions for amendments were made in relation to three points. Of the outstanding points, point 2 is a drafting issue. It is suggested that some amendment is required still for clarification. Points 6 and 7 relate to the discretion granted to the division. We are seeking more clarification whether factors can be put into the rules.

Points 5, 9, 10, 12 and 13 deal with matters addressed in the previous two files. It is suggested a further letter go out pursuing to these matters.

The Joint Chair (Mr. Kania): 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 I, p. 4I:1)

Mr. Abel: Twenty-two points were raised regarding these regulations. Drafting concerns were identified on 13 points. Amendments are promised, but there is no firm date when they might be forthcoming. Perhaps that can be pursued. Satisfactory replies were received in relation to points 8, 15 and 22. In each case, questions raised by counsel were resolved by reference to the statute. A full reply is still forthcoming on point 20, and counsel can follow up seeking that reply.

As for the remaining points, a detailed analysis can be found in the covering note. The first point relates to English- French equivalency. While the department has promised amendments, we need to firm up exactly which provisions they will amend. We have also noted inconsistencies in the usage of the same terms in the act. We want to follow up and suggest amendments to the act as well. Point 5 also deals with discrepancy between the English and French versions. It is suggested that, perhaps, the English version can be amended since the department is reluctant to amend the French version.

Point 16 relates to the power to prescribe amounts. What has been done here is to prescribe a formula that includes a variable, which changes from year to year, and we suggest that it is not within the power to prescribe an amount since an amount cannot be ascertained for future years. The formula is necessary for the functioning of the benefits scheme in this case. Perhaps, it can be suggested, as it was previously, that the department should seek an amendment to the act authorizing this approach.

Finally, three concerns were raised in connection with point 18. Reply to the first issue is still forthcoming. I suggest that a satisfactory reply to the second issue was received. Their approach was, in fact, intentional. On the third issue, counsel had suggested the elimination of duplication in the regulations. The department does not see duplication. However, in this conclusion, the department has to read in a certain implication into how the provision applies. We suggest there is no reason not to amend the provision to make clear how it should apply.

To conclude, we suggest drafting a further letter pursuing these matters.

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

Hon. Members: Agreed.

SOR/2006-157 — ORDER AMENDING THE SCHEDULE TO THE INSURANCE COMPANIES ACT

(For text of the documents, see Appendix J, p. 4J:1)

Mr. Bernhardt: Chair, we noted three discrepancies here between the English and French versions. An amendment on the first discrepancy has been promised. We propose pursuing points 2 and 3. At this point, I am perfectly willing to walk through the nuances of these discrepancies and discuss why we consider the replies unsatisfactory, if members wish. Otherwise, I suggest we pursue them in a further letter.

Mr. Lee: I was rather easily convinced by the department here. I was willing to give them a pass on everything here, but counsel is being —

Mr. Bernhardt: I can go through the file briefly if you wish, Mr. Lee.

Mr. Lee: Okay.

Mr. Bernhardt: On point 2, the discrepancy concerns a definition of ``legal expenses insurance.'' Only the English provision appears to include retainers as expenses than can be insured against. The superintendent has put forward the view that the term ``honoraire'' in French, which is the equivalent of ``fees'' includes retainers, although, in English, it was felt to be necessary to refer both to ``fees'' and ``retainers.''

We have researched the matter. It would seem that in French, ``provision'' is the term generally used in provisions of this kind. In fact, this term is referred to expressly in provincial legislation that deals with things like legal expenses insurance. This being the case, we suggest pursuing that matter.

Point 3 is a similar issue. We have a definition of ``title insurance.'' The English version expressly refers to an ``encumbrance.'' The superintendent claims that ``encumbrance'' is covered in French under ``toute autre restriction'' — ``any other restriction.'' In and of itself, that explanation may be fine. The problem is that, in the next paragraph, there is an occurrence in the same definition where ``grèvement'' appears as an equivalent of ``encumbrance.''

If one paragraph refers expressly to an ``encumbrance'' in French as a ``grèvement,'' one would think it is needed in the other. Conversely, if it is not necessary in one, it should not be necessary in the other. Whatever term they use should be consistent.

Senator Hervieux-Payette: I agree the terms should be the same. The first term does not make sense. ``Grèvement'' is the right word.

Mr. Bernhardt: These are terms of art.

Senator Hervieux-Payette: The other term is vague.

The Joint Chair (Mr. Kania): Is there agreement that we shall send a further letter?

Hon. Members: Agreed.

SOR/2006-287 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON THE DEMOCRATIC PEOPLE'S REPUBLIC OF KOREA

(For text of documents, see Appendix K, p. 4K:1)

Mr. Bernhardt: The initial review by counsel led to 10 points being raised. We have promises of amendments on the majority of these points. It is suggested that further correspondence may be required on points 2, 7, 8 and 10.

Point 2 concerns the definition of ``battle tanks.'' The French version of this definition uses another term that is also defined in the regulations. The English version does not use the equivalent defined term. This difference leads to the inference that the two do not mean the same thing. The department replied that it uses the term in question because it wants to follow the terminology in the UN Register of Conventional Arms. The question is whether this reason justifies importing what is a clear discrepancy into the regulations, especially given we are dealing with terms that have been expressly defined. Having gone to the trouble of defining these terms, it seems odd for them not to use the terms in the regulations, regardless of their reasons for not doing so.

Point 7 is a question of obtaining further information. It is not clear whether the minister makes a decision to delist and then notifies the UN Security Council, or whether the minister makes a decision whether to send the application to the UN Security Council and the UN Security Council then makes the decision. We also have a question on what considerations go into this decision. At this point, the issue is a question of obtaining further information.

Point 8, again, concerns a need to clarify the provision. We have been told that the way this provision works is that a decision is to be made within 15 days by the minister. If the decision cannot be made because the application is not complete by then, a new application is required. That could be more clearly reflected.

Finally, we have point 10. This point concerns section 15(1), which allows a person to apply to the minister for a certificate exempting their property from certain restrictions in the regulations. In the case of property subject to a lien, hypothec, prior claim or judgment, the minister is required to issue a certificate if the lien, hypothec, claim or judgment ``has been brought to the attention of the Committee of the UN Security Council or the Security Council of the United Nations'' itself. This wording suggests that, in some cases, the minister may choose not to bring the matter to the attention of UN Security Council.

The department's reply is that this will happen where another prior condition is not met; in other words, the intent is not to confer discretion on the minister. The reply suggests that this intent should be clearly expressed. Therefore, we recommend a further letter on these four points.

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

Hon. Members: Agreed.

SOR/94-668 — CANADA LABOUR STANDARDS REGULATIONS, AMENDMENT

(For text of documents, see Appendix L, p. 4L:1)

Mr. Bernhardt: Amendments addressing the committee's concerns were to be made following the review of Part III of the Canada Labour Code. That review was completed in October 2006. Since then, apparently discussions with employers, unions and employees on this report have been ongoing. In April 2008, it was forecast that the discussions would be completed by the end of 2008. In view of this forecast, we suggest that a request for a progress report is in order.

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

Hon. Members: Agreed.

SOR/2000-388 — REGULATIONS AMENDING THE MARINE OCCUPATIONAL SAFETY AND HEALTH REGULATIONS

(For text of documents, see Appendix M, p. 4M:1)

Mr. Bernhardt: Three amendments were promised to address points of drafting. In 2004, the department indicated the amendments would be made as part of an overall review of the regulations. The committee was not satisfied with this reply and requested that the amendments to resolve its concerns proceed independently.

The department now claims — rather incredibly, I suggest — that it took this request as meaning the committee wanted its amendments never to be grouped with any other amendments whatsoever, and this explanation is why the department left them out of a 2007 package that was not part of the overall review.

In any event, the forecast time of 2007 for Part II publication became fall 2008 for Part I publication, and this deadline was not met, either. It is difficult to imagine what the delay might be. Perhaps the department should be advised that the committee expects the amendments to proceed at once.

Mr. Lee: Mr. Chair, I want to ensure that the record reflects my perception that massive stupidity is reflected in the correspondence. It is so dunderheaded that I cannot believe it is there. I have to be suspicious about some degree of insincerity. This is how stupid it looks.

If members are okay with counsel's suggestion, I will go along with that suggestion. However, I want the record to be clear about my perceptions.

Senator Moore: I agree, and I ask, when? This file has been ongoing for a while and I agree with Mr. Lee's comments. We need to put an end to it.

The Joint Chair (Mr. Kania): We will ask for a commitment in terms of when?

Senator Moore: Yes.

The Joint Chair (Mr. Kania): Let us put a deadline in terms of response as well, then.

Senator Moore: Yes.

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

Senator Moore: Let it be no more than 30 days.

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

Hon. Members: Agreed.

SOR/2002-164 — NATIONAL CAPITAL COMMISSION ANIMAL REGULATIONS

SOR/2002-165 — REGULATIONS AMENDING THE NATIONAL CAPITAL COMMISSION TRAFFIC AND PROPERTY REGULATIONS

(For text of documents, see Appendix N, p. 4N:1)

Mr. Bernhardt: These files come together because they both deal with animal control on the commission's lands. The issues concerning use of certain terminology in the animal regulations also arise in the traffic and property regulations. For that reason, similar amendments will need to be made to both regulations.

In addition, the animal regulations gave rise to other concerns involving the imposition of vicarious liability, the discretionary power to designate off-leash areas on National Capital Commission property and the overly broad definition of what a ``domestic animal'' is.

Amendments have been under development for some time now and it seems that at least two drafts have been prepared and the drafts have gone back and forth with the Department of Justice. Last April, the commission was reviewing the latest draft, although it cautioned that possible amendments to the National Capital Act in response to the review of the commission's mandate could delay things. Follow-up would seem to be in order asking where matters stand and precisely when the amendments can be expected.

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

Hon. Members: Agreed.

SOR/98-462 — REGULATIONS PRESCRIBING CERTAIN FIREARMS AND OTHER WEAPONS, COMPONENTS AND PARTS OF WEAPONS, ACCESSORIES, CARTRIDGE MAGAZINES, AMMUNITION AND PROJECTILES AS PROHIBITED OR RESTRICTED

(For text of documents, see Appendix O, p. 4O:1)

Mr. Bernhardt: At its April 3, 2008, meeting, the committee instructed counsel to pursue three matters with the Department of Justice in connection with these regulations. These matters are explained in the April 14 letter and involve the desirability of clarifying certain provisions.

In its reply, the department states that it is agreeable to consider the issues in conjunction with stakeholders for a potential recommendation for inclusion in a possible federal regulatory initiative. This reply is not the firmest commitment the committee has ever received.

Perhaps the department should be asked if it has now gone through said consideration process with the stakeholders and whether it can confirm that the amendment will be made.

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

Hon. Members: Agreed.

SOR/2006-254 — FIRST NATIONS OIL AND GAS AND MONEYS MANAGEMENT VOTING REGULATIONS

(For text of documents, see Appendix P, p. 4P:1)

Mr. Abel: An amendment has been promised to address the committee's concern regarding the meaning of a term. However, the reply seems to counter the committee's suggestion in that regard. Counsel suggests that the precise nature of the proposed amendment be sought as well as an expected time frame for making the amendment.

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

Hon. Members: Agreed.

SOR/2000-100 — FEDERAL-PROVINCIAL FISCAL ARRANGEMENTS REGULATIONS, 1999

(For text of documents, see Appendix Q, p. 4Q:1)

Mr. Abel: All the committee's concerns have now been resolved by the repeal and replacement of a large portion of the regulations. The committee also sought clarification on what portions of these regulations would remain in force, and that clarification has been provided. There are no remaining concerns, so this file can now be closed.

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

Hon. Members: Agreed.

SOR/88-560 — CRIBS AND CRADLES REGULATIONS, AMENDMENT

(For text of documents, see Appendix R, p. 4R:1)

Mr. Abel: The latest reply indicates that the making of amendments, which the committee has sought for 20 years now, is, yet again, behind schedule. It is suggested that a new letter be drafted seeking detailed information as to current progress, which will allow the committee at a future time to consider how best to proceed with this file.

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

Senator Moore: Is that it? Will this item continue for another 19 or 20 years?

[Translation]

Senator Hervieux-Payette: Is the concern with the safety of cribs and cradles?

[English]

Mr. Bernhardt: In this case, I think the amendments were minor drafting amendments.

[Translation]

Senator Hervieux-Payette: So it is not about safety at all?

[English]

Mr. Bernhardt: Our hope in making that recommendation is they did say they would expect to be moving toward Part I publication by the end of 2008. It is now 2009 and it has not happened. If we keep our fingers crossed, perhaps it is close to being imminent. If it is not, we can bring the file back quickly to committee members, and they can decide whether they wish to ramp up. I guess we are being optimistic.

Senator Moore: You can be firmly optimistic in your reply.

SOR/2002-423 — REGULATIONS ADAPTING THE EMPLOYMENT EQUITY ACT IN RESPECT OF THE CANADIAN SECURITY INTELLIGENCE SERVICE

(For text of documents, see Appendix S, p. 4S:1)

Mr. Abel: After the last time the committee reviewed this file, it had a remaining concern regarding the drafting of one provision. The reply indicates that current practice in performing compliance audits does away with the need for an amendment for clarification. Practices may always change, but in this case the potential for ambiguity is minor. Committee members can decide whether they want to pursue this file or drop it.

Mr. Lee: I would lean in favour of closing the file.

The Joint Chair (Mr. Kania): Is it agreed to close the file?

Hon. Members: Agreed.

SOR/2005-380 — DECISION BODY TIME PERIODS AND CONSULTATION REGULATIONS

(For text of documents, see Appendix T, p. 4T:1)

Mr. Abel: Following the last consideration of this instrument by the committee, the committee sought confirmation as to whether a provision of the enabling act would be amended. Before confirming, the department prefers to wait until the completion of a review of the act, which was last expected to finish at the end of 2008. Presumably, the department should be asked now whether it can confirm that the amendment will be made.

The Joint Chair (Mr. Kania): Is it agreed?

Hon. Members: Agreed.

The Joint Chair (Mr. Kania): Now we are at Item 10 on our agenda — Action Promised. There are a number of items, and counsel has agreed that he will run us through the rest.

SOR/2002-148 — REGULATIONS DESIGNATING PERSONS AND CATEGORIES OF PERSONS — OTHER THAN TRAVELLERS DESTINED FOR THE UNITED STATES — WHO MAY ENTER A PRECLEARANCE AREA

(For text of documents, see Appendix U, p. 4U:1)

SOR/2005-306 — REGULATIONS AMENDING THE UNITED NATIONS DEMOCRATIC REPUBLIC OF THE CONGO REGULATIONS

(For text of documents, see Appendix V, p. 4V:1)

SOR/2007-176 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1433 — NEOTAME)

(For text of documents, see Appendix W, p. 4W:1)

SOR/2008-57 — CORPORATE INTERRELATIONSHIPS (BANKS AND BANK HOLDING COMPANIES) REGULATIONS

SOR/2008-58 — CORPORATE INTERRELATIONSHIPS (COOPERATIVE CREDIT ASSOCIATIONS) REGULATIONS

SOR/2008-59 — CORPORATE INTERRELATIONSHIPS (INSURANCE COMPANIES AND INSURANCE HOLDING COMPANIES) REGULATIONS

SOR/2008-60 — CORPORATE INTERRELATIONSHIPS (TRUST AND LOAN COMPANIES) REGULATIONS

(For text of documents, see Appendix X, p. 4X:1)

Mr. Bernhardt: Mr. Chair, there are seven amendments promised in connection with the seven instruments listed under ``Action Promised.'' We will follow up the progress of these in the usual fashion after the meeting.

SI/2008-66 — ORDER AMENDING THE MCINTYRE LANDS INCOME TAX REMISSION ORDER (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix Y, p. 4Y:1)

SOR/88-424 — FOOD AND DRUG REGULATIONS, AMENDMENT

(For text of documents, see Appendix Z, p. 4Z:1)

SOR/92-164 — UNEMPLOYMENT INSURANCE REGULATIONS, AMENDMENT

(For text of documents, see Appendix AA, p. 4AA:1)

SOR/2007-104 — RULES AMENDING THE ASSESSOR'S RULES OF PROCEDURE (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix BB, p. 4BB:1)

SOR/2008-153 — REGULATIONS REPEALING THE EXEMPTION REGULATIONS (BEEF AND VEAL IMPORTS)

(For text of documents, see Appendix CC, p. 4CC:1)

Mr. Bernhardt: Under ``Action Taken,'' there are five instruments that make nine amendments resolving concerns raised by the committee.

SI/96-80 — INCOME TAX PAID BY INVESTORS, OTHER THAN PROMOTERS REMISSION ORDER

SI/2008-43 — ORDER DESIGNATING THE EXECUTIVE DIRECTOR OF THE INDIAN RESIDENTIAL SCHOOLS TRUTH AND RECONCILIATION COMMISSION SECRETARIAT AS DEPUTY HEAD

SI/2008-44 — ORDER DESIGNATING THE INDIAN RESIDENTIAL SCHOOLS TRUTH AND RECONCILIATION COMMISSION SECRETARIAT AS A DEPARTMENT AND THE EXECUTIVE DIRECTOR AS THE DEPUTY HEAD FOR PURPOSES OF THE ACT

SI/2008-45 — ORDER AMENDING THE ACCESS TO INFORMATION ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER

SI/2008-46 — ORDER AMENDING THE PRIVACY ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER

SI/2008-47 — ORDER AMENDING THE CANADIAN SECURITY INTELLIGENCE SERVICE ACT DEPUTY HEADS OF THE PUBLIC SERVICE OF CANADA ORDER

SI/2008-48 — ORDER AMALGAMATING AND COMBINING THE OFFICE OF INDIAN RESIDENTIAL SCHOOLS RESOLUTION OF CANADA WITH THE DEPARTMENT OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT UNDER THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT AND UNDER THE DEPUTY MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT

SI/2008-49 — ORDER AMENDING THE ACCESS TO INFORMATION ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER

SI/2008-50 — ORDER AMENDING THE PRIVACY ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER

SI/2008-51 — ORDER REPEALING ORDER IN COUNCIL P.C. 2001-996 OF JUNE 4, 2001

SI/2008-54 — ORDER DESIGNATING THE MINISTER OF LABOUR AS MINISTER FOR PURPOSES OF THE ACT

SI/2008-55 — ORDER DESIGNATING THE MINISTER OF HUMAN RESOURCES AND SKILLS DEVELOPMENT AS MINISTER FOR PURPOSES OF THE ACT

SI/2008-59 — ORDER ASSIGNING THE HONOURABLE JOSÉE VERNER TO ASSIST THE MINISTER OF FOREIGN AFFAIRS

SI/2008-67 — ORDER AMENDING THE LIST OF PEST CONTROL PRODUCT FORMULANTS AND CONTAMINANTS OF HEALTH OR ENVIRONMENTAL CONCERN

SI/2008-77 — ORDER TERMINATING THE ASSIGNMENT OF THE HONOURABLE DAVID EMERSON AND ASSIGNING THE HONOURABLE JAMES MOORE TO ASSIST THE MINISTER OF TRANSPORT AND THE MINISTER OF CANADIAN HERITAGE

SI/2008-79 — PROCLAMATION DESIGNATING ``FIRE PREVENTION WEEK''

SI/2008-94 — ORDER DECLINING TO REFER BACK TO THE CRTC DECISION CRTC 2008-129 TO RENEW BROADCASTING LICENCES OF THE TQS NETWORK AND THE STATIONS CFJP-TV MONTRÉAL, CFJP-DT MONTRÉAL, CFAP-TV QUÉBEC, CFKM-TV TROIS-RIVIÈRES, CFKS-TV SHERBROOKE AND CFRS-TV SAGUENAY

SI/2008-105 — PROCLAMATION DISSOLVING PARLIAMENT

SI/2008-106 — PROCLAMATION ISSUING ELECTION WRITS

SI/2008-107 — PROCLAMATION SUMMONING PARLIAMENT TO MEET ON NOVEMBER 12, 2008

SI/2008-111 —SACRIFICE MEDAL ORDER

SI/2008-112 — ORDER TERMINATING THE ASSIGNMENT OF CERTAIN MINISTERS

SI/2008-113 — ORDER TERMINATING THE ASSIGNMENT OF THE HONOURABLE MARJORY LEBRETON AND ASSIGNING THE HONOURABLE MARJORY LEBRETON TO ASSIST THE MINISTER OF HUMAN RESOURCES AND SKILLS DEVELOPMENT

SI/2008-114 — ORDER TERMINATING THE ASSIGNMENT OF THE HONOURABLE HELENA GUERGIS AND ASSIGNING THE HONOURABLE HELENA GUERGIS TO ASSIST THE MINISTER OF CANADIAN HERITAGE

SI/2008-115 — ORDER TERMINATING THE ASSIGNMENT OF THE HONOURABLE DIANE ABLONCZY AND ASSIGNING THE HONOURABLE DIANE ABLONCZY TO ASSIST THE MINISTER OF INDUSTRY

SI/2008-116 — ORDER ASSIGNING THE HONOURABLE JEAN-PIERRE BLACKBURN TO ASSIST THE MINISTER OF AGRICULTURE AND AGRI-FOOD

SI/2008-117 — ORDER ASSIGNING THE HONOURABLE PETER GORDON MACKAY TO ASSIST THE MINISTER OF TRANSPORT

SI/2008-118 — ORDER ASSIGNING THE HONOURABLE STOCKWELL DAY TO ASSIST THE MINISTER OF TRANSPORT

SI/2008-119 — ORDER ASSIGNING THE HONOURABLE LAWRENCE CANNON TO ASSIST THE MINISTER OF TRANSPORT

SI/2008-120 — ORDER ASSIGNING THE HONOURABLE GARY LUNN TO ASSIST THE MINISTER OF CANADIAN HERITAGE

SI/2008-121 — ORDER ASSIGNING THE HONOURABLE GORDON O'CONNOR TO ASSIST THE PRIME MINISTER

SI/2008-122 — ORDER ASSIGNING THE HONOURABLE ROB MERRIFIELD TO ASSIST THE MINISTER OF TRANSPORT

SI/2008-123 — ORDER ASSIGNING THE HONOURABLE LYNNE YELICH TO ASSIST THE MINISTER OF WESTERN ECONOMIC DIVERSIFICATION

SI/2008-124 — ORDER ASSIGNING THE HONOURABLE STEVEN JOHN FLETCHER TO ASSIST THE PRIME MINISTER

SI/2008-125 — ORDER ASSIGNING THE HONOURABLE GARY GOODYEAR TO ASSIST THE MINISTER OF INDUSTRY

SI/2008-126 — ORDER ASSIGNING THE HONOURABLE DENIS LEBEL TO ASSIST THE MINISTER OF ECONOMIC DEVELOPMENT AGENCY OF CANADA

SI/2008-127 — ORDER ASSIGNING THE HONOURABLE KEITH ASHFIELD TO ASSIST THE MINISTER OF THE ATLANTIC CANADA OPPORTUNITIES AGENCY

SI/2008-128 — ORDER ASSIGNING THE HONOURABLE PETER KENT TO ASSIST THE MINISTER OF FOREIGN AFFAIRS

SI/2008-129 — ORDER DESIGNATING THE MINISTER OF FINANCE AS MINISTER FOR PURPOSES OF THE ACT

SI/2008-130 — ORDER TRANSFERRING FROM THE MINISTER OF THE ENVIRONMENT TO THE MINISTER OF FINANCE THE POWERS, DUTIES AND FUNCTIONS RELATING TO THE CONTRIBUTION AGREEMENT

SI/2008-131 — ORDER TRANSFERRING FROM THE DEPARTMENT OF THE ENVIRONMENT TO THE DEPARTMENT OF FINANCE THE CONTROL AND SUPERVISION OF THE TORONTO WATERFRONT REVITALIZATION INITIATIVE SECRETARIAT

SI/2008-132 — ORDER DESIGNATING THE MINISTER OF FINANCE AS MINISTER RESPONSIBLE FOR THE TORONTO WATERFRONT REVITALIZATION INITIATIVE

SI/2008-136 — ORDER DESIGNATING THE MINISTER OF CITIZENSHIP AND IMMIGRATION AS MINISTER FOR PURPOSES OF THE ACT

SI/2008-138 — PROCLAMATION SUMMONING PARLIAMENT TO MEET ON NOVEMBER 18, 2008 (DISPATCH OF BUSINESS)

Mr. Bernhardt: Finally, under ``Statutory Instruments Without Comment,'' we have listed 44 instruments that have been reviewed by counsel and found to be entirely unobjectionable. Copies of those are here this morning if members wish to examine any of them.

The Joint Chair (Mr. Kania): Are there any comments on any of these matters?

Hon. Members: No.

The Joint Chair (Mr. Kania): Are there any comments on any other general matters?

Mr. Young: I have a comment on administrative matters. I apologize for not raising this earlier when we reviewed this travel budget request, but I have a concern about the travel.

I have been involved in various different businesses. When times were tough, there was not a lot of money around and revenues were down; we always revisited our budgets, especially travel budgets.

I am looking at this planned trip to Australia and New Zealand. I know if my constituents were here this morning and saw us doing this work for an hour and a half, they would realize it is a working trip. Three days of doing this is not fun; it is work. However, I also know that sooner or later, some journalist will go through all this stuff and say, ``Here are all the trips these MPs and senators took, and here is what it cost in the middle of a recession.'' I am not totally comfortable with it.

I am new on the committee and new in this Parliament. Therefore, I want to ask the senior members of the committee what they did in previous times when money was tight, such as in the mid-1990s when Mr. Lee and Mr. Szabo were here. Did you change your travel budgets? Did fewer members travel?

Mr. Lee: We never travelled.

Mr. Young: Mr. Chair, do you have six legislators lined up to go on this trip at this point? If you do not, why do we have to send six? Could we, for example, send four or three? Then, if the question were to be raised, you, as chair, and every one of us in our ridings would say we felt the trip was important, but instead of sending eight people, we sent six or five. We could then say that we felt that was appropriate because revenues were down given the circumstances. Does that sound reasonable to committee members, or am I off track?

Senator Hervieux-Payette: I was here in 1995 when we were still fighting a very large deficit. When we took over in 1993, it was $45 billion, so we did not get out of it very fast.

I went on the last mission to Australia, and it was one of the most tiresome trips I have ever taken. A travelling committee of six members is a result of the fact that there are two parties in the Senate and four parties in the House, so there is one representative per party.

To my mind, this committee is one of the most rewarding ones in terms of the work we are doing because we are revisiting what the administration of the government is doing and saving millions of dollars for the taxpayers. When you have a regulation that is not legal, if you go to court and end up in the Supreme Court, you can spend $1 million in fees.

By working with other legislators in the British parliamentary system, we learn from them and they learn from us. For me, the previous trip was very useful because we can learn from them. We normally do not see them. I even worked with them, through teleconferencing, on one of my bills, but we cannot hold this type of meeting by teleconference. The sessions are too long. I remember working from 9 a.m. to 6 p.m.

For those who will be going, I would recommend spending a few more days there because it is a very tough trip. I would not be shy to defend that before any journalist. As far as I am concerned, this committee has not exaggerated anything in terms of the trips they have made over the years. I think the last trip dates back 10 years.

If we were on the road every year, I would probably be like you — I would question the trips myself; but this travel is more to put us in line with the other parliaments that are of the same school of thought when it comes to regulations and legislation. That is why I think this trip is appropriate at this point in time, and we will share the results of our findings.

Mr. Saxton: There is no doubt that we can justify it — we can justify most things we do — but Mr. Young is talking about optics. Whether the trip is justifiable or not, it puts us on the defensive at a later date. The question is: Can the number of delegates be reduced without significantly affecting the benefits?

Mr. Young: We expect to get a report from the members who do go, stating ``Here is what we agreed on and what we accomplished; here is what we are bringing back to this committee to make things run better.'' Is that what would normally happen?

Senator Hervieux-Payette: There will be a significant report, which will be tabled both in the Senate and the House of Commons.

By the way, several parliamentary associations are travelling, and sometimes they travel with more than six people. When they go to Asia and Japan, the costs are similar. The objective is not necessarily the same. Yes, it is to enrich knowledge and establish a relationship with other parliamentarians. However, in this case, we are a permanent working committee of Parliament. There are only two joint committees of the Senate and House of Commons on the Hill, and we are one of them.

As far as I am concerned, you could question any of the trips taken by ministers or the Prime Minister. We are doing our work and we should not turn the corner. Even in tough budgetary times, we have travelled and there was no media reaction. The expenses that are covered are just those when we are attending. I feel that those members who are going will certainly do a lot of work on our behalf.

The Joint Chair (Mr. Kania): I want to point out that we have already discussed the issue of whether it is a worthwhile trip and of value to the committee. As I recall, there was no dissenting opinion as to whether it was an educational and worthwhile trip.

[Translation]

Ms. Gagnon: It is not a question of whether we have or have not travelled for a long time but whether this trip is necessary. We are right to be concerned about the context in which we could be travelling. We are questioning the appropriateness of going there at this time. Let us talk to the party whips about it. They have to consider all the requests made to Internal Economy in order to decide whether ours is appropriate.

Someone mentioned teleconferencing. Air tickets are expensive, of course, and it is only a two-day meeting. Will eight people from the obscure regulations committee going to Australia for two days be looked on favourably? We need a much better reason to justify the trip than that the committee does not travel a lot. I do not find that argument very believable.

I have even told my whip that this committee did not travel often. That should not be our main point in arguing for the appropriateness of a trip like this. I am not saying that we should not go. But, if the committee decides that we should, we all have to support that decision.

Senator Hervieux-Payette: The decision has already been made.

Ms. Gagnon: But the whips have not always gone along with what we decide.

Senator Hervieux-Payette: The whips have no role in determining the work of the committee. The committee decides that.

Ms. Gagnon: Yes, they have a role in the budget.

Senator Hervieux-Payette: No.

Ms. Gagnon: Not in the Senate, but in the House of Commons.

[English]

Mr. Lee: What the member is referring to is the requirement for a house order before committees travel. Before that happens, the leadership of the parties in the house will have an eye on all the issues we have mentioned.

The fact that this committee has not travelled in 10 years merely addresses the issue of whether the committee is a junket committee. We solidly are not. Acceptance of the purpose of the travel has been debated. I agree with it.

In terms of the recession, if the government and/or the house had requested cutbacks, then we would definitely have had to fall in line. This may seem counterintuitive to many across the whole economy, but at a time of recession, government is not supposed to pull back on its spending.

Mr. Young: It should.

Mr. Lee: No.

Mr. Young: If we are spending money here and we are travelling to Australia —

Mr. Lee: You make the point, but when we fly, it will probably be on a Canadian airline. I am sure Mr. Young will agree with the philosophy at the G20 that we do not restrict the trade and travel amongst ourselves. We are trying to get all the economies up and spinning again.

In the absence of an absolute need to get rid of frills or to follow the request of the government or the house, I think we should proceed. I am not interested in travelling myself, but it is appropriate for the committee and for the corporate memory of the committee, including our counsel.

Senator Wallace: Like others around the table, I am new to all of this. Having arrived from what I call the real world, there certainly are some differences. From my time in the private sector, when you are in these types of situations, the overriding concern or objective is to do the job.

What does it take to do the job? If this particular conference has value — and it seems that it does — then we should be represented. I would echo Mr. Young's comments. I think we should look at the number required to do the job properly and we should not add any more people than that.

We cannot be oblivious to the economic times we are in now. All of us are expected to lead by example in all ways and, certainly, in demonstrating how taxpayers' money is to be spent.

This may be inconsistent with past practice of this committee and others, but the bottom line for me is what it takes to do the job. If three or four representatives can do it properly, then that is the way to go. As Mr. Young pointed out, it is the practice for those representing the committee at these conferences to come back and file a report, which will be available for the benefit of all of us.

The knowledge that each of us would acquire by being part of those conferences is fine. However, each of us will move off of this committee eventually and that knowledge will depart. The long-term benefit comes from a report submitted by those representing the committee when they return. That could be presented verbally but should be available in writing.

We should not go beyond what is absolutely required to do the job. If that means we are able to reduce the numbers and the cost, that is the direction we should go.

Senator Moore: The decision has been made to do this. Six people may not want to go. I cannot go; I am not interested in going. We have to provide a budget for the maximum number possible. I think we have done that. In the final analysis, we may have only three or four members who want to travel. We will know that soon because people must make arrangements for trips like this.

Why do we not see who wants to go and whether there is a full roster of six? It may be that only three or four wish to go. Let us talk about it again at the next meeting.

The Joint Chair (Mr. Kania): I agree. Does everyone else agree with that comment?

We might want to consider the motion to travel that has already been made. At the end of the first sentence, we may want to add something like the following: ``and that a comprehensive report be tabled in both houses.'' Such a report will entail significant preparation and work to ensure corporate memory. We will all have the benefit of that report.

Mr. Saxton: It is clear that we have consensus, that this is an important trip and that we should go. The only area where there is not consensus is on how many people need to go.

We should also add that we will review and ensure that the minimum number of people required will attend. I assume that the six people constitute one Conservative and one Liberal senator, plus one MP from each of the four parties. Then we have two staff people. Maybe we can make do with one staff member; I do not know. Let us review and see if we can reduce the number.

Mr. Galipeau: I want it to be clear that I am abdicating from attending this trip. The government vice-chair will not be there. It is not that I do not want to go. I know that I would become more learned in the process, but I have superior obligations about 20 minutes east of here.

I would recommend that Senator Eyton's successor as the Senate joint chair be encouraged to attend. I do not know when the determination will be made, but I expect that this trip will coincide roughly with the retirement of Senator Eyton. I will do whatever I can to have his successor lined up so that we can be ready on deck.

Mr. Saxton: I second what my colleague says about the successor to Senator Eyton. I would like to propose that consideration be given that the two joint chairs go on behalf of Parliament as well as two senators. Therefore, we could end up with four people going. That would be one possible way of resolving this matter.

Mr. Young: I will not make a motion because I would rather that people have time to think about it. I will not be going, even if I were to be asked. I would concur with my colleagues here: Let us use a minimum number of people to get an effective report.

The Joint Chair (Mr. Kania): We do not have to decide anything now. We have a motion that must be approved in the House of Commons and the whips need to discuss it. Let us table that consideration for the next meeting.

Hon. Members: Agreed.

(The committee adjourned.)

---