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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 10 - Evidence, November 18, 2010

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OTTAWA, Thursday, November 18, 2010

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

Senator Yonah Martin and Mr. Andrew Kania (Joint Chairs) in the chair.

[English]

The Joint Chair (Mr. Kania): Good morning everyone, let us begin. Welcome back to our former joint chair, Senator Wallace, who says he is staying with us from now on, is that right?

Senator Wallace: For the next hour and a half.

The Joint Chair (Mr. Kania): The first item we will deal with was sent around separately by Mr. Bernhardt. It is the November 15, 2010, response of Transport Canada with respect to SOR/2007-82, Identity Screening Regulations. We will let him go through this response separately as the first item.

Peter Bernhardt, General Counsel to the Committee: Following the committee's consideration of the Identity Screening Regulations on October 21, a letter was sent to the Department of Transport detailing the committee's concerns with respect to the regulations as well as, more generally, the Passenger Protect Program, of which the regulations form an integral part. The letter concluded with an invitation to the appropriate officials to appear sometime either late this month or early next month to discuss the issues.

The November 15 letter from the department states they would welcome the opportunity to clarify their position and respond to the committee's concerns. It was then suggested that because aspects of the program are being challenged in court, they would prefer to appear only after the courts are finished dealing with the challenge.

It is for the committee to decide whether witnesses should appear. The regulations are properly before the committee pursuant to the Statutory Instruments Act. It is not relevant that the regulations are also before the courts. The committee exercises a jurisdiction that is distinct from that of the courts. The committee has always rejected the notion that it refrain from exercising its mandate on behalf of Parliament because a particular regulation is also being considered by the courts.

It is also worth noting that this court challenge did not prevent representatives from the department from appearing before the House of Commons Standing Committee on Public Safety in April to discuss the Passenger Protect Program.

On the other hand, as I recall the discussion back on October 21, in this instance, the intent in offering an opportunity to appear was to foster and expedite an exchange of views. In that sense, it was an offer, as opposed to a summons.

One thing for certain is that this impending court challenge cannot be used to avoid responding to the committee. Otherwise, the committee obviously will wait a long time. Even if the committee decides not to insist on the appearance of officials, it should be made clear that a detailed response to the October 22 letter is expected nonetheless. I presume the department will welcome the opportunity to reply to that letter.

The Joint Chair (Mr. Kania): I will frame the conversation first in terms of a legal analysis, which is that we have the right to compel witnesses if we so choose. The discussion is whether we should, not whether we can, or whether we should send a letter. I will open up the floor on that basis.

Mr. Lee: The first and most important issue is that the analysis by our counsel has opened up significant questions involving civil liberties and the constitutional integrity of the Passenger Protect Program — not necessarily the effectiveness, but its legality. I do not think we have any choice but to continue to look at it and analyze this issue.

Our first correspondence with the department has narrowed the focus and clearly set out what we think the problems are. Therefore, I agree that we need to receive a response. Since the issue involves the civil liberties of thousands and thousands of people, it is not an issue we can put on the shelf and wait on.

I believe the committee had decided we wanted to see witnesses. I continue to agree with that decision. If there is a particular issue of sensitivity from any public interest perspective that might influence us to meet in camera on this issue, I will be happy to do that.

However, I think we should ask the department if there is any reason why we should not proceed. As counsel pointed out, the sub judice convention does not apply here at all. Therefore, at this point I am in favour of hearing witnesses, even if it is in camera or if it is on a preliminary basis, to sort out whether the department will make progress on this item within a reasonable time frame.

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

We will send a letter asking that they produce witnesses with the offer that we will go in camera to address their sensitivities.

Senator Moore: Agreed.

[Translation]

Ms. Jennings: In the letter, perhaps we could indicate that we are not required to meet in camera as a matter of parliamentary privilege but that we are willing to do so for their benefit. I think that is important in terms of parliamentary privilege and who should be appearing. Whatever their sensitivities, we are willing to accommodate them.

[English]

The Joint Chair (Mr. Kania): I agree. Are there any other comments? Let us move to the agenda, then, please.

SOR/2007-29 — REGULATIONS AMENDING THE PUBLIC SERVICE SUPERANNUATION REGULATIONS

Mr. Bernhardt: An amendment was passed in 2000 to remove a discrepancy between the English and French versions of the enabling provisions for this instrument. That amendment would have resolved the committee's concerns. The amendment has yet to be brought into force, however. When asked to confirm that the Statutes Repeal Act would not come into play here, Treasury Board indicated it expected the amendment would be brought into force by the end of this year.

At the last meeting, the committee asked us to confirm the date on which this amendment will be repealed pursuant to the Statutes Repeal Act if it does not come into force by order of the Governor-in-Council. As explained in the note prepared for this morning, the deadline date is December 31, 2011. The end-of-2010 date was simply the Treasury Board's anticipated time frame.

A progress report has been requested, and the file will be brought back to the committee when a reply is received.

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

Hon. Members: Agreed.

SOR/96-476 — AIRPORT TRAFFIC REGULATIONS, AMENDMENT

(For text of documents, see Appendix A, p. 10A:1.)

Mr. Bernhardt: At issue here are provisions that establish maximum fines for traffic offences as the lesser of $500 and the maximum fine, if any, prescribed under the highway traffic laws of the province in which the offence was committed, as amended from time to time.

For the benefit of some of the newer members, the committee has always taken a firm position that to allow automatic amendment of incorporated material — for example, a provincial traffic law — as that law is amended from time to time is to permit someone other than the person designated by Parliament to determine the content of the regulation. It follows that in the absence of an express indication or a necessary implication to the contrary, the incorporation by reference of external material is proper only when a fixed text is incorporated, as opposed to a text as amended from time to time.

A report reiterating this position was made back in 2007.

In this case, there is a second aspect of the problem, which is that the Government Property Traffic Act authorizes the Governor-in-Council to make regulations prescribing a fine. Here, what has been prescribed is merely a method for determining the maximum amount of a fine. As the regulations themselves state, the amount will be prescribed under the highway traffic laws of the province, not by the Airport Traffic Regulations, as is required.

Transport Canada previously relied on the fact that, in response to the committee's report, the Minister of Justice indicated that legislation would be developed governing incorporation by reference in regulations, generally. In the joint chair's December 2009 letter to the Minister of Transport, it was pointed out that the precise form this legislation might take was not yet known because the legislation is yet to be introduced, and it is possible that the particular concern raised by the committee in this case might not be resolved.

The minister was asked whether some other remedial action would be taken if that proved to be the case. The minister's reply reasserts the position that incorporation by reference as amended from time to time does not involve subdelegation. Of course, that is only one aspect of the problem here. The minister also advises that when the legislation proposed by the Minister of Justice is introduced, it can be determined then whether it resolves the committee's particular concern here, and if the proposed legislation does not pass, other options will be considered then.

As members will have seen in the rest of the materials for this morning, there are other similar responses in connection with other files on this morning's agenda. Perhaps the Minister of Justice can be asked where matters stand with this proposed legislation to deal with this issue on a general basis and if it is expected that a bill will be tabled in the near future.

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

Mr. Lee: I agree.

The Joint Chair (Mr. Kania): Is there anything else? Very well; we will draw up a letter to the Minister of Justice.

SOR/2007-295 — REGULATIONS AMENDING THE LETTER MAIL REGULATIONS

SOR/2007-296 — REGULATIONS AMENDING THE INTERNATIONAL LETTER-POST ITEMS REGULATIONS

SOR/2007-297 — REGULATIONS AMENDING THE SPECIAL SERVICES AND FEES REGULATIONS

(For text of documents, see Appendix B, p. 10B:1.)

Mr. Bernhardt: A note was prepared for members that explains in detail how it came to light that none of these instruments were made in accordance with the procedure set out in the Canada Post Corporation Act and the Statutory Instruments Act.

In a nutshell, the board of Canada Post made regulations, and then forwarded them to the Department of Justice Canada for examination. Any necessary routine revisions that then had to be made apparently would be incorporated into the regulations without any further action from the board.

Of course, only the board of directors can exercise legislative powers that Parliament has given to the corporation. By extension, no one other than the board can alter the legal text that has been adopted by the board.

What should have happened is that the draft regulations should have been sent for examination. Once a final proposal was set, it should have gone to the board. The board then should have made the regulations and things should have proceeded from there.

The April 21, 2010, letter from the corporation describes a procedure that is to be put in place to ensure that proposed amendments have been approved in their entirety by the board before submitting them to the Governor-in-Council. This procedure should mean that this problem will not arise in the future.

What remains, however, is the fact that the correspondence seems to indicate that the Governor-in-Council at some points approved regulations that were never made by the corporation. It seems likely that the situation is not limited to these three instruments. However, by now it is probably impossible to identify every defect that took place.

I suppose the corporation can be asked what it intends to do to remedy anything in the past not done in accordance with the act. This remedy might include introducing legislation in Parliament to validate retroactively all regulations made by the corporation. If that route is suggested and agreed to, the note suggests there are two amendments to the relevant provisions of the act itself that also can be made to remedy defects identified there.

The question this morning for the committee is whether it wishes to put to the corporation the suggestion that it should take action to rectify any defects, whatever they might have been, that occurred in the past.

The Joint Chair (Mr. Kania): Let us look at page 4 of your note, where it begins "In these circumstances, the Corporation should be asked" et cetera. Can you comment on the possibility of us tabling a report on this issue to Parliament at this stage?

Mr. Bernhardt: That is something that is always open to the committee. It can point out that the problem was identified, there is a solution and that solution will ensure that the problem will not arise in the future. However, there are still lingering questions about what happened in the past. One example that has been given is certain postal rates. It may be that some of those rates are fixed improperly, and it follows that they are charged illegally.

Whether there is a sufficient paper trail at this time to go back through every provision of every Canada Post regulation to find out whether it was passed by the board, whether a change was made after it was passed by the board, or whether it went back to the board, might be impossible to determine conclusively. The question is whether that situation points to the need to have a blanket solution for certainty.

The committee could identify that situation, report to the houses that this question remains and suggest that consideration be given to addressing it. That suggestion has yet to be made to the corporation, so it could also be.

Mr. Saxton: There is no evidence that there is deficiency in the regulation. Is that correct? We do not know for certain that a deficiency exists in any regulation.

Mr. Bernhardt: We do not have anything from Canada Post to indicate that, in this instance, this particular provision was changed. Rather, we have a description of a general process. Canada Post says that if routine changes were recommended by Justice, they would have simply stuck them into the regulations. I suppose we can write back and ask whether they recall any such cases. At this time, there is no provision that we can point to and say that the section of the regulation was enacted improperly. The inference is that it must have occurred at some time.

Mr. Saxton: The committee has made its point clear. The department has said that they will change their processes going forward to correct the situation.

Mr. Bernhardt: Exactly.

Mr. Saxton: We have no evidence that any deficiencies exist in past regulations; so we can move forward at this stage. Is that correct?

Mr. Bernhardt: We can do so. A number of options are open to the committee. One is to say that we have a solution. Another is to find out whether we can have a clear statement from Canada Post that there were problems. As well, the joint chair has proposed a third option. We are in the hands of the committee.

The Joint Chair (Mr. Kania): It was not a proposal but only a thought.

Mr. Saxton: We have made our point. Changes are being made. I propose we move on and not spend any more time on this file.

Ms. Crowder: I am new to the committee, so forgive me. Is there any downside to moving ahead with that proposal?

Mr. Bernhardt: There is potential for unknown provisions being applied and enforced that do not have the force of law. We do not know for certain which provisions they are or whether there are such provisions.

Ms. Crowder: Will the committee have fulfilled its role in due diligence without the use of a blanket procedure?

Mr. Bernhardt: Legally, the simplest way to resolve any uncertainty is to pass a provision that says everything that Canada Post has done in the past is deemed to have been done validly. Practically, that resolution might not be the simplest because it involves legislation through both houses. Formally, it is a simple one-sentence fix and the uncertainty is removed.

The committee has a clear recognition that the previous procedure was flawed and problematic, and a proper one is in place to ensure that in the future these regulations will be made properly and free from any doubt.

As a lawyer, there is an attraction to certainty with a quick one-sentence cleanup so that everyone knows. However, there are other practical considerations. It is easy to say the cleanup is quick but for the department from a bureaucratic perspective, it is, for lack of a better term, a big deal.

Mr. Lee: There appears to be a reluctance to peel back the layers lest we find something patent. I am in that same camp. However, two things bother me. There have been references to Canada Post fixing their procedural difficulties so that everything will be okay. I prefer to know with clarity that they have fixed the difficulties, rather than that they will fix them. In that way, the problem identified by counsel can be shelved as a future problem.

Some members of the committee know that Canada Post clearly went through a bad period of regulatory compliances — very weak; I am being polite when I say that — so much so that postage rates were undermined fully and illegal at one point. They managed to clear up that problem by re-legislating in such a way as to legalize the postal rates.

Upon closer look, we might find other problematic fees. I am looking now at whether we owe the people we represent. Do we have an obligation to ensure they are not charged fees illegally for services or products under these regulations? I fear that if we go back for a closer look, we will find a problem.

I am happy not to enter a report situation yet, but counsel should write back to ask for clear confirmation that procedures have changed, not that they will change. Perhaps counsel can ask for some kind of assurance that all the fees and charges in place by regulation are properly charged. In that process, if something else comes to our attention, we have an obligation to dig down. Otherwise, I buy into the earlier suggestion of Mr. Saxton that we move on.

Senator Harb: I agree. It might be premature to table anything at this time before we ensure that all the issues have been dealt with. Communication with Canada Post might be proper to ask any questions that come to counsel's mind to ensure that as we move forward, we have covered all our bases. If Canada Post assures us that they have taken the necessary measures and if they provide us with the evidence, then we will close the file.

Ms. Jennings: I agree. Counsel for the committee should write to Canada Post to ask for a clear description of the new procedures and confirmation that they have been put in place.

The possibility seems high that regulations are in place, or have been in place in the past, that were not properly adopted, and, therefore, it is possible that illegal fees, tariffs, et cetera, were charged. I have concern with simply closing the book on that issue, although I do not think we should ask Canada Post to determine whether there are specific cases.

We might wish to discuss the legislative possibility because the piece of legislation will be one line. If there is agreement by all parties that this legislation is the solution, it can be done literally in one day — unanimous consent to deem that the particular government legislation has been tabled, first reading moved, second reading moved, debated, adopted at second reading, reported back, all of that process. The legislation is one little paragraph. We have done it before.

What I am hearing from the members here who represent different parties is agreement that we do not want to pull the lid off the garbage can for fear of what might be there. I am saying, do not discount the possibility that we seal that garbage can, dump it in a grave that is 100 feet down and close off the issue.

Before we discount the legislative possibility, I suggest, first, a letter to Canada Post, as has been suggested; and, second, that each of us go back to our caucus and house leaders and determine if there is a will to provide the legislative remedy so that we know, going forward, there will not be a class action suit. If some bright Canadian — we have a lot of bright Canadians — or a smart company figures out there was a problem with a regulation where they have been paying tariffs, they could launch a suit.

I ask only that the committee, at least on that aspect, not make a decision. I ask members to go back, discuss it with their powers-that-be within each respective caucus, and then we can come back and report on that discussion while we wait for a response from Canada Post on their new procedure.

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

Mr. Saxton: Perhaps in the letter to Canada Post, one can ask if they can identify any regulations that may be in jeopardy as a result of past procedures.

The Joint Chair (Mr. Kania): That is what we said.

Mr. Saxton: I do not think it is necessary to go to our whips or house leaders at this stage, as Ms. Jennings said. I think we should write that letter and ask if Canada Post can flag anything. Based on their response, we can decide what to do next.

Ms. Jennings: Excellent idea.

[Translation]

Mr. Asselin: First of all, turning a blind eye to a problem is a problem in itself. I am opposed to turning a blind eye to the problem. If we have the option to investigate and look into the matter, then we should do so. I am against turning a blind eye to a problem because that makes us a party to what is going on.

Ms. Jennings: Would you agree if we were to first send the Canada Post Corporation a letter asking them to identify the procedure in question, to describe that new procedure and to indicate whether it is already in effect? And secondly, would you be in agreement with asking them to indicate whether there are regulations already in place that may have been made illegally, before we take any further action on this file?

Mr. Asselin: I have no problem with sending the Canada Post Corporation a letter. Any new information would help us in our decision making. But, first and foremost, I was not in agreement this morning with turning a blind eye to a potential problem.

[English]

The Joint Chair (Mr. Kania): Perhaps to build consensus, can we write to them asking for confirmation of the new procedure — also that it is being followed — and for their assurance that there are no lingering problems from the past? Is it agreed?

Hon. Members: Agreed.

SOR/2009-193 — RESIDENTIAL DETECTORS REGULATIONS

(For text of document, see Appendix C, p. 10C:1.)

Mr. Bernhardt: Here again, the issue is incorporation by reference. This time, Health Canada is reiterating its reliance on the response to the committee's report. This file is another file that may be resolved if the Minister of Justice proceeds with legislation. The follow-up with the minister pertains to this file as well.

Senator Moore: Write the Minister of Justice?

Mr. Bernhardt: This will be part of the letter to the Minister of Justice.

[Translation]

SOR/2003-2 — ON-ROAD VEHICLE AND ENGINE EMISSION REGULATIONS

SOR/2006-268 — REGULATIONS AMENDING THE ON-ROAD VEHICLE AND ENGINE EMISSION REGULATIONS

(For text of documents, see Appendix D, p. 10D:1.)

Jacques Rousseau, Counsel: Mr. Chair, when the committee met on December 3, 2009, it instructed counsel to inquire with the department as to when the promised amendments were expected to be made. The answer is in winter 2011.

The committee also instructed counsel to correspond with the department on three points. On the first point, counsel found the department's response to be unsatisfactory. It pertains to the definition of the term "curb weight". For the purposes of the regulations, "curb weight" is defined as the actual or manufacturer's estimated weight of a vehicle.

The department confirmed that the actual weight and the manufacturer's estimated weight may differ. There is no mention in the regulations as to which value should be applied in that circumstance, or whether the person subject to the regulations or an administrative official has the discretion to decide which weight applies.

The committee suggested that this aspect of the regulations be clarified. In its letter of July 29, 2010, the department informed the committee that the person subject to the regulations has the discretion to make the decision. The department did not recommend an amendment.

Therefore, the regulations should specify that the decision is to be made by the regulatee.

With respect to point 4, the department confirmed that the French version of section 6(4) of the regulations would be corrected. As for the promised amendment to clarify the English version of section 153(1) of the Canadian Environmental Protection Act, the department indicated that it was working toward proposing a review of the act and that it would forward the information on the expected amendment date when it became available. Counsel will monitor the progress on this matter.

Point 10 pertains to three sections of the regulations that merely repeat what has already been prescribed by the act regarding the requirement to include certain pieces of information in a notice of defect. The department explained that, for the purposes of the act, this information must be provided only when prescribed by the regulations.

The part of the act referred to by the department can be interpreted as suggested, and counsel is of the opinion that this response is satisfactory.

If the committee is in agreement, counsel will write to the department regarding point 1 and inquire about the progress made on the promised amendments.

[English]

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

Hon. Members: Agreed.

SOR/2007-180 — REGULATIONS AMENDING THE MOTOR VEHICLE SAFETY REGULATIONS (INTRODUCTION OF TECHNICAL STANDARDS DOCUMENTS NOS. 106, 116, 118, 123, 124, 209, 302 AND 401) AND THE MOTOR VEHICLE RESTRAINT SYSTEMS AND BOOSTER CUSHIONS SAFETY REGULATIONS

(For text of document, see Appendix E, p. 10E:1.)

Mr. Bernhardt: Two promised amendments were pre-published in October, so there has been progress on this file. The committee had given instructions to pursue two other outstanding matters.

The first is incorporation by reference, as amended from time to time, of an International Standards Organization, ISO, standard. The wrinkle in this instance is that the Motor Vehicle Safety Act expressly authorizes incorporation by reference, as amended from time to time, of a class of technical standards documents. The definition of "technical standards document" does not include an ISO standard.

Not surprisingly, the department disagrees with the significance of this. Again, the approach proposed by the department is to await the promised legislation to see whether it resolves the issue in this particular instance.

The second matter concerns standards requiring that the webbing of a seat belt assembly not transfer colour to, or stain, a fabric. The committee concluded that such requirements fall outside the scope of the act, which contemplates that standards are to be related to the safety of vehicles and equipment. The requirement for colour fastness is intended to influence people's behaviour, to encourage them to wear seat belts, but requiring colour fastness does not ensure a seat belt will function any better.

As noted in the department's reply, this same concern has been raised by the committee with respect to identical provisions found elsewhere in the Motor Vehicle Restraint Systems, and Booster Cushions Safety Regulations, and an identical response was given.

On that other file back in May, the joint chairs wrote to the minister to convey the committee's conclusion that the authority for requirements aimed at maximizing the use of seat belts is at best doubtful; and they asked for the minister's agreement to propose an amendment to the act to include clear authority for these requirements. A reply is yet to be received but, presumably, it will apply to this file equally when it is provided.

On the second point, I suggest awaiting the minister's reply on the other file. The first point again is wrapped up with the inquiry to the Minister of Justice on the referential incorporation legislation.

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

Mr. Lee: These two things to me look like two solutions looking for a problem. Counsel, on the ISO standard issue, does the government not recognize there will have to be some statutory enablement that allows adoption of these internationally accepted standards? There is ISO and there is a whole raft of others, including Leadership in Energy and Environmental Design, LEED. Why do they not say they will provide for the statutory authorization? This matter is simple.

Regarding the second issue, the potential bleeding of colours from a seat belt, I accept that the propensity of a passenger to use a seatbelt in a car might relate to what the seat belt looks like. Most people getting into cars are not airline pilots; they are regular people. If the seat belt colour had bled, or if it looked worn or in some way overused or frayed, it might affect the likelihood that the passenger will use it, even if there is a legal requirement to do so.

I buy the argument, on the margins, that the presentation and the look of the seat belt are relevant. Then I wonder why they would have even legislated in relation to the colour or colour fastness of a seat belt. That rationale is the only one I can come up with. We are not dealing with the house of Gucci here that cares about colour. There must be a reason they care about colour fastness.

I accept that the reason is that they want the seat belt to look prim and proper and ready to go all the time, and that impression relates to the safety of the motor vehicle. That impression relates to the safety-worthiness of the motor vehicle and its equipment.

Counsel is correct on both these issues, but I think it is a lot simpler. That is my view. I would have walked away from the colour fastness issue.

Mr. Bernhardt: Do you suggest that the committee change its view on that issue? If so, we should advise the minister quickly so the minister does not need to reply to the letter the committee sent in May.

Mr. Lee: I want like to hear from other members. The committee, of course, should not take a U-turn on this issue without thinking about it.

Mr. Saxton: We have written a letter to the Minister of Transport; is that correct?

Mr. Bernhardt: Yes.

Mr. Saxton: We are waiting to hear back. Why not wait to hear back and make a decision based on that letter? Does that approach make sense, and does the committee agree?

Mr. Lee: It is not fair if the minister can read our discussions this morning. Can we go in camera? I am joking.

The Joint Chair (Mr. Kania): The most recent proposal is that we wait to hear from the minister. Are members agreed?

Hon. Members: Agreed.

[Translation]

SOR/87-58 — LAURENTIAN PILOTAGE AUTHORITY DISTRICT NO. 3 REGULATIONS

(For text of documents, see Appendix F, p. 10F:1.)

The Joint Chair (Mr. Kania): The next point pertains to the Laurentian Pilotage Authority District No. 3 Regulations.

Mr. Rousseau: The Laurentian Pilotage Authority District No. 3 Regulations and the Atlantic Pilotage Authority Non-compulsory Area Regulations complement each other, and their original purpose was to regulate the issuing of valid pilotage licences for districts that fell partly under the Laurentian Pilotage Authority and partly under the Atlantic Pilotage Authority. The licences were issued by representatives from both authorities. The last licences were issued in 1991.

The Laurentian Pilotage Authority District No. 3 Regulations have not been used since 1991, and it is clear that, as they now stand, these regulations cannot be enforced. Since these regulations have not been amended, committee counsel inquired as to whether they could simply be repealed. In its response, the department indicated that, further to consultations, the Laurentian Pilotage Authority had informed the department that, and I quote:

. . . the Regulations . . . [would] be overhauled and packaged differently in the future.

Given the scope of the task and the challenges involved in such an exercise, the authority informed the department that it could not say when the new instrument would be ready for pre-publication. It should be noted that this may be an extremely lengthy process.

Since the regulations cannot be enforced, is it necessary to wait for the completion of this lengthy exercise before they can be repealed? Committee counsel is of the opinion that it is not necessary and that the authority should be able to make a decision now.

If the members of the committee are in agreement, counsel will write to the department again.

Senator Hervieux-Payette: Agreed.

[English]

Mr. Saxton: We have already written a letter, have we not? We are waiting to hear back, and did they not say they will update us sometime in the winter of 2010?

The Joint Chair (Mr. Kania): There is a letter after that, though. It is from July 5, 2010, when they do not have a date. They have backtracked a bit.

Mr. Saxton: We are waiting for a response right now, are we not?

[Translation]

Mr. Rousseau: In its letter dated July 5, 2010, the department indicated that, given the scope of the task and the challenges involved in such an exercise, the authority had informed the department that it was not in a position to say when the new instrument would be ready for publication. Therefore, for the time being, the committee is left having to wait for the completion of a process that will likely be lengthy. As I said, in the meantime, the committee is waiting to find out what will become of regulations that have not been used since 1991 and that cannot be enforced.

It is suggested that the authority be asked to give the department an immediate answer so that the committee can ascertain where things stand, rather than waiting for the authority to complete a lengthy review and assessment of the regulations.

[English]

Mr. Saxton: The purpose of this new letter is to prime the pump and move things quicker than they have been moving.

Mr. Bernhardt: You have the regulation, it is spent; it is not capable of being applied anymore. Why bother waiting until they have finished a complete rewrite of all the regulations and roll it into this package; why not eliminate it now?

No harm is done by the regulation sitting there, except we have to keep our file open for years, waiting for the rewrite that will result in that regulation disappearing. Maybe they can eliminate it now.

Mr. Saxton: We want to speed the process along.

Mr. Bernhardt: So it does not have to come back in six months.

[Translation]

Mr. Rousseau: At this stage, that is what we would suggest. There is no reason for the committee to wait. It is pointless to keep a file open for five or however many years because of regulations that cannot even be used.

[English]

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

Hon. Members: Agreed.

SOR/2005-373 — POLITICAL ACTIVITIES REGULATIONS

(For text of documents, see Appendix G, p. 10G:1.)

Mr. Bernhardt: The correspondence here concerns the time the Public Service Commission has to render a decision when an employee who wants to run as a candidate in an election applies for unpaid leave. At present, the regulations require the commission to make the decision as quickly as possible. The committee felt that the regulations should specify a fixed time.

The commission proposed a deadline of 30 days, except in exceptional cases when that is not possible. This 30-day period was arrived at in light of the fact that the employee must apply at least 30 days before seeking the candidacy.

When this issue was last before committee members, some members expressed concern that the 30 days might not leave enough time for an employee who decides to run at the last minute or, for example, in the case of a snap election. The commission was asked how these sorts of circumstances are dealt with and whether it might be preferable to state that the commission must render a decision as expeditiously as possible but in no case later than 30 days. Information was sought as to the types of exceptional circumstances that the commission contemplated where it might not be able to meet the 30-day requirement.

The reply from the commission states that every effort is made to render an expeditious decision, and the commission expressed a preference to render the decision within 30 days except in exceptional circumstances. As examples, they mentioned where there is more information to be gathered or where operational requirements need to be explored, and other circumstances that, in their words, "we cannot foresee at this time."

That leaves the committee with the commission's proposal to require a decision within 30 days, subject to exceptional circumstances where it would be impracticable to do so.

It is not clear whether the commission remains willing to proceed with this earlier proposal, so this point needs to be confirmed in any event, even if the 30-day limit is accepted by the committee.

I suggest that if the 30-day limit is accepted by the committee, there is likely a need to put in the regulations at least a general indication of the sorts of considerations that will go towards deciding whether there are exceptional circumstances. In light of the previous discussions of the committee, the first question for members is whether they are willing to accept the 30-day period.

Senator Harb: I accept that. I honestly believe that this period is not a problem. Being in politics for over 30 years, I have never come across a candidate, at least from our party, who deemed this time period an issue to be concerned about. I presume other parties are the same.

If we write back to the commission, we can say that we take the commission's point and are confident that they will do everything possible to accommodate the situation.

[Translation]

Senator Hervieux-Payette: I do not agree with the argument regarding exceptional circumstances. It would be considered excessive for a private employer to require more than 30 days' notice before granting an employee leave. Canada cannot have two classes of citizens when it comes to an employee's right to run as a candidate in an election. To my mind, there should be no exception to the 30-day deadline. I cannot see how an employer, either in the public service or a crown corporation, could need or even think that it could take more than 30 days to make a decision, short of being extremely disorganized. I can tell you from experience that the process is absolutely awful. It is very hard for those working in the public service, much more so than those working in the private sector. They should have the same rights as everyone else. The 30-day deadline should be firm.

[English]

Mr. Lee: I agree. I do not want an exceptional circumstance to include a scenario where an official goes on holidays for two weeks that suddenly becomes six weeks. In terms of itemizing the exceptional circumstances, I suggest we ask them to do it. If they cannot do it, then 30 days ought to be the rule.

The Joint Chair (Mr. Kania): Senator Hervieux-Payette, in essence were you suggesting no more than 30 days, period?

Senator Hervieux-Payette: Yes, I suggest no more than 30 days, unless they send a list that describes the exceptional circumstances. As far as I am concerned, I do not see any. Even if the individual is a medical doctor in the army, the operation to be performed would not take 30 days. We know that everyone can be replaced. When someone falls sick, they do not show up for work the next day. In my view, 30 days is the maximum. It should not be extended.

Senator Harb: It is almost like a race horse coming out of the gate. Most often, politicians plan ahead. They foresee wanting to be nominated and they make arrangements months in advance. I do not see situations where this period would be problematic, frankly, unless we are aware of problems that have taken place. If we are aware, then we have an issue. In the past, I had many staff that were public servants, and it was never an issue in a sense.

Ms. Jennings: I believe that 30 days should be the absolute maximum. I do not see what kind of extraordinary circumstances related directly to the commission would have any bearing on the delay. If the issue were one of public servants seeking authorization and they had a time limit in which to make an application, then there can be extraordinary circumstances to extend the time line for them to make that application. However, extraordinary circumstances should not apply to the commission.

I have read some of the commission reports that relate directly to requests of public servants from all parties for that authorization. I have seen the kinds of roadblocks that the commission has put in the paths of many of these public servants from all parties. We might want to look at the regulation that gives them that authority, to determine how they apply it and whether they apply it properly. I am not proposing this look now because I will think about it. If I decide to propose it, I will bring a briefing document to explain why. I agree that the maximum should be 30 days.

The Joint Chair (Mr. Kania): Without offering an opinion, I will comment that in Ontario, under common law, private sector employees also have an obligation to provide notice if they are leaving. I would be hard pressed to imagine any factual scenario that would be more than 30 days. We have the issue of treating people in the private sector differently than people in the public sector.

Mr. Anders: I foresee a circumstance where they might require longer than 30 days: someone who is involved in a secretive or sensitive military operation on behalf of the Canadian Security Intelligence Service, CSIS. Normally, those people do not seek public office, but I can foresee such a circumstance.

Ms. Jennings: To that point specifically, because we have fixed election dates at the federal level, we know when the general election day will be, presuming that the legislation is respected by the government of the day.

In the case of a by-election when a seat becomes vacant, we know the absolute last date that an election can take place under the Canada Elections Act. When a public servant makes application to gain authorization to run as a candidate, the commission adjudicates and makes certain requirements. When the application is approved, certain conditions apply, such as what the individual may say and do, et cetera, during their campaign. The presumption exists that an individual who wins on the day of the election will no longer be a member of the public service because that individual will be a member of Parliament, therefore, the issue of the delay for notice when quitting is not even an issue. That date is already known. It is predicated on whether the public servant wins the election. There is more than sufficient advance notice to the employer.

I do not believe that the example given is a good example. Perhaps the member might want to think of a better example to make his point where a particular department requires a delay of longer than 30 days because of extraordinary circumstances.

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

Mr. Clarke: If I may shed light on my situation, I have an RCMP background. The first thing I had to do was take leave without pay to run for a federal seat. When I was elected, I was still on leave without pay. I had to resign from the force one or two days before I was sworn in.

I wanted to add clarification with regard to how the public service may work. From the RCMP standpoint, I had to follow that process.

The Joint Chair (Mr. Kania): How did it work in terms of being allowed to run?

Mr. Clarke: I first had to make a formal request to my superiors to request a leave without pay to run for a federal position.

The Joint Chair (Mr. Kania): How long did it take for them to approve that leave?

Mr. Clarke: It took a matter of weeks.

The Joint Chair (Mr. Kania): Did it take more than 30 days?

Mr. Clarke: No, it was probably within a week or two.

Ms. Jennings: Given that my esteemed colleague has shared his personal experience, I want to share mine. I was deputy commissioner for police ethics for the Province of Quebec. The Liberal Party launched a nomination campaign when my predecessor, the Honourable Warren Allmand, retired.

Under the rules and regulations of the provincial government, I had to seek permission from their secretary general, which is the equivalent to our Clerk of the Privy Council. The campaign for the nomination began the day it was announced.

It took two weeks for me to receive permission. I had to go on unpaid leave; I had to assure that if I won the nomination, my unpaid leave continued. If I won the general election, whenever it was called — no general election had been called; it was only the nomination race — I would be on unpaid leave until there was an actual general election. If I won, my resignation was effective as of that day.

However, it took two weeks because the individual in question dithered around, saying I might not be allowed to take unpaid leave and the whole bit. I had to threaten legal action and bring up cases of other individuals who ran for other parties at the provincial level who were given the authorization literally within days. A decision, even when it is complicated, can be made quickly.

Mr. Anders: One can quibble about the timeline and authorization, but I can come up with an example of whether authorization should be granted. Mr. Clarke served with the RCMP; what if the individual was an RCMP officer who was involved in a deep long-term project to infiltrate organized crime and there was some consideration as to whether national security was compromised by that person leaving that particular role? I am saying only that there may be circumstances, but whatever.

Ms. Jennings: It does not take more than 30 days to make the decision. That example is an excellent one, where the investigation is ongoing and the individual is key to that investigation. However, in that case, it should not take more than 30 days for the commission to make a decision to authorize that individual to take leave or not.

Mr. Saxton: I want to clarify; the 30 days is to determine whether that person's position will be compromised if that person runs for public office, is that correct? The 30 days is not to find a replacement. It is not a human resources issue. It is more an issue as to whether the sensitivity of that position is compromised.

Mr. Bernhardt: Yes, and whether the individual will be allowed to go or whether the answer will be no, we cannot spare you; we will not give you the leave.

Mr. Saxton: At which time, that person can decide to resign and run anyway, right? That is always the option. The decision is more around the sensitivity of that role. I cannot imagine why it would take more than 30 days to determine that sensitivity. It seems to be a reasonable length of time.

The Joint Chair (Mr. Kania): Subject to common law notice or contractual requirements, individuals can quit at any time.

Mr. Saxton: The length of time seems to be reasonable.

The Joint Chair (Mr. Kania): Are there any other comments? We will write back pointing that out and seeking further information.

Mr. Bernhardt: The committee wants 30 days?

The Joint Chair (Mr. Kania): Yes.

[Translation]

SOR/95-212 — PLANT PROTECTION REGULATIONS

(For text of documents, see Appendix H, p. 10H:1.)

Mr. Rousseau: When the committee met on May 29, 2008, it instructed counsel to write to the Canadian Food Inspection Agency again to ask the agency to reconsider its position on 6 of the 25 points identified in the committee's correspondence with the agency.

In its response, the agency combined points 3, 13 and 20, as well as points 4 and 21. The note prepared for the committee retained that same numbering. With respect to points 3, 13 and 20, the agency promised to repeal the regulatory provisions in question. Before doing so, however, the agency would like to propose an amendment in order to eliminate the discrepancy between the English and French versions of section 48(1) of the Plant Protection Act. If the agency does so within a reasonable period of time, the committee should consider that to be an acceptable proposal.

As for point 5, the agency offered to amend section 16(1) of the regulations but did not provide any details. Since the committee is of the view that this section is unnecessary and even illegal, it should seek further clarification in order to ascertain whether the agency's proposal may be deemed satisfactory or not.

As for points 4 and 21, which pertain to sections 8, 9 and 46(3) of the regulations, the committee is still not satisfied with the agency's response. These provisions all create a similar problem. The committee is of the opinion that the objective of these provisions is to prevent fraud. It is the committee's view that fraud prevention is not one of the objectives of the Plant Protection Act, and therefore, sections 8, 9 and 46(3) of the regulations are not authorized under the act.

For example, section 8 sets out that no person shall use any document issued under the act or any regulation or order made thereunder for a purpose other than that for which the document was issued. The agency acknowledged that a regulatory provision of this type is designed to prevent fraud but argued that that is one of the objectives of the act. The note explains why committee counsel still has questions regarding the agency's explanation that the enabling legislation authorizes the disputed provisions.

The committee should ask the agency to address the doubts expressed by the committee in its note. As for the objectives of the act, Parliament set out in section 7(1) of the act that no person shall import or admit into Canada or export from Canada any thing that is a pest unless the thing has been presented to an inspector with the necessary permits, authorization and other documentation required by the regulations.

With regard to imports, section 29(1) of the regulations lists the documents that must be presented to an inspector. Thus a person who imports into Canada a thing that could be a pest must present the thing to an inspector, along with the documents referred to in section 29(1) of the regulations. If the person imports a pest without meeting that requirement, the importer has violated the act and may be liable to a fine or imprisonment, regardless of whether fraud was committed or not.

Given those conditions, it is appropriate to question the usefulness of section 8 and other regulatory provisions that seek to prevent fraud. Consider the case of a person who presents a pest to be imported to an inspector, along with documents required by the regulations but issued for a pest other than the one presented to the inspector. If the fraud is successful, the pest is imported into Canada, in violation of the requirement set out in section 29(1).

If the fraud is detected a month later, the person may be charged with contravening the act, in which case, on conviction, the person incurs exactly the same penalty as if the person had been charged with contravening section 8 of the regulations. From the standpoint of deterrence, nothing has been gained. One may also consider another scenario in which a person presents a thing to be imported to an inspector, but the inspector notices the fraud. In that case, the pest cannot be imported because the requirement set out in section 29(1) of the regulations has not been met. Therefore, the inspector will not accept the person's information. Since the act prohibits the pest from being imported and since the thing was not imported, there has been no contravention of the act. The purpose intended by Parliament has been fulfilled.

May the person be charged with contravening section 8 of the regulations for using a document for a purpose other than that for which it was issued? If so, contrary to the agency's argument, this situation confirms that preventing fraud is not merely an auxiliary aspect of section 8 of the regulations but in fact its sole objective. Section 7(1) of the act prohibits the import of the thing, and no import has taken place. Thus the sole objective of charging the person with contravening the regulatory provision would be to punish the attempted fraudulent import, which is not an issue Parliament addresses in the act.

When considered in that context, section 8 and the other regulatory provisions that the committee has called into question are clearly not even regulations designed to apply the act.

Committee counsel is of the opinion that the agency has not demonstrated the validity of these regulatory provisions. Subject to further clarification that the agency may provide regarding its argument that the enabling provision authorizes regulatory provisions designed to prevent fraud, sections 8, 9 and 46(3) of the regulations should be repealed.

If the committee is in agreement, it is recommended that counsel write to the agency again.

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

Hon. members: Agreed.

SOR/2005-354 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PART I)

(For text of documents, see Appendix I, p. 10I:1.)

Mr. Rousseau: Three points were raised with regard to this file. On points 1 and 3, the department promised to make the suggested amendments.

As for point 2, counsel is of the opinion that the department provided a satisfactory explanation of how section 109.05 of the regulations constitutes an implementation of the Convention on International Civil Aviation.

With regard to the power to impose, by regulation, an obligation to provide information to the minister, in connection with another file, the committee acknowledged that that power is implicitly conferred in the Aeronautics Act. In that other file, it was suggested that the act be amended to explicitly confer the power to make corresponding regulations.

If this is satisfactory to the committee, counsel will, in the usual way, inquire about the progress made on the promised amendments and keep the committee informed of that progress.

SOR/2008-273 — PCB REGULATIONS

(For text of documents, see Appendix J, p. 10J:1.)

Mr. Rousseau: Mr. Chair, as indicated in the note, the adoption of SOR/2008-273 corrected some of the problems raised by the committee during its review of the previous regulations. As for SOR/2008-273, amendments were promised to address 10 of the 11 points raised by committee counsel.

In addition, as the committee noticed during its review of SOR/2010-57, on October 11, 2010, some amendments had already been made in connection with points 4 to 9 and point 11.

Counsel is of the opinion that the response provided with respect to point 3 is satisfactory. Under section 7(b) of the regulations, a person may, among other things, manufacture PCBs in any facility that conforms to internationally recognized guidelines on best laboratory practices.

Counsel asked the department how one determined whether a guideline was internationally recognized or not. The department responded that such international recognition was determined by the industry.

Finally, with respect to point 10, which pertains to the wording of the regulations, the act authorizes the enactment of regulations with regard to the maintenance of books and records, referred to as "la tenue de livres et registres" in French, but the French version of the regulations also uses the word "document" to render the word "record" in the English version.

The department indicated that it would proceed with the necessary amendments, but that the act authorizes asking subjects for any supporting documents for the information entered into the records required for the implementation of the regulations. The department should be asked to clarify the impact that that will have on the promised amendments.

Counsel recommends that the committee raise the issue in another letter to the department, asking it to identify the amendments referred to in its May 27, 2010 letter. The department indicated that the changes would be made over the course of 2010, but that has yet to happen. Therefore, the committee should seek an update from the department.

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

Hon. members: Agreed.

SOR/2009-17 — INTERNATIONAL BRIDGES AND TUNNELS REGULATIONS

(For text of documents, see Appendix K, p. 10K:1.)

Mr. Rousseau: Five points were raised in connection with this file. The department promised to proceed with amendments in response to points 2, 4 and 5.

Committee counsel is of the opinion that the department's responses with regard to points 1 and 3, which pertain to the wording of the regulations, are satisfactory.

On the first point, the department provided documentation to support the wording used in the regulations. On the second point, counsel noticed that the regulations specifically exclude railway bridges and tunnels despite the fact that the schedule lists all the bridges subject to the regulations. The department explained that one of the bridges mentioned actually includes both a road bridge and a railway bridge. It was therefore necessary to exclude the railway bridge.

If that is satisfactory to the committee, counsel will, in the usual way, inquire about the progress made on the promised amendments and, once again, keep the committee informed of that progress.

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

Hon. members: Agreed.

SOR/2006-279 — REGULATIONS AMENDING THE PROHIBITION OF CERTAIN TOXIC SUBSTANCES REGULATIONS, 2005 (2-METHOXYETHANOL, PENTACHLOROBENZENE AND TETRACHLOROBENZENES)

(For text of documents, see Appendix L, p. 10L:1.)

Mr. Rousseau: The recommendation preceding this amendment indicates, and I quote, that the proposed regulations be "substantially in the annexed form" as those published in the Canada Gazette. In fact, three of the substances identified in the bill were removed from the final text of the adopted amendment, which affected the authorized sale of those substances, among other activities.

The department acknowledged that the text of the recommendation was imprecise and could be misinterpreted. In accordance with the committee's suggestion, the department promised that the phrase in question would not be used again in the future, in similar situations. If that response is satisfactory to the committee, this file can be closed.

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

Hon. members: Agreed.

[English]

SOR/2009-314 — REGULATIONS AMENDING THE FISH INSPECTION REGULATIONS

(For text of documents, see Appendix M, p. 10M:1.)

Mr. Bernhardt: As the covering note explains, this instrument resolves six of the concerns raised by the committee in connection with the Fish Inspection Regulations. In particular, the instrument removes provisions requiring the holder of a licence to meet the requirements of the Canadian Food Inspection Agency's Facilities Manual and to adhere to any conditions attached to the licence.

These provisions are significant because the committee has reported more than once that the intent of such provisions is to impose criminal liability for the breach of a term or condition of a licence or an administrative manual, neither of which are legislation. The result is that administrative documents and decisions are enforced as if they were law. I think these amendments are a significant success on this file.

In connection with these amendments, it was noted that one of the conditions for issuing an inspection certificate for fish caught under a recreational or sport fishing licence is that the applicant provide evidence to substantiate the fish was eviscerated and packaged under sanitary conditions. The department was asked what sort of evidence the applicant was expected to produce. The reply describes a voluntary program under which lodges and camps in British Columbia that meet certain requirements are certified to issue a statement that the fish was prepared under sanitary conditions, and these statements will be considered satisfactory evidence.

That is fine for those camps. It was then asked what other sorts of evidence will be acceptable. It was also pointed out that the B.C. program was described on the provincial ministry's website in rather a different way than the Canadian Food Inspection Agency described it. The agency said it will accept any evidence that it can substantiate. However, to date, only the B.C. sport fishing industry has seen a need for this kind of certification. That seems fine.

It also advised that the provincial ministry proposed to update its website so that it reflected the operation of the program in the manner the agency had described to the committee. As of this week that website had not been updated yet, so we can write and ask why there is still that discrepancy. Other than that, the file seems satisfactory.

The Joint Chair (Mr. Kania): Agreed.

[Translation]

SOR/2009-318 — REGULATIONS AMENDING THE MOTOR VEHICLE SAFETY REGULATIONS (VARIOUS AMENDMENTS)

(For text of documents, see Appendix N, p. 10N:1.)

Mr. Rousseau: In this file, it should be noted that the adoption of SOR/2009-318 made a clarifying regulatory amendment further to a concern raised by the committee.

SOR/2009-318 was the subject of correspondence aimed at determining whether there was a discrepancy between the French and English versions of the definition of "antilock brake systems or ABS." It is the opinion of committee counsel that the department's response is acceptable.

The French version explicitly refers to a system that automatically controls the degree of rotational wheel slip of one or more tires during braking, while the English version simply refers to a system that automatically controls the degree of rotational wheel slip during braking. The department explained that during breaking, the system will control a wheel, the wheels, or one or more wheels. All these cases may occur in a braking event.

For the reasons indicated in its letter, the department is of the opinion that the current English wording covers all those possibilities and that the two versions are consistent with one another. If the committee finds the department's response to be acceptable, this file can be closed.

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

Hon. members: Agreed.

The Deputy Chair (Mr. Kania): This file is closed. Next point.

SOR/84-432 — LICENSING AND ARBITRATION REGULATIONS

SOR/96-363 — LICENSING AND ARBITRATION REGULATIONS, AMENDMENT

SOR/89-127 — FOOD AND DRUG REGULATIONS, AMENDMENT

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

SOR/2003-6 — REGULATIONS AMENDING CERTAIN REGULATIONS ADMINISTERED AND ENFORCED BY THE CANADIAN FOOD INSPECTION AGENCY

(For text of documents, see Appendix O, p. 10O:1.)

Mr. Rousseau: With respect to this group of regulations, in its letter of April 16, 2010, the department indicated that it works closely with the Department of Justice and is currently awaiting blue-stamped versions of the draft regulations that would address a number of the issues raised during a review of the five above-mentioned statutory instruments. That letter is a few months old. The committee should inquire about the progress that has been made since April. If the committee is in agreement, counsel will raise the matter in another letter to the department.

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

Hon. members: Agreed.

The Deputy Chair (Mr. Kania): Next point.

[English]

SOR/91-687—PROCESSED PRODUCTS REGULATIONS, AMENDMENT

(For text of document, see Appendix P, p. 10P:1.)

Mr. Bernhardt: One outstanding amendment remains in this file. In April, the Canadian Food Inspection Agency gave a forecast time frame of the second half of this year. The amendment has yet to be made. Perhaps an updated progress report should be sought.

The Joint Chair (Mr. Kania): Agreed.

SOR/92-446 — TRANSPORTATION SAFETY BOARD REGULATIONS

(For text of document, see Appendix Q, p. 10Q:1.)

Mr. Bernhardt: In May, the board reported that examination of the proposed amendments by the Department of Justice had been completed. Unfortunately, this examination took so long that the regulatory impact analysis statement was obsolete and had to be updated and resubmitted to Treasury Board. That is where things stood in May. A further report on progress would seem to be in order.

Hon. Members: Agreed.

[Translation]

SOR/2002-198 — REGULATIONS AMENDING THE SEEDS REGULATIONS

(For text of documents, see Appendix R, p. 10R:1.)

Mr. Rousseau: In addition to providing the requested information on some of the promised amendments, the agency indicated that the proposed regulations containing those amendments should be published later this fall. That has yet to happen, and it is recommended that committee counsel write another letter to the agency to ascertain where things stand.

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

Hon. members: Agreed.

SOR/2007 206 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE HAZARDOUS PRODUCTS ACT (FLAME RESISTANCE TEST METHOD)

(For text of documents, see Appendix S, p. 10S:1.)

Mr. Rousseau: In this file, the committee questioned the validity of incorporation by reference of technical standards drafted by the Canadian General Standards Board. Bill C-6, which died on the Order Paper, was reintroduced in Parliament as Bill C-36, which would address these issues.

The House of Commons passed Bill C-36 on October 29, 2010, and the Senate has begun its second reading. Counsel will follow the file and keep the committee informed.

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

Hon. members: Agreed.

The Deputy Chair (Mr. Kania): Next point.

[English]

SOR/96-252 — SEEDS REGULATIONS, AMENDMENT

(For text of document, see Appendix T, p. 10T:1.)

Mr. Bernhardt: The forecasted date on this amendment has been pushed back more than once. Last May, it was stated to be in 2011. To keep their feet to the fire, we can ask if that date is still the anticipated time frame.

Hon. Members: Agreed.

[Translation]

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

(For text of documents, see Appendix U, p. 10U:1.)

Mr. Rousseau: As explained in the note, this order has to do with charges to be paid for environmental assessment services by proponents proposing projects to be studied by a review panel under the Canadian Environmental Assessment Act.

The committee questioned the validity of some of those charges because the minister made use of ambulatory incorporation by reference, that is, incorporation of documents to which changes would be made after the order was adopted.

The Canadian Environmental Assessment Agency did not formally admit that charges were not validly prescribed, but in a certain number of cases, acknowledged that charges might not be ascertainable.

It has agreed to take steps to address the committee's concerns.

As explained in detail in the note, since 2005, the agency's preferred solution has wavered between an amendment of the order and a legislative amendment, by which Parliament would clearly confer authority to make use of ambulatory incorporation by reference.

In its April 21, 2010 letter, the agency announced its most recent decision to change its approach. Although, in 2008, the agency was considering amending the authority conferred on the minister under the Financial Administration Act and the order, it later decided that it would be more appropriate to improve the present cost recovery system by amending the Canadian Environmental Assessment Act. The agency assured the committee that it intended to act promptly.

According to the agency, the act was scheduled to undergo a parliamentary review beginning in early June 2010. Based on our information, the Standing Committee on the Environment and Sustainable Development will not begin that study until the new year.

Is it possible that the most recent approach adopted by the agency will lead to five more years of consultations and consideration of options? Given the agency's stated intent of acting promptly, it would be appropriate to inquire whether the agency was prepared to specify when it would agree to proceed by way of amending the order, to solve the problems noted by the committee, should the outcome of the upcoming parliamentary review not be available as promptly as the agency had hoped.

[English]

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

Mr. Lee: I am looking at the clock, and this particular file seems to have been sliding around an awful lot. I do not regard this reply as progress. Counsel, is someone playing a shell game here or has this issue been moving along expeditiously and in good faith? I do not detect any of that movement.

[Translation]

Mr. Rousseau: Actually, the agency did provide us with draft regulations. I cannot say why it changed its mind, unless it became convinced, somewhere along the way, that there was an opportunity to amend the applicable legislation. That did not happen, however. There has always been this kind of back and forth. Assuming that the agency has been acting in good faith, the solutions that it has put forward and that it considered feasible at some point have never come to fruition.

Generally speaking, it is clear that no real progress has been made. And as I said in my presentation, this matter will likely be outstanding for some time to come.

At this stage in the game, the agency should be able to say that if its approach does not prove successful within a specified period of time, a year for example, then it will undertake to amend only those provisions whose validity the committee questioned as far as the measures taken by the minister are concerned.

Although that solution would not rectify all of the problems that exist —other than those identified by the committee with respect to these regulations —it would at least address the issues raised by the committee.

[English]

Mr. Lee: The regulations being discussed involve fees and charges to citizens that do not have proper legal foundation.

Mr. Bernhardt: Apparently in some cases, they cannot calculate the amount. They cannot collect a fee if they cannot decide on the amount of the fee in the first place.

Mr. Lee: This issue is significant, and why we are here. This is what we trained for. I want counsel to try to tighten up the time line on this issue, as if it were a fresh issue and not some old file dragging along. It involves fees and charges to citizens, and we ought to ratchet up our attention to the issue.

The Joint Chair (Mr. Kania): Perhaps counsel can write a letter to request a substantive response within a specific period of time, 30 days.

Mr. Bernhardt: We can also ask for a time by which they will amend the order. assuming that we do not have amendments to the act that resolve the matter in the interim.

Mr. Lee: That is fine.

Mr. Bernhardt: The parliamentary review is being used somewhat as an excuse. When they commence and complete the review, it goes to the government. The government decides whether it will make amendments in response to the review. The amendments are drafted, introduced in the house and eventually become law; we will all be dead and buried by that time.

The Joint Chair (Mr. Kania): I hope not.

Mr. Lee: Not agreed.

The Joint Chair (Mr. Kania): Not agreed.

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

(For text of document, see Appendix V, p. 10V:1.)

Mr. Bernhardt: Amendments were promised to update obsolete references to the Canada Business Corporations Regulations, 2001. The proposed amendments were blue-stamped by the Department of Justice Canada in 2008. By that time, however, the Canada Business Corporation Regulations had been amended again, which meant the amendments had to be re-amended because the amended references were now obsolete.

In April the department forecast a completion date of mid-2010. The amendments have yet to be made, so once again a revised time frame will have to be obtained from the department.

The Joint Chair (Mr. Kania): Agreed.

[Translation]

SOR/96-484 — RADIOCOMMUNICATION REGULATIONS

SOR/98-437 — REGULATIONS AMENDING THE RADIOCOMMUNICATION REGULATIONS

SOR/99-107 — REGULATIONS AMENDING THE RADIOCOMMUNICATION REGULATIONS

SOR/2001-533 — REGULATIONS AMENDING THE RADIOCOMMUNICATION REGULATIONS

(For text of documents, see Appendix W, p. 10W:1.)

Mr. Rousseau: As for the series of regulations listed under this heading, I need to point out two errors in the documentation before I explain why this file was included in the "Action promised (?)" category. The French version is missing the December 21, 2009 letter —we have copies here —but that letter is not critical in order to understand the file. The letter informed the committee that an erratum was published and that the department was preparing a response to the committee's concerns identified in the letter sent by counsel on November 10, 2009. In the English documentation, the letter dated March 31, 2009 was actually sent on March 31, 2010.

As members can see, the correspondence addresses a number of points raised by counsel with regard to substantive matters. In its March 31, 2010 letter, the department indicated that it would pursue the appropriate amendments to respond to all of the committee's concerns but did not provide any further information about the future amendments. It would be appropriate for the committee to seek that information, so as to clearly gauge the department's commitment to making the necessary amendments. If the committee is in agreement, counsel will write to the department again.

[English]

SOR/2008-275 — ENVIRONMENTAL RESPONSE ARRANGEMENTS REGULATIONS

(For text of document, see Appendix X, p. 10X:1.)

Mr. Bernhardt: Under Action Promised, there is an amendment promises to clarify the definition of the term "gas carrier" in the regulations. The forecasted date for making that amendment has come and gone, so a progress report will be sought.

SOR/2010-49 — ORDER 2010-87-03-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2010-125 — ORDER 2010-87-06-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2009-309 — ORDER 2009-87-11-01 AMENDING THE DOMESTIC SUBSTANCES LIST

(For text of documents, see Appendix Y, p. 10Y:1.)

Mr. Bernhardt: Under Action Taken, the instruments listed have four amendments that were promised to the committee.

SI/2010-14 — ORDER GIVING NOTICE OF DECISIONS NOT TO ADD CERTAIN SPECIES TO THE LIST OF ENDANGERED SPECIES

SI/2010-15 — ORDER FIXING MARCH 1, 2010 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

SI/2010-16 — ORDER FIXING APRIL 1, 2010 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACTS

SI/2010-17 — OAK RIDGES MORAINE LAND EXCHANGE INCOME TAX REMISSION ORDER

SI/2010-19 — ORDER AWARDING OF THE GENERAL CAMPAIGN STAR WITH THE ALLIED FORCE RIBBON

SI/2010-20 — ORDER AWARDING OF THE GENERAL CAMPAIGN STAR WITH THE EXPEDITION RIBBON

SI/2010-21 — ORDER AWARDING OF THE GENERAL CAMPAIGN STAR WITH THE SOUTH-WEST ASIA RIBBON

SI/2010-22 — ORDER AWARDING OF THE GENERAL SERVICE MEDAL WITH THE ALLIED FORCE RIBBON

SI/2010-23 — ORDER AWARDING OF THE GENERAL SERVICE MEDAL WITH THE EXPEDITION RIBBON

SI/2010-24 — ORDER AWARDING OF THE GENERAL SERVICE MEDAL WITH A SOUTHWEST ASIA RIBBON

SI/2010-25 — ORDER FIXING THE DAY AFTER THE DAY ON WHICH THE ORDER IS MADE AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

SI/2010-26 — ORDER AMENDING THE TREATY LAND ENTITLEMENT (SASKATCHEWAN) REMISSION ORDER

SI/2010-27 — GINETTE ARCHAMBAULT INCOME TAX REMISSION ORDER

SI/2010-30 — ORDER FIXING MARCH 26, 2010 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

SI/2010-31— ORDER FIXING JULY 1, 2010 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

SI/2010-32 — ORDER AMENDING THE CANADIAN PASSPORT ORDER

SI/2010-33 — ORDER TERMINATING THE ASSIGNMENT OF THE HONOURABLE HELENA GUERGIS

SI/2010-34 — ORDER ASSIGNING THE HONOURABLE RONA AMBROSE TO ASSIST THE MINISTER OF CANADIAN HERITAGE

SI/2010-35 — CANADIAN AGRICULTURAL INCOME STABILIZATION INVENTORY TRANSITION INITIATIVE REMISSION ORDER

SI/2010-36 — CANADIAN AGRICULTURAL INCOME STABILIZATION PROGRAM AND CANADIAN AGRICULTURAL INCOME STABILIZATION INVENTORY TRANSITION INITIATIVE REMISSION ORDER

SI/2010-37 — PATTISON SIGN GROUP, A DIVISION OF JIM PATTISON INDUSTRIES LTD., REMISSION ORDER

SI/2010-39 — PROCLAMATION DECLARING MAY 4, 2010 AS "CANADIAN NAVY CENTENNIAL DAY"

SI/2010-41 — CERTAIN PARTICIPANTS IN THE 13TH IAAF WORLD JUNIOR CHAMPIONSHIPS REMISSION ORDER

SI/2010-42 — ORDER ACKNOWLEDGING RECEIPT OF THE ASSESSMENTS DONE PURSUANT TO SUBSECTION 23(1) OF THE ACT

SI/2010-43 — EURO GRADING & HAULAGE INC., REMISSION ORDER

SI/2010-44 — TRIANGLE SERVICES LTD. REMISSION ORDER

SI/2010-47 — CERTAIN RECREATIONAL CAMPS REMISSION ORDER

SI/2010-48 — STEVEN N. MCMINN REMISSION ORDER

Mr. Bernhardt: Under Statutory Instruments Without Comment, 28 instruments have been reviewed and found to comply with all the committee's criteria.

The Joint Chair (Mr. Kania): Are there other matters? Thank you.

(The committee adjourned.)

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