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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 13 - Evidence, December 9, 2010

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OTTAWA, Thursday, December 9, 2010

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:34 a.m. for the review of statutory instruments.

[English]

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

The Joint Chair (Mr. Kania): Good morning. Concerning last meeting's discussion on the Identity Screening Regulations, Senator Martin and I have spoken and directed counsel to prepare a draft response based on those discussions to the department for the first meeting of the joint committee in the new year. Nothing will be sent prior to that meeting. We will treat the response as a draft for discussion purposes at that first meeting.

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

Peter Bernhardt, General Counsel to the Committee: The issue on this file is the provision that was formerly in the regulations authorizing the minister to deem certain persons to be the widow of a deceased Indian for purposes of intestate succession. The joint committee first reported on this issue in 1999 and, following that report, the government conceded that there was no authority for the provision in question; and it was revoked. The government also accepted that a complete solution would involve introducing a bill that would validate the orders that had been made in the past. Some ten years later, this bill has yet to be introduced.

At the November 4 meeting, the joint committee instructed counsel to draft a report drawing the attention of the houses to the fact that there may be unresolved issues relating to how estates are distributed, and urging action to fulfill the undertaking to address this matter through legislation, which is the draft report before members this morning.

The Joint Chair (Mr. Kania): Are there comments on the draft report?

Mr. Saxton: It looks fine to me, but why are we requesting a comprehensive government response? We have written the report to send. The issue has been around for a long time. We have done our due diligence. Should we not file the report and move on?

Mr. Bernhardt: That is for the joint committee to decide. We put it there because habitually we do so. It is always easier to remove an item than to add one. It is the decision of committee members to request a response or simply to table the report.

Mr. Saxton: I suggest that we table the report and move on.

Senator Harb: It makes perfect sense to ask for a response, as counsel has done. Traditionally, for every report tabled, the government has a period of time to respond. This case should not be different. The government should be given the opportunity to respond.

The Joint Chair (Mr. Kania): Are there comments on the body of the report before we discuss requesting a response? Are members content with the body of the report? Okay, we will discuss whether to ask for a response from the government. We have two opinions. Does anyone care to offer another suggestion?

Mr. Lee: It is routine for the joint committee to seek a response to a report. Occasionally, we do not request a response. However, in this case, a failure to request a reply would send a signal that we do not care, even though in replying the department might recycle previous replies and ideas. We are reporting to keep the issue fresh because it is the unfinished business of clearing up conspicuous and admitted illegality. When we prepare a report, we should have a reply.

I do not see another way to do it. Otherwise, if we do this the next time, it will be like sending a post card. I am inclined to request a reply. Maybe their position has changed; maybe they are having another look at it, and perhaps they should.

Mr. Anders: Colleagues, I am asking for your collective memories here. I thought a bill had been introduced in the house with regard to matrimonial property for women on reserves. I do not know whether the bill made it through the other side, as it were, but I thought there was something to that effect. In other words, the government was addressing it.

The Joint Chair (Mr. Kania): Does anyone recall anything about that bill?

Mr. Bernhardt: That bill dealt with residential property, matrimonial homes on reserves. I do not think it extended to the full estate that might come into play if someone was deceased. If there is a house or land, I think those issues were resolved through that bill. At the time, as I recall, when we looked at it, the committee made a suggestion that the bill could be a vehicle to piggy-back the solution, and I think the answer the committee received was that this issue fell outside the scope of the bill.

Mr. Anders: The bill dealt with the matrimonial home, but not the extraneous property.

Mr. Bernhardt: Exactly.

Mr. Saxton: Can counsel remind us if there are different levels of responses that we ask for?

Mr. Bernhardt: As far as a report goes, there are three levels of report. There is simply a tabling of the report; there is, the way this report is drafted, tabling a report asking for a government response; and the nuclear option — for lack of a better term — is a disallowance report.

Mr. Saxton: This report asks for a comprehensive government response.

Mr. Bernhardt: That wording tracks the language of the standing orders. That is the way it is referred to in Standing Order 109, so when we request a government response to a report we use the language in the standing orders.

Mr. Saxton: It is standard wording.

Mr. Bernhardt: Yes; as I say, that wording is taken directly from the standing orders.

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

Senator Moore: I think we should follow counsel's advice and ask for a response. Otherwise the report goes into a vacuum. What is the point?

The Joint Chair (Mr. Kania): Are you okay with that suggestion, Mr. Saxton?

Mr. Saxton: I am okay with that.

The Joint Chair (Mr. Kania): Is everybody else?

Hon. Members: Agreed.

SOR/2002-438 — REGULATIONS AMENDING CERTAIN REGULATIONS ADMINISTERED AND ENFORCED BY THE CANADIAN FOOD INSPECTION AGENCY, 2002-2 (MISCELLANEOUS PROGRAM)

(For text of document, see Appendix A, p. 13A:1.)

Mr. Bernhardt: The issue here are certain drafting practices relating to replacement of definitions and defined terms in the context of powers to alter and correct legislation administratively under the Legislation Revision and Consolidation Act. The Canadian Food Inspection Agency put forward a position that when an amendment replaces a term and a definition, that term is replaced wherever it appears in any part of the definition, including the defined term.

The difficulty with this position is that it is not consistent with federal drafting practice. The practice has always been that when federal drafters amended a term in a regulation, including in a definition, that amendment changed that term wherever it appeared but it did not change the actual defined term. To change that, they needed a separate amendment.

Confirmation was sought from the chief legislative counsel that future regulations would be drafted to reflect this new position. That confirmation has been received.

Another issue here concerned a reference at the end of the definition to the equivalent term in the other language version. The Department of Justice claimed that these references do not need to be altered by amendments but can be changed administratively by Department of Justice personnel. For the reasons set out in counsel's May 18 letter, this position, it is suggested, is not sustainable.

The reply from the chief legislative counsel now informs the committee that the department still adheres to its position, but the previous practice whereby it expressly amended that reference to the other term in the other language at the end of a definition will continue, in their words, ``so as to avoid any question.'' That means that the particular issues here should not arise in the future.

That being said, there are certain things that follow from the views taken by the Department of Justice, and their apparent interpretation of section 27 of the Legislation Revision and Consolidation Act. The note suggests there will be certain anomalous results that flow from the Justice position and that it goes against the intent of the act.

To put it simply, there is nothing that permits the correction of components of a regulation that have been enacted by the regulation-maker. It is suggested the department should be asked to state clearly that it accepts this position. There are other clarifications that should be sought.

I suppose the issue here is minor. We are dealing with a technical drafting issue. There are broader implications. In the absence of a clear rule to the contrary, any component in legislation that was enacted by the legislator forms part of that legislation and cannot be altered other than by formal amendment. The Legislation Revision and Consolidation Act allows, in limited cases, for corrections to mistakes and things like marginal notes. It does not allow for altering of portions of the legislation itself, as enacted by the legislator.

That act came in 2009, so it is fairly new, and I think it is important to arrive at a clear understanding with the Department of Justice as to the scope and the limits of that act early on.

The recommendation is to write back to the chief legislative counsel, explaining the points and difficulties set out in the note, asking for an assurance that the department accepts the limitations that the Legislation Revision and Consolidation Act has on this authority to alter portions of the law administratively.

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

Mr. Lee: I can tell from the silence around the table that this file has left a lot of us in the dust. It is technical. I had difficulty with it.

I agree with counsel not to pursue all the minutiae associated with the current issue, but rather the principles associated with the interpretation of the new act. As counsel has pointed out, that is important. I do not think I am capable of going into the details of this definitional issue. I will leave that to others if anyone wants to talk to it, but on the principle, I think we should support counsel's attempt to clarify the interpretation of the new statute.

The Joint Chair (Mr. Kania): Agreed?

Hon. Members: Agreed.

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

(For text of document, see Appendix B, p. 13B:1.)

Mr. Bernhardt: Here, the committee has questioned the authority for a provision in the regulations that provides for the deduction of amounts owing from benefits payable. The Special Retirement Arrangements Act permits the payment of contributions by a reservation from a person's salary or otherwise, but there is clearly a distinction between making a contribution and recovering an amount that is owing; recovering a debt.

The November 2 letter from the president of the Treasury Board acknowledges the committee's concern and advises that the section in question will not be relied upon and the act will be amended to permit the withholding from benefits of amounts owing.

In the interim, section 155 of the Financial Administration Act is to be used to collect unpaid contributions. Section 155 provides that a debt due to the Crown can be recovered ``by way of deduction from or set off against any sum of money that may be due or payable'' by the Crown to that person.

Previously, Treasury Board expressed a view that section 155 could not be relied on in these circumstances, presumably because the amounts in question could not be characterized as debts due to the Crown. The minister's November 2 letter indicates that Treasury Board has reconsidered its view and has now come to a different conclusion. The committee never found the first position taken by Treasury Board entirely convincing, so it seems that skepticism was well-founded.

In any event, a course of action to resolve the matter has been proposed, and I suggest it remains simply to monitor future progress.

Hon. Members: Agreed.

PARKS CANADA MASTER LIST OF FEES, AS PUBLISHED AUGUST 28, 2010

(For text of document, see Appendix C, p. 13C:1.)

Mr. Bernhardt: Fees pertaining to national parks and national historic sites are fixed by the Minister of the Environment on an administrative basis under the Parks Canada Agency Act. That act also, however, provides that the fees stand referred to the Standing Joint Committee for the Scrutiny of Regulations to be reviewed and scrutinized as if they were statutory instruments. That is how the fees have come to be before the committee.

Each year, changes to the fees are approved, and then a master list of all fees is published in the Canada Gazette. The most recent fee proposals were approved by the minister on July 7, 2010. Under the act, then, those fees are to be published within 30 days after they are fixed. This time, however, the fees were published as part of the master list in the Gazette on August 28. This is not the first time Parks Canada fees have been published after the 30-day deadline.

In 2008, the committee was told that a new database had been developed to ensure easier access and the updating of information. It was expected this database and related tools would be in place by the fall of 2008. The chief executive officer from Parks Canada wrote:

I am confident that once these measures have been fully implemented, they will allow the agency to adhere to the requirements of the Parks Canada Agency Act and thus meet Canada Gazette publishing deadlines in the future.

Obviously, this has proven not to be the case. This time the reason given is that apparently it took a great deal of time to convert the 156 pages of fees into the format that could be published in the Gazette. Apparently, there have been discussions between agency and Gazette officials. Hopefully, matters will be expedited for the next edition of the master list of fees. Time will tell.

Mr. Lee: I find no fault with the department here. They seem to have proceeded expeditiously. The problem is the bottleneck at the Canada Gazette, and I wonder if counsel has any response to my concern that it may be that Parliament has built in these 7-day, 10-day, 15-day and 30-day publication times when maybe the Canada Gazette, with the way it is run now, does not have the capacity to turn these things around that quickly. Therefore, we force everybody to breach the legal requirement when it is simply a question of Canada Gazette saying, I am sorry; we need two weeks to set it up.

It strikes me as odd in the modern day with the kind of publishing I thought was out there. Can you comment, counsel?

Mr. Bernhardt: I do not know what is involved from Canada Gazette's end in terms of acting as a publisher. Yes, as you say, in this day and age, one would think it would be a fairly simple thing, but on the other hand, the document is 156 pages; it is of some volume.

All I can report is what Parks Canada Agency has said in that they have had discussions with Gazette officials and they hope those discussions will lead to a better ability to meet that deadline in the future.

Mr. Lee: Counsel, they publish for us; they are our publisher of record, if I can put it that way.

Mr. Bernhardt: They are the government newspaper.

Mr. Lee: Yes, and we are the client. If they cannot accommodate us — let me say they have to accommodate us. They have to get their act together. If there is a problem in accommodating us, let us find out what it is and they should fix it.

They are not operating on the run out there; they work for us. When we have 7-day or 30-day publication deadlines, they better get their act together. That is all I have to say. Maybe you can check with the Department of Justice and see if they have a similar view. The tail does not wag the dog here, or it should not.

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

The proposal perhaps —

Mr. Lee: I was suggesting that counsel check with the Department of Justice to see if we have a logistical administrative problem here. If there is not one, we move on and there are no steps to be taken. On this file, we have made our point, and the department is pretty much without fault here although counsel has seen other late publishing scenarios.

The Joint Chair (Mr. Kania): Are you suggesting that we simply monitor this file in terms of future actions but, in addition, counsel make some contact with the department to —

Mr. Lee: I think we are okay with Parks Canada, but if counsel uncovers a problem with the Canada Gazette, maybe he should come back to us.

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

The Joint Chair (Senator Martin): Senator Moore, do you have a comment?

Senator Moore: I agree. That is fine.

SOR/2008-115 — ELECTRONIC ALTERNATIVES REGULATIONS FOR THE PURPOSES OF SUBSECTION 254(1) OF THE CANADA LABOUR CODE

(For text of document, see Appendix D, p. 13D:1.)

Shawn Abel, Counsel to the Committee: This instrument, which was made by the Minister of Labour under the Canada Labour Code, was not transmitted to the clerk of the Privy Council for registration within the time frame required by the Statutory Instruments Act. According to the department, the department was not aware of the requirement since the minister rarely makes regulations.

A promise was provided to meet the deadline in the future, so presumably this problem will not happen again. This particular file presumably can be closed then. As always, future instruments will be monitored for compliance with the Statutory Instruments Act.

The Joint Chair (Mr. Kania): Are there any comments? Done: We shall monitor.

Hon. Members: Agreed.

SOR/2009-236 — ORDER 2009-87-03-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2009-237 — ORDER 2009-87-05-03 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2009-238 — ORDER 2009-87-03-04 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2009-254 — ORDER 2009-87-05-04 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2010-66 — ORDER 2009-87-03-03 AMENDING THE DOMESTIC SUBSTANCES LIST

(For text of documents, see Appendix E, p. 13E:1.)

Mr. Abel: Once again, these instruments were not registered within the time frame required by the Statutory Instruments Act. As the letters from counsel note, these particular orders have been an ongoing problem. The department indicates that they found a deficiency in their process and modifications have been made to ensure that the delays in registration do not occur in the future. Counsel has checked the dozen or so similar orders made since the letter came from the department and all have met the registration deadline. Presumably, then, this file can be closed also.

Hon. Members: Agreed.

SOR/93-108 — QUEBEC BEEF CATTLE PRODUCERS' LEVIES OR CHARGES (INTERPROVINCIAL AND EXPORT TRADE) ORDER

(For text of document, see Appendix F, p. 13F:1.)

Mr. Bernhardt: This order was adopted pursuant to the Quebec Beef Cattle Order, which authorizes the provincial board to fix by order, in French ``instituer par ordonnance,'' levies or charges payable by persons in Quebec who are engaged in interprovincial or export trade. The provincial board exercises this power by incorporating by reference as amended from time to time regulations that were adopted in accordance with powers delegated to the province.

The disagreement then concerns this open incorporation by reference. The committee has concluded that the federal levies are not fixed by the order, as is required. Part of the problem lies in the fact that the two versions of the provision of the Agricultural Products Marketing Act that allows the Governor-in-Council to grant authority to a board are discrepant. The English version refers to granting authority to fix, impose and collect levies or charges, while the French version refers to imposing levies and charges. Based on this language, the English version of the Quebec Beef Cattle Order permits the board to fix and impose by order and collect levies; the French version permits the board to impose by order and collect levies. Incorporation, by reference of provincial laws as amended from time to time, does impose a levy but does not fix the levy.

If the English version of the act and the order is amended to reflect the formulation used in the French version, there would be authority here to use the incorporation by reference and the problem would be solved. There seems to have been confusion as to what the committee proposed in terms of what version of what instrument needed to be amended. Hopefully, a further letter will clarify matters and perhaps lead to agreement to make the necessary amendments. The suggestion is to write to the Department of Agriculture again and try to clear up that confusion.

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

Hon. Members: Agreed.

SOR/96-143 — VETERINARY DRUG EVALUATION FEES REGULATIONS

(For text of document, see Appendix G, p. 13G:1.)

Mr. Bernhardt: The issue here is one that the committee is familiar with. It is the distinction, once again, between fees and taxes.

These regulations impose fees on manufacturers who submit a veterinary drug for evaluation and approval. The fees are described by Health Canada as being for evaluation services that they provide. The regulations also provide for a reduction in fees for drugs that have a low sales volume. The fee then is 10 per cent of the revenues from sales of the drug in the first three years or the prescribed amount of the fee, whichever one is smaller.

The result is that two people could pay different amounts for the same service, based on their future revenues. The joint committee has questioned whether this difference makes these fees an unlawful tax.

As the note explains, when dealing with charges for services, one of the factors that will lead to a conclusion that the charge is a tax is that there is no correlation between the amount charged and the cost of the service provided. The department was asked whether they could establish this correlation.

The department's reply is that the total amount collected is only a fraction of the total cost incurred, which is a completely different question. They also state that the fees never cover the cost of providing the service to a particular manufacturer. Again, this information is not particularly relevant, nor are the policy explanations for the structure here that they have provided.

Reference is made in the note to the Supreme Court decision in Eurig, which makes it clear that when dealing with a service fee, the question is whether there is a correlation between the amount charged to a person and the cost of providing the service to that person. If people do not pay the same amount for the same service, it must be the case that the difference is based on the fact it costs more to provide the service to one person than the other.

To quote from the court in Eurig about estate fees, ``a fee based on the size of the bank account of the person or estate requesting a service'' indicates that the fee is a tax. It would seem to lead to the same conclusion here.

The department maintains the present fees are valid, but it has said it is willing to propose amendments that will lead to the same result. The amendments it proposes involves remitting the amount equal to the reduction through a remission order under the Financial Administration Act.

In considering this proposal, it seems to us that the proposed amendment will give rise to the same objection. It will remain the case that there is no correlation between the final charge imposed and the cost of providing the particular service. There is also a subsidiary issue here, which is the fact that the amount of the fee is also, to some extent, made to turn on the discretion of the minister or the director.

Given that the committee questioned the validity of this entire scheme in the first place, as I say, that is a subsidiary issue, I suggest a further letter to the department, giving the explanation set out in the note and seeking a response that addresses the particular question that is relevant: Is there a correlation and can it be established between the amount of fee charged and the cost in a particular instance?

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

Mr. Lee: The department is probably a little nervous about this item, given the other files we have seen, and the courts have seen — the broadcasting fees, Eurig and a whole lot of other files that we have seen here.

I am reluctant to target this one directly. I have some sympathy for the department. I think that the fee reduction here, even though it is irrelevant to our criteria, is good policy; it makes sense.

The fee here, make no mistake about it, is $15,980. It we were to question the appropriateness and relevance of the fee, the connection of the fee to the service, the number we deal with is $15,980.

I am being a devil's advocate here; I am speaking for the department. I suggest to counsel that the other mechanism he is looking at is the reduction; and reduction is not mainline fee setting. It is a policy decision reduction in the fee, based on some reference to the capacity of an applicant to pay those kinds of fees. The rules we have that judge the legality of fees should be directed to the $15,000 number, not the reduction mechanism.

The question to counsel then is: Why can this reduction mechanism not be valid, disconnected or semi-disconnected from the law governing fees themselves? Why would we not let it be like that?

That is my argument.

Mr. Bernhardt: I will make two points to that argument. The first is that the authority in the act is to prescribe a fee. The only authority they have to take money, to deal with money, is through prescribing a fee. If this mechanism does something more than prescribe a fee, it is ultra vires. That is the authority they have.

The second, I think, is a matter of common sense. Someone is paying an amount of money to have their application evaluated. I think, logically, the question is how much has that person paid for that evaluation. The fact they may have paid it in two stages — they paid $15,000 up front and received $5,000 back — it still cost them $10,000 to the government to have their drug evaluated and approved.

I think it is artificial to try and make that distinction. It will also involve them in giving back money illegally. They say, yes, we charged the $15,000 fee under the authority to prescribe a fee, but here is some money back. Under what authority are they giving back that money? It has to be part of prescribing a fee.

Mr. Lee: I think your remarks will be helpful to the department. Thank you.

The Joint Chair (Mr. Kania): Are there any other comments? We will follow up.

SOR/2001-281 — BY-LAW NO. 7 RESPECTING THE LARGE VALUE TRANSFER SYSTEM

(For text of document, see Appendix H, p. 13H:1.)

Mr. Abel: Following the committee's last consideration of this bylaw, counsel wrote again on three points. Details on each point will be found in the note prepared for today's meeting.

The first issue deals with section 37, which states that it applies ``subject to any statutory or regulatory constraints.'' The committee considered that this phrase is too vague and should be amended.

The department previously suggested that a non-exhaustive list of statutory and regulatory sources could be added to the provision. Now, however, it states that the present general wording should not be changed because doing so might preclude any other constraints not explicitly recognized.

This response does not seem satisfactory. If the department cannot specify the limitations that apply to section 37, how are institutions subject to that provision to know with certainty whether the requirements of that provision have been met?

The second issue relates to the statement in section 51 that nothing in sections 43 to 50 ``affects any right or remedy that a participant or any person may have under the general law, including, without limitation, the law governing mistake, unjust enrichment or restitution.'' As this passage purports to pronounce upon or affect the civil liability of persons subject to the bylaw, the committee considered that either the passage serves no legal purpose and should be removed, or if it does affect civil liability, the necessary enabling authority to do so is not present and, again, the passage should be removed.

The department continues to rely on section 18(1)(d) of the Canadian Payments Act for authority, despite that the committee rejected this possibility at its last consideration. The department also maintains that the passage in question gives persons a clear indication of their rights and remedies, although providing information is not a valid legislative purpose. It nonetheless still appears that the passage makes a definitive statement as to civil liability. There is no reason that this passage should not be removed.

Finally, the third issue relates to the power provided to the general manager of the Canadian Payments Association to exempt a participant from being suspended from the clearing of settlement systems in accordance with the regulations. The department does not agree with the committee's conclusion that criteria governing the general manager's discretionary power should be set out in the regulations, despite that the department, in their letters, have already provided concisely the basis upon which an exemption should be granted.

Providing that criteria in the regulations cannot possibly conflict with the act, as the department suggests, and only ensures that participants are not subject to arbitrary or inconsistent treatment.

If members are in agreement, a further letter pursuing these points with the department can be drafted.

The Joint Chair (Mr. Kania): Concerning the last recommendation, in the July 20, 2010, letter, the phrase ``final position'' has been used twice. We may wish to incorporate that phrase into the discussion and recommendation to send a letter. Are there comments?

Mr. Saxton: Is counsel's suggestion that we write a letter to the department for clarification?

Mr. Bernhardt: Yes.

The Joint Chair (Mr. Kania): Okay.

Mr. Lee: I agree with counsel on point 3. It is pretty basic: The regulation deems one out of the club unless the president decides otherwise. There is no way that can qualify as a properly drafted regulation.

With respect to points 1 and 2, does counsel have any response to my suggestion that this set of rules was developed for a small club of financial institutions? It truly is a small club and not one that any citizen can join. As a result, these rules are developed by the men and women around the table. They want these rules to reflect that when they have to send $2.5 billion across the table by 3:45 p.m., they have a right of set-off or whatever in their accounting system so they do not have to send the full amount and they can deduct an amount.

I have some sympathy because they have developed these rules and procedures to handle huge financial transactions that underpin the entire financial integrity of our marketplace. If they think they need a rule that recognizes some of these other provisions in law by which they have governed themselves for the last 150 years, I think they should be able to say that when they make their rule. It is only a small club making rules for themselves. If the rules affected people on the street, I would say otherwise.

Does counsel have any sympathy for that situation? We are not dealing with a department making rules for the general public; we are dealing with a unique set of circumstances. It is almost analogous to Privy Council making rules for its proceedings around the table. Perhaps counsel can respond.

Mr. Bernhardt: Mr. Lee makes a valid point. When we review a regulation, we try to take into account that at times, the regulation addresses a particular industry or group that might have special knowledge or be particularly sophisticated.

On the other hand, it cuts both ways. That provision is justified because participants need a clear indication of rights and remedies. I suggest that financial institutions probably have a good understanding of their rights and interests. They have access to a great deal of high-powered legal advice and likely do not need this provision telling them that the regulations cannot undercut their common law rights of set-off. Our objection was more routine: such that the provision has no legal purpose. If the provision is allowed here, then someone may try to insert such a provision in a regulation that applies to the general public because they see a precedent here. That is not to say the provision cannot remain; but our view is that it does nothing and could do nothing because anything it purported to do is ultra vires. At best, the provision is useless. The defence is that it helps people to understand their rights.

Mr. Lee: I suggest the provision is not useless. They have the authority to make these legally binding rules among themselves.

For example, if they create a rule that says they have to send $5 billion at five o'clock and we say they have to do it because that is the law, they will say, hold on a minute; under our procedural common law set-off rules, we do not have to send the $5 billion by that time. We can deduct what company B owes to company C because that is how we do it. If we had to build all these common law rules into all the rules we have developed around the table, it would not be 10 pages of rules; it would be 10,000 pages of rules and precedents.

They are saying that all the common law precedents normally existing among them are in place, and still viable and applicable, notwithstanding the fact that they passed a rule that says they have to send $5 billion by five o'clock.

Mr. Bernhardt: How would that be different if this provision did not exist?

Mr. Lee: Some institution in the club may say, if that is the law and the other law does not apply, you have to send the money by six o'clock as per the rule. In effect, they would write a set of rules that did not reflect. They are saying they have a rule but not to forget that all the other common law rules apply.

Mr. Bernhardt: This provision is for greater certainty.

Mr. Lee: Yes.

Mr. Bernhardt: Perhaps we can ask them to say it is for greater certainty.

Mr. Lee: That will be fine.

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

Hon. Members: Agreed.

SI/2009-56 — ORDER AMENDING THE CANADIAN PASSPORT ORDER

(For text of document, see Appendix I, p. 13I:1.)

Mr. Abel: Two issues were raised concerning this instrument. The first issue relates to the power under section 10.2 to impose a period of withheld passport service. Apparently, it was intended and the department has confirmed that the service may be withheld for up to five years. In that case, it would seem that this limitation should be stated clearly in the order.

The second issue is the subject of several letters between counsel and the department. The combined effects of section 10.3 and section 9(g) of the Canadian Passport Order permits the withholding of passport services for a period of time on the grounds that a person currently holds a valid passport. Obviously, this effect was not intended. While the department agreed to make amendments excluding this ground for the purpose of withholding passport services, it later suggested that this ground should remain for the purpose of revoking a passport in cases where a person may have more than one valid passport at a time, for instance, when they hold a temporary passport. If such a specific ground is required, it should be provided for clearly and expressly in the Canadian Passport Order.

Counsel can pursue these matters in a further letter to the department.

Senator Harb: I will read an entry in the Canada Gazette that may pertain to this item. In the second last paragraph of the Order Amending the Passport Order, it states:

If grounds exist to revoke a passport but the passport has expired, section 10.3 enables Passport Canada to apply a period of withheld service that would have otherwise applied if the passport had not expired.

Service may be withheld for a period of up to five years. Details pertaining to the five-year period are provided on Passport Canada's Web site at www.ppt.gc.ca.

Does that entry answer the point raised?

Mr. Abel: You are referring to the five-year limitation. As they mentioned in their letters, they provide that information in many other ways. The five-year period is not a legal limitation because it is not in the Canadian Passport Order. The department said that it will withhold service for only five years, but it was said administratively.

Senator Harb: They are saying that the regulation does not provide for that limitation. Why do they put it in the Canada Gazette?

Mr. Abel: I am not sure why that is. It is a comment in the Canada Gazette, but it is not in the substance of the Canadian Passport Order.

Senator Harb: It can be found under ``Explanatory Note,'' which is not part of the Order; and that is your point.

Mr. Abel: The explanatory note has no legal power.

Senator Harb: I could challenge it on that basis.

Mr. Abel: The issue in this case is that Passport Canada has no limitation on how long they can withhold passport service. The explanatory note says they can do so only for five years, but there is no substantive provision that says they can. They could withhold service for 10 years; they would not be breaking the law or contravening the order.

Senator Harb: My question then is: Where is the problem? If they say they can withhold it for longer but here is what they want to do, my thought is, that is fair game; they say they will withhold service for five years because they do not want to put undue pressure on people. People have an idea that if they want to withhold it, that is what they will look at. However, if something is serious, they can go beyond that limitation.

Personally, I have no problem with the response from the department. To be frank with you, I would close this file.

Mr. Abel: Passport Canada has given the impression that at the most, they can withhold passport service for five years. If they have given that impression to the general public, it would seem people are entitled to rely on that policy. Passport Canada says they will not withhold a passport for more than five years, but then they do. The person who is prejudiced by that decision has no legal recourse.

Senator Harb: They are saying that although the law allows them to go that much further, they will apply only the five years. I would like that, as a constituent and as a citizen, because at least they have given me some guidance.

If I were to challenge the five years, it can be argued from the government side that they are lenient; they could have withheld service for 10 or 15 years because the regulations allow that. However, notwithstanding the regulations, Passport Canada wants to give people some idea in terms of what they can do. That is just a point.

Mr. Bernhardt: I do not think there would be any objection to that argument. I suppose where the objection that was raised came from was it seemed an unequivocal statement. Passport Canada will withhold a passport for up to five years. They are making that kind of a promise and holding that out as what they will do.

If they want to change their approach and say, Passport Canada can withhold a passport and, generally, the maximum time Passport Canada will do that is five years, that makes the situation clear that, yes, we have a five-year policy, but all bets are off if we decide it should be six or ten. If that approach is considered acceptable, maybe the solution is to see if they are willing to amend their materials on their website to indicate that is the general policy but it is not carved in stone, as an alternative.

Senator Harb: That is perfectly good.

Mr. Bruinooge: I support counsel's recommendation on writing the department on this item. I think it is important that we have a five-year limit on the time that we can withhold passports from individuals.

My experience dealing with constituents, especially in relation to matters of immigration, is that if a document is filled out wrong, they can be unduly impacted for decades, based on an error. I do not think we should give too much latitude for limitations on passport. I know this item was first brought up in 1999; since that time, the value and importance of a passport in the lives of Canadians has grown exponentially. This document is essential even across the border into the United States, let alone travel abroad.

I think five years is long enough. If it goes beyond five years, there are other remedies in the law for preventing someone from obtaining a passport. I think this type of limitation is essential and we should write that recommendation.

Senator Hervieux-Payette: Maybe I am a little bit picky, but in section 10.2, they talk in English about withholding or withheld; in French, it is a ``période de refus.'' It is not the same thing at all; it is refusal, not withholding. In French, it says totally the opposite.

Withholding, for me, would be to suspend for a while until the time is up. In French, it means that it is refused so it is not the same. I wonder why we did not underline that — and also, which version is right? It makes sense that when they do not want to have a passport overlapping the other one, they suspend it until the date of expiration; but in French, it means it is refused. When they are refused, normally they are out of the game. It is not the same thing as suspending or withholding.

Mr. Bernhardt: I will go back to look at the language of the order itself.

Senator Hervieux-Payette: I am looking at the text, because I went to the text to understand the letter. I discovered we were not saying the same thing in both languages.

Mr. Bernhardt: In the English, it is a period of withheld passport service — so they are withholding service. In French, it is a ``période de refus de service de passeport,'' so it is a period of refusing service.

Senator Hervieux-Payette: That is not the same; it should be ``suspension.'' The word exists in French; I do not know why the translator did not use it. I presume it was written in English. It makes sense that it would be ``suspension'' instead of ``refusal.''

The Joint Chair (Mr. Kania): We can write and ask them why, and suggest whether that wording should be clarified or changed.

Senator Hervieux-Payette: Again, which version is the right one?

The Joint Chair (Mr. Kania): Why they chose this phraseology is what I meant.

Senator Hervieux-Payette: Probably they have not looked at both of them. It does not mean the same thing; they cannot allege and give a reason. The only thing is, we either have the right version in English or the right version in French, but we need to have the same language on both sides.

Mr. Lee: I want to jump in to support Mr. Bruinooge's perspective on this item. What we have here is a regulation that says Passport Canada can withhold their passport service for a period of time, but there is no clarity on the time period.

I thought counsel would have been harder on the department. This appears to be an open-ended discretion to refuse to provide passport services to a citizen. In this age of globalization, the passport has moved up from being a privilege for those few who could travel to being an absolute necessity for many Canadians, especially given the changes in the United States of America.

Maybe we ought to be clear on this item and say that from the point of view of the people we represent, we do not allow any discretion on this one. If they have a set of rules, it has to be 100 per cent clear.

We ought to say this approach is not good enough. If they want to develop a code of penalties for people who make mistakes or mislead on passport applications, et cetera, be my guest. However, how can we let the department have a discretionary suspension of passport services for a citizen without some clarity about who makes the decision and when it is made?

I think we should drill down deeper on this item, without finding fault right now. I am not happy with the state of the item. It is not only a linguistic imprecision; for me, it is a citizen's fundamental rights.

Mr. Bernhardt: The only factor that comes into play in the way this is reviewed is that there are no statutes in question here. It is still the case, as least in Canada, that passports are a matter of prerogative.

If there were no rules, no Canadian Passport Order, I suppose — subject to whatever constitutional arguments you might come up with — it would be entirely at the government's discretion as to who received a passport, and when and what sort of service there was. Here, the government at least has undertaken to bind itself, to some extent, by making an order. It is now bound by this order.

To some extent, I suppose any rule is better than no rule. On the other hand, if we see that apparently there is a strict five-year policy, our reaction to that policy is that maybe it should be in the order as well.

Mr. Lee: You are making the case that the government, by convention and history, has the right to impose arbitrary measures on a citizen in the matter of passports. That may be true but I think things have changed since the world has changed. We should drill down a bit. We need to say that although that may have been the case 100 years ago, we see a problem today in terms of the citizen's position.

Mr. Bernhardt: It cannot be a problem of vires; that is my only point.

Mr. Lee: As a legislator, I am free to firm up in any way that I choose; as are all the members around this table. I will stop there.

Mr. Bernhardt: Absolutely.

Mr. Boughen: I agree with Mr. Lee. The document says that a person is sentenced to Canada and cannot travel outside Canada. These days, everyone travels anywhere in the world but cannot do so without a passport. It is that simple. Mr. Lee is right in saying that we have to come closer to where we want to be with this file.

Senator Moore: For the record, I agree with the remarks of Mr. Bruinooge.

Senator Harb: I do not understand what the big deal is because we are discussing an order-in-council. The minister has the delegated authority as an extension of the government. We are making a big deal out of something small. If I am refused passport under this provision, nothing will stop me from appealing to the Federal Court to state that the government gave the order to revoke my passport, and that I am appealing. I do not think the government will take this matter lightly and revoke a passport because someone made a mistake on it; the reason must be more serious.

They seem to be saying that, in the absence of an act, an order-in-council will give the directive under which they will allow the department to revoke a passport. These directives say that for greater certainty, although they can revoke a passport, it is for up to five years only.

I agree with counsel's suggestion earlier to ask the department to clarify the Canadian Passport Order and publicize it more widely so that people know ahead what to expect. I would not make a big deal of it.

The Joint Chair (Mr. Kania): Are there other comments? We have a distinction between the basis upon which it is passed and whether the content that has been passed is satisfactory. We seem to have an agreement that the department did not have to state this limit in this way, but they have done it. In those circumstances and taking into account that this matter is a serious practical right, the general consensus around the table is that we should send a letter to point out the flaws and ask for clarification or changes. If the department chooses to respond that they do not have to do anything, the joint committee will deal with the response at that time. Does that sound reasonable?

Hon. Members: Agreed.

Senator Moore: It is reasonable provided the letter indicates that we want to see in print somewhere that the limit is a maximum of five years. However it is worded, we do not want to return to square one.

The Joint Chair (Mr. Kania): Okay.

SOR/2005-296 — REGULATIONS AMENDING THE ALBERTA FISHERY REGULATIONS, 1998

(For text of document, see Appendix J, p. 13J:1.)

Mr. Abel: Three issues were raised in respect of this instrument. Amendments are promised on the last two points set out in counsel's letter. The first point relates to an issue already considered by the committee on a related instrument, the Regulations Amending the Manitoba Fishery Regulations, 1987. Section 13.1 of these regulations permits the provincial minister to specify in a licence any condition ``that is not inconsistent with these regulations.'' As the committee concluded on the related file, these qualifying words are unnecessary and may imply that the minister could otherwise specify conditions that are inconsistent with the regulations. The department recognizes that there cannot be such an implication but would prefer to leave the provision as is.

A similar reply was provided in relation to the Manitoba Fishery Regulations, 1987, which the joint committee accepted as satisfactory. Perhaps the same conclusion may be reached on this file. If so, counsel can follow up on the promised amendments in the usual fashion.

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

Hon. Members: Agreed.

SOR/2007-302 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS AND THE DAIRY PRODUCTS REGULATIONS

(For text of document, see Appendix K, p. 13K:1.)

Mr. Bernhardt: For section 26.2(2) of the regulations, the Canadian Food Inspection Agency indicated in August that it would propose an amendment to resolve the issue. However, it provided no details, so perhaps the CFIA should be asked for elaboration. The other point pursued deals with sections 26.5(1) and 26.6(1). These provisions give the director the discretion to suspend or cancel the licence of a cheese importer under a number of criteria, one of which could be that the importer does not meet the requirements of the act. The regulations contain guidelines on the use of this power. For example, a licence may be suspended if it is reasonable to believe that public health will be endangered if the importer is allowed to continue.

The question is: When it is reasonable to believe that public health will be in danger, why should the director have the discretion to suspend the licence? Nothing in the regulations indicates why a director may decide to suspend in certain cases but not in other cases. The CFIA replied that the director would take into account the facts and circumstances underlying the offences, the legislation, the regulations, administrative law principles and applicable agency policies. The CFIA also says that the list is not exhaustive and it goes without saying that none of the elements on the list are found in the regulations.

That being the case, it is difficult to see how this approach guarantees what the CFIA described as a consistent and uniform approach to decision making. It seems questionable whether the discretion is needed in the first place. The note refers to several other regulations made under agriculture statutes that require licences and registrations to be suspended or cancelled in certain circumstances. It is hard to see why the situation should be different in this instance.

The CFIA has gone through a number of justifications ranging from the fact that what they are doing is lawful, to the fact that the director is under a common law requirement to act fairly, to the economic importance of licences to their holders, to the emphasis on cooperative as opposed and to coercive enforcement.

None of these justifications precludes replacing the words ``may suspend'' and ``may cancel'' with ``shall suspend'' and ``shall cancel,'' and setting out the circumstances in which suspension and cancellation should take place. It is suggested that the regulations make persons' rights and liberties unduly dependent on administrative discretion because of the absence of criteria to govern the exercise of the discretion to cancel. As the other regulations cited in the note illustrated, the need for this discretion seems questionable. In view of that situation, I suggest a further letter to the Canadian Food Inspection Agency.

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

Mr. Lee: I draw attention to the passport file again and restate counsel's same words about administrative discretion.

SOR/2010-98 — ORDER ADDING TOXIC SUBSTANCES TO SCHEDULE 1 TO THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

(For text of document, see Appendix L, p. 13L:1.)

Mr. Abel: The recommendation preceding this order states it is substantially in the form set out in the draft order pre-published in Part I of the Canada Gazette, despite that one of the substances to be added to Schedule I of the act by the draft instrument was deleted prior to the making of the order. The department agrees that this description was inaccurate and it is not substantially in the form set out in the draft order; and they will ensure that this terminology will not be used in similar future cases. As such, this file can be closed.

The Joint Chair (Mr. Kania): File closed.

SOR/2010-156 — RADIOCOMMUNICATION ACT (SUBSECTION 4(1) AND PARAGRAPH 9(1)(B) EXEMPTION ORDER (SECURITY, SAFETY AND INTERNATIONAL RELATIONS), NO. 2010-3

(For text of document, see Appendix M, p. 13M:1.)

Mr. Abel: It appears that two publishing errors were identified in this order. One error concerns the registration day of the instrument. The department confirmed that the order was transmitted to the Clerk of the Privy Council within the time frame required by the Statutory Instruments Act. Both errors have been drawn to the attention of the responsible department. Since these errors appear to be in non-substantive portions of the order and are inconsequential, the file presumably can be closed.

The Joint Chair (Mr. Kania): Agreed? File closed.

SOR/2000-108 — EXPORT CONTROL LIST NOTIFICATION REGULATIONS

SOR/2002-317 — EXPORT OF SUBSTANCES UNDER THE ROTTERDAM CONVENTION REGULATIONS

(For text of document, see Appendix N, p. 13N:1.)

Mr. Bernhardt: Several drafting amendments have been promised in connection with these regulations, as well as the removal of the requirement that has the effect of making it an offence not to comply with terms and conditions of a permit. The committee considers there to be no authority for that provision.

All these amendments were supposed to be made when the two regulations were merged. There have been several occasions where the time frame for making these amendments has been pushed back. The department advised that the regulations had to be reviewed further as a result of recent changes to the Stockholm Convention on Persistent Organic Pollutants.

When the committee last considered the file, the suggestion was to be put to the department that if the new regulations are delayed any further, then the amendments addressing the committee's concerns should proceed in the interim. The August 27 reply from the department indicates that drafting instructions for the new regulations have been prepared, but that there are other higher regulatory priorities. At the same time, the department suggests that it would not be any faster to proceed with the committee's amendments separately.

The time frame for these new regulations seems open-ended, so it is difficult to see how the department arrived at this conclusion. In any event, the department can be asked when it expects the new regulations to be completed. Perhaps it also can be asked whether people are still being prosecuted for contravening the terms and conditions of a permit.

Senator Harb: Agreed.

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

(For text of document, see Appendix O, p. 13O:1.)

Mr. Bernhardt: As a result of an error that was corrected by this particular instrument, increased charges were collected without proper authority during the month of January, 2007. Also, some people may have paid too little. I am sure members will remember this file.

Initially, the department advised that the pilotage authority would reimburse any excess amounts. Later, the authority reported that the board had made a decision not to reimburse. They claimed the amounts in question were so small that shipowners did not care to be reimbursed. The authority also stated that in some cases, it would be difficult to reimburse because certain shipping agents and ships no longer existed.

After considerable wrangling had taken place, the committee advised the authority that it felt that reasonable efforts should be made to reimburse, as a matter of principle. The authority's September 13 letter reports that after excluding those that could not be contacted and those in respect of whom the amounts did not justify the process, reimbursements were made totalling just over $4,000, and the largest single payment was $1,075.91.

One could be curious as to what the threshold amount was for a payment not to be justified; otherwise, the matter appears to be resolved.

Senator Harb: Resolved.

The Joint Chair (Mr. Kania): That was my comment in terms of their statement, ``did not justify the process.'' We sent them a letter asking them to make best efforts to reimburse it. I am wondering how they made that decision.

Senator Harb: I would close the file. The cost of legal fees and processing letters back and forth can exceed the amount of money in question.

Senator Moore: I want to know. This is like the fisheries files. The same two or three culprits keep avoiding the regulations. I want to know more about the administrative order. What is the cost break point? Is it $1 or is it $100? If I was a customer and it was $100, I would take it. I want to know what the threshold was.

Mr. Lee: I consider this file a success even if we do not take any future steps. Requiring the return of illegally collected fees is one of the manifestations of the highest order of our work around here as parliamentarians. The agency here, in the end, did cooperate and has returned the fees — maybe not perfectly, but I think we should note that cooperation and thank them for it.

Senator Moore: As a matter of interest, we can ask them what their threshold was.

Mr. Lee: I should add that as soon as a pilot gets up for breakfast, you have yourself a $5,000 fee. In the kind of money and the accounting context of that pilotage authority, these amounts that had to do with fee increases are all small amounts. All the players are shipping companies who need pilots, so it is a small class of client and it is a small amount of money. However, we stuck to our guns and the repayments were made. I think we should say thank you and move on.

If Senator Moore is curious about the threshold —

Senator Moore: Some day when we are going by their office, we will drop in there.

Mr. Lee: They have switched from being bad guys to good guys. They have found religion and we should be happy.

Senator Harb: Exactly.

Senator Moore: I agree with that.

The Joint Chair (Mr. Kania): We will send a letter thanking them and close the file. Is it agreed?

Hon. Members: Agreed.

SOR/95-100 — NEWFOUNDLAND OFFSHORE CERTIFICATE OF FITNESS REGULATIONS

SOR/95-104 — NEWFOUNDLAND OFFSHORE PETROLEUM INSTALLATIONS REGULATIONS

SOR/95-144 — NOVA SCOTIA OFFSHORE AREA PETROLEUM GEOPHYSICAL OPERATIONS REGULATIONS

SOR/95-187 — NOVA SCOTIA OFFSHORE CERTIFICATE OF FITNESS REGULATIONS

SOR/95-191 — NOVA SCOTIA OFFSHORE PETROLEUM INSTALLATIONS REGULATIONS

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

SOR/96-114 — CANADA OIL AND GAS CERTIFICATE OF FITNESS REGULATIONS

SOR/96-117 — CANADA OIL AND GAS GEOPHYSICAL OPERATIONS REGULATIONS

SOR/96-118 — CANADA OIL AND GAS INSTALLATION REGULATIONS

SOR/2002-170 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE CANADA OIL AND GAS OPERATIONS ACT (MISCELLANEOUS PROGRAM)

(For text of document, see Appendix P, p. 13P:1.)

Mr. Bernhardt: A large number of amendments are promised in connection with the various instruments listed in this group. In April, the department indicated that all these sets of regulations were to be amalgamated and updated, with a target completion date of late in 2012. This is all part of what is called the Frontier and Offshore Regulatory Renewal Initiative.

The first phase of this initiative was completed last December. It dealt with other related regulations. If this time frame is satisfactory, we can write to seek an update on progress.

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

Hon. Members: Agreed.

SOR/95-500 — POWER LINE CROSSING REGULATIONS

(For text of document, see Appendix Q, p. 13Q:1.)

Mr. Abel: A promised amendment concerning the equivalency of the French and English versions of these regulations remains outstanding. According to the department's June 17 letter, this matter will now proceed, following the committee's response on a related file. An amendment is expected to be completed in 2011.

At this time, counsel can follow up with the department as to progress on that amendment.

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

Hon. Members: Agreed.

SOR/99-122 — FARM IMPROVEMENT AND MARKETING COOPERATIVES LOANS AND FEES REGULATIONS, 1998

(For text of document, see Appendix R, p. 13R:1.)

Mr. Abel: Amendments were promised previously to address some 15 points arising from these regulations. As the correspondence before members today indicates, the Canadian Agricultural Loans Act was amended by Parliament in 2009 to provide authorizations for some of the provisions questioned by the committee, which must now be remade under the present authority.

Counsel also sought confirmation that section 18(2) nonetheless will be substantially changed, as it cannot be authorized even under the amended act. The department confirms that this amendment will be made, and that all the promised amendments will still be forthcoming.

If the members are satisfied, an expected timeline for the completion of the amendments can be sought.

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

Hon. Members: Agreed.

SOR/2002-78 — REGULATIONS AMENDING THE PENSION BENEFITS STANDARDS REGULATIONS, 1985

SOR/2001-222 — REGULATIONS AMENDING THE PENSION BENEFITS STANDARDS REGULATIONS, 1985

(For text of document, see Appendix S, p. 13S:1.)

Mr. Abel: The department's May 2010 letter indicates the promised amendments will be made as part of a miscellaneous amendment regulation package, which is expected to be published near the end of this year. This package has not yet been completed, however.

Counsel can seek an update on the status of that package.

Senator Moore: In terms of the end of this year, is there a statutory requirement for this miscellaneous amendment process to happen within that time? Does it have to happen by the end of this calendar year?

Mr. Bernhardt: No, they can proceed with that package in the new year. It is coming forward now because it looks like they will miss their deadline.

WEIGHTS AND MEASURES SPECIFICATIONS, SGM-1

WEIGHTS AND MEASURES SPECIFICATIONS, SGM-3

WEIGHTS AND MEASURES SPECIFICATIONS, SGM-7

(For text of document, see Appendix T, p. 13T:1.)

Mr. Abel: Numerous amendments concerning drafting issues have been promised on this file since late 2001. The June 18, 2010, letter from Measurement Canada indicates that a portion of the amendments are expected to be completed in the 2011-12 fiscal year. As for the remaining amendments, apparently they were rejected by Justice Canada as being ultra vires and will have to be reformulated.

It is stated that stakeholders will need to be consulted again before pre-publishing the reformulated amendments. At this point, perhaps a further letter can seek an update on where everything stands.

Senator Harb: This is interesting because the government already has a bill on this issue, which recently came to the Senate. They would be able to say at least, look, since we have this bill that was adopted by the House of Commons and came to the Senate and now will go to committee, might the government try to incorporate some of those issues in the regulation when the bill is adopted? It is unbelievable. This letter was received by the joint committee on June 18, when the other place was dealing with the bill. Some members may be familiar with Bill C-14 as the proposed fairness at the pumps act.

Senator Moore: Dan McTeague is the Liberal consumer affairs critic on the bill.

Mr. Masse: Senator Harb raises a good point. Perhaps it is not too late to make those amendments. The bill would have to go back to the House of Commons if it is passed by the Senate, as amended, but the timing presents an opportunity to look at it and perhaps apply pressure for results.

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

SOR/97-109 — PCB WASTE EXPORT REGULATIONS, 1996

(For text of document, see Appendix U, p. 13U:1.)

Mr. Abel: The department's most recent letter of May 31 indicates that the five drafting concerns arising from this instrument will be addressed by incorporating the regulations into a new set of larger regulations. The review process for the development of this new set of regulations is apparently under way. The projected date for pre-publishing the promised amendments is in 2011. At this time, counsel can seek an update on progress and perhaps request a more precise time line.

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

Hon. Members: Agreed.

SOR/2006-193 — REGULATIONS AMENDING THE EGG REGULATIONS

(For text of document, see Appendix V, p. 13V:1.)

SOR/2009-86 — ORDER AMENDING SCHEDULE 1 TO THE SPECIES AT RISK ACT

(For text of document, see Appendix W, p. 13W:1.)

Mr. Bernhardt: Under the heading Action Promised, an amendment is promised in connection with each of the two instruments listed. Progress on those instruments will be followed up in the usual fashion.

SI/2010-45 — STATISTICS CANADA CENSUS-RELATED TERM EMPLOYMENT EXCLUSION APPROVAL ORDER

SI/2010-46 — STUDENT EMPLOYMENT PROGRAMS PARTICIPANTS EXCLUSION APPROVAL ORDER

SI/2010-50 — PROCLAMATION FIXING JULY 31, 2010 AS THE DAY ON WHICH SECTIONS 39 TO 47 OF THAT ACT COME INTO FORCE

SI/2010-53 — EMPLOYMENT INSURANCE REGULATIONS (WORK-SHARING CLAIMANTS) — REMISSION ORDER

SI/2010-54 — RESERVATION TO THE CROWN WAIVER ORDER (GREAT SLAVE LAKE, N.W.T.)

SI/2010-55 — ORDER FIXING SEPTEMBER 1, 2010 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

SI/2010-56 — CAMP SEGUNAKADECK INC. REMISSION ORDER

SI/2010-57 — ORDER FIXING SEPTEMBER 1, 2010 AND JANUARY 1, 2012 AS THE DATES ON WHICH CERTAIN SECTIONS OF THAT ACT COME INTO FORCE

SOR/2009-88 — REGULATIONS AMENDING THE EXCLUSION LIST REGULATIONS, 2007

SOR/2009-89 — INFRASTRUCTURE PROJECTS ENVIRONMENTAL ASSESSMENT ADAPTATION REGULATIONS

SOR/2009-131 — REGULATIONS AMENDING THE EXCLUSION LIST REGULATIONS, 2007

SOR/2010-110 — NOTICE RESPECTING THE 2010 G8 AND G20 SUMMITS RAILWAY TRANSPORTATION SECURITY MEASURES

SOR/2010-123 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS

SOR/2010-124 — ORDER AMENDING THE CANADA TURKEY MARKETING PRODUCERS LEVY ORDER

SOR/2010-132 — ORDER AUTHORIZING THE ISSUE AND DETERMINING THE COMPOSITION, DIMENSIONS AND DESIGNS OF A ONE DOLLAR CIRCULATION COIN

SOR/2010-133 — ORDER AUTHORIZING THE ISSUE AND DETERMINING THE COMPOSITION, DIMENSIONS AND DESIGNS OF A ONE DOLLAR CIRCULATION COIN

SOR/2010-135 — RADIOCOMMUNICATION ACT (SUBSECTION 4(1) AND PARAGRAPH 9(1)(B)) EXEMPTION ORDER (SECURITY, SAFETY AND INTERNATIONAL RELATIONS), NO. 2010-5

SOR/2010-145 — REGULATIONS AMENDING THE ACCESS TO INFORMATION REGULATIONS

SOR/2010-146 — REGULATIONS AMENDING THE PRIVACY REGULATIONS

SOR/2010-153 — ORDER AMENDING SCHEDULE 2 TO THE CANADA NATIONAL MARINE CONSERVATION AREAS ACT

SOR/2010-155 — ORDER AMENDING THE CANADIAN CHICKEN MARKETING LEVIES ORDER

Mr. Bernhardt: Under ``Statutory Instruments Without Comment,'' 21 instruments have been reviewed and found to comply with all the committee's criteria.

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

Hearing none, we are finished.

This is the last meeting of the year; thank you for being here and for your hard work. Merry Christmas and Happy New Year.

(The committee adjourned.)

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