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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 15 - Evidence, March 3, 2011

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OTTAWA, Thursday, March 3, 2011

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): The first item that we will discuss briefly is the proposed letter of the joint chairs to the chairman of the Canadian Radio-television and Telecommunications Commission with respect to the Broadcasting Distribution Regulations. Members will recall that at the last meeting we agreed to send a letter that essentially confirms the history of the issue; that indicates to the CRTC that this version of the committee does not believe that the Zundel decision is an impediment to the continuation of section 8 in the current regulation; and that advises the CRTC if they wish to consider or withdraw the proposed amendment or make changes to it, it is certainly within their prerogative.

We learned from press reports that prior to sending our letter, the CRTC almost instantaneously became aware of the decision of the joint committee. Obviously, the CRTC was monitoring the review process of the committee; and I am not saying there is anything wrong with that.

The CRTC became aware of what the committee decided and announced publicly that they would not proceed with the amendments and that they were withdrawing them, which is also within their prerogative. However, the chairman of the CRTC, as reported in the media, said:

"For 10 years we stalled. We ran out of stalling devices. We finally put it out for consultation and it gets this wonderful twist,'' he said, referring to a strong public reaction that suggested the commission was trying to lower news broadcasting standards in Canada.

"Out breaks a storm. Somebody reads into it that we are trying to lower the standard to allow Fox News to blossom,'' von Finckenstein said.

"All I can say is, `Thank you committee.' I will withdraw this proposal tomorrow. This is the end of the issue.''

We, the joint chairs, are concerned about his initial comment, "For 10 years we stalled. We ran out of stalling devices.'' We are not saying that is what he said or that the media report is accurate; however, the report requires some comment, clarification or explanation by the CRTC. If the comment was made, the committee will discuss a response.

Without putting any accusations forward, we have prepared the initial letter that members had agreed upon. Page 3 of the letter states:

The Committee's understanding is that you became aware of the aforesaid conclusion of the Committee almost immediately after the Committee's February 17, 2011 meeting, and you have already publicly indicated that your proposal to change section 8(1)(d) of the Regulations will be withdrawn. However, in addition, based on the media reports, it has also come to the Committee's attention that the Commission may have intentionally avoided responding to the Committee's inquiries for some ten years.

The quote from the press was read to members earlier. The letter then continues:

We are asking that you confirm that you made these comments, and provide any qualification or explanation that you may wish. In the absence of a response within 30 days, your appearance before the Committee will be requested to provide the desired response and an explanation of why it could not be provided within this time.

The joint chairs have agreed to send that letter. We need to hear from the CRTC on the comments. Is there discussion?

Mr. Anders: I do not know why everyone does not like Fox News; I love Fox News. I championed bringing Fox News to this country. All these Liberal centrist types do not want to see Fox News. It breaks my heart that there is such dismay over this freedom of speech issue.

I was perfectly fine with the issue carrying on, but last time, I sensed a consensus or majority view among committee members to let the issue die. However, you are not doing that: You are stirring it up more, but as you wish.

Mr. Lee: I support the joint chairs in sending the letter that has been drafted. I have another sidebar issue. Mr. Anders has mentioned it; what happened to the original issue? We will not go into it today. Today, we will decide whether to send the letter; I agree that we send it. However, I want clarification, for our records and for the CRTC, of the original issue raised by counsel: Do we have a viable federal regulation in relation to which we appear to have delegated a censorship function?

I want to get that issue right, not because of the Zundel decision but because the issue remains. If counsel thinks there is no issue, then we can move on. I want to come back to that issue and ask the CRTC to engage in a healthy discussion with us about the limits, if there are any, on the CRTC powers to censor their licencees in the broadcast function. I will leave the issue there, and I do not expect it to be dealt with today. I support sending the letter.

Mr. Masse: I have been a member of the House of Commons Standing Committee on Industry for 8 of the 9 years that I have been in Parliament. I have dealt with the CRTC before. I wish this issue would go away. The joint chairs are doing the right thing by sending the letter because this issue calls into question the greater issue of our accountability versus that of the chairman of the CRTC who made those public statements.

I support the letter; it is the right thing to do because it affects our credibility. We have struggled many times over the years to ensure that we are taken seriously and that we are credible. This letter is appropriate.

Mr. Saxton: I understand that we are not happy that the CRTC stalled and that we want to resolve the issue. How much longer will we drag this issue on? At the last meeting of the committee, we decided to write a letter and that was to be the end of it. Today, you are talking about asking him to appear before the committee.

This issue is going on and on; and it has dragged on too long. We can send a letter to the CRTC that we are not happy about the stalling and about what purportedly was said in the press. However, bringing the chairman here to explain is like using a nuclear option with something that does not require a nuclear option. This issue has dragged on long enough; let us put an end to it.

The Joint Chair (Mr. Kania): We have agreed that the issue is dead in terms of the regulation. The part in the letter that indicates we might ask him to appear has nothing to do with section 8 of the regulations.

Mr. Saxton: We are offended.

The Joint Chair (Mr. Kania): We are not offended. We heard a media report. As a lawyer, my first consideration is not to assume that the comments are accurate.

Mr. Saxton: That is a wise thing to consider.

The Joint Chair (Mr. Kania): That is why we have phrased it in this manner. We are providing him with an opportunity to say that he did not make those comments, a part was left out or whatever the situation may be. I will not accuse anyone of saying anything. For the credibility of the committee, we have to raise the matter and ask for an explanation of the accuracy of the comments, as reported. In essence, it was implied that the CRTC was avoiding the committee and stalling the issue for 10 years.

I have concerns about any entity that we oversee, or that has regulations referred to it, specifically thinking it is acceptable to stall. This committee is a parliamentary committee. That is the only point I raise, Mr. Saxton.

The Joint Chair (Senator Martin): Mr. Saxton, you are not opposed to responding and asking for an explanation. Is it the final sentence that concerns you?

Mr. Saxton: Yes.

The Joint Chair (Senator Martin): That is the next step.

Mr. Saxton: I would take out that final sentence. It is a threat, basically. Why do we need to threaten at this stage? It is unnecessary.

The Joint Chair (Senator Martin): That point is valid in terms of asking for a clear explanation, noting that we have read this report and want an explanation of what he means by "For ten years we stalled . . .''

Mr. Saxton: The final sentence is premature.

The Joint Chair (Senator Martin): The point is well taken.

The Joint Chair (Mr. Kania): Perhaps we can end the letter after "30 days.''

Mr. Saxton: We can say, "without further delay.''

The Joint Chair (Mr. Kania): Yes, something like that: In circumstances where we have at least a media report indicating that they stalled for 10 years, I do not want this individual to think that he can stall for another 10 years in responding to the committee.

Mr. Saxton: I understand.

The Joint Chair (Mr. Kania): I have no difficulty asking for the 30 days. However, if the request is not met, this issue will be brought back immediately before the committee and another letter sent.

Do other members think that the letter should be changed in terms of phraseology? Assuming the media report is correct, my concern is that the chairman can ignore this committee further because we will not do anything about it.

Mr. Anders: I am backing my buddy on this one.

Mr. Saxton: The letter says: "We are asking that you confirm that you made these comments . . . .'' The letter alleges that those comments were made. Why do not we say: "We are asking that you confirm whether or not you made these comments'' and end the letter after "30 days.''

Mr. Masse: I note that there has been no refutation of these comments by the chairman in the media that I have seen. Normally, when people of responsibility are misquoted in the media, they respond. There has been no response to the fact that he has been characterized this way in these comments.

Mr. Weston: The proper way to end the letter is: "We look forward to your clarification,'' or something of that nature. It does not presume that the chairman made the comments, but it asks him to clarify the comments. If he made the comments, he can clarify them. If he did not, then he can say that. We are looking for clarification. That might be the way to end the letter; but I will leave it to the wordsmiths.

The Joint Chair (Mr. Kania): I suggest that we phrase the second last paragraph as: "We are asking that you confirm whether or not you made these comments and provide any qualification or explanation that you may wish. We would appreciate a response within 30 days, and we will diarize this matter for the first meeting,'' then whenever it may be, to let him know that we will bring it back before the committee. Is that alright? Good.

SOR/2008-80 — REGULATIONS AMENDING THE LAURENTIAN PILOTAGE AUTHORITY REGULATIONS

(For text of document, see Appendix A, p. 15A:1.)

Peter Bernhardt, General Counsel to the Committee: Three points were raised in connection with this instrument. Amendments have been promised. One of these amendments concerns section 32 of the regulations. Section 32 states that the Board of Examiners can hold examinations when the authority considers it appropriate to hold examinations. It seemed that it was completely unnecessary to have this provision in the regulations.

The committee was told that section 32 would be amended. Given that the provision seemed completely unnecessary in the first place, the committee wanted to know what was contemplated. Was the provision to be removed? Was it to be revised? If it was to be revised, in what way would it be revised?

The response from Transport Canada was that the regulations were being overhauled completely and that it was not possible to say when this overhaul would be completed. No indication was given, however, as to what was to be done with section 32 in particular.

The committee did not find the response satisfactory and instructed counsel to advise that the committee still wished to have clarification on the nature of the amendment being considered for section 32, and that the authority should be asked whether it was prepared to agree to address the committee's concerns separately if this broader overhaul of the regulations was not finished within a reasonable period of time.

As well, it was to be indicated that, in the absence of a response, the committee would consider asking the authority's representatives to appear when the committee resumed sitting in the new year. That information was communicated in the November 25, 2010, letter. To date, no reply has been received.

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

Mr. Lee: I would like to avoid all the logistics involved in calling someone but, at the end of the day, we cannot avoid dealing with this item. There appears to be, on the record, a lot of drag on this file. We have had other dealings with this authority, so they know us. It seems that the only way we are able to move the file forward is by firming up.

A firm message of "deal with this or you will have to come to Ottawa'' is the only way to handle it. I am in the hands of the joint chairs, but that message is what I recommend. There does not appear to be any other option. I would give them one more chance, within a short window, to sort out this issue; otherwise they will have to explain in person before the committee.

Mr. Saxton: I agree with Mr. Lee. We should write the authority and ask them to clarify their position.

The Joint Chair (Mr. Kania): Should that letter include a deadline?

Mr. Lee: For sure, we should include a deadline.

Mr. Saxton: Make it a reasonable deadline.

The Joint Chair (Mr. Kania): What is considered a reasonable deadline?

Mr. Saxton: Counsel, what is a reasonable deadline?

Mr. Bernhardt: It is not a detailed point. We can ask, do you plan to amend the section and how do you plan to amend it? When we write to the authority, we can pick a date of a future meeting, 30 to 45 days down the road, and suggest that the committee expects the reply at that time and, if not received, the committee will be in touch to arrange an appearance.

Mr. Saxton: We seem to be using 30 days as a timeline, so why not stick to 30 days?

Mr. Masse: Agreed.

The Joint Chair (Mr. Kania): Agreed.

SOR/2003-283 — SOLVENT DEGREASING REGULATIONS

(For text of document, see Appendix B, p. 15B:1.)

Mr. Bernhardt: Two promised minor amendments apparently are to be published in Part I of the Canada Gazette this spring. We will monitor whether the amendments are published. A third amendment promised relates to a requirement that companies keep copies of the annual report they submit to Environment Canada. The purpose of these copies apparently is to assist inspectors. It was suggested that there is duplication since the inspectors will have the report already: Why are these people simply not required to keep copies of the records on which the report was based?

Initially, the suggestion was accepted. However, the department has since decided that it is essential for inspectors that copies of the actual report be kept on site. The implication seems to be that inspectors may show up to inspect an establishment without bringing with them a copy of the report that the establishment has submitted to them. There is no legal objection to the provision. I suppose if the department prefers the requirement as it is, it is open to the committee to take the view that the issue is a question of legislative policy. If so, the point need not be pursued.

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

Mr. Lee: If counsel thinks the regulation is fine in its foundation, then I will back off. I saw behind this provision an inspector showing up at an ordinary business involving degreasing, whatever that means, and saying, "We have a problem here, Houston, because I can see it with my eyes. Show me a copy of your last report.''

The owner, who works hard 18 hours a day, says: "What report? I do not have it.'' The inspector says: "Ah hah! No report! Now you are really in trouble. You were not degreasing properly and you do not have your report. This is trouble, man.''

I did not like the look of bureaucrats assuming to pass another regulation to make it easy for inspectors to walk in and hammer down on a business. My concern was that it was administrative convenience that brought the bureaucrats to the conclusion that they should require businesses to have all the photocopies, and maybe a cup of coffee, waiting for inspectors when they show up; I do not know.

I return to my first comment. If counsel says the regulation is well-founded and might not be duplication, then I will accept that view and we can move on.

Mr. Bernhardt: Bear in mind that there is a requirement anyway to keep the records used to make the report. Those records will be in place, and adding the copy of the report is not a terribly onerous extra burden. It seemed to be a bit of duplication, but it seems that they really, really, really want it.

Mr. Lee: Okay.

Mr. Anders: Perhaps we can ask about a review.

The Joint Chair (Mr. Kania): Are there other comments? If people agree, we will ask when there will be a review.

FEE SCHEDULE — FEES TO BE PAID FOR MARINE NAVIGATION SERVICES PROVIDED BY THE CANADIAN COAST GUARD

(For text of document, see Appendix C, p. 15C:1.)

Mr. Bernhardt: We can seek a progress report on a number of promised amendments. One issue still in dispute concerns the distinction in law between a fee and a tax. The Oceans Act authorizes a minister to fix fees to be paid for a service or the use of a facility. Some of the fees set out in the schedule are based, at least in part, on the gross tonnage of the ship. The effect is that two ships that use the service will not pay the same fee if their gross tonnage is different. The question for the committee is whether it generally costs more to provide the services to a larger ship. Of course the answer to this question is important in determining whether the amounts charged constitute a tax. A tax is not authorized under the Oceans Act. For the department, it is enough that the total fees collected do not exceed the total costs of providing Marine Navigation Services.

A note prepared for members on the file explains this approach fails to take into account certain comments by Justice Binnie of the Supreme Court in the Eurig case. These comments suggest that when dealing with a fee for a service, there must be a nexus between the fee charged to a person and the cost of providing that service to the person. The relationship does not have to be exact, but generally it must be the case that it costs more to provide the service to those who pay more.

The absence of this nexus means that the fee is a tax. The note discusses the relevant factors set out in the jurisprudence. The next step is to try to focus the department on the proper reading of the Eurig decision, in particular the comments of Justice Binnie. If members concur, a letter setting out the analysis that is in the note can be sent to the department.

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

Mr. Lee: Is counsel satisfied that they have justified the scaled fees?

Mr. Bernhardt: No: The point of contention boils down to whether it is enough that globally they are not making a profit from these fees. In the department's view, not making a profit is sufficient to mean the charge is not a tax. In our view, that ground may be accurate for a licence fee or a fee for a privilege or a right, but not when dealing with a service fee. Our reading of the comments in the Eurig case indicates that there must be a connection on a one-to-one basis.

Mr. Lee: I agree with counsel on the legal issue. I am not so sure the department has not accepted that view. I think the department may have accepted it because the last letter from them sets out what I thought was a wonderful, detailed lead-up and justification for the fees. They went right to the climax of this description of the navigation aids, and then let the issue hang instead of hitting the nail on the head.

They seemed to say that different classes, sizes and types of ships go through these waterways. These different classes use different levels of navigation aids. The department provides 5,000 or 10,000 navigation aids. Most little ships that come in probably use those aids visually. In other words, they see the buoys and the green and red lights. However, the big ships use the Global Positioning System, GPS, and other electronics that communicate with some of these navigation aids. There is higher usage of these aids by bigger ships and lower usage by smaller ships.

Therein is the justification for the lower fees for the smaller tonnage. Maybe the department thought that committee members understood what was meant by different classes of ships, tonnage and navigation aids. I am making the case for the department. However, they could have hit the nail on the head in the letter by saying that small boats travel the waterway visually and big ships use all manner of complex navigation aids, which the department provides. For that reason, big ships should pay more for the more sophisticated navigation aids.

The letter went through such a long explanation that I thought the department had accepted that view. The department was trying to justify why the big ships use more of the navigation aids. I thought that justification was buried in the letter and did not hit the nail on the head. The letter is one sentence short of a home run, in my view.

Mr. Bernhardt: That explanation raises the question: Why are they one sentence short? Did they go that far and make an assumption or did they go that far and it is not the case? Hopefully, they are listening to you.

Mr. Lee: The letter states:

Although the gross tonnage rate means that large ships are charged higher fees than small ships that use any CCG service included in the marine service navigation fees, we would submit to the Committee that the rate charge based on gross tonnage represents a reasonable connection between the cost of the CCG's main services on an aid-by-aid basis and the use of the individual aids by individual ships and groups of clients.

That sentence should have hit the nail on the head. Perhaps it was not fulsome or clear enough to provide an example for the layperson that a little ship zips up the waterway, whereas the big ship has navigation aids pinging all the time.

Mr. Bernhardt: In the course of the letter, we can quote that sentence and ask for expansion or clarification.

Mr. Lee: Yes, and give us an example.

Mr. Bernhardt: If they can establish that, yes, generally it costs more to provide the services to big ships than to small ships then I do not think there is an issue.

Mr. Lee: We have a road map, with navigation aids.

Mr. Masse: Their use of the words "reasonable connection'' is the problem. Either they are not sharing how they determine "reasonable connection'' or they are admitting there is no way to determine it. That phrase needs to be clarified.

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

We will write back to see if they can establish their nexus.

SOR/2006-102 — TRAFFIC ON THE LAND SIDE OF AIRPORTS REGULATIONS

(For text of document, see Appendix D, p. 15D:1.)

Shawn Abel, Counsel to the Committee: Following the committee's last consideration of these regulations, a substantive reply was sought concerning section 22, as well as further details concerning a previously promised amendment to the Government Property Traffic Act.

The department's December 3, 2010, letter states that it is still in the process of seeking approval to make the statutory amendment. As for section 22, the committee determined that this provision, at least in part, is ultra vires and that the section purports, under the authority of the Government Property Traffic Act, to set out fines and terms of imprisonment for the contravention of any provisions of the regulations.

The problem lies in that some of these provisions are made under the authority of a different statute: the Aeronautics Act. To the extent that section 22 purports to apply to such provisions, it is ultra vires. More troubling is that the department previously indicated to the committee that it views this state of affairs as providing discretion to decide whether to impose the more or less severe sanctions in each case.

However, the department now indicates it has requested that the minister recommend to the Governor-in-Council that amendments be made to address the committee's concern.

Finally, an issue of open incorporation by reference was raised on this file. It is mentioned in point 7 of counsel's November 25, 2009, letter, and is being pursued elsewhere more generally in the context of the undertaking to propose legislation to address that issue. At this time, a further letter can be sent seeking the current status of all the promised amendments.

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

Hon. Members: Agreed.

SI/2007-31—RAINY RIVER FIRST NATIONS SETTLEMENT AGREEMENT REMISSION ORDER

(For text of document, see Appendix E, p. 15E:1.)

Mr. Bernhardt: This order remits goods and services tax in accordance with the terms of a settlement agreement signed by the Rainy River First Nations, Her Majesty the Queen in right of Canada and Her Majesty the Queen in right of Ontario. The remission was made pursuant to subsection 23(2) of the Financial Administration Act. It permits the Governor-in-Council to remit any tax or penalty where it is considered to be in the public interest. A basic principle of administrative law is that an authority that has discretionary power must be free to decide how to exercise that discretion in each case. In this instance, however, the settlement agreement purported to bind the Crown and, therefore, bind the Governor-in-Council, to make the remission. In other words, the Governor-in-Council's discretion was removed. The Department of Finance has sought to rely on the case of Western Canada Wilderness Committee v. Alberta to argue that the Governor-in-Council must be taken to have approved the agreement before it was signed and, at that point, exercise this discretion by deciding to make the remission order eventually when the time came.

However, as explained in counsel's letter of June 14, 2010, even if the Governor-in-Council decided to grant the remission before authorizing the minister to sign the settlement agreement, it is still the fact that after the agreement was signed, the Governor-in-Council was fettered by that agreement. The Governor-in-Council could not change his or her mind; the Governor-in-Council was bound to issue the remission order.

This situation seems to call into question the validity of the remission. The department has stated that it considered the remission order to be validly made, but it was considering possible changes to make this situation clearer in the future. In return, the committee asked for an undertaking to amend the Financial Administration Act to provide expressly for this sort of situation.

In its November reply, the department indicates it does not intend to propose amendment to the act but is considering changes in future agreements and the approval process for those agreements to avoid this problem. The question is whether the committee feels this response is sufficient. Perhaps one approach is to write to the department and say that the committee expects that steps will be taken in the future to ensure this problem does not arise again.

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

Mr. Saxton: Agreed.

Mr. Lee: I was curious about how counsel was able to drill down and go back into the actual agreement, when our role here is to look at the statutory instrument, which is the remission order. I would have thought we would look only at compliance with the requirements for the remission order. I guess counsel's point is that one of those components is discretion. However, surely a minister would have recommended that this remission order be granted, which is what the law requires.

Other members might not think these things are interesting. While I understand that agreements, even court orders and negotiations between governments and the private sector, should not reach out and bind the discretion for a remission order, it happens all the time. In effect, we would tie the hands of the federal government if it could not put on the table the possibility of a remission order in various types of agreements.

I think the department's proposal is good. The department will look at the wording and the protocols involved in reaching these agreements so as not to bind conspicuously the subsequent exercise of discretion. Do I have that right?

How did we become so meticulous here? Going back into a subsidiary agreement is meticulous scrutiny, rather than looking only at compliance with the regulation.

Mr. Bernhardt: If I recall, it was simply a statement in the regulatory impact analysis statement that said, the Governor-in-Council is making this remission order because it is required to do so, pursuant to the terms of the settlement agreement. We read that statement and said, "Hold on: What is in the settlement agreement?'' You are right that it raises that whole issue.

There are ways around it, certainly. The agreement, for example, could provide that the minister — whoever is signing it — agrees to recommend to the Governor-in-Council that the remission order be made, or something to that effect. The department's argument, which I think you have reiterated, is that, while in a sense the Governor-in-Council exercised discretion in advance by saying it was okay for the minister to sign the agreement, the Governor-in-Council was saying, in effect, that the Governor-in-Council would agree to issue a remission order if this agreement comes into force.

The situation is a bit of a "cart before the horse'' situation, which again is why the suggestion is probably to concur with the department in the sense that this issue will not be pursued, "however, please take steps in the future to avoid the problem.''

SOR/95-25 — INVESTMENT CANADA REGULATIONS, AMENDMENT

(For text of documents, see Appendix F, p. 15F:1.)

Mr. Abel: On this file, the department promised for many years to delete four definitions from these regulations as those definitions also appear in the enabling act. However, pre-published amendments propose to delete only two of the four definitions, while the regulatory impact analysis statement accompanying the pre-published amendments says that all four were to be deleted.

After counsel inquired, the department explained it was ultimately determined that two definitions referring to the North American Free Trade Agreement, NAFTA, must be maintained due to the structure of the act. Specifically, the NAFTA definitions found in section 24 of the act apply only in that section, whereas these regulations are made under section 14.2 of the act.

This analysis seems to be accurate. Given that the proposed amendments have now been made, it appears that this file can be closed.

Senator Harb: I am curious. You wanted them to change from a NAFTA to a World Trade Organization, WTO, investor; is that so?

Mr. Abel: We originally recommended they delete all the definitions, two of which referred to the WTO and two of which referred to NAFTA, because all those definitions appear in the act.

Senator Harb: I have not read the act, so I do not know what the definitions pertain to. However, if we are dealing with foreign investment, we have to remember there are countries that are not members of NAFTA or WTO, but they are still foreign investors. The question that will arise is, what happens with an investor who is not a member of the WTO or NAFTA? Where do those investors fit here?

You were smart in making at least the first step in that you wanted to widen the definition so it goes beyond NAFTA investor. However, if the intent is to deal with the issue of foreign investment, I would say only, "foreign investor.''

I do not want to dwell on the point, but I think there is an element here that needs further and closer investigation. If we are concerned with the idea of a foreign investor, we should not make reference to either WTO or NAFTA.

Mr. Bernhardt: We can certainly look into that point. Our concern, as it was raised, was that the department had reproduced in the regulations definitions that were already in the act, so that when the regulations referred to a NAFTA investor, we go to the definition and it is identical, word for word, to what is in the act. We said it is unnecessary duplication. Our comment did not go beyond that duplication.

Senator Harb: Where did the reference to the WTO come from?

Mr. Abel: Of the four definitions in the regulations, two refer to the WTO; the act also has those definitions. It also has definitions that refer to the WTO. In both cases of reference to WTO and to NAFTA, the issue is a matter of duplication of what is already in the act.

Senator Harb: The act specifically mentions WTO and NAFTA, and does not talk in general terms about foreign investment, per se, does it?

Mr. Abel: Not in a way that relates to these regulations, no.

Senator Harb: I understand the regulation. However, does the act itself deal with foreign investment in general? Regulations come out of the act; they are there to deal with the act.

My point is that you might want to find out casually whether the act itself deals with foreign investment in general or if it was specific to WTO and NAFTA investors.

Mr. Bernhardt: We will look. I suspect that parts of the act deal with foreign investors, generally; parts deal with WTO investors; and parts deal with NAFTA investors.

Senator Harb: I am satisfied.

SOR/2007-33 — REGULATIONS AMENDING THE CANADIAN FORCES SUPERANNUATION REGULATIONS

(For text of documents, see Appendix G, p. 15G:1.)

Mr. Bernhardt: The history of this file is that six amendments were promised following the initial exchange of correspondence. Three remaining matters were pursued. Further amendments have been undertaken in relation to two of these matters. In December, the department indicated that these amendments would be included in the next round of amendments to the regulations.

Perhaps an inquiry would be timely as to progress on those amendments.

The only other matter relates to a request for clarification as to whether the grandfathering provisions in these amendments excluded certain members of the Canadian Forces. The department explained that members on what is called an "intermediate engagement'' are grandfathered. The department did not answer the question of whether other people were not grandfathered and, as a result, where they were formerly eligible for an immediate unreduced annuity after 20 years service, they now have to complete 25 years of regular force service.

It took several tries to obtain a direct answer to that question. In a December 6 letter, the Department of National Defence states that members who had 10 years of regular force pensionable service on March 1, 2007, and who were formerly eligible for an immediate unreduced annuity upon completion of 20 years of regular force service could elect to receive an immediate reduced annuity instead of completing 25 years service. Presumably then, members who had less than 10 years service and were formerly eligible for an unreduced annuity after 20 years must now complete the 25 years.

In the end, this letter confirms our understanding of the grandfathering provisions, which are complicated. The only caveat is that the response is somewhat at odds with certain assurances given at the time the Canadian Forces Superannuation Act was amended in connection with the amendments that were eventually made to the regulations, although that issue would seem to fall outside the committee's mandate. That being the case, it remains simply to follow up on the promised amendments.

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

Hon. Members: Agreed.

SOR/2000-184 — REGULATIONS AMENDING AND REPEALING CERTAIN REGULATIONS ADMINISTERED AND ENFORCED BY THE CANADIAN FOOD INSPECTION AGENCY, 2000-1 (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix H, p. 15H:1.)

Mr. Bernhardt: The Feeds, Seeds and Fertilizers Regulations all provide that information required to be shown on labels must be in English, French, or both official languages. It has always been the position of the committee that where labelling requirements are imposed in the interests of health and safety, the required information should appear in both languages.

The Canadian Food Inspection Agency has been studying this issue since 2000. In 2009, the agency advised this was due to the substantial impact on industry practices and the agency's operations but that the agency was in the process of developing criteria to determine which labelling information related to health and safety and which labelling reasonably required bilingual labelling.

Last July, the agency reported it had identified the labelling information that relates to health, safety and security of members of the public, and that the target completion date for the amendments was this winter.

The agency should be asked whether this target date remains the expectation, and further details can also be sought as to which information will be required to appear in both official languages.

[Translation]

Senator Boisvenu: Does the fact that the government has adopted Bill C-36 not rectify the problem?

[English]

Mr. Bernhardt: No, that is the Canada consumer products safety bill, which deals more with what was formerly under the Hazardous Products Act. These regulations are agricultural regulations. In a sense, the concerns are the same in that the issue is public safety and public health, but the issues are dealt with under these other statutes rather than under the Hazardous Products Act or Bill C-36.

[Translation]

Senator Boisvenu: Are you advising us then to write another letter to the agency?

Mr. Bernhardt: Yes.

[English]

Mr. Anders: I did not catch the first part. Did he ask whether it was dealt with through Bill C-36, and you said "no''?

Mr. Bernhardt: Yes: as I say, the concerns are similar but the statutes are different.

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

SOR/2007-260 — ASBESTOS PRODUCTS REGULATIONS

(For text of documents, see Appendix I, p. 15I:1.)

Mr. Abel: Amendments to these regulations addressing all the committee's drafting concerns were published recently in the Canada Gazette, registered as SOR/2011-23. These amendments are set to come into force on June 20, the same day that the Canada Consumer Product Safety Act comes into force, since these regulations will transition under that new act. As such, perhaps this file can now be closed.

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

Hon. Members: Agreed.

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

SOR/2009-110 —GLASS DOORS AND ENCLOSURES REGULATIONS

(For text of documents, see Appendix J, p. 15J:1.)

Mr. Abel: Amendments were promised previously by the department to address inconsistencies in the French versions of these regulations and the Hazardous Products Act. At the time of the July 16, 2010 letter, the department was awaiting Royal Assent on Bill C-36. That bill received Royal Assent in December and will come into force in June. The bill provides for the transition of these regulations, as well, under the new act. The promised amendments, however, have not yet been made.

Incidentally, the linguistic discrepancy identified in the Hazardous Products Act was not amended by Bill C-36. However, once the regulations transition under the Canada Consumer Products Safety Act, the wording of the Hazardous Products Act should no longer be a concern, at least in relation to these regulations.

As the department is now aware of that discrepancy, it is suggested that the issue does not need to be followed any further by the committee. Consequently, a letter can be sent to the department asking when the promised amendments to the regulations will be made. Presumably, this letter needs to be sent before June.

Hon. Members: Agreed.

SOR/2009-112 — CORDED WINDOW COVERING PRODUCTS REGULATIONS

(For text of documents, see Appendix K, p. 15K:1.)

Mr. Abel: As with the previous file, the department was awaiting the enactment of the Canada Consumer Products Safety Act before making the promised amendments. However, the amendments have not yet been published, so a letter seeking a completion date for those amendments seems warranted.

Hon. Members: Agreed.

SOR/94-165 — OIL AND GAS OCCUPATIONAL SAFETY AND HEALTH REGULATIONS, AMENDMENT

SOR/95-105 — ON BOARD TRAINS OCCUPATIONAL SAFETY AND HEALTH REGULATIONS, AMENDMENT

(For text of documents, see Appendix L, p. 15L:1.)

Mr. Abel: Amendments have been promised for some time to address 12 points relating to drafting concerns arising from these two instruments. The committee has acknowledged, in the past, the limited application of the regulations, at least as a partial explanation for delays. According to the department's most recent letter, the promised amendments to the oil and gas regulations will be the subject of renewed consultations in the spring of this year, and amendments to the on board trains regulations were expected to begin this winter period.

If the committee wishes, a letter could be drafted seeking an update on the state of both these files.

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

Mr. Lee: I want to note the age of the file — it is from 1996. Is the nature of the problem with the regulations technical or does it involve the rights and liberties of our citizens?

Mr. Bernhardt: The issues are chiefly technical. In defence of the department, they have been poking away at these issues. For example, we have the new Marine Occupational Safety and Health Regulations, which have yet to be reviewed but which run some 85 pages in and of themselves. Therefore, the department is dealing with several sets of regulations that deal with occupational safety and health in various sectors that are extensive. The department seems to be trying its best to peck away at the issues.

Mr. Lee: Okay.

Mr. Bernhardt: It is a bit of a monumental task, I suspect.

The Joint Chair (Senator Martin): I have a question for clarity. All these regulations are bundled together. Have they accumulated over time such that this one department is dealing with all of them?

Mr. Bernhardt: Here we have a series of files and, for better or worse, the last exchange of correspondence dealt with them as a package.

The Joint Chair (Senator Martin): It is only that 1996 is a long time ago. I wondered if the issues had accumulated over time.

SOR/94-276 — CANADIAN FORCES SUPERANNUATION REGULATIONS, AMENDMENT

SOR/94-277 — DEFENCE SERVICES PENSION CONTINUATION REGULATIONS, AMENDMENT

(For text of documents, see Appendix M, p. 15M:1.)

Mr. Bernhardt: This file is another aged one. A number of drafting corrections were first promised in 1998. Initially, these corrections were to be part of a larger package of amendments. Then consideration was given to proceeding with them independently.

In 2008, the department advised that the amendments had been delayed in anticipation of amendments to the act that would remove the age 60 limit to qualifying for a survivor pension; I believe this clause is what is colloquially known as the "gold-digger clause.'' There were further delays in replying, apparently due to a departmental reorganization.

Then last August, the department indicated it had decided on the content of amendments to the regulations but that the policy context, "remains a sensitive issue,'' and made it difficult to proceed.

Perhaps the department can be asked where things stand at present and if the department is now in a position to proceed. If there are to be further open-ended delays, perhaps the committee can ask that its concerns be addressed in the interim, seeing as the matters are technical housekeeping matters and do not impact on the policy aspects that seem to be the primary concern of the department.

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

Hon. Members: Agreed.

SOR/2005-30 — SECURE ELECTRONIC SIGNATURE REGULATIONS

(For text of documents, see Appendix N, p. 15N:1.)

Mr. Abel: Following the committee's last consideration of this file in May 2007, counsel monitored it for progress in making the promised amendment to the English version of the definition of the term "certification authority'' in these regulations.

Correspondence repeatedly indicated that the amendment was on the cusp of completion, subject to certain delays, until the department's letter of July 22, 2010. That letter indicated that it had been determined that the amendment was unnecessary and would not be made.

When queried for the reasoning behind this decision, the department reaffirmed that the amendment would be made but did not provide a time frame for its completion. Additionally, the department's September 17, 2008 letter confirmed that the website for listing certification authorities has been created. This website is referenced in the regulations but it had not been completed at the time of counsel's first review of the instrument.

Perhaps at this point, a letter can be drafted seeking a firm completion date for the promised amendment.

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

Hon. Members: Agreed.

SOR/2005-178 — CIGARETTE IGNITION PROPENSITY REGULATIONS

(For text of documents, see Appendix O, p. 15O:1.)

Mr. Bernhardt: These regulations require cigarettes to meet a standard for ignition strength to reduce death and injury associated with fires started by tobacco. The regulations were made under the Tobacco Act. The purpose of the Tobacco Act is stated in section 4: It is the reduction of tobacco use, public education and disease prevention. In other words, its purpose centres on health issues.

The committee has concluded that reducing fire hazards is therefore not a purpose of the Tobacco Act. For the committee, there is a distinction between public health and public safety. Also, the Hazardous Products Act was amended expressly to deal with tobacco products from a safety perspective.

In 2008, Health Canada advised that the regulations would be replaced with regulations made under the Hazardous Products Act. Some issues arose along the way that caused delay. The department eventually reported it would do nothing until Bill C-36 was passed, and that act would replace the relevant portions of the Hazardous Products Act. As noted earlier, that act is to come into force on June 20, so perhaps the department can now be asked how long it expects to take to put into place these new regulations under that act.

Mr. Lee: Our prima facie conclusion here is that the regulations are ultra vires and unenforceable.

Mr. Bernhardt: That is right but that there is an avenue to make them that would result in a valid regulation.

Mr. Lee: The regulations are out there and, as far as we know, are being accommodated by the tobacco companies; is that right?

Mr. Bernhardt: Yes, as far as I know.

Mr. Lee: They are submitting to this worthy purpose.

SOR/2007-50 — REGULATIONS AMENDING THE ONSHORE PIPELINE REGULATIONS, 1999 (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix P, p. 15P:1.)

Mr. Abel: An amendment to section 6 of these regulations has been sought for some time by the committee, even going back to a previous version of the regulations. As the correspondence before members today shows, in early 2008, the National Energy Board planned to make the amendment following the publication of an updated version of the relevant Canadian Standards Association document. Letters through 2009 and 2010 indicate possible progress, although it is somewhat unclear what exactly was being achieved towards making the amendment. The board also cites a shortage of staffing several times.

According to the August 18, 2010 letter, a comprehensive review of the regulations should be resumed within the following year. It is difficult to say whether this response represents actual progress or merely a plan for progress.

At this point, perhaps a letter can be drafted seeking a firm timetable for completion of the amendment and an assurance that the amendment will proceed independently if that timetable is not possible.

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

Hon. Members: Agreed.

SOR/2009-41 — REGULATIONS AMENDING THE NOTICE OF BRANCH CLOSURE (BANKS) REGULATIONS

(For text of documents, see Appendix Q, p. 15Q:1.)

SOR/2009-42 — REGULATIONS AMENDING THE NOTICE OF BRANCH CLOSURE (COOPERATIVE CREDIT ASSOCIATIONS) REGULATIONS

(For text of documents, see Appendix R, p. 15R:1.)

SOR/2009-43 — REGULATIONS AMENDING THE NOTICE OF BRANCH CLOSURE (TRUST AND LOAN COMPANIES) REGULATIONS

(For text of documents, see Appendix S, p. 15S:1.)

SOR/2009-44 — REGULATIONS AMENDING THE DISCLOSURE OF INTEREST (AUTHORIZED FOREIGN BANKS) REGULATIONS

SOR/2009-45 — REGULATIONS AMENDING THE DISCLOSURE OF INTEREST (BANKS) REGULATIONS

SOR/2009-47 — REGULATIONS AMENDING THE DISCLOSURE OF INTEREST (TRUST AND LOAN COMPANIES) REGULATIONS

(For text of documents, see Appendix T, p. 15T:1.)

Mr. Bernhardt: With the consent of members, I will follow the usual practice again and deal with the last three numbered items as groups. Under Action Promised, a total of seven amendments are promised in connection with the six instruments listed under that heading. Progress on these items will be followed up as per usual.

SOR/2010-196 —REGULATIONS AMENDING THE ANTARCTIC ENVIRONMENTAL PROTECTION REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix U, p. 15U:1.)

SOR/2010-212 —REGULATIONS AMENDING THE PATENTED MEDICINES (NOTICE OF COMPLIANCE) REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix V, p. 15V:1.)

Mr. Bernhardt: The two amendments listed together under Action Taken make a total of nine amendments that were requested by the committee, including the removal of an ultra vires provision.

SI/2010-73 — GOVERNOR GENERAL'S SECRETARY EXCLUSION APPROVAL ORDER

SI/2010-74 — ORDER BRINGING INTO FORCE PARAGRAPH 4(A) OF THE CANADA EMPLOYMENT INSURANCE FINANCING BOARD ACT

SI/2010-75 — PROCLAMATION ANNOUNCING THE APPOINTMENT OF THE GOVERNOR GENERAL

SI/2010-76 — ORDER ACKNOWLEDGING RECEIPT OF THE ASSESSMENTS DONE PURSUANT TO SUBSECTION 23(1) OF THE ACT

SI/2010-77 — ORDER FIXING OCTOBER 20, 2010 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

SI/2010-80 — ORDER FIXING NOVEMBER 1, 2010 AS THE DATE OF THE COMING INTO FORCE OF SUBSECTION 245(7) OF THE ACT

SI/2010-81 — STATISTICS CANADA CENSUS AND SURVEY RELATED TERM EMPLOYMENT EXCLUSION APPROVAL ORDER

SI/2010-82 — ORDER FIXING OCTOBER 31, 2010 AS THE DATE OF THE COMING INTO FORCE OF SECTION 1797 AND SUBSECTION 1820(12) OF THE ACT

SI/2010-84 — WITHDRAWAL FROM DISPOSAL OF CERTAIN TRACTS OF TERRITORIAL LANDS IN THE NORTHWEST TERRITORIES (EDÉHZHÍE (HORN PLATEAU)) ORDER

SI/2010-87 — ORDER FIXING NOVEMBER 25, 2010 AS THE DATE OF THE COMING INTO FORCE OF SECTION 13 OF THE ACT

SI/2010-88 — ORDER OF MERIT (O.M.) ORDER

SI/2010-90 — ORDER ACCEPTING THE RECOMMENDATION OF THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS THAT EACH ENTITY LISTED AS OF JULY 23, 2010, IN THE REGULATIONS ESTABLISHING A LIST OF ENTITIES REMAIN A LISTED ENTITY

SI/2010-91 — ORDER FIXING DECEMBER 10, 2010 AS THE DAY ON WHICH THE PROVISIONS OF THE ACT, OTHER THAN SUBSECTION 47(2) AND CERTAIN SECTIONS, COME INTO FORCE

SI/2010-92 — LAURA SPEAKMAN REMISSION ORDER

SI/2010-93 — CYNTHIA CARLSON REMISSION ORDER

SI/2010-94 — JACQUELINE DOSKOCH REMISSION ORDER

SI/2010-95 — EVAN WARDEN REMISSION ORDER

SI/2010-96 — ORDER AMENDING THE TESTING OF UNREGISTERED US MILITARY HERBICIDES, INCLUDING AGENT ORANGE, AT CFB GAGETOWN EX GRATIA PAYMENTS ORDER

Mr. Bernhardt: Finally, under Statutory Instruments Without Comment are listed 18 instruments that have been reviewed by counsel and found to comply with all the committee's criteria. As always, copies of these instruments are here this morning if members have any questions or want to consult any of them.

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

Are there any comments on anything else?

(The committee adjourned.)

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