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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 16 - Evidence, March 24, 2011

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OTTAWA, Thursday, March 24, 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): Good morning. This may be our last meeting of the Fortieth Parliament.

Our first agenda item deals with the Canadian Wheat Board Regulations. A letter from the Wheat Board dated March 22, 2010, was circulated.

SOR/93-486 — CANADIAN WHEAT BOARD REGULATIONS, AMENDMENT

(For text of documents, see Appendix A, p. 16A:1.)

Peter Bernhardt, General Counsel to the Committee: The concern here is with certain ultra vires provisions that purport to grant blanket permissions to buy, sell or transport certain commodities. Authority to make such provisions has been added to the Canadian Wheat Board Act. However, this authority does not have the effect of retroactively validating provisions that were unlawful at the time they were made. The proposed solution was to revoke the provisions in question and remake them under the new enabling authority. The Wheat Board accepted to do this in 2006.

In 2008, amendments to the Canadian Wheat Board Act were introduced, which would almost certainly have led to amendments to the regulations, including the replacement of the provisions in question. That would have had the added incidental effect of resolving the committee's concern. The bill, however, failed to receive passage and has not been reintroduced.

While there were no written responses to inquiries as to how the board proposed to proceed, there have been informal conversations with the board's legal counsel since 2008, during which it was indicated that the board still intended to fulfill its undertaking to the committee. However, it was expressed that the present state of relations between the board and the minister made it difficult to proceed given that the regulations are actually made by the Governor-in-Council rather than by the board itself.

The letter received on March 22 confirms that the provisions in question will be remade. However, it again expresses a preference to continue to wait for an opportunity to include this action as part of a package rather than as a stand-alone amendment. At the same time, there is a willingness expressed to proceed with an amendment to deal only with the committee's issue should the committee insist on that.

Perhaps the board could be asked whether it anticipates proceeding with an amendment package in the foreseeable future. The committee could also indicate that if there are no plans to do so, it would like to see its concern proceed independently.

The Joint Chair (Mr. Kania): Do members have comments?

Mr. Lee: I sometimes get confused whether the problem is in the existing statute or in the existing regulations. I understand the cleanup problem, but is the statute now currently "armed" and capable of dealing with the whole issue?

Mr. Bernhardt: Yes, it is.

Mr. Lee: The problem is that we have a regulation that is defective.

Mr. Bernhardt: It is simply a case of revoking the regulation and remaking it.

Mr. Lee: In identical form?

Mr. Bernhardt: Exactly.

Mr. Lee: Could they not use the Miscellaneous Program to do that?

Mr. Bernhardt: That has been suggested.

Mr. Lee: You believe they could.

Mr. Bernhardt: I do not see why they could not.

Mr. Lee: Why do they not just get on with it and do it? I will leave that on the record.

Second, if something needs to be put in a statute to clean up a problem, they can commit to do it and in due course they may get around to doing it. Getting a regulation in there that works for now seems to be doable. We should just tell them to do it under the Miscellaneous Program or however they want to handle it. If they do not, I think we should report. My view is that there is nothing stopping them from correcting the regulation.

Mr. Saxton: Are we suggesting that they undertake it as a stand-alone issue? What are you recommending, counsel?

Mr. Bernhardt: In the absence of an undertaking, I suppose that is one thing the committee could ask for. If the board is now in a position to say that they are putting together a package and are anticipating that they will put this in it and that it will happen in the next year, I do not know if that will satisfy the committee. If there is no such program or package in the offing, the committee might consider telling the board to do it as a stand-alone.

Mr. Saxton: As a first step, we would like to have an undertaking from the board as to a timeline; is that correct? I would support that.

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

Hon. Members: Agreed.

SOR/2003-284 — REGULATIONS AMENDING THE CANADA GRAIN REGULATIONS

(For text of documents, see Appendix B, p. 16B:1.)

Mr. Bernhardt: The repeal of section 43(1) of the regulations by this instrument means that an elevator operator no longer has to automatically issue a cash purchase ticket after 90 days. The intent behind this change was to remove the requirement that the operator automatically provide payment in full to producers of grain within 90 days of delivery. However, the committee has taken the position that section 68.1 of the Canada Grain Act in fact requires the prescribing of such a period.

Amendments to the act have twice been introduced that would have resolved this issue by revoking section 68.1 of the act, but both bills died on the Order Paper. The minister's letter in the materials this morning indicates that the government is reviewing its proposals to modernize the act and will again bring forward legislation when appropriate.

That was the state of affairs as of November, so perhaps an updated status report could be sought.

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

Hon. Members: Agreed.

SOR/2010-28 — ORDER EXEMPTING BANDS FROM THE OPERATION OF SECTION 32 OF THE INDIAN ACT

(For text of documents, see Appendix C, p. 16C:1.)

Mr. Bernhardt: Mr. Chair, this order exempts all Indian bands and their members in Manitoba, Saskatchewan and Alberta from section 32 of the Indian Act. As members may recall, section 32 requires the written approval of the superintendent for any transaction involving a disposal of agricultural products by a band or band member from a reserve in those provinces.

In the August 30 letter from the joint chairs, the minister was advised of the committee's view that this order contravenes two of the committee's scrutiny criteria: criterion no. 12 in that it amounts to the exercise of a substantive legislative power properly the subject of direct parliamentary enactment; and no. 11 in that it makes an unusual and unexpected use of the exemption power conferred by the act. It was therefore suggested that if section 32 of the act is no longer considered appropriate, Parliament should be asked to repeal it.

In his reply, the minister suggests that because at the time the section 32 exemption power was introduced to the act the stated intent was to eventually exempt every band, the order granting simply a blanket exemption is in fact consistent with the will of Parliament. It is also submitted that the result is no different than if there had been a succession of orders over the years exempting bands one at a time, with the ultimate effect that every band was exempted in the end.

I would suggest, however, that simply because Parliament intended that all bands would eventually be exempted does not lead to the conclusion that a blanket exemption of every band is consistent with this intent. Typically, an exemption power is usually seen as being for use in exceptional circumstances and specific circumstances, not as a means to effectively amend the act by rendering one of its provisions empty. A succession of exemption orders made over the years as a result of a conclusion in each case that such an order was appropriate is different than an order that simply renders section 32 an empty shell. The latter is simply a device to avoid having to amend the act itself.

The minister's letter also argues that the result of the exemption order cannot be said to be the same as if section 32 of the act had been repealed by Parliament, because if a band or band members wanted to continue to be regulated under section 32, the exemption order could be revoked or amended.

I would suggest the same could be said of repealing section 32 itself. If any band wished to continue to be regulated under section 32 after it had been repealed, Parliament could be asked to re-enact it. This aside, it seems highly unlikely that anyone will be asked to be subject to section 32. In any event, the point is that exempting everyone from section 32 has the same practical effect as repealing section 32, which is that section 32 applies to no one.

The minister concludes by observing that amending the Indian Act is a difficult, time-consuming and costly process. This is likely the real reason why the exemption power was used here.

Nevertheless, I would suggest that if a provision enacted by Parliament is no longer necessary or no longer appropriate, then it is Parliament that should be asked to repeal the provision. Even as a temporary measure, the appropriateness of the exemption order seems questionable. If members concur, perhaps the minister could again be asked to give an assurance that an amendment to the act repealing section 32 will be introduced.

Mr. Saxton: At the next amendment of the act?

Mr. Bernhardt: I guess that is the most that is likely to be positively received. In the previous request, the committee asked that the amendment be introduced as soon as possible. Since we are dealing with the Indian Act, I would guess that "as soon as possible" is likely to be when the act is next amended.

Mr. Saxton: I concur with that.

Mr. Lee: Our experience around here is that the Indian Act just does not get amended. The consultations take between 10 and 50 years. Looking back 20 years, one of this committee's first disallowances was an Indian Act health regulation.

Counsel, is section 32 of the statute in place anywhere in Canada now. or has it been exempted out of existence?

Mr. Bernhardt: No. It only ever applied to those three provinces.

Mr. Lee: If we were to disallow, we would put back in place a statutory provision that is almost certainly unconstitutional. The right of an individual to trade goes back to the Magna Carta. It is a common law right. You do not even need the Charter. This section has to go.

Our method of disallowing simply puts the unconstitutional section back in place, so we are in a Catch-22 situation. We ought to recognize reality and report it bluntly, right up front, in your face, by saying, "We have a provision in the Indian Act that is likely unconstitutional and it should be revoked."

The report should also outline the committee's quandary in not being able to proceed with a disallowance. I think we should report it. How many years have we had this one?

Mr. Bernhardt: This one is quite recent, a 2010 SOR.

Mr. Lee: It is just a baby.

That is my view, given my experience and the committee's experience with the Indian Act. I do not think we have ever had an amendment to the Indian Act in over 20 years. They are extremely difficult to do.

I think we should report it, benchmark it, and then we have done our job.

Senator Moore: The miscellaneous amendments process cleans up a lot of acts. Could we not do this under that process? As well, do we keep a list of items that we identify as being candidates to be proceeded with under that process?

Mr. Bernhardt: Yes, we do keep a list. As you may recall, from time to time we have made requests of the Minister of Justice asking whether a bill will be forthcoming.

We are told that the program is still very much alive. Eventually there will be a set of proposals for a miscellaneous amendments bill.

Senator Moore: Could this not be dealt with under such a bill, counsel, without having to face opening up the whole statute?

Mr. Bernhardt: I suppose it could. One argument against that would be that it does remove a substantive provision from the act. On the other hand, the provision does not presently apply to anyone because of the exemption. You could then argue that, yes, de facto, it is simply a housekeeping matter. Legally, it removes a power or a requirement. Practically, that requirement does not apply to anyone. Therefore, is that a substantive change to the law?

Senator Moore: I do not think it is.

Mr. Bernhardt: That is an interesting question for debate. I think it probably could be included.

Senator Moore: Can we also suggest that in our letter?

Mr. Bernhardt: Certainly.

Mr. Saxton: The conclusion, then, is that we will write a letter to the minister suggesting this amendment; is that correct?

The Joint Chair (Mr. Kania): Yes.

Hon. Members: Agreed.

[Translation]

SOR/2002-182 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PART VI)

(For text of documents, see Appendix D, p. 16D:1.)

Jacques Rousseau, Counsel to the Committee: Three amendments were promised with regard to this file. The department indicated that it was expecting the amendments to be adopted during 2011. Counsel will monitor this file and keep the committee informed of any progress. The committee noted that the adoption of regulations by the Governor in Council is subject to the following prerequisite: according to the minister, the regulated object could pose a hazard to aviation safety.

When the exercise of regulatory power is subject to a prerequisite, the Federal Regulations Manual stipulates that compliance with that prerequisite be specified in the enacting clause that precedes the regulations. That was not done in this case, and the committee wanted to know whether the department agreed that it should be done in the future. Since the department replied that the committee's comment would be considered when the amendments were eventually drafted, the committee wanted to know whether that meant that the department was confirming that compliance with the prerequisite would be specified in the future.

In its February 9, 2011 letter, the department made the following statement: "the department confirms that your comments will be considered when these amendments are drafted."

In essence, the department repeated the response that the committee wished to have clarified. Such a response can hardly be considered satisfactory. If the department is hesitant to provide the confirmation requested, it should explain why.

If the committee is in agreement, counsel will write to the department regarding the matter.

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

Hon. Members: Agreed.

SOR/2002-352 — Regulations Amending the Canadian Aviation Regulations (parts I, VI and VIII)

(For text of documents, see Appendix E, p. 16E:1.)

Mr. Rousseau: This matter pertains to the requirement to provide the minister, at the minister's request, with a copy of the training record of any person acting as a flight service specialist. That control measure is part of the application of the legislation and is set out in a regulatory provision.

The committee recognized that, under the Aeronautics Act, Parliament could be considered to have implicitly authorized the making of that regulation.

The committee did, however, express its wish either that the requirement in question be set out in the Aeronautics Act itself or that the necessary regulatory power be expressly delegated by Parliament to the Governor-in-Council.

The department promised to take such amendments into account during its next review of the act. Consequently, the committee wanted to obtain the date of that review as well as confirmation that the act would be amended.

When the committee reviewed this file on November 25, 2010, the department's response was that it could not specify when the next review would take place. The department did not provide the confirmation requested but repeated its promise to take the committee's recommendations into account when it next reviewed the act.

The committee was not satisfied with that response, especially when compared with the department's response in another file regarding the Interim Order Respecting Prohibited Items. In that case, the department indicated that it had started the necessary procedures to correct the drafting problem in the French version of the act.

In the response received on February 17, 2011, the department explained the difference between the two files, stating that with respect to the matter currently being examined by the committee, the issue was chiefly a political one; in other words, it had to do with legislative policy.

The department repeated that it would take the committee's recommendations into account when it reviewed the act but was still unable to specify when that review would take place.

This may suggest that it may be a long time before the committee is able to ascertain the department's intentions. The committee may wonder why the department is so reluctant to make a clear commitment. The committee's recommendations would not involve amending the applicable laws, but rather, setting out in the act a requirement that is currently in the regulations or making the necessary regulatory power explicit.

The department's refusal to make a decision at this time because, according to its letter, the issue is "chiefly a political one," is not, at first sight, very satisfactory.

At this stage, the department should at least specify which political considerations need to be taken into account.

If the committee is in agreement, counsel will write back to the department to request clarification on this matter.

[English]

Mr. Saxton: How long has it been since the last time we communicated?

Mr. Rousseau: We wrote them last November.

Mr. Saxton: We are talking about four months or so. Before we write a letter, should we call them to ask what is happening?

[Translation]

Mr. Rousseau: Normally, we always communicate in writing. It is now four months later. We should probably write the department another letter. We can do both, of course.

[English]

Mr. Bernhardt: We can call and then follow that up with a letter.

[Translation]

Mr. Rousseau: We always like to have a written document to present to the committee for its review.

[English]

Mr. Saxton: We sent them a letter in November, so how different will this letter be from that one? I assume that it will be similar. We could just say, "We are following up on our letter from November; can you please respond?"

[Translation]

Mr. Rousseau: At this stage, we would like some clarification regarding why the department considers the issue to be a matter of legislative policy. What are the reasons for the department's reluctance to make a decision at this time? At the end of the day, the law will not change; the individuals who are currently subject to the regulations will still have to meet the same requirement. All the committee is asking is that, given the nature of the requirement, it be clearly set out in the act. Why is the department reluctant to make a commitment in that regard? The committee should at least know the reasons for the department's reluctance at this time.

[English]

Mr. Saxton: You are saying that if we sent a letter today, it would be different from the letter sent in November; is that correct?

Mr. Rousseau: We would be looking for more precision with respect to the considerations they are reviewing.

Mr. Saxton: Without even having received a response?

Mr. Bernhardt: Maybe we are giving the wrong impression. We have a February reply, which basically said that dealing with this is a question of choice of legislative policy. If that is the case, then the question is this: What factors will you look at in deciding whether you will put this into the act or leave it in the regulations?

Mr. Saxton: We are requesting a further explanation, then. That sounds logical to me.

Ms. Jennings: I have read the February 17, 2011, reply from the corporate secretariat. As counsel mentioned, it says, ". . . the Department wishes to make it clear that the issue is chiefly a political one." It then ends by stating, "However, the Department is not yet able to specify the date of this review."

I also take note of our November 30 letter to which the February 11 letter of the department was responding. You make clear that in another case, the department, on May 21, 2010, stated that it had "started the necessary procedures to correct the drafting problems in the French version of subsection 6.41(6) of the Aeronautics Act."

Our letter stated:

Why can the Department start the procedures to correct the drafting of the Act in one case but in another decide to wait for the next departmental review of the Act before it even decides whether to make an amendment that, in the end —

— and this is the core piece —

— is not a substantive change to the applicable law?

If the issue we have been raising requiring an amendment to the act is not a substantive change, but the department is already proceeding in another area to amendments in order to bring the French and English versions of the Aeronautics Act into conformity, I do believe they have a responsibility to respond to our question of November 30. I do not believe that their response on February 11, 2011, is a substantive response to the issue that was raised in the last paragraph of our November 30 letter.

I would propose that we write a letter to again point that out say we are still awaiting a response to that specific issue.

With regard to what Mr. Saxton mentioned, you can follow up with a letter. As we say in French:

[Translation]

"A word off the tongue fades away, but ink on paper lasts forever."

[English]

I think there has to be a written letter from this committee pointing out that they still have not responded to the substantive point raised in our November 30 letter. We are still awaiting a reply on that specific issue, and then follow up with a phone call.

[Translation]

Senator Hervieux-Payette: Earlier, counsel made a comment about telephone calls. With a joint committee of this size, even though I think we will produce a good report, I do not believe that we, as lawmakers, should take an offhanded approach to this matter and contact the department by telephone.

Even though my colleague would be satisfied with a telephone call, I would say that, given her workload, she would spend all week on the phone and not have time to analyse regulations. That is why I prefer to reply in writing. But we should conclude our letter by telling the department that if we are not satisfied with its response, we will make that clear and its officials will have to explain themselves before the committee. That is the next step after the letter.

We cannot write to the department every three months to ascertain why it did not make the change. If we receive a similar reply yet again, we must inform the department that it will have to explain its position before the committee.

Regulations that do not comply with the act are not valid. When invalid regulations are substantive in nature, they can lead to up to a million dollars in court costs. My many years of experience tell me that the Department of Transport does not necessarily apply the most rigour when it comes to drafting regulations, and it is not the only one.

How many departments on the Hill do we never hear about because their regulations are compliant? The government has to be able to make regulations that are compliant. The regulations must be fundamentally flawed, and I do not accept when people send us a letter saying, "Listen, we are going to amend the act." As everyone knows full well, the legislative timetable is much more complicated than that.

Therefore, I prefer that we send a letter asking for the real reasons. I do not believe we should accept the argument that the department is going to amend the act. We should bring department officials before the committee.

[English]

Mr. Stoffer: I agree with the senator. Would it be possible to send a letter containing a timeline as to when we can expect a response? We could say, "We need or require a response by this particular date; if not, you get a visit from the Sopranos." Can we not do something like that?

I feel sorry for these smart people over here — a letter about this, a letter about that. It gets silly after a while. The department has to respond. Send Tony over and we will have an answer by this afternoon.

The Joint Chair (Mr. Kania): Mr. Saxton, are you going to call on the Sopranos?

Mr. Saxton: Mr. Chair, I do not know if I agree with calling on the Sopranos. However, based on our November 30 letter, I think sending a letter requesting further explanation is in order. I do not think our letter needs to be threatening; it simply needs to ask them to respond to the issues in the November 30 letter that were not addressed in the February 17 letter.

The Joint Chair (Mr. Kania): Do members agree with that approach?

Hon. Members: Agreed.

Senator Moore: What about the suggestion of Mr. Stoffer with regard to getting a reply? It would be nice to have a reply back within 30 days. They have already looked at this matter. For whatever reason, they are stalling. Thirty days would be a reasonable time in which to respond.

[Translation]

C.R.C. c. 931 — HAZARDOUS PRODUCTS (TOYS) REGULATIONS, AS AMENDED BY SOR/91-267

(For text of documents, see Appendix F, p. 16F:1.)

Mr. Rousseau: Further to a preliminary review of the 16 points initially raised, committee counsel determined that 12 of the problems had already been corrected during the drafting of the new regulations, which will come into force this June. The new regulations should be ready for the committee's consideration shortly.

Today, the committee is being asked to focus on the correspondence that specifically pertains to the other four points. They involve provisions that contain vague wording, provisions that the department had indicated were under review and study.

The department has now confirmed that amendments will be made. However, the department has yet to identify which solutions it will use. In the table attached to the December 29, 2010 letter, the department described the options that were under consideration. If the committee finds that satisfactory, counsel will continue to monitor this file in the normal fashion and keep the committee informed of any progress.

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

Hon. Members: Agreed.

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

(For text of documents, see Appendix G, p. 16G:1.)

Mr. Rousseau: The problem raised by the committee in this file pertains to the validity of some of the charges for environmental assessment services. Although the Governor-in-Council has the power to set these charges, he subdelegated that power to other organizations. In fact, he used the well-known technique of open incorporation by reference.

When the committee considered this file on November 18, 2010, it noted that the Canadian Environmental Assessment Agency had repeatedly changed its opinion on the best way to remedy the situation. The last solution put forward by the agency was to take advantage of the parliamentary review of the Canadian Environmental Assessment Act to improve the current cost-recovery system.

The committee noted that the review already seemed to be delayed. Therefore, the committee wanted the agency to commit to correcting the problem raised by the committee separately within a reasonable period of time should that not be possible as part of the review in question.

In the letter received on February 17, 2011, the agency indicated that the best solution would be for Parliament to clearly confer upon the agency the power to recover the actual costs. The agency noted, however, that the parliamentary review it had been relying on had yet to begin. The agency stated that it was continuing to look for other solutions and concluded its letter by saying that it would present the concerns regarding the current service charges order to the new Minister of Environment.

Obviously, the agency did not specify when it would correct the situation. If the committee agrees with the notion of finding out whether the new minister was able to bring about any changes, counsel will write back to the agency for an update on the situation.

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

Hon. Members: Agreed.

[English]

SOR/2004-109 — REGULATIONS AMENDING THE PULP AND PAPER EFFLUENT REGULATIONS

(For text of documents, see Appendix H, p. 16H:1.)

Mr. Bernhardt: The committee questioned the authority for using the Fisheries Act to regulate deposits of effluent to off-site treatment facilities, which includes municipal sewer systems. If depositing effluent into a municipal sewer system is the deposit of a substance in a place where it may enter water frequented by fish for the purposes of the Fisheries Act, it would logically seem to follow that the act is contravened every time household waste enters a municipal sewer system.

The department has always avoided addressing this issue directly. However, proposed new Wastewater Systems Effluent Regulations were pre-published in the Canada Gazette on March 20, 2010.

The department confirms in its January 18, 2011, letter that the provisions in the Pulp and Paper Effluent Regulations that have been questioned will be revoked concurrently with the coming into force of the new regulations. The new regulations will govern discharges from wastewater treatment facilities. They will catch it at the other end. This is still apparently to take place in June.

In response to a question that some members had, the department has also advised that the amendments to the Pulp and Paper Effluent Regulations did not accompany the new regulations because it was decided to proceed with them as a distinct package rather than as consequential amendments to the new regulations.

As I say, these new regulations are still apparently to be made in June. If that does not turn out to be the case, we will follow up with the department, and I suppose the file will be back before the committee in the fall.

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

Hon. Members: Agreed.

Senator Moore: I was looking for the June date. That is in one of the references, is it?

Mr. Bernhardt: There is a reference to that in our December 1 letter, in the first paragraph. That was their advice in their earlier letter of November 4. They indicated that the forecast time for making the new regulations was June 2011.

Senator Moore: We have it documented.

Mr. Bernhardt: That apparently is still the intent.

Senator Moore: Thank you.

C.R.C. C. 1238 — NORTHWEST TERRITORIES REINDEER REGULATIONS

(For text of documents, see Appendix I, p. 16I:1.)

Mr. Bernhardt: Proposed new reindeer regulations were published for consultation last August. This would be the final step in a process involving the completion of an accurate survey description of the reserve, followed by the amendment of certain land claims agreements, which then ultimately would lead to new regulations.

The proposed regulations are in the materials. If made, these would resolve all of the committee's concerns and would wrap up a file that goes back nearly three decades.

One potential drafting matter in the new regulations was pointed out to the department. Hopefully that will be dealt with in the final version. At this point, it simply remains to ask the department when it expects these new regulations to be made.

Mr. Stoffer: Out of curiosity, in the consultative process, is Santa to be advised of the changes? I am just trying to lighten it up.

Mr. Bernhardt: He has not complained.

The Joint Chair (Mr. Kania): Mr. Lee, do you have a comment?

Mr. Lee: I do, and it is only because this is a 30-year file. I have been sitting on this committee for 20 years, and this is like the gift that keeps on giving. We had a meeting where officials walked us through the utter complexity of the circumstances of the reindeer, the owners and the land leases. I had no idea things could be so complicated for the reindeer.

For Mr. Stoffer, the Santa joke has come up more than once.

[Translation]

SOR/93-382 — PRINCE EDWARD ISLAND CATTLE MARKETING LEVIES ORDER

(For text of documents, see Appendix J, p. 16J:1.)

Mr. Rousseau: According to the October 22, 2010 letter sent by the Farm Products Council of Canada, the order, in connection with which three amendments had been promised, would at the end of the day be repealed. That has not yet happened. Counsel should write to the Farm Products Council of Canada to inquire about the progress made since October.

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

Hon. Members: Agreed.

SOR/2001-203 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1024 — CLINICAL TRIAL FRAMEWORK)

(For text of documents, see Appendix K, p. 16K:1.)

Mr. Rousseau: In March 2010, the department indicated that it expected the amendments to correct inconsistencies between the English and French versions of the regulations to be made in the fall of 2010.

According to its September 23, 2010 letter, the department expected it to be done this winter, but that does not seem to have happened.

Committee counsel should write to the committee for an update on the file.

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

Hon. Members: Agreed.

SOR/2003-212 — CANADIAN NUCLEAR SAFETY COMMISSION COST RECOVERY FEES REGULATIONS

(For text of documents, see Appendix L, p. 16L:1.)

Mr. Rousseau: The correction in this file requires that the Nuclear Safety and Control Act be amended.

In its September 2, 2010 letter, the department confirmed that the necessary amendment would be made through the next miscellaneous amendment act. The department indicated that the bill was being drafted.

The department did indicate, however, that it did not know when the bill would be introduced. Counsel will continue to monitor the file in the usual fashion and keep the committee informed of any progress.

[English]

C.R.C. C. 1551 — TEXTILE LABELLING AND ADVERTISING REGULATIONS

(For text of document, see Appendix M, p. 16M:1.)

Mr. Bernhardt: A number of concerns, including several questions of vires, are to be addressed in amendments to these regulations. Public consultation on proposed amendments was carried out in 2007. Since then, progress appears to have been somewhat halting, although the committee has always been assured its concerns were being addressed.

When the file was last before the committee, which was back in November, members wanted to know the anticipated completion date. It was also to be suggested to the Competition Bureau that the amendments resolving the committee's concerns could perhaps proceed independently if the delays are due to other amendments that are to be included in the bigger package.

In its reply, the bureau reports that the formal amendment process, which would seem to refer to the preparation of the actual amendments and their submission to the Department of Justice for review, is to commence in 2011. No indication is given to how long this process is expected to take, so perhaps at this point the bureau could be asked if it also intends to have this process completed in 2011.

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

Hon. Members: Agreed.

[Translation]

SI/2009-94 — WITHDRAWAL FROM DISPOSAL OF CERTAIN TRACTS OF TERRITORIAL LANDS IN THE NORTHWEST TERRITORIES (SAOYÚ-ÆEHDACHO (GRIZZLY BEAR MOUNTAIN AND SCENTED GRASS HILLS) NATIONAL HISTORIC SITE) ORDER

(For text of documents, see Appendix N, p. 16N:1.)

Mr. Rousseau: When the committee examined this file in May 2010, the department expected that the promised corrections to the wording of the order would be made in the fall of 2010.

In its December 6, 2010 letter, the department indicated that circumstances had considerably affected the timeframes initially indicated.

The department did not provide a new date as to when the corrections might be made.

It has been nearly four months since the department's letter was received. Counsel should write to the department for an update.

[English]

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

Hon. Members: Agreed.

Senator Moore: Can we ask for a 30-day reply date? This goes back and forth. Why do we not show a little bit of urgency so they take us a little more seriously?

The Joint Chair (Mr. Kania): Okay.

[Translation]

SI/2010-18 — WITHDRAWAL FROM DISPOSAL, SETTING APART AND APPROPRIATION OF CERTAIN TRACTS OF TERRITORIAL LANDS IN THE NORTHWEST TERRITORIES (REINDEER GRAZING RESERVE) ORDER

(For text of documents, see Appendix O, p. 16O:1.)

Mr. Rousseau: As with the previous file, the department expected that the necessary amendments to correct the wording of the order would be made in the fall of 2010. Circumstances greatly affected the timeline previously established.

In its December 6, 2010 letter, the department did not provide any indication of when those corrections would be made.

Again in this case, four months will soon have passed since the department's letter was sent. Counsel should write to the department for an update.

I would assume that, once again, we should ask for a response within 30 days.

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

Hon. Members: Agreed.

[English]

SOR/92-23 — HEALTH OF ANIMALS REGULATIONS, AMENDMENT

(For text of documents, see Appendix P, p. 16P:1.)

Mr. Bernhardt: The issue here is a provision that grants the minister the discretion to issue certain licences or permits if he is satisfied that to do so would not or would not be likely to result in the introduction of disease into Canada. It was pointed out that there seems to be no reason for the minister to refuse a permit or licence if he is satisfied that the activity would not be likely to result in the introduction of disease and that, in those circumstances, the minister should be required to issue the permit or licence.

Back in 2008, the Food Inspection Agency agreed to replace the word "may" with "shall" in the provision in question. This was to be done as part of a package of miscellaneous amendments originally scheduled for late 2009.

There have been several delays. However, last November the committee was advised the target date was now early 2011. The amendments have yet to see the light of day, so perhaps the agency should be asked whether these amendments are imminent.

Senator Moore: Have these amendments been drafted in their final form and we are awaiting a process for them to be brought forward?

Mr. Bernhardt: I presume that a draft is currently still under review, presumably between the agency and the drafters in the Department of Justice, and that package has not been finalized yet.

Senator Moore: Do we know that? Will we ask them if the regulations are in final form and ready to proceed?

Mr. Bernhardt: We can ask that question, as well as the "when." We can ask exactly what stage they are at.

Senator Moore: Thank you.

The Joint Chair (Mr. Kania): Next on our agenda is SOR/2007-24.

Mr. Bernhardt: With the consent of members, I propose that the committee follow the usual practice and deal with agenda items 7, 8 and 9 simply as groups.

Hon. Members: Agreed.

SOR/2007-24 — REGULATIONS AMENDING THE HEALTH OF ANIMALS REGULATIONS AND THE REGULATIONS AMENDING CERTAIN REGULATIONS ADMINISTERED AND ENFORCED BY THE CANADIAN FOOD INSPECTION AGENCY

(For text of documents, see Appendix Q, p. 16Q:1.)

SOR/2010-43 — BY-LAW AMENDING CERTAIN BY-LAWS MADE UNDER THE CANADIAN PAYMENTS ACT

(For text of documents, see Appendix R, p. 16R:1.)

Mr. Bernhardt: Under Action Promised, there are a total of four amendments promised in connection with those two instruments listed, and progress on these will be followed up in the usual fashion.

I also note that, in addition, 27 requested amendments were made to various by-laws under the Canadian Payments Act by SOR/2010-43. Other concerns in relation to these various bylaws were addressed through amendments to the act itself.

SOR/2010-271 — REGULATIONS AMENDING THE CONSULAR SERVICES FEES REGULATIONS

(For text of documents, see Appendix S, p. 16S:1.)

SOR/2010-289 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE CANADA POST CORPORATION ACT (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix T, p. 16T:1.)

Mr. Bernhardt: Turning to Action Taken, two instruments are listed. In combination, they make four amendments requested by the committee. These include the amendment to a previously unlawful fee, as well as the removal of certain discretions concerning how mail is to be handled.

SEEDS FEES NOTICE

SI/2011-1 — ORDER TERMINATING THE ASSIGNMENT OF THE HONOURABLE PETER KENT

SI/2011-2 — ORDER TERMINATING THE ASSIGNMENT OF THE HONOURABLE DIANE ABLONCZY AND ASSIGNING THE HONOURABLE DIANE ABLONCZY TO ASSIST THE MINISTER OF FOREIGN AFFAIRS (AMERICAS AND CONSULAR AFFAIRS)

SI/2011-3 — ORDER ASSIGNING THE HONOURABLE TED MENZIES TO ASSIST THE MINISTER OF FINANCE

SI/2011-4 — ORDER ASSIGNING THE HONOURABLE JULIAN FANTINO TO ASSIST THE MINISTER OF HUMAN RESOURCES AND SKILLS DEVELOPMENT

SOR/2009-183 — CANADIAN PRESS PENSION PLAN SOLVENCY DEFICIENCY FUNDING REGULATIONS

SOR/2009-268 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PART I)

SOR/2010-129 — REGULATIONS AMENDING SCHEDULES I AND III TO THE PAYMENTS IN LIEU OF TAXES ACT

SOR/2010-162 — ORDER AMENDING THE AREA CONTROL LIST

SOR/2010-185 — ORDER 2010-87-09-02 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2010-186 — ORDER 2010-105-09-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2010-194 — ORDER ADDING A TOXIC SUBSTANCE TO SCHEDULE 1 TO THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

SOR/2010-200 — ORDER AUTHORIZING THE ISSUE AND DETERMINING THE COMPOSITION, DIMENSIONS AND DESIGNS OF A TWENTY-FIVE CENT CIRCULATION COIN

SOR/2010-207 — ORDER AMENDING THE BRITISH COLUMBIA VEGETABLE MARKETING LEVIES ORDER

SOR/2010-213 — REGULATIONS REPEALING THE CANADA INDUSTRIAL RELATIONS REMUNERATION REGULATIONS

SOR/2010-219 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PARTS I AND VI — AIRSPEED LIMITATIONS ON TAKE-OFF)

SOR/2010-228 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (CHEMAINUS)

SOR/2010-244 — REGULATIONS AMENDING THE ATLANTIC PILOTAGE TARIFF REGULATIONS, 1996

Mr. Bernhardt: Finally, Item No. 9, Statutory Instruments Without Comment: Eighteen instruments have been reviewed by counsel and found to comply with all of the committee's criteria. As always, copies are available this morning should members have questions or wish to consult any of those instruments.

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

Mr. Lee: Under Action Taken, there was an illegal fee. We called it illegal and it was. That is an example of some citizens deriving benefits of our work here, a tangible benefit in this case in that the committee spotted inappropriate or illegal fees.

I wanted to flag that a little higher than counsel. For counsel, it is one of fifty files; for me, it is a win.

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

Mr. Lee: Recognizing that this is probably our last meeting in this Parliament and that some of us may not be back, I just wanted to record that fact. I want to say how nice it has been to work with the staff and other colleagues. I want to note the work of the highly skilled translation staff, because we do not talk about normal things that would be in the Sears catalogue, for example. We talk about fairly complicated legal matters. Members of the translation staff do a very good job. I just wanted to say that as one of the committee members who might not be back.

The Joint Chair (Mr. Kania): I would like to thank my joint chair as well, together with staff, counsel and all of you for your hard work and attention to detail on this committee. I hope to see most of you back in a few months.

The Joint Chair (Senator Martin): I wish to echo my joint chair and thank our legal counsel. I am so impressed by their insight, wisdom and the work that they bring back to us.

I would also like to thank the other members of the committee for their institutional memory and knowledge. Some, like Mr. Lee, have been here for many years. I have appreciated all of the input and learned much. Thank you to everyone around the table.

Senator Moore: I would like to echo the remarks of Mr. Lee, as one of those who expects to be back to commence my seventeenth year on this committee.

Thank you for your leadership, chairs; and thank you, counsel and staff, for your work as well.

Mr. Anders: I would like to put on the record that I assume that Mr. Lee is running in the next election. Regardless of the outcome, I am assuming that this committee would probably not exist were it not for his efforts. His knowledge and parlance, as Senator Martin pointed out, is unrivalled with regard to these matters. As a result, numerous regulations over the have years have shown tremendous improvement.

Mr. Lee talked this morning about the victory he achieved on behalf of taxpayers with regard to an onerous fee. It is quite an accomplishment, sir.

Senator Moore: Good work.

The Joint Chair (Mr. Kania): Mr. Anders, he can put that on his election literature, right?

For the record, Mr. Lee said "absolutely."

Thank you.

(The committee adjourned.)

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