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Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue 14 - Evidence - October 4, 2012

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OTTAWA, Thursday, October 4, 2012

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:31 a.m. for the election of a Joint Chair (House of Commons) and for the review of statutory instruments.

Senator Bob Runciman (Joint Chair) in the chair.

[English]

The Joint Chair (Senator Runciman): Welcome to the new session.

Our first item on the agenda is the election of the joint chair from the House of Commons. I turn it over to the Joint Clerk from the House of Commons, Mr. Chaplin.

Andrew Bartholomew Chaplin, Joint Clerk of the Committee: Honourable members, pursuant to Standing Order 106(2) of the House of Commons, the joint chair must be a member of the Official Opposition. I am ready to receive motions.

Mr. Saxton: I nominate Ms. Chris Charlton for that position.

Mr. Chaplin: It has been moved by Mr. Andrew Saxton that Ms. Chris Charlton be elected joint chair of the committee. Are there any further motions?

The committee has heard the terms of the motion. Is it the pleasure of the committee to adopt the motion?

Hon. Members: Agreed.

Mr. Chaplin: I declare the motion carried and Ms. Chris Charlton duly elected joint chair of the committee.

Ms. Chris Charlton (Joint Chair) in the chair.

SOR/89-93 — ONTARIO FISHERIES REGULATIONS, 1989

(For text of documents, see Appendix A, p. 14A:1.)

The Joint Chair (Ms. Charlton): We will begin with Special Agenda items. The first one deals with the Ontario Fisheries Regulations, specifically with respect to the requirement to have express authority to create criminal liability. This has been kicking around for 15 years, but it looks like the ministry needs one more push.

Peter Bernhardt, General Counsel to the Committee: That is it in a nutshell, Madam Chair. At the last meeting in the spring, I believe that Mr. Albas raised the question as to whether a solution to the committee's problem might lie in Bill C-38. As amended by Bill C-38, paragraph 40(3)(a) of the Fisheries Act directly creates the offence of failing to comply with the condition of an authorization issued under the act. The text of that provision is set out in a note that members have this morning. Presumably this would cover authorizations that take the form of permits and licences. That being the case, the provision in the Fisheries Regulations that the committee objected to would no longer serve any purpose and could be deleted. I also note that this would provide the committee with a useful precedent when encountering this kind of thing in other statutes.

All that being said, the minister's letter dated June 29 did not make any mention of Bill C-38, which seems rather odd. Before concluding that the amendment wraps up the committee's concern, I suggest that it might be a good idea to write to the department to ask what their understanding of the provision is to confirm that everyone is on the same wave length and to ask whether the understanding is correct that the provision is no longer necessary and can be taken out of the regulations. The committee has recommended disallowance twice on this, so it is a fairly significant issue for the committee. It would be a good idea to be absolutely sure that the committee and the government are in agreement before wrapping up the file.

Mr. Albas: I thank counsel for following up on my query at the last meeting. I appreciate the position. It is wise for us to seek confirmation that the committee's concerns have been addressed through the legislation that has passed. Certainly, I appreciate that kind of follow-up; thank you.

The Joint Chair (Ms. Charlton): Are there other comments?

Hon. Members: Agreed.

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

(For text of documents, see Appendix B, p. 14B:1.)

The Joint Chair (Ms. Charlton): The next item deals with firearms, weapons and other accessories. They seem to revolve around the definition of the phrase "commonly available in Canada" and the reference to "variants," and that such phraseology ought to be defined in the regulations.

Mr. Bernhardt: When the committee last considered this, it was neither swayed by the arguments advanced by the department nor was satisfied with the department's suggestion that it should be left to the courts to provide the clarification. Therefore, we were instructed to advise the department of this and to seek an assurance that necessary amendments would be made. Members also wanted the file to be brought back to the last meeting of the committee before the summer with the expectation that it would have the reply from the department by that time. Of course, that last meeting scheduled before the summer was cancelled at the last minute when the House rose. This is the first opportunity since then to bring it back.

On June 20, we received from the Department of Justice a short letter saying that they are reviewing the issue in more depth and will respond to the committee this fall. That was the last we heard.

The Joint Chair (Ms. Charlton): Are there comments on this item?

Mr. Breitkreuz: This is somewhat frustrating. We are trying to push forward this issue. We would like them to come up with a definition. They are dragging their feet and saying that they do not want to do that but rather want the courts to decide. We are saying that we are the legislators and we should be defining the terms. Maybe we should ratchet it up a notch.

The second part of their letter says that the courts are already defining the one term, and I have an issue with that. It is our job to define these terms.

I rest my case. I do not have any other comments.

The Joint Chair (Ms. Charlton): Do you have a suggestion for the committee to consider as to what ratcheting it up might mean at this time?

Mr. Breitkreuz: Perhaps we could send a letter to the deputy minister.

Mr. Albas: I appreciate that the timing threw the committee off. It is wise for us to check in with the ministry. I am always a little leery about elevating it to the level of deputy minister, but it is appropriate in this case. The fact that it is the fall, perhaps they have had a chance to investigate fully. It would be the deputy minister of justice. Is that correct? I would support that.

Mr. Anders: I would support writing to the minister.

The Joint Chair (Ms. Charlton): To clarify, would it be to the minister or the deputy minister?

Mr. Anders: The deputy minister.

The Joint Chair (Ms. Charlton): Is there general agreement that we should write to the deputy minister about this?

Hon. Members: Agreed.

The Joint Chair (Ms. Charlton): The third item deals with pension solvency and funding regulations, which the Minister of Finance indicates were addressed in Bill C-38.

SOR/2004-174 — AIR CANADA PENSION PLAN SOLVENCY DEFICIENCY FUNDING REGULATIONS

SOR/2009-211 — AIR CANADA PENSION PLAN FUNDING REGULATIONS, 2009

(For text of documents, see Appendix C, p. 14C:1.)

[Translation]

Jacques Rousseau, Counsel to the Committee: When the committee examined those two regulations, it expressed substantial concerns regarding their validity. They were made on August 9, 2004, and July 24, 2009, pursuant to sections 9(1), 10.1(2)(b) and 39 of the Pension Benefits Standards Act, 1985. They provide special rules for Air Canada with respect to the funding of its defined benefit pension plans that differ from the rules generally applicable under the Pension Benefits Standards Regulations, 1985.

In 2010, Parliament amended the act by adding subsection 39(3) to it. That new enabling provision stipulates, among other things, that regulations made under subsections 9(1) and 10.1(2) of the act "may be made applicable generally to all pension plans or specifically to one or more pension plans."

Had that provision existed when the two regulations in question were adopted, the committee would have had no doubt with regard to their validity. However, that is not the case, and Parliament did not set out that this provision would apply retroactively.

As the department expressed the view that subsections 9.1 and 10.1(2) of the act authorized the adoption of those two regulations even in the absence of the amendment adopted by Parliament in 2010, the joint chairs wrote to the department, on November 28, 2011, to inform it of the reasons for which the committee considered that not to be the case.

In his response of May 30, 2012, the minister stated that, in light of those comments and to achieve greater certainty, an amendment to the act had been included in Bill C-38 to retroactively grant, as the committee requested, the power to adopt regulations applicable specifically to one or more pension plans.

I am talking about clause 483 of the bill — which became law on June 28, 2012 — where Parliament decrees that the enabling powers required for adopting the two regulations before the committee today are deemed to have come into force on July 27, 2004. We have brought a copy of that provision of the act — which has for effect to retroactively validate those regulations — as requested by the committee. In light of that, the file can be closed.

[English]

Mr. Saxton: This has been resolved. I also agree it should be closed.

The Joint Chair (Ms. Charlton): Is there general consensus?

Hon. Members: Agreed.

INTERIM ORDER NO. 10 RESPECTING PRIVATE OPERATORS (2012)

(For text of documents, see Appendix D, p.14D:1.)

Mr. Bernhardt: Madam Chair, this order in effect picks up on an earlier series of nine interim orders — 1 through 9 — that the committee took issue with in the spring. This order governs private operators of aircraft other than aircraft used in commercial services.

Under the Aeronautics Act, the minister can make an interim order that deals with anything that can be the subject of a regulation. He can do that when there is a significant risk to aviation safety or the safety of the public.

An interim order has effect for 14 days. That order can be extended under the act if it is approved by the Governor- in-Council. Once the Governor-in-Council approves the order, it carries on for another year or until a proper regulation takes the place of the order — whichever comes first.

What happened in the earlier series of orders the committee dealt with was that back in April 2011 the minister made the first interim order. That replaced 27 sections of the Canadian Aviation Regulations. The regime established under the interim order was then kept in place by making a further eight interim orders every two weeks, extending it on. Finally, in July 2011, the Governor-in-Council approved Interim Order No. 9, which continued that order for a year. The committee had some doubts as to the legality of this approach based on the fact that Parliament provided a clear procedure for extending the application of an interim order beyond 14 days, that is, approval by the Governor-in- Council.

On this argument, the department responded simply that it was of the opinion that the Aeronautics Act allows for consecutive interim orders to be made. There was no attempt to advance a legal argument behind that; they simply stated that to be their position. They did, however, agree to "ensure that reasonable measures are taken to obtain the approval of the Governor in Council as quickly as possible in the event an interim order is necessary for more than two weeks."

Given that undertaking and the fact that there was an order in place that had been approved that would carry on for a year, the committee decided, at least for the time being, to assume that the practice had been discontinued and to wait and see what would happen this past July 14, which was the one-year date of the interim order. If the regulation was not ready on July 14, would there simply be another order made?

That is exactly what happened. On June 25, the minister made Interim Order No. 10. That order was then approved by the Governor-in-Council, so now we have 10 interim orders and we have the second one-year interim period running.

The department, in publishing the interim order, said in the explanatory notice that it expects to publish for consultation a set of proposed amendments to the regulations to have the same effect by the end of 2012. I suppose one could question whether there is a likelihood of that happening. This would be the third deadline that the department has had.

The reason for the interim orders is that back in 2010 the department announced it would be taking over responsibility for issuing private operator certificates. That had previously been done by the Canadian Business Aviation Association. The department gave notice and said, "Effective one year from now we will be taking this over." The one year came and they did not have the regulations ready. Therefore, they made a series of interim orders. Finally, they decided they would not have the regulations anytime soon. They had the Governor-in-Council approve the order for a year. That year came and went last July. The regulations still were not ready, so they made another interim order for another year. One wonders what will happen on July 14, 2013. The making of a tenth order shows that, despite the promise to make best efforts not to do this kind of thing, clearly the department's view is that it is an entirely acceptable practice.

I suggest that interim orders were never meant to be used year after year to regulate an entire area of the aeronautics industry. That is the point; they are called "interim" orders. At what point does an interim order cease to be "interim"? We are now into year three.

The committee now knows what to expect in terms of remaking the orders. I suppose at this point the committee is in a position to consider how it wishes to proceed. One option would be to write to the minister and ask that this practice not be used in the future, given its doubtful legality.

The Joint Chair (Ms. Charlton): Are there any comments?

Mr. Anders: I would like to point out that this is more a matter of process than result. Transport Canada has a responsibility to the public, so they feel by putting regulations forward, they are preserving that.

However, I am inclined to believe alongside counsel that this is an inappropriate use of the interim order. I concur that we should look at writing to the minister and simply reiterating our opposition to the use of interim orders repeatedly and ask them to comply by the stated goal of June 2013 in order to have the new regs in place.

Our job is not necessarily to denote whether a policy is successful but to actually focus on the scrutiny of the process followed by government in adhering to the policies set out by Parliament.

The Joint Chair (Ms. Charlton): Is there general agreement?

Senator Moore: So we write to the minister to tell him our thoughts and say that we want this fixed by June 2013. What if he does not reply, or if he does not reply until after that? I think we should seek a reply in a timely way, although I do not know the period of time.

I would also like to know if we should tell the minister that if this is not done by that date, we will be looking to disallow. We cannot let this drift on to more interim orders. I would like to see a little more "muscle," if you will, put into the letter. Those are my thoughts.

[Translation]

Senator Hervieux-Payette: If you look at the regulations, you will see that this is between page 2012 and page 2039. In any case, I think that the regulations are directly related to that.

We are talking about allowing three years for the regulations to become compliant. This is a matter of aviation, and not of something that carries no risk. This is an activity that poses risks for the public or other types of risks.

My colleague is saying that all we need to worry about is compliance. That is not all we have to worry about. When the law is being broken, it is our duty to say that the regulations do not comply with the law. As legislators, we have a responsibility to ensure that regulations comply with the legislation and are being met.

As far as the report on the drafting progress goes, we should ask that it be submitted to us earlier, by the end of the year, to make sure that the regulations in their entirety are reviewed by July 2013. Allowing three years for the review of regulations is unacceptable, especially since people knew that there were deadlines even before the submission. Our responsibility as legislators is to ensure that the existing regulations comply with our laws.

All I am suggesting is that we request a report for the beginning of the next session, in January, to determine how much work has been done on those regulations, instead of waiting until July — we will not be here in July, as far as I know. That way, work can begin and we will be assured that the regulations will be amended by the set date.

I have no problem with the date, but rather with the fact that we intend to wait until July, next year, without ever hearing about the department or the actions undertaken.

I also want to remind new colleagues that the Department of Transport is not very reliable when it comes to regulations. There are some departments we never hear about, but the Department of Transport has not necessarily had a smooth relationship with this committee over the 15 years I have been sitting on it.

[English]

Mr. Masse: I agree. We need to deal with it now. If we wait until June 2013, we will only have one meeting to deal with it then. We will not have any action; we can ask them to respond and it will be 2014, as the house recesses. I would prefer to try to deal with it sooner rather than later.

Mr. Albas: I remain mindful that everything has been authorized by statute. The delegated authority has been given to both the minister and the Governor-in-Council; they have operated. We may not agree with the process, but the regulations have been valid. The concern for the public has been looked after. We are just taking issue with the use of interim orders, and I would suggest that we stay focused on that. The department has thus far taken it to the Governor-in-Council and the Governor-in-Council has given a year extension. They plan on putting the full regulations forward in 2013. I would like for us to write to the minister, express our legitimate concern with the use of interim orders.

However, I would like the committee to bear in mind that everything they have done has been lawful, we just do not agree with the process, per se. I would just say that we would like a response on the interim orders and whether or not the minister agrees to no longer use them in this fashion. I think that is perfectly acceptable.

[Translation]

Ms. Ayala: The senator talked about a disallowance letter. I would like you to explain more clearly what that is because I am new to the committee. If that is a way to apply pressure, we could discuss it a bit further.

[English]

Mr. Bernhardt: I believe it was in August. What I was referring to was the sequence events in the making of —

[Translation]

Ms. Ayala: I am talking about the senator, when he mentioned the letter.

[English]

The Joint Chair (Ms. Charlton): I think the confusion is that the senator was referring to a letter we would write demanding a response with some muscle, not one that we received. That may be the confusion.

[Translation]

Ms. Ayala: I assume that the letter he was referring to was different — so a specific date is set. That letter has more power. If that kind of a letter is a possibility, why has it not been written yet? We are talking about the lives of Canadians. I feel that this is taking too long.

We are also talking about Parliament — the voice of the people — which is basically saying one thing while the ministers are saying something entirely different. I think that is a fairly serious situation.

[English]

The Joint Chair (Ms. Charlton): Not seeing any other hands, I will sum up what I am hearing.

Senator Moore: I want to respond to Mr. Albas' comment. It may be legal, but it is certainly not in keeping with the intent of Parliament. Parliament did not intend to have a series of interim measures year after year. It may be legal, but I do not think it is what we really want.

Mr. Albas: I want to respond to that. Again, I think the committee is well within its means to express its concerns about the use of interim orders and I do not believe that was expressly thought of. Tools change over time. In this case we need to remind the minister that the committee feels the use of interim orders has been inappropriate. We should ask him not to use it again and to use other vehicles that are well laid out.

[Translation]

Mr. Rousseau: Senator Moore referred to the disallowance procedure. You wanted an explanation of that procedure this morning.

Very briefly, the disallowance procedure allows the committee to recommend that regulations or a regulatory provision be repealed. That procedure is set in motion by the committee, but the final decision rests with the two Houses of Parliament. We are talking about an exceptional procedure. The committee is very careful about using it, and reserves its use for extreme cases. The senator mentioned that, if things do not change, we may want to resort to it. But, as I was saying, it is quite a procedure. We would have to inform the department, prepare a report, which would have to be accepted by the committee, and then submitted to Parliament and approved by both Houses of Parliament. An order of Parliament would then be needed to repeal regulations or a regulatory provision. I repeat, we are talking about an exceptional procedure — very exceptional.

Ms. Ayala: I understand now. Thank you.

Senator Hervieux-Payette: You were talking about consensus. According to what Mr. Masse said, he agrees with me that a progress report should be produced. We should not just have the regulations ready by July, but should also have a progress report submitted to us. I suggested at the beginning of the meeting that the next progress report be submitted after the holidays. It must inform us whether or not the department has set the process in motion. That way, we could remind them that they may want to begin their work before June. The committee could also add a little note to the file, to the effect that the regulatory review has begun. I do not think we are asking for too much; we just want them to tell us how far they have gotten at the end of January.

[English]

Mr. Masse: If the minister disagrees with the letter then the committee should ask the minister to come to explain why.

Mr. Saxton: I am sorry, but I cannot agree with that. That is a nuclear option that I do not think is necessary at this stage. I was on this committee for four years and have never seen that happen. There is no question we need to ensure that haste takes place here. I think if it is a progress report that we are looking for, let us have a progress report. I do not think there is a big issue with that.

The Joint Chair (Ms. Charlton): I will try one more time to read a consensus; I am starting to hear members say the same thing. We will write a letter to the minister asking for a progress report by the end of January. We can report back to let members know the status. Mr. Masse can always keep the option open, depending on the response we receive, to call the minister to the committee.

Senator Moore: Will the letter include Mr. Albas' comment that the committee is very concerned about the continued use of interim orders?

The Joint Chair (Ms. Charlton): Yes, that is the whole point of the letter. Is everybody agreed?

Hon. Members: Agreed.

SOR/2008-126 — REGULATIONS AMENDING THE GASOLINE REGULATIONS

SOR/2010-134 — REGULATIONS AMENDING THE GASOLINE REGULATIONS

(For text of documents, see Appendix E, p. 14E:1.)

The Joint Chair (Ms. Charlton): We will move on to Regulations Amending the Gasoline Regulations. This item deals with three points but only one last point requires a decision by the committee.

[Translation]

Mr. Rousseau: As you said, the file focuses on three points. The first has to do with a drafting issue, and an amendment should be made, so the response is satisfactory.

The second point concerns the validity of the exemption granted to allow competition vehicles to use leaded gasoline even though that use is prohibited by the regulations.

In order for regulations or an amendment to the regulations to be adopted, Parliament set a prerequisite condition whereby the governor in council must be of the opinion that the exemption could contribute to the prevention of, or reduction in, air pollution. As this exemption results in a 0.3 per cent increase in total Canadian lead emissions, we may wonder how it is possible to consider that this exemption could significantly contribute to the prevention of, or reduction in, air pollution.

In the letter of December 23, 2011, the department replied that it is possible because, according to them, and I quote:

[. . .] the Governor in Council must be of the opinion that the overall regulations, in their latest version, could make a significant contribution to the prevention of, or reduction in, air pollution. The permanent exemption must be considered in light of the regulations in their entirety and not limited only to the amendment.

Upon examination of the issue in light of the department's response, counsel for the committee came to the conclusion that the committee could consider the exemption granted to competition vehicles valid, but not for the reason suggested by the department.

If one were to accept the department's reasoning, an amendment to the regulations that could end up greatly increasing air pollution from lead might be considered valid if it could be demonstrated that, without the regulations, the situation would be much worse.

To avoid such a result, it should instead be considered that the prohibition on the use of leaded gasoline in competition vehicles does not make a significant contribution to the prevention of, or reduction in, air pollution. Since this prohibition does not meet the prerequisite put in place by Parliament, it may be validly removed. The same could not be said if its use represented 30 per cent of current lead emissions in Canada.

If the committee agrees, all that would be required for this point is to write the department to present the reason why SOR/2010-134 may be considered valid.

The third point, which still contains an unresolved issue, has to do with the fact that, during the period from January 1, 2010, or June 27, 2010, the prohibition on the use of leaded gasoline applied to competition vehicles.

Despite that, the department states that this prohibition was not applied because the department knew that an amendment had been proposed. So the department decided not to apply this prohibition until the governor in council rendered a decision on the proposed amendment.

While these explanations shed light on the context for the department's decision, they are silent on its legal basis. Under what authority did the department feel it was permitted to not apply the regulations to competition vehicles when the regulations provided that they were indeed to be applied to those vehicles?

If the committee agrees, counsel could write back to the department regarding point three in order to ask it on what legal basis it can justify its decision to not apply the regulations. In that same letter, counsel of the committee could also present the reasons why it can be deemed that SOR/2010-134 has been validly made.

[English]

Mr. Saxton: I agree with counsel that we should write to seek further clarification of this matter.

The Joint Chair (Ms. Charlton): Are members in agreement?

Hon. Members: Agreed.

The Joint Chair (Ms. Charlton): Excellent.

SOR/2012-34 — RADIOCOMMUNICATION ACT (SUBSECTION 4(1) AND PARAGRAPH 9(1)(B)) EXEMPTION ORDER (SECURITY, SAFETY AND INTERNATIONAL RELATIONS), NO. 2012-1

(For text of documents, see Appendix F, p. 14F:1.)

The Joint Chair (Ms. Charlton): Item 6 on our agenda deals with the Radiocommunication Act and the case of the elusive lower case b.

[Translation]

Mr. Rousseau: Exactly, Madam Chair. The issue pointed out in this file comes from the failure to follow, in the title of the regulations, the normal way of numbering the legislative provision covered by the regulations.

As you pointed out, there is a capital B where there should be a lower case b. The committee has already raised that issue in a previous file, and the department promised, in September 2010, it would correct it in the future. In the letter of April 27, 2012, the department explains that the issue stems from the software used by the Department of Justice.

That software does not allow a capital B to be inserted in the title of the regulations. The department adds that, since it had no more than 24 hours to prepare SOR/2012-34, it could not remedy the problem. It specified that the two departments were working together on that.

This morning I feel obligated to ask the indulgence of the committee regarding that unbelievable explanation. If the committee grants my request, counsel will continue to monitor future regulations to ensure that those two departments have not pooled their efforts in vain. In the meantime, this file can be closed.

[English]

Senator Braley: Is it necessary to bring this to the committee? This is a joke.

[Translation]

Mr. Rousseau: We have already reported the problem to the department, and they promised that they would remedy it. They are reissuing similar regulations with the same problem, but they are telling us that resolving this matter is very complicated. It is incredible. Correspondence was exchanged. Normally, all the correspondence exchanged between counsel of the committee and the department must be submitted to the committee.

[English]

Senator Braley: Should we not write to the IT department?

Mr. Brown: It is pretty straightforward: Just close the file.

Mr. Bernhardt: I have a quick comment in respect of Senator Braley's question. Members should know that it is our practice to bring to the committee every piece of correspondence that comes from our office, even if it is only on a pro forma basis. I would be extremely hesitant to be in the position where staff were editing which pieces to bring to the committee. It is likely the safest practice for us not to go down that road. Sometimes, unfortunately, the committee will be confronted with trivial minutia.

Senator Braley: I understand, but in my office I would be on the phone to tell them to get the thing fixed.

Mr. Albas: In response to the comments, we have a steering committee. Perhaps this could be considered by the steering committee. In these extreme cases where we are talking about a capital B versus a lower case b, maybe they could give some direction. I believe that elected officials should review these kinds of things. Maybe it will look at whether a small technical error needs to take the time of the whole committee.

The Joint Chair (Ms. Charlton): Is there consensus?

Hon. Members: Agreed.

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

(For text of documents, see Appendix G, p. 14G:1.)

The Joint Chair (Ms. Charlton): Item 7 is under Reply Unsatisfactory. The committee had originally raised 11 points. We are down to the last one with respect to fee schedules for Marine Navigation Services and, more importantly, the Canadian Coast Guard.

Mr. Bernhardt: Once again, this is an issue that members of the committee will be familiar with. It is the old distinction between a fee and tax. Here the question arises because, in part, the fees turn on the gross tonnage of the individual ship. Over the past 15 years or so, there has been a whole series of Supreme Court of Canada decisions dealing with this distinction, so the dispute between the committee and, in this case, the Department of Fisheries and Oceans revolves around how it should be interpreted.

This is one of a number of files that the committee has that gives rise to this question in a variety of contexts. As one can imagine, the arguments are detailed, technical and legalistic. At the same time, the fundamental, underlying principle is significant and that is that the power to impose a fee by regulation cannot be used to implement what is in effect a tax.

There is general agreement in a number of areas, particularly where fees concern products, rights or privileges. The crux of the issue in dispute is whether there is an additional analysis to be gone through when dealing with a fee for a service, which is the situation here. That in turn depends on how one reads the relevant passage from the Supreme Court of Canada in the Eurig decision.

The technicalities or details of those arguments are gone over in the note. To try and summarize them as succinctly as possible: One of the criteria that characterizes a tax, traditionally, is that it is made for a public purpose.

Eurig dealt with probate fees in Ontario. The fees were fixed, based on the size of the estate; the bigger the estate, the higher the probate fee. The Supreme Court struck that down as constituting an illegal tax. When looking at whether it was for a public purpose, the court looked at the fact that the fees brought in far exceeded the cost of administering probate in Ontario, and the money was being used for other government purposes. That was the "public purpose" test for the Supreme Court.

The court went on to say that when you are dealing with a fee for a service there is what it called the "[o]ther factor." That is described as whether there is a relationship between the amount charged and the cost of the service. In the court's words:

Although the cost of granting letters probate bears no relation to the value of an estate, the probate levy varies directly with the value of the estate. The result is the absence of a nexus between the levy and the cost of the service, which indicates that the levy is a tax and not a fee.

The department in this case, after first denying that there was this "[o]ther factor," wished to lump it together with the global; the department's first argument was that as long as there was not a global profit, it is fine. The committee pointed to the passage I just read and said, "No. How do you read that then?"

What they have come back with is that the dominant characteristic in the department's view is that there is no increase in general revenue; in other words, they are not making a profit off the fees. Therefore, it is argued, the fact that there may not be this relationship on a one-to-one basis is simply incidental; as long as there is no global surplus, the dominant conclusion must be that it is a fee.

The problem with this is that it renders this other criteria insignificant because it will be seen as incidental as long as there are no global profits from the fee.

The alternate argument is that you have to look at it and that it can be a determinant characteristic. It at least renders that "[o]ther factor" the Supreme Court described as having some meaning. It prevents someone from being charged for a service simply because of the size of their bank account. It also prevents government authorities from using fee structures to create economic development policies without a mandate from Parliament.

Fisheries and Oceans could again be asked to explain how, under its position, it can reconcile the statement in Eurig with this view that it is merely an incidental point. This question comes up in a number of files.

Another approach the committee might consider is to draft a report dealing with the issue in a general way as opposed to dealing with specific regulations. The committee could do the legal analysis and set out its interpretation to illustrate how that differs from what it is hearing from departments. It could go on the record as making its views known and perhaps asking for a government response. As I say, that might be one way to generalize the issue.

Senator Moore: Counsel, it seems to me that in the recent past this committee was involved in a similar action with the CRTC. They were charging fees again in excess of their break-even cost to provide the service. I think we cited the Eurig case and we were successful.

Mr. Bernhardt: Those were the broadcast licence fees, and again the fee there was a percentage of gross revenues as a broadcaster. The Canadian Association of Broadcasters challenged that as constituting a tax. That was on its way to the Supreme Court. The committee had made several reports expressing its concern that this might well be viewed as a tax.

What happened before the Supreme Court heard it was that the government and the broadcaster settled. The government agreed to change the regulations in return for the broadcasters, I believe, not asking for their $900 million back. There is a proper regulation now in place.

Senator Moore: That issue, and the position that we were advocating, which is consistent with Eurig, was not litigated but settled out of court.

Mr. Bernhardt: The wrinkle there was that the issue I just mentioned was a fee for a licence. The Eurig case seems to be restricted to a fee for a service, and that is one of the questions; namely, whether there is a different analysis.

Senator Moore: Again, it was a matter of the calculation of the charge being based not on cost to the agency but on what your gross revenues might be. If you had a gross loss, there was no reduction of fees.

Mr. Bernhardt: We see that with Health Canada with the fees for drug approvals. You pay a fee. Based on your revenues, you may then get a rebate of the fee if you do not sell up to a certain amount of the drug.

Senator Moore: What do we do here? Are you suggesting you will write a legal brief to try to give them all your thoughts in the hopes that they will realize that and say, "Yes, you are right"?

Mr. Bernhardt: . . . "the brilliance of the argument?"

As I say, the other approach — and the approach this committee has taken to this point — is to pursue individual files. We have seen this in a number of contexts. No two cases are exactly the same; there is always a wrinkle. However, it all tends to come down to the same principle and the same argument over the same paragraph in the same case.

Therefore, the committee could well decide to continue to deal with these on a case-by-case basis. I simply raise the other as an alternative approach.

Mr. Albas: I appreciate counsel's work on this. I know from reading the file that it does seem there are a lot of different factors involved in this particular case. Tiffany Caron had written to us on March 13. In the third paragraph on the first page, she reports that in its letter of October 29, 2010, the department also informed the committee it was ready to change the schedule, et cetera. She said that a number of cases were brought up. It was not just Eurig, but Lawson, Westbank First Nation and Connaught.

I am sure that the lawyers who are reviewing on the opposite side would probably like to believe they are as equally talented and brilliant as ours. That being said, I understand that this is a very complicated case in tax law; namely, what constitutes a tax and what constitutes a user fee?

I am sure certain conventions are specific to maritime. As you point out, certain practices are done in New Zealand and Australia.

I would like the benefit of reading that letter, hearing their case and the position as counsel on the scrutiny of regulation — the opinion of counsel who intends to be bright and brilliant on the other side — and weigh those arguments. I must apologize as I have not had the opportunity to speak to members outside my own caucus. However, there was a sense that we might want to have the benefit of that letter included to take a little more time to weigh the issue before we decide whether we should seek a full report, which I understand would take a tremendous amount of time.

By the same token, I would rather have a better understanding of their position before making a final decision if we make a report or write back. We could do that at the next meeting, given the opportunity to review the other side's case law.

Mr. Bernhardt: We can bring that letter back. That would have been before the committee on November 4, 2010. I am not expecting anyone to remember that meeting. We can reassemble the material and bring the full package back if members like.

The Joint Chair (Senator Runciman): I was going to suggest another option. Mr. Albas' suggestion is about waiting to see what impact that correspondence has on our perspective, so I will wait until then.

Senator Hervieux-Payette: To give us more time to look at the position of the other side is okay, but I would not be opposed to our legal adviser giving us a legal framework that we can analyze. What they say would probably lay out some of the principles on which they base their opinion and give the committee the legal background. I was there for the CRTC's long story. When you have an industry that probably spends millions of dollars on lawyers' fees to understand regulations and have an out-of-court decision — meaning that the government was not too sure of its own position — as far as I am concerned, that is the real purpose of this committee. It is to make sure that Canadian taxpayers, any industry, anyone, are dealing on safe ground when it comes to legal matters and, of course, the work we are doing as well.

I do not mind waiting for a later date to have the two options and reconsider if it is the first or the second meeting in November. Perhaps you could give us the date you would be ready to give us that paper. I think we need to have a brief or a legal opinion from our own counsel. This is the role of our people, and they are the most qualified persons we can request it from. That is their expertise. If you do not mind, we would like to have this general legal framework. We will look at this case, but we will also look at the government's case and we can make up our minds at that time.

Mr. Saxton: This question is for counsel: How much work is involved and how much of your time would be spent on doing this?

Mr. Bernhardt: The work has been done. There is a note here. I assume there would have been another note analyzing that March letter back in 2010. It is all there. It is a matter of going back, revisiting, pulling together material that went to the committee in years past and perhaps synthesizing it. It is not new work. We have nothing new from the department. The last letter we have was discussed in the note we had this morning. In that sense, it is a matter of assembling and synthesizing the material that is already there.

Mr. Saxton: It is not a significant amount of work to collate that and get it together?

Mr. Bernhardt: No.

Mr. Saxton: How much time do you think it would take to get it done?

Mr. Bernhardt: It is there. It is all translated. We can have it for the committee next month. How about November 1?

Mr. Saxton: This is simply the collation of previous documents put together. It is not a report?

Mr. Bernhardt: No. In a sense we will be dumping the whole file in the committee's lap.

Mr. Saxton: Perhaps with an executive summary.

Mr. Albas: I think we are good. The question in my mind is whether we are asking for a report on the issue in a global sense. I was looking to take the file and give it a thorough vetting to ensure all sides have been heard.

The Joint Chair (Ms. Charlton): We will bring that back on November 1.

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

(For text of documents, see Appendix H, p. 14H:1.)

The Joint Chair (Ms. Charlton): We are now moving on to Item 8 on the agenda with respect to the Oil and Gas Occupational Safety and Health Regulations. These regs go back 16 years and some of the cases go back 23 years. Committee members are expected to be ecstatic because we have been assured that they will inform us when consultations will begin.

Mr. Bernhardt: I do not know if there is much more I can add. In some cases these go back 23 years. In 1989, the committee was promised it would be fixed. When the new regulations were made in 1994, some issues were resolved and others were apparently accidently left out. There were other new issues which were promised to be fixed. It is 2012 and we are told consultations with stakeholders will take a further two years, after which the drafting of amendments could begin.

As a last comment, I would note that in March of 1998 the committee was assured that the amendments would be completed by the end of 1998.

The Joint Chair (Ms. Charlton): Time flies. Are there any recommendations?

Mr. Bernhardt: To be honest, if I was a minister I would not be pleased to be advised of the state of affairs in my department. Perhaps the solution would be to apprise the minister of the history of this file and hopefully get his cooperation to move things along a little quicker.

Mr. Saxton: That sounds like a logical route to take.

Hon. Members: Agreed.

SOR/76-373 — PRINCE EDWARD ISLAND POTATO MARKETING LEVIES ORDER

(For text of documents, see Appendix I, p. 14I:1.)

The Joint Chair (Ms. Charlton): We are moving on to the next item with respect to the Prince Edward Island Potato Marketing Levies Order. There is a discrepancy between the French and English meanings of "residence," a question regarding the definition of "bona fide farmer" and one related to levies.

Mr. Bernhardt: For historical purposes, I note that the committee reviewed the order back in the 1970s when it was made. We had occasion to stumble back across it recently and noticed a couple of things. First, there seemed to be some definitions and provisions that were obsolete. That has been confirmed and an undertaking has been given through the Farm Products Council from the Prince Edward Island Potato Marketing Board to delete those provisions.

The other issue that caused us to revisit this was the fact that the levies set out here have not been amended since 1992. When we checked, it is clear that the levies currently being charged to people are not the 1992 rates. Members may recall that the committee encountered the problem of provincial marketing boards charging increased levies without first amending the orders that legally imposed those levies before.

The Farm Products Council told the committee it is in the process of contacting all the marketing boards across Canada with a view to identifying levies that are at risk of legal exposure and arranging for corrective measures. The question was asked whether these levies were among those that had been identified in the course of this exercise as being problematic. The council seems reluctant to go on the record as admitting this. Their rather vague reply was simply that any necessary changes to be made will be reflected in the order. In the meantime, of course, it seems that levies are being charged to people illegally. In view of that, it might be prudent to write to the council, ask the question again, and make it clear that this state of affairs should be rectified with a certain urgency.

Mr. Vellacott: We could ask for clarification and an update.

The Joint Chair (Ms. Charlton): Is there agreement?

Senator Moore: That is fine, but will we put a time frame on this? Perhaps we could ask for an answer within 30 days or 60 days, maximum.

Mr. Bernhardt: We could suggest that it would be desirable if the committee had a response within 60 days and advise that the file will be brought back at that time.

Senator Moore: Okay.

Mr. Albas: To be clear, which party would this letter be written to? Would it be to the Farm Products Council of Canada? Some of these other agencies have delegated authority in consideration of a 60-day time limit. I leave it to counsel to appraise whether that is reasonable, given the fact that we are dealing with delegated authorities.

Mr. Bernhardt: You make a valid point. The committee deals with the Farm Products Council because it is the umbrella organization that is supposed to ride herd over the provincial boards vis-à-vis federal authority. At times, the FPC has difficulty getting timely responses in turn from the provincial board it has to deal with. There is a bit of a chain. It is up to the committee whether it wishes to take that into account.

Senator Moore: Would the end of this calendar year be reasonable?

Mr. Albas: It is really not for me. I simply want to register that now, senator, because if the committee does not get the desired response, the Farm Products Council may say that they are trying to work with the provincial authorities. I just want us to be reasonably aware of that and to not pin it on one organization when perhaps they do not have the ability to process our concerns as quickly as we would like them to do it.

Mr. Bernhardt: I suppose it happened in the past when the reply we received from the FPC was that they asked a board more than once but that board was not getting back to them. However, they can always tell the committee if that is the case.

Mr. Pacetti: It is not like we are being vicious. We ask for 60 days and you say that they are cooperating. It is not like we will do anything. Sixty days is fine to try to push them to take some action.

The Joint Chair (Ms. Charlton): Is there general agreement?

Hon. Members: Agreed.

The Joint Chair (Senator Runciman): Before dealing with the next item, I want to encourage members to stay arranged because we have been advised that we will elect a vice-chair today at the completion of the agenda.

SOR/2007-129 — REGULATIONS AMENDING THE OZONE-DEPLETING SUBSTANCES REGULATIONS, 1998

(For text of documents, see Appendix J, p. 14J:1.)

The Joint Chair (Senator Runciman): Item 10 on the agenda is Regulations Amending the Ozone-depleting Substances Regulations. Five points were raised in a letter last year. The department promised to deal with some of the points but have left other points up in the air.

[Translation]

Mr. Rousseau: Mr. Chair, as you said, five points were raised in the letter of September 21, 2011. The department's replies contain two uncertainties on certain points.

The department promises to undertake an in-depth examination regarding two points. The department gives no indication as to its intentions on the two last points mentioned in the letter. It simply indicates that they will be subjected to an examination. If the department were to come up with a solution for the regulations that, according to the committee, fails to remedy the problem, the whole process would obviously have to be started over.

Meanwhile, the committee would not be able to proceed with a complete examination of SOR/2007-129. For that reason, it would be appropriate to ask the department to inform us within a reasonable time frame of its intentions on the two points regarding which it simply replied it would examine the challenges involved.

Second, clearly, the new regulations — which will replace the current ozone-depleting substances regulations — will not go into force by the end of 2013. By that time, the department hopes at the very most to be able to complete the planning stages of the regulatory development process.

For the time being, the department is unable to speculate as to when the new regulations may be adopted. The only two points on which the department has committed to conduct an in-depth examination are described in the note prepared for the committee. They involve a discrepancy between the act and the regulations, and the lack of internal consistency within the regulations.

As for how this file should be handled, the committee wishes for the amendments to the first one to be adopted within a reasonable time frame. There seems to be no justification for proceeding otherwise in this file.

For the time being, no timeline has been set. If one cannot be set or if the amendments are not anticipated for quite some time, the committee could ask the department for a commitment to make the amendments needed to rectify the issues raised without waiting until the new regulations are ready.

If the committee is amenable, counsel will write to the department for clarification of its intentions regarding the two points that have yet to be fully addressed.

[English]

Senator Braley: This is the first time that this file has been before the committee. There are various drafting issues with problems in points 2 to 5. Should we not write to the department for clarification and timelines?

Mr. Rousseau: Yes.

Senator Braley: That would be my recommendation.

Senator Moore: Are you asking for a timeline as well as what will happen and when?

[Translation]

Mr. Rousseau: All we have is a commitment to examine the issues raised. Amendments have been promised with respect to three other points. However, we do not know when those amendments will be made or what the department intends to do about the last two points. So the purpose will be to ascertain the department's intentions and a general timeline for the amendments.

[English]

The Joint Chair (Senator Runciman): Are members agreed with that approach?

Hon. Members: Agreed.

SOR/2008-268 — REGULATIONS AMENDING THE INDUSTRIAL DESIGN REGULATIONS

(For text of documents, see Appendix K, p. 14K:1.)

The Joint Chair (Senator Runciman): Item 11 is Regulations Amending the Industrial Design Regulations. This is essentially a discrepancy between the French and English versions with a commitment to harmonize but with no timelines and some implications with respect to not moving ahead quickly.

[Translation]

Mr. Rousseau: The discrepancy between the two versions of the act concerns an enabling provision. Under that provision, subsection 12(3) of the regulations was made. The discrepancy calls into question the validity of this regulatory subsection because the Governor in Council should be the authority responsible for determining the form of applications for registration of designs. That form, however, is partly determined by the commissioner.

The English version of the act clearly sets out the authority for subsection 12(3). Therefore, the committee asked the department to take steps to have Parliament correct the problematic wording of the act. The committee inquired as to when the department expected the correction to be made.

The department responded that it did not know the time frame because it was of the view that the correction could not be undertaken through the miscellaneous statute law amendment program, given that the amendment could cause controversy. Upon learning of the department's response at the meeting held on October 20, 2011, the committee determined that the promised amendment could not be considered controversial unless it meant broadening the authority delegated by Parliament under paragraph 25(b) of the act, as opposed to simply correcting the English and French versions of the act for consistency.

Given that a discrepancy exists between the two versions of a statute, it is imperative to find a common meaning in both versions. In this instance, there is no choice but to adhere to the more restrictive regulatory powers set out in the French version. In that context, it became clear to the committee that subsection 12(3) of the regulations should be deemed invalid. Therefore, the committee suggested that the provision be repealed. In its letter of May 17, 2012, the department confirmed that it would be repealed.

Furthermore, the department indicated that it was not planning to propose amendments to paragraph 25(b) of the act independently of other amendments that may be deemed necessary on completion of a study aimed at updating the act. The study is currently at the preliminary stage. The department added that once the study is complete and as soon as the opportunity arises, it hopes to make recommendations on the matter to the government.

That letter was written nearly five months ago. If the committee is amenable, counsel could write to the department again to ascertain whether any progress has been made and if the department now has an idea of when the said opportunity will arise. Counsel could also point out to the department that the committee, in accordance with its usual position, would like the promised amendments to be made within a reasonable time frame.

[English]

Mr. Anders: I suggest we monitor the file.

The Joint Chair (Senator Runciman): You simply wish to monitor? There was a reference to a letter. We have a difference of views. Were you recommending a letter?

Senator Moore: Yes.

[Translation]

Mr. Rousseau: The department's last letter was written five months ago, so progress may have been made since that time. The committee could inquire as to developments since the time of the department's last letter.

[English]

The Joint Chair (Senator Runciman): It is looking for an update. Are we okay with that?

Mr. Albas: There is a very good suggestion here. It sounds like some commitments have been made. Yes, there may have been progress, but perhaps counsel could make a phone call to satisfy our curiosity. It says to me that we have been given something and we now have to wait for that process to be completed.

The Joint Chair (Senator Runciman): Are you suggesting making a phone call instead of sending a letter?

Mr. Albas: It seems like a reasonable thing to do. Rather than another letter that goes through a whole system, you phone the person you have been discussing it with.

Mr. Bernhardt: We can certainly do that.

The Joint Chair (Senator Runciman): Is it an unusual approach, Mr. Bernhardt?

Mr. Bernhardt: It is only in the sense of recordkeeping and bringing things back to the committee. However, there is nothing preventing us from doing so. Phone calls do take place and they usually end with us saying, "Great, can you send that to us in writing?" If members are happy in a particular case with an oral report back at some point, we can certainly do that.

Senator Moore: You can make the phone call, but I would record to them in a letter the same day what took place and that, if it is not satisfactory, we will be looking for something to come back in a timely way.

The Joint Chair (Senator Runciman): All right.

Mr. Saxton: I think counsel should make the telephone call and report back to committee. We can then decide what further action is necessary at that stage.

Senator Hervieux-Payette: I would say that this committee, due to its size and because of the two chambers, could make a phone call for everything that we do. It is not a phone call that we can follow up with for this committee. I think the suggestion of making the phone call to get an overview is good. If we are just confirming by a letter, saying we are expecting them to do whatever they have been discussing, it is okay. However, since we cannot all be part of the phone call and we cannot ask a subsequent question, I guess it would be more important for us to follow up this file in the proper manner. In this case, it is in writing. I am not opposed to a phone call, but I think there should be some written material.

[Translation]

Ms. Ayala: A letter provides a written record. It is imperative that we follow up in writing because it ensures a written response, whereas a telephone call does not provide a tangible record. We must follow up in writing, even if it is just a simple letter.

[English]

Mr. Albas: I think we are just talking about style versus substance, Mr. Chair. Ultimately, we just want to be able to have a feeling and a sense of progress on the file. We have been given assurances that certain things are happening. I think the committee is simply saying — or part of the committee — that rather than generating more paper here, a simple phone call might work. If we get a negative response, counsel can say, "We have received a negative response and maybe we should write back with a strongly-worded letter that we expect those assurances to be followed up."

This is a matter of style; this is not a matter of substance. I think we have always taken the approach that we look at such matters on a case-by-case basis. We need to wisely use our resources. In some cases a letter is absolutely mandatory and in some cases a phone call is helpful.

The Joint Chair (Senator Runciman): Some of us have other committees approaching. Why can we not take the middle ground, as Senator Moore suggested: A phone call with a letter following up with respect to what transpired and reporting back?

Senator Moore: If the response is not helpful, Mr. Albas would want to write a letter but not come back to us and say it. We are giving counsel discretion.

Senator Hervieux-Payette: To report back at the next meeting.

Mr. Saxton: They may answer all your questions.

Senator Moore: They might.

The Joint Chair (Senator Runciman): Okay, we have a resolution to this item, then.

SOR/2011-169 — REGULATIONS AMENDING THE PARI-MUTUEL SUPERVISION REGULATIONS

(For text of documents, see Appendix L, p. 14L:1.)

The Joint Chair (Senator Runciman): Item 12 on the agenda is amendments to Pari-Mutuel Betting Supervision Regulations. Once again they have made corrections to the regulations, but counsel has discovered new challenges with respect to that.

[Translation]

Mr. Rousseau: You are absolutely right, Mr. Chair. Amending regulations SOR/2011-169 made 18 corrections that had been requested by the committee. I would point out that some of those corrections eliminate discretionary authority or establish limits to the exercising of that authority. In addition, four of the provisions the committee had called into question on the grounds of validity were amended; one of them was repealed.

The correspondence pertaining to SOR/2011-169 involves 11 new points with respect to which amendments were promised. The matter concerns points 1 to 4, 6, and 8 to 11. The department's responses to points 5 and 7 can be deemed satisfactory. Regarding point 5, the department provided information on the manner in which an officer audits a customer account. Point 7 concerns the information that an association must provide to customers on the procedure for submitting complaints.

If the committee considers this satisfactory, counsel will write to the department again for an update on the promised amendments since the department wrote its letter on April 20, 2012.

Senator Verner: We must follow up with the department to inquire about what lies ahead.

[English]

The Joint Chair (Senator Runciman): Are we agreed?

Hon. Members: Agreed.

SOR/2011-302 — REGULATIONS AMENDING CERTAIN DEPARTMENT OF VETERANS AFFAIRS REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of document, see Appendix M, p. 14M:1.)

The Joint Chair (Senator Runciman): Now we move on to Reply Satisfactory. Item 13 on the agenda relates to Regulations Amending Certain Department of Veterans Affairs Regulations. Sixteen provisions were amended to remove inconsistencies between the French and English versions. A minor drafting error has been discovered but counsel does not believe a formal amendment is necessary.

Do you have anything to add, counsel?

[Translation]

Mr. Rousseau: I have nothing to add, Mr. Chair. The file can be closed.

[English]

SOR/95-548 — MISCELLANEOUS AMENDMENTS REGULATIONS DEPARTMENT OF AGRICULTURE AND AGRI-FOOD) 1995-2

(For text of documents, see Appendix N, p. 14N:1.)

The Joint Chair (Senator Runciman): Let us move on to Progress. Item 14 is Miscellaneous Amendments Regulations (Agriculture and Agri-Food) 1995-2. These are promised amendments to the Processed Products Regulation that were made, except those concerning the use of the metric system. There has been a promise to address this but no time frame has been provided to date.

Mr. Bernhardt: That is correct, Mr. Chair. Members will recall from before the summer that the Canadian Food Inspection Agency indicated they are involved in this massive regulatory modernization initiative. It has various stages; some are forecasted for three years while some amendments are forecasted for five years. This will apparently be a part of this somewhere.

It is probably a good idea to contact the agency and get a better idea of the time frame for these particular amendments as they are getting a bit long in the tooth.

The Joint Chair (Senator Runciman): Are there any comments? Is it agreed?

Hon. Members: Agreed.

SOR/2000-328 — REGULATIONS AMENDING THE CANADA OCCUPATIONAL SAFETY AND HEALTH REGULATIONS

SOR/2001-284 — REGULATIONS AMENDING THE CANADA OCCUPATIONAL SAFETY AND HEALTH REGULATIONS

(For text of documents, see Appendix O, p. 14O:1.)

The Joint Chair (Senator Runciman): Item 15 deals with amendments to Canadian Occupational Health and Safety Regulations. It is a challenge getting answers on this file as well. It has been indicated that some of the points will be addressed as part of a regulatory package, but there is still some question surrounding this.

Mr. Bernhardt: That is correct. There are outstanding amendments subject to consultations. I spoke with departmental officials back in the spring and was told they were hopeful to complete these in the current fiscal year. Apparently the Department of Justice still has concerns related to the question of inconsistent French terminology. That being the case, it might be a good idea to write, get further details and seek a precise time frame of when they expect to complete these.

The Joint Chair (Senator Runciman): Agreed?

Hon. Members: Agreed.

SOR/2008-12 — REGULATIONS AMENDING THE CANADIAN BROILER HATCHING EGG AND CHICK LICENSING REGULATIONS

(For text of documents, see Appendix P, p. 14P:1.)

The Joint Chair (Senator Runciman): Item 16 is amending the Canadian Broiler Hatching Egg and Chick Licensing Regulations. There is indication that these changes and amendments to the French version are going to proceed. I think counsel has some timeline concerns.

[Translation]

Mr. Rousseau: The problem is that the correction must be made further to other more significant changes, which are part of negotiations concerning the renewal of a federal-provincial agreement on hatching egg production. The changes involve the proclamation that governs this area of activity.

In its letter of January 31, 2012, the Farm Products Council of Canada indicated that the promised amendment was expected to be made in late spring of 2012. In its May 3, 2012 letter, the council indicated that the Department of Justice was examining the changes to the proclamation. At that time, the council expected the promised amendment to be made in 2013.

Here again, the letter is now five months old. If the committee is amenable, counsel will write another letter to the Farm Products Council of Canada for confirmation that the process will more forward as planned.

[English]

The Joint Chair (Senator Runciman): Is everyone in agreement with that?

Hon. Members: Agreed.

SOR/2000-273 — TOBACCO REPORTING REGULATIONS

(For text of documents, see Appendix Q, p. 14Q:1.)

The Joint Chair (Senator Runciman): Item 17 is Tobacco Reporting Regulations. Amendments have been promised for quite a while and lot of correspondence has gone back and forth. However, counsel still has some concerns with respect to how this is being approached.

Mr. Bernhardt: Again, the issue here is simply timing. There are some 20 points, running the gamut from minor drafting to provisions that extend reporting requirements to people not subject to the act in the first place.

The deadline for making amendments has been pushed back several times. It was originally fall of 2011 and then fall of 2012. Now it is the spring of 2013. The question for members is how they view that current time frame and whether they are happy to simply wait and see if that time for the latest deadline is met. Perhaps we might indicate to the department that the committee expects there will not be any further postponements.

The Joint Chair (Senator Runciman): Do they give explanation for the delays?

Mr. Bernhardt: I think it is the consultation and development process. We are dealing with tobacco regulation and that is always a controversial area.

Mr. Albas: Consultations are important, and there are so many different stakeholders. That being said, it is in our interest to reinforce the importance of keeping to time lines. I suggest we write back to Hélène Quesnel and let her know that we appreciate consultations can take time. However, she made a commitment to us that has been moved back several times, and we expect her to fulfil her end of bargain.

Senator Moore: I agree with Mr. Albas. What does spring of 2013 mean? This keeps moving around. Does that mean by equinox? Does it mean the last day of spring just before the summer? Why do we not try and get a definite time frame? It is pretty loose.

Mr. Albas: You specifically want to know if it will be done by the equinox?

Mr. Saxton: Is that lunar or solar?

SOR/2006-167 — ORDER AMENDING THE SCHEDULE TO THE CUSTOMS TARIFF (HARMONIZED SYSTEM CONVERSION, 2007) NO. 1

(For text of documents, see Appendix R, p. 14R:1.)

The Joint Chair (Senator Runciman): Item 18 is the Order Amending the Schedule to the Customs Tariff. There are two remaining points, and Finance Canada will recommend them in future legislative projects. Are we happy with that?

[Translation]

Mr. Rousseau: Exactly, Mr. Chair. Counsel will simply write another letter to the department about the matter and keep the committee abreast of any developments.

[English]

SOR/2010-112 — REGULATIONS AMENDING THE GENERAL PREFERENTIAL TARIFF AND LEAST DEVELOPED COUNTRY TARIFF RULES OF ORIGIN REGULATIONS

(For text of documents, see Appendix S, p. 14S:1.)

The Joint Chair (Senator Runciman): The final item under Action Promised is Regulations Amending the General Preferential Tariff and Least Developed Country Tariff Rules of Origin Regulations. There are two items on the schedule that have been repealed and Finance agrees to make the corrections at the earliest possible opportunity.

[Translation]

Mr. Rousseau: Once again, Mr. Chair, counsel will raise the issue in another letter to the department and keep the committee abreast of any developments, in the usual manner.

[English]

SOR/2008-257 — REGULATIONS AMENDING THE EMPLOYMENT INSURANCE REGULATIONS

(For text of documents, see Appendix T, p. 14T:1.)

SOR/2009-209 — REGULATIONS AMENDING THE CANADA GRAIN REGULATIONS

(For text of documents, see Appendix U, p. 14U:1.)

SOR/2010-215 — REGULATIONS AMENDING THE AGRICULTURE AND AGRI-FOOD ADMINISTRATIVE MONETARY PENALTIES REGULATIONS

(For text of documents, see Appendix V, p. 14V:1.)

SOR/2011-23 — REGULATIONS AMENDING THE ASBESTOS PRODUCTS REGULATIONS

(For text of documents, see Appendix W, p. 14W:1.)

SOR/2012-54 — ORDER AMENDING THE BEEF CATTLE RESEARCH, MARKET DEVELOPMENT AND PROMOTION LEVIES ORDER

(For text of documents, see Appendix X, p. 14X:1.)

SOR/2012-119 — ORDER AMENDING THE ROYAL CANADIAN MOUNTED POLICE (DEPENDANTS) PENSION FUND INCREASE IN BENEFITS ORDER (MISCELLANEOUS PROGRAM)

SOR/2011-122 ROYAL CANADIAN MOUNTED POLICE (DEPENDANTS) PENSION FUND INCREASE IN BENEFITS ORDER

(For text of documents, see Appendix Y, p. 14Y:1.)

The Joint Chair (Senator Runciman): Items 20 through 25 are under the heading Action Taken. Does counsel have any comment?

Mr. Bernhardt: I note that taken as a group there are seven instruments and altogether they make 16 amendments promised to the committee.

SI/2012-10 — KIMBERLEY CAMPBELL AND BETTY GRAY TAX REMISSION ORDER

SI/2012-11 — MADONE PELLETIER SIROIS REMISSION ORDER

SI/2012-12 — ORDER TRANSFERRING TO THE DEPARTMENT OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT THE CONTROL AND SUPERVISION OF THE PORTION OF THE FEDERAL PUBLIC ADMINISTRATION IN THE DEPARTMENT OF CANADIAN HERITAGE KNOWN AS THE URBAN ABORIGINAL YOUTH AND COMMUNITY PROGRAMS UNIT

SI/2012-14 — ORDER FIXING MARCH 16, 2012 AS THE DAY ON WHICH CERTAIN SECTIONS OF THE JOBS AND ECONOMIC GROWTH ACT COME INTO FORCE

SI/2012-15 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH SECTION 154 AND SUBSECTION 155(3) OF THE ACT COME INTO FORCE

SI/2012-16 — PROCLAMATION GIVING NOTICE THAT THE CONVENTION BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE ITALIAN REPUBLIC FOR THE AVOIDANCE OF DOUBLE TAXATION WITH RESPECT TO TAXES ON INCOME AND THE PREVENTION OF FISCAL EVASION CAME INTO FORCE ON NOVEMBER 25, 2011

SI/2012-17 — PROCLAMATION GIVING NOTICE THAT THE PROTOCOL AMENDING THE CONVENTION BETWEEN THE GOVERNMENT OF CANADA AND THE SWISS FEDERAL COUNCIL FOR THE AVOIDANCE OF DOUBLE TAXATION WITH RESPECT TO TAXES ON INCOME AND ON CAPITAL, CAME INTO FORCE ON DECEMBER 16, 2011

SI/2012-22 — CLAUDE MONTREUIL TAX REMISSION ORDER

SOR/91-76 — ATLANTIC FISHERY REGULATIONS, 1985, AMENDMENT

SOR/2009-334 — REGULATIONS AMENDING THE VETERANS HEALTH CARE REGULATIONS AND THE VETERANS BURIAL REGULATIONS, 2005

SOR/2010-147 — STATISTICS CANADA CENSUS-RELATED TERM EMPLOYMENT REGULATIONS

SOR/2011-321 — ORDER AMENDING THE IMPORT CONTROL LIST

SOR/2012-17 — GENERAL IMPORT PERMIT NO. 80 — CARBON STEEL

SOR/2012-18 — GENERAL IMPORT PERMIT NO. 81 — SPECIALTY STEEL PRODUCTS

SOR/2012-25 — ORDER AMENDING SCHEDULE 2 TO THE FIRST NATIONS GOODS AND SERVICES TAX ACT, NO. 2012-1 (THREE MANITOBA BANDS)

SOR/2012-26 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1611 — ASPARAGINASE)

SOR/2012-30 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS FISCAL AND STATISTICAL MANAGEMENT ACT

SOR/2012-31 — ORDER AMENDING SCHEDULE 1TO THE FIRST NATIONS GOODS AND SERVICES TAX ACT, NO. 2012-1 (NEKANEET)

SOR/2012-38 — REGULATIONS AMENDING THE CANADA GRAIN REGULATIONS

SOR/2012-40 — ORDER ADDING TOXIC SUBSTANCES TO SCHEDULE 1 TO THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

SOR/2012-44 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1571 — FOOD ADDITIVES)

SOR/2012-45 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1631 — XYLANASE)

SOR/2012-46 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1632 — PHOSPHOLIPASE)

SOR/2012-50 — REGULATIONS AMENDING THE PARI-MUTUEL BETTING SUPERVISION REGULATIONS

SOR/2012-51 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS

SOR/2012-53 — ORDER AMENDING THE CANADIAN EGG MARKETING LEVIES ORDER

SOR/2012-55 — ORDER AMENDING THE CANADIAN BROILER HATCHING EGG MARKETING LEVIES ORDER

SOR/2012-60 — ORDER AMENDING THE ORDER APPROVING BLOOD SAMPLE CONTAINERS

SOR/2012-61 — ORDER AMENDING THE APPROVED SCREENING DEVICES ORDER

SOR/2012-63 — ORDER 2011-66-12-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2012-65 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (SCHEDULE TO PART J — BZP AND TFMPP)

SOR/2012-66 — ORDER AMENDING SCHEDULE III TO THE CONTROLLED DRUGS AND SUBSTANCES ACT (BZP AND TFMPP)

SOR/2012-67 — REGULATIONS AMENDING THE MANITOBA FISHERY REGULATIONS, 1987

SOR/2012-70 — ORDER AMENDING THE QALIPU MI'KMAQ FIRST NATION BAND ORDER

Mr. Bernhardt: For the record, there are 34 instruments listed as Without Comment.

The Joint Chair (Senator Runciman): Before we adjourn, I will ask the house clerk to conduct the election of vice- chairs. I remind you that Mr. Pacetti and Mr. Breitkreuz were vice-chairs before the break.

Mr. Chaplin: Pursuant to Standing Order 106(2), the first vice-chair must be a member of the government party.

[Translation]

I am now prepared to entertain motions for the position of first vice-chair.

[English]

Mr. Albas: I nominate Mr. Breitkreuz for vice-chair. I thought it had to be the governing party first, so I put that name forward first.

To save time, would it be in order for me to nominate Mr. Pacetti?

Mr. Chaplin: I am not allowed to deal with any points of order.

It has been moved by Mr. Albas that Mr. Breitkreuz be made first vice-chair of the committee. The committee has heard the terms of the motion. Is it the pleasure of the committee to adopt the motion?

Hon. Members: Agreed.

Mr. Chaplin: I declare the motion carried and Garry Breitkreuz duly elected first vice-chair of the committee.

Pursuant to Standing Order 106(2), the second vice-chair must be a member of an opposition party other than the official opposition. I am prepared to receive a motion for the second vice-chair.

Mr. Albas: I would like to put forward Mr. Pacetti, the gentleman between two roses.

Mr. Chaplin: It has been moved by Mr. Albas that Massimo Pacetti be elected the as second vice-chair of the committee. Is it the pleasure of the committee to adopt the motion?

Hon. Members: Agreed.

Mr. Chaplin: I declare the motion carried and Massimo Pacetti duly elected second vice-chair of the committee.

The Joint Chair (Senator Runciman): That concludes the meeting. Thank you all.

(The committee adjourned.)

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