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Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue 15 - Evidence - October 18, 2012

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OTTAWA, Thursday, October 18, 2012

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:30 a.m. for the review of statutory instruments.

Senator Bob Runciman and Ms. Chris Charlton (Joint Chairs) in the chair.

[English]

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

The Joint Chair (Ms. Charlton): The first item before us is a Special Agenda Item following up on our committee's request from last week to Industry Canada about regulations amending the industrial design regulars.

Peter Bernhardt, General Counsel to the Committee: At the last meeting we were instructed to seek a progress report from the department by telephone and report back this morning. Pursuant to that, we contacted the department after the meeting. We were advised by the relevant officials that in their view it would always be preferable to proceed by way of a letter. In their opinion it would be better, both in terms of ensuring a complete response and moving files forward, if formal communications were exchanged and documented.

As a result, we wrote the October 9 letter. The department is in receipt of it and we will bring the file back to the committee when we get our reply.

Mr. Saxton: Despite our best efforts to avoid killing more trees it looks like we did not succeed, but at least we tried. Thank you for trying, counsel.

The Joint Chair (Ms. Charlton): Thank you very much. There is no further discussion on this instrument, I assume.

PROPOSED LEGISLATION ON INCORPORATION BY REFERENCE

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

The Joint Chair (Ms. Charlton): Moving on to Item No. 2, the Justice Department says that proposed legislation on incorporation by reference will be coming in the "coming months."

Mr. Bernhardt: That is correct. This item is here to update members. Of course, this proposed legislation follows from a report this committee made back in 2007 on the issue of incorporation by reference. The government response to that report agreed to seek to resolve the impasse between the committee and the Department of Justice by introducing a bill that would set out rules for the use of incorporation by reference in federal regulations, generally.

Back in 2009, at the minister's invitation, the committee provided a position paper presenting its views as to what such legislation should provide. There was a subsequent meeting between departmental officials and committee staff to go over that. In June, the minister indicated that the legislation should be coming forward in the months ahead. I note that at the end the minister expresses his appreciation for the committee's collaboration on this issue.

Hopefully, this means the committee will have the opportunity to look at the bill when it is brought forward to make its views known at that time as well.

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

Mr. Breitkreuz: Perhaps we could just monitor it.

The Joint Chair (Ms. Charlton): Thank you.

Hon. Members: Agreed.

SOR/84-432 — LICENSING AND ARBITRATION REGULATIONS

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

SOR/2000-416 - REGULATIONS AMENDING THE HEALTH OF ANIMALS REGULATIONS

SOR/2003-409 — REGULATIONS AMENDING THE HEALTH OF ANIMALS REGULATIONS

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

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

The Joint Chair (Ms. Charlton): Item No. 3 deals with Licensing and Arbitration Regulations. Some of these have been around longer than my caucus colleagues have been alive.

Mr. Bernhardt: The March 2 letter to the minister dealt with a number of files on which there have been considerable delays. Most recently, the Canadian Food Inspection Agency indicated that some of the miscellaneous amendments packages it had been pursuing to make these amendments had been abandoned in light of its broader regulatory modernization initiative, and that these matters would all be wrapped up in that broad initiative. This would begin with a bill to replace and consolidate a number of statutes. There would then be amendments from three to five years down the road after that, depending on which stage of this initiative they were put into.

Given the past delays, the committee did not see waiting a number of additional years as an appropriate course of action. This being the case, the minister was asked for an assurance that the amendments on these files to resolve the committee's concerns would proceed without delay, independently of the broad initiative.

The minister's reply advises that the files in question are being reviewed with respect to the modernization initiative and the Canadian Food Inspection Agency is exploring options to resolve them as soon as possible.

I am not really sure whether this means that at least some of these concerns will be fast-tracked or not. It might be worth seeking further clarification in that regard.

The minister also notes that over the summer there was progress on two of these files. Proposed amendments were pre-published in Part I of the Canada Gazette on July 14, so there has been some movement on at least two of the five items.

The minister concludes by recognizing that the committee's concerns have been outstanding for some time and suggests that many will be addressed through the modernization initiative.

Mr. Anders: In order to expedite the timeline, why do we not write back asking for a clear timeline?

The Joint Chair (Ms. Charlton): Is it agreed?

Hon. Members: Agreed.

The Joint Chair (Ms. Charlton): All right. Send a letter asking for timelines. Are there any other comments?

Senator Hervieux-Payette: On the issue of timelines, I thought they answered that it would take three years from now. That is 2015. It is not the timeline that we want to know; we want to know if they can do it before three years. It does not make sense. There are 23 articles to be modified and it will take three years? I do not think that is showing a lot of goodwill. I am sorry. It is not that I do not want to have a timeline, but I think the one they gave us is not acceptable.

The Joint Chair (Ms. Charlton): You are suggesting we indicate that the timeline is —

Senator Hervieux-Payette: You say that we have 23 articles to look at. Give us a break. If you look at the story of that piece of regulation, I think it is totally unacceptable.

The Joint Chair (Ms. Charlton): Are committee members okay with the approach of encouraging faster action on a three-year timeline that is laid out?

Mr. Saxton: That is it fine.

Senator Moore: I take it this is not something we can do via the miscellaneous statute process.

Mr. Bernhardt: No.

Senator Moore: It has to be done by the regulator.

Mr. Bernhardt: I suppose the committee can pursue the statement that the agency is exploring options to resolve them as soon as possible and is reviewing it with respect to the modernization initiative. That could be taken as indicating that there is an openness, where possible, to taking some of these issues out of modernization initiative and fast-tracking them. That is something the committee could latch on to and base its reply on. It can ask if it will that happen, and if so, when? What will that involve?

The Joint Chair (Ms. Charlton): Seeing no other interventions, we will proceed that way.

SOR/2002-36 — CANADIAN CHICKEN MARKETING QUOTA REGULATIONS

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

The Joint Chair (Ms. Charlton): Item No. 4 deals with the Canadian Chicken Marketing Quota Regulations. Looking at the correspondence, you will note that we received the ministerial brush-off, but counsel will explain that more politely.

Mr. Bernhardt: I can certainly try to do that. The issue here is quite straightforward; it is simply the repetition in the regulations of a number of definitions that are already found in the proclamation that authorizes the making of the regulations. Since the regulations were made pursuant to the proclamation, any definitions and terms in that proclamation, of necessity, have the same meaning in the regulations, so there is no need to repeat them.

The Chicken Farmers of Canada indicated that the definitions were repeated to give more information to people. As the joint chairs pointed out in a letter to the minister, however, this unnecessary repetition can create more confusion than it solves. There are other definitions in the proclamation; they were not repeated in the regulations. What is the significance of the fact that some were chosen and some were not? Is there some legal implication there or was it simply a random choice as to what to repeat and not repeat?

It leads to a whole series of potential questions. For that reason, you have the general principle that the law does not repeat itself; the law states the law once. The courts will always try to read meaning into everything within the law. What is a court to do with the things that are repeated here, there and other places?

The committee encounters the same issue from time to time and has always taken the position that only things that are legally necessary should be set out in the law. We could not think yesterday of another instance where there was much resistance to going along with that.

In this case, the Chicken Farmers of Canada and the Farm Products Council of Canada refused to accept the principle. As I say, there have been numerous examples where the committee's advice on this has been taken. In fact, Item No. 9 on the agenda is an identical case where the department said, "Yes, you are right; we will take it out."

Therefore, when the committee last considered this file, it was decided that before looking at whatever other course of action it might have available to it, it would draw the matter to the minister's attention in the hope of getting a resolution that way. Members also wanted it to be indicated in that letter that the full possible range of actions available could potentially include recommending disallowance. The minister's August 2 letter states that he supports the position taken by the Farm Products Council of Canada and their advisers.

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

[Translation]

Senator Hervieux-Payette: Does the chicken farmers' position comply with the law? Does this make the regulations more consistent, or does it favour them and maintain the problem with the regulations?

[English]

Mr. Bernhardt: Yes. It is simply the case that they have included in the regulations some provisions that are redundant. It was pointed out to them that there was no need for those provisions and that repeating things like that can cause confusion. Their response was, "Well, we like it. It gives people more information."

Again, the committee's position has always been that the law is the law; it is not a press release or information bulletin. If you want to give people information, there are ways to do that without adding endless verbiage to the law itself.

Senator Hervieux-Payette: We have a political answer but we need a policy decision. That is my interpretation. If we say this to that, we could say that to almost every other piece of regulation that comes before us that will just repeat what is in the law, as well.

Mr. Bernhardt: Yes.

Senator Hervieux-Payette: I do not know if someone else has a suggestion as to how we can deal with that, but it is not in conformity with what we should be doing, which is having regulations that are in conformity with the legislation and not repeating the legislation.

Mr. Saxton: There seems to be a fair bit of resistance, as counsel pointed out, from the Chicken Farmers of Canada to change this. We do not understand why there is that much resistance. In the past, when we have asked other departments and bodies to change, they did not have much resistance.

Maybe it would be helpful for us to understand why they are against changing so much and ask them what would be involved in them complying with our request. Maybe there is something there that we do not know about that is causing them to resist so much. It would be valuable for this committee to try to understand their position better by finding out why they are resisting so much.

Mr. Bernhardt: We can certainly try that. I have two comments to make in that regard.

First, there was a meeting some time ago on a number of chicken files with representatives of the various bodies, such as the council, the Canadian Food Inspection Agency, the chicken marketers and their legal counsel. Other than the fact they like it because it gives people information, we did not get much from that.

The result of that, members may remember, was an extremely lengthy letter from the lawyer for the Chicken Farmers of Canada that ran some several dozen pages that dealt with all of the files under the sun. Then we have a letter to the minister. By way of background, that is how the committee got to where it is today.

Yes, we can ask. I am not sure how much more we will get from them.

The other point I would make is that the quota set out in the regulations — the actual numbers — change quite frequently. It allocates on a provincial basis the number of kilograms of chicken that can be marketed in each province. Therefore, to take those definitions out as incidentally the next time the quota is reset is not a major task. It is not a case where these regulations only get amended once a decade; they are amended several times a year, anyway. Therefore, I do not think that simply deleting five definitions at that time is a huge resource burden for anyone. However, we may get some other answer when we ask.

[Translation]

Ms. Ayala: Is there case law in similar situations? I know that the concept exists when a judge has to apply a sentence, but is it the right concept in the area of legislation? I do not know. It seems to me that legislation should be clear, simple and readily understood. Perhaps the chicken farmers want to complicate people's lives. But as legislators, it is up to us to oversee things like this. I think we have to be clear about this. We have to make a decision.

Senator Hervieux-Payette: Have we been explicit enough to simply say "so get rid of the regulations"? Are these regulations the result of a specific request you have made? Have you had discussions with them face to face, or has this been done in writing only?

[English]

Mr. Bernhardt: Yes. I suppose all I can say is that is what the committee has been asking. The response to date has been, "No, that is the way it is."

Senator Moore: When you had your meeting, counsel, did you point out that we have had similar situations with other departments and there has been no issue and that they were quite happy to comply with the legal position you put forward?

Mr. Bernhardt: Yes, and we did refer them to specific examples.

Senator Moore: What did they say to that? They want to establish a new precedent, do they?

Mr. Bernhardt: My recollection was that there was a rather stony silence.

Senator Moore: How do we break through this impasse, beyond going to a disallowance? Is there any other way to do this?

Mr. Bernhardt: Short of continuing to nag them, I am not sure there is another alternative.

The Joint Chair (Ms. Charlton): Is there a recommendation on the floor?

Senator Braley: I would like to ask a couple more questions. Have there been any problems — it having been sitting here for these years — with regard to interpretation or legal matters or what have you?

Mr. Bernhardt: Not that I am aware of.

Senator Braley: I looked and could not find anything. Is the objection coming from both the minister and the chicken farmers or only from the chicken farmers?

Mr. Bernhardt: The objection is coming from the committee.

Senator Braley: I am sorry; it is the other way around. I meant to say "resistance," not "objection."

Mr. Bernhardt: My sense is that the resistance is basically coming from Chicken Farmers of Canada.

Senator Braley: My recommendation is down the middle of the road: Give them one more chance to deliver.

Senator Moore: No. You cannot be pushed around by them. You have to stick to your guns; you have to stick to the law.

Senator Braley: Give them one more chance.

Senator Moore: Tell them that if they do not proceed, we will have to come up with a nuclear solution.

Mr. Saxton: We are on the same page. We should give them another chance and say that we would like an explanation as to what supports their position; otherwise we will have no choice but to take further steps.

The Joint Chair (Ms. Charlton): I am hearing a consensus that we also articulate "or else" in the letter.

Hon. Members: Yes.

Senator Braley: Do we send it to the minister or to Chicken Farmers of Canada?

Senator Moore: I would write to the minister to say you are dealing with it now and cannot drop back; and give a copy to Chicken Farmers of Canada.

Mr. Saxton: This is a delegated authority to the chicken farmers. Ultimately, they will make the decision.

Mr. Bernhardt: Yes. At the end of the day, if revocation there be, they will be the ones who do it.

Mr. Saxton: They will have to take the action to rectify.

Mr. Bernhardt: In some sense, that is reflected in the minister's reply — that he is not necessarily willing to get involved in the middle of it.

Mr. Saxton: The letter should be to Chicken Farmers of Canada, with a copy to the minister. Does that make sense?

Mr. Bernhardt: As members wish.

Senator Hervieux-Payette: It is the other way around. Chicken Farmers of Canada will not change anything. That is what they want. They should be advised that this committee says to the minister that these regulations are not in line with the legal process. We should advise the chicken farmers. It is the government who can make that decision, not the chicken farmers. I would write to the minister and send a copy to the chicken farmers.

Mr. Bernhardt: That is fine.

The Joint Chair (Ms. Charlton): We have settled which comes first: the chicken or the egg. A letter will be sent to the minister and a copy will be sent to the chicken farmers. We are good.

Mr. Saxton: There will be a letter to the minister and a copy to the chicken farmers asking them to clarify their position before we take another step.

Mr. Breitkreuz: It should be worded strongly.

The Joint Chair (Ms. Charlton): Is it agreed?

Hon. Members: Agreed.

SOR/2010-158 — BEEF CATTLE RESEARCH, MARKET DEVELOPMENT AND PROMOTION LEVIES ORDER

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

The Joint Chair (Ms. Charlton): We will move to Item No. 5.

Mr. Bernhardt: This order replaced a previous Beef Cattle Research, Market Development Promotion Levies Order of 2005. In doing that, it addressed in part the concern raised by the committee in connection with the procedure by which the earlier 2005 order was made.

Under the Farm Products Agencies Act, approval by the Farm Products Council is a precondition to the making of an order by the Farm Products Agency. In the case of the 2005 order, however, the effective date of the approval was after the order was made and not before. In the committee's view, this failed to result in a lawful order.

The 2010 order put things on a proper legal footing. The question that remained was that in the committee's view, levies collected from 2005 to 2010 would have been collected unlawfully. That being the case, the committee suggested that consideration be given to seeking remedial legislation that would validate retroactively the levies collected under the 2005 order. The Farm Products Council took the view that no action was required. In response to the joint chairs' letter of May 8, the same reply as on the previous file, the minister again indicated that he supports the view of the Farm Products Council that no remedial legislation is necessary.

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

Mr. Saxton: I recommend that we close the file, as we have done in the past in similar situations.

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

Senator Moore: Counsel, is closing the file a satisfactory position to take?

Mr. Bernhardt: As Mr. Saxton said, there is some precedent for that, having sought the return of the money. In a sense, the committee has done what it can do. In some cases, the committee has been insistent that money be repaid. On occasion, it has been successful in getting validating legislation. A provision in the budget bill, Bill C-38, did that in another instance.

However, in some cases where the committee, having gotten proper legislation in place and having tried its best to get repayment or validation, has taken the decision that it had exercised its mandate and that there was nothing more it could do. The only other option might simply be to report the matter to the Houses and draw attention to the committee's concern, at which point no one would argue that the committee had not fulfilled its mandate. The committee has done a number of things in similar situations in the past.

Senator Hervieux-Payette: I recall saying at times that because it was such a small amount, we forgave it. It depends what has to be given back. If it is millions of dollars, that is one thing, but if it is complicated to give it back and it is a minimal amount, that is another thing. There is a practical aspect to consider.

I would go along with closing the file, provided we are not talking about a large amount of money.

Mr. Bernhardt: I am not certain of the amount. I had a quick look this morning on the website of the Canadian Cattleman's Association, where I saw some figures that deal with this program. The best I could come up with was probably in the neighbourhood of $20 million for the five-year period.

Senator Hervieux-Payette: How many people does that affect?

Mr. Bernhardt: It affects everyone who sold a cow in Canada during those five years. I assume that there is absolutely no way to figure out which specific producer might be entitled to what specific amount at this time.

Senator Hervieux-Payette: Would it not be appropriate to apply retroactivity to the law? That is the only truly legal process. We have taken $20 million away from the producers; it has gone with the wind and was done illegally.

Mr. Bernhardt: That is what the committee asked the minister, who indicated that he supports the views of the FPC that that is not necessary. Therefore, the ball is back in the committee's court.

The committee could go to the next step by way of a report and express its position that there ought to be legislation and hopes that there will be legislation. There is nothing beyond that for the committee to do, having approached the minister.

Senator Hervieux-Payette: I would be more comfortable doing that than simply closing the file. We do not want to appear to close our eyes to the situation. We should say that the only remedy is legislation, we have asked the proper thing, and this is not something that the committee would support.

Senator Moore: Has this stopped?

Mr. Bernhardt: Yes, as of 2010.

Senator Moore: Where did the money go?

Mr. Bernhardt: It went to the agency to promote and develop markets for Canadian beef. The program was put in place to help rebuild the markets after the BSE episode. There is matching money from various levels of government. As well, a levy is collected for each head of cattle that the producers market. It all goes to marketing promotion.

The Joint Chair (Ms. Charlton): Are there any other views around the table?

[Translation]

Ms. Ayala: It seems to me that we have a role to play here. We have missing legislation on something, and money is involved. We cannot just close the file and say that everything is fine. It is not fine. I think that we just have to send a letter to the minister saying that things like this are unacceptable. We want transparency and we have to do what is necessary to get it.

[English]

Mr. Saxton: I wonder why the order of 2010 did not have a retroactive clause to it. Could that have been a possibility?

Mr. Bernhardt: I do not think there would be authority under the act to have a retroactive regulation. They would have had to go to Parliament. They remade the order in 2010, which I think was at least some indication that they were not entirely sure the committee was not right about the 2005 one being illegal since they went to the trouble of making a new one. In that sense, at least the committee got a partial fix. Everything since 2010 is on the up and up.

Mr. Saxton: Is there any complaint from any cow vendor?

Mr. Bernhardt: I do not know of any complaint. I do not know if anyone has informed any of the producers. On occasion in the past, the committee has asked the agency whether they have taken steps to notify people that they might be entitled to refunds.

Mr. Saxton: It opens a floodgate at that point.

Mr. Bernhardt: Yes.

Senator Braley: I look at the five-year period and $20 million is a lot of money, but it was matched by other money. Is that right?

Mr. Bernhardt: Yes.

Senator Braley: It was matched by provincial money, too?

Mr. Bernhardt: There was federal and provincial money.

Senator Braley: All the producers knew the money was to be used to market the cows or beef worldwide or in North America. The money has been spent, so what kind of exercise will we go through to figure out if this man is owed $274 and this other producer sends the cheque? My recommendation is to close the file.

The Joint Chair (Ms. Charlton): We have two different recommendations on the floor.

Senator Hervieux-Payette: I think we can understand each other. We say that we do not endorse the way that it was handled. It is not a matter of saying that we will go after the minister or the government forever and ever. However, it is important to close the file and in so doing send a letter stating that this cannot be done in the future. We cannot repeat this kind of thing. The only remedy in this case is to change the law. It is not because we are letting go that it becomes legal.

Senator Braley: I suggest my position matches that.

The Joint Chair (Ms. Charlton): I am seeing nodding heads as a consensus.

Mr. Saxton: Could you repeat the consensus, please?

The Joint Chair (Ms. Charlton): As I understand it, we will be closing the file with an admonition to the ministry that these kinds of practices cannot continue and that we would prefer legislation.

Mr. Saxton: That is fine.

Hon. Members: Agreed.

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

SOR/2012-146 — COST RECOVERY REGULATIONS

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

The Joint Chair (Ms. Charlton): We will move on to New Instruments and Item No. 6. This instrument deals with the Environmental Assessment Review Panel Service Charges Order. The cost recovery will now happen through cost recovery regulations. Counsel suggests that we ask the minister to repeal two former orders.

Shawn Abel, Counsel to the Committee: That is the gist of it, Madam Chair. For some time the committee has objected to several provisions of the order made by the Minister of the Environment under the Financial Administration Act. The act authorized the making of an order prescribing or fixing fees or charges. The order sets out some charges by incorporating by reference documents published by third party organizations.

This type of open incorporation by reference has long been seen by the committee to constitute a form subdelegation that requires express authorization as well as not amounting, in this case, to prescribing or fixing a fee, which is required.

There has been a fair amount of progress on the file. The 2012 budget bill enacted the Canadian Environmental Assessment Act under which the Governor-in-Council has made the cost recovery regulations. As members can see with the accompanying commentary, there appears to be sufficient authority now to make open incorporations by reference in the regulations.

The Canadian Environmental Assessment Agency's letter of July 6 indicates that cost recovery will now proceed under the new regulations. That being the case, the order should presumably be repealed since it is no longer being applied. I would suggest a letter to the agency seeking confirmation could go forward.

Senator Braley: That was my recommendation. Repeal the old order.

The Joint Chair (Ms. Charlton): It sounds so simple, does it not? Is there consensus?

Hon. Members: Agreed.

SOR/2011-78 — FREEZING ASSETS OF CORRUPT FOREIGN OFFICIALS (TUNISIA AND EGYPT) REGULATIONS

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

The Joint Chair (Ms. Charlton): Moving on to Item No. 7, there is discrepancy between Journals records of the House of Commons and the Senate with respect to the Freezing Assets of Corrupts Foreign Officials Act.

Mr. Abel: That is correct. A regulation made under this act must be tabled in both Houses of Parliament within 15 days after it is made.

There was no record in the Journals of the Senate of that having been done. The department confirms that the regulations were transmitted to the Clerk of the Senate two days after their making. This was done late in the day and due to the election being called, the Journals had not been updated. It is sufficient under the Rules of the Senate that the regulations be transmitted to the clerk. That is considered tabling, so in this case the act has been complied with and the Journals of the Senate have since been updated. There is really no further action to be pursued in this file.

The Joint Chair (Ms. Charlton): Since there is no further action required, I suggest we close this file.

Hon. Members: Agreed.

SOR/2012-76 — REGULATIONS AMENDING THE REGULATIONS EXEMPTING A DEPARTMENT AND PARENT CROWN CORPORATIONS FROM THE REQUIREMENTS OF SUBSECTIONS 65.1(1) AND 131.1(1) OF THE FINANCIAL ADMINISTRATION ACT

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

The Joint Chair (Ms. Charlton): Item No. 8 is seeking clarification as to when approval for the instruments was given.

Mr. Abel: This instrument failed to indicate the day on which it was made. Counsel asked the Treasury Board to confirm when that was done in order to ensure that it was transmitted to the Clerk of the Privy Council within seven days as required by the Statutory Instruments Act.

The board's letter confirms such. The regulations were made on April 4 and registered by the clerk on April 5. Everything has been complied with. Therefore, there are no outstanding issues.

The Joint Chair (Ms. Charlton): Excellent. I assume we are closing this file as well.

Hon. Members: Agreed.

MAINTENANCE DREDGING SERVICES TONNAGE FEES

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

The Joint Chair (Ms. Charlton): We are moving on to Part Action Promised and Item No. 9. Originally there were eight issues under this item. At this point, there are only two issues in their response that remain unsatisfactory.

Counsel, do you want to walk us through those?

Mr. Bernhardt: As I mentioned earlier, one of those six items on which action has been promised is the deletion of a definition. It repeats a definition already found in the enabling act. These people were a little more cooperative than the chicken farmers.

The remaining two points concern provisions that provide for a fee increase automatically every year, based on the increase in the consumer price index, and that it establish a system by which the balance of the cost of the dredging service, after deducting the fees collected, is then paid by two federal bodies and a private entity.

In this case, the enabling provision is section 47(1) of the Oceans Act and it authorizes the minister to fix the fees to be paid for a service or the use of a facility. The provisions in question certainly establish a method or mechanism for calculating the fees, but cannot be said to fix the fees that are payable. If it is based on the increase in the consumer price index one asks, what is the fee next year? The answer is, well, we do not know. We have to wait to see what the consumer price index is for the next year. Then you have not fixed the fee. All you have done is provide a method for deciding, eventually, what the fee will be.

This is an issue that the committee has seen before. In particular, members may remember the letter mail regulations. The committee was preparing a disallowance report on that file. Those were regulations that fixed the postage rate for first class stamps. In the face of that, Canada Post backed down and changed the regulations to put in a fixed amount.

The committee has never objected to the use of a formula, per se, as long as all the elements in the formula are known at the time the regulation is made. For example, with 50 cents a pound or $1 a tonne, you know what it is based on and can figure out the amount. However, where it is based on some future event — such as a future increase in the consumer price index — the committee has always taken the view that it does not fix the fee.

Where Parliament wants to give that power to prescribe a method or the manner of determining a fee, it does so expressly. There are many examples of that in federal legislation. In fact, we had one of them earlier on the agenda this morning: the cost recovery fees. The express power not to just fix or prescribe a fee but to fix the method is exactly what was in the budget bill.

Again, here there are a couple of other twists on the situation. The Oceans Act has some additional requirements in there, such as a consultation requirement and a publication requirement in advance. I suggest those things cannot be met where you have put in a provision that provides for fee increases to be automatic. Down the road, there is no consultation on those increases; there is no publication in advance that the act requires.

I would suggest the reply from the department confuses financial management with the law. A provision is not lawful just because it is a good financial practice. If the fee-fixing powers in the act now are not considered adequate, the solution, as always, is to amend the act; alternatively, put a fixed fee in place.

This is the first time this file has been before the committee. I suggest that this would be a case of pursuing the issue again in a second letter to the department.

Mr. Saxton: I agree with counsel. Since we have some experience with this, why do we not make some recommendations on how we can fix it?

The Joint Chair (Ms. Charlton): Is it agreed?

Hon. Members: Agreed.

SOR/78-830 — WOOD BUFFALO NATIONAL PARK GAME REGULATIONS

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

The Joint Chair (Ms. Charlton): On Item No. 10, the department is promising that the points we had raised will be considered in the development of new regulations, so we do have Part Action Promised.

Mr. Abel: That is correct. Beyond that, I would bring to members' attention that point 3 of counsel's letter concerns the removal of subjective language that unnecessarily expands discretion granted to the park superintendent to make certain decisions. Point 4 concerns the need to set out some criteria surrounding discretionary powers to reinstate a suspended or cancelled licence. I would suggest the reply to point 2 concerning the number of licences granted is satisfactory.

The agency has indicated that developing these regulations will take some time, owing to the extensive consultations required with First Nations and Metis groups. It cannot provide a date at this time. If members find this satisfactory, counsel will continue to monitor the file and seek periodic progress reports.

The Joint Chair (Ms. Charlton): Do we have agreement that we will monitor?

Hon. Members: Agreed.

WEIGHTS AND MEASURES SPECIFICATIONS, SGM-1

WEIGHTS AND MEASURES SPECIFICATIONS, SGM-3

WEIGHTS AND MEASURES SPECIFICATIONS, SGM-7

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

The Joint Chair (Senator Runciman): Next is Item No. 11, which has been before the committee for almost a decade. There has been some progress, with promises of more.

Mr. Abel: Many of the committee's concerns in relation to these instruments were resolved this year due to the repeal of the documents called SGM-1 and SGM-3, as well as amendments to the Weights and Measures Regulations.

There are drafting concerns still outstanding to SGM-7. The letter of June 7 indicates there have been some delays and these are now expected to be completed in summer 2013.

If this is satisfactory, again counsel will monitor the file and seek periodic updates toward the completion of those amendments.

The Joint Chair (Senator Runciman): Is that agreed?

Hon. Members: Agreed.

SOR/2011-155 — REGULATIONS AMENDING THE QUEBEC FISHERY REGULATIONS, 1990

SOR/2012-47 — REGULATIONS AMENDING THE QUEBEC FISHERY REGULATIONS, 1990

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

The Joint Chair (Senator Runciman): Item No. 12 had a coming into force date prior to the instrument's enactment, meaning it would apply retroactively but without statutory authority, which was an error. Is there anything more that needs to be done here?

Mr. Abel: That is correct. When this was pointed out to the department, they replied by explaining that the instrument was made later than it had been intended to be made and that the coming into force provision had inadvertently not been updated to reflect that. Substantive provisions of the regulations were remade and SOR/2012-47 came into force when it was registered. That resolves the issue of retroactivity. There are no other concerns on this file, so perhaps it could be closed.

Mr. Anders: I recommend we close the file.

The Joint Chair (Senator Runciman): Are we all in agreement?

Hon. Members: Agreed.

SOR/2012-141 — ORDER AMENDING THE CANADIAN CHICKEN MARKETING LEVIES ORDER

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

The Joint Chair (Senator Runciman): The order in Item No. 13 was made June 29, 2012, and came into force July 1 but was not registered until July 3. The levy was collected prior to July 3. That sounds familiar.

Mr. Abel: I would just mention that due to the order coming before it was registered, assurance was sought that it was not enforced during that timeline. The Farm Products Council of Canada indicates the levies were not applied because those were holidays. Therefore, they say there was no slaughter or marketing. That being the case, there is nothing left to pursue.

The Joint Chair (Senator Runciman): Shall we close that file?

Hon. Members: Agreed.

SOR/2011-179 — REGULATIONS AMENDING THE TOBACCO PRODUCTS INFORMATION REGULATIONS

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

The Joint Chair (Senator Runciman): Item No. 14 deals with a discrepancy between the English and French.

Mr. Bernhardt: That is correct. The department indicates in its last letter that the amendment could be pre-published in Part I of the Canada Gazette in January 2014. If that is satisfactory to members, we will continue to monitor progress as per usual. I suppose the question is whether that is a bit far off in the distance.

The Joint Chair (Senator Runciman): Did they provide an explanation as to why?

Mr. Bernhardt: Yes, they plan to coincide the amendments they are making to these regulations with amendments to the Tobacco Products Labelling Regulations (Cigarettes and Little Cigars). Given it is just one small correction, I take it that it has been rolled into a larger package, and because of that, that package will take longer.

Senator Braley: I do not like the date, but the bottom line is there are a lot of labels and everything that change. It is so minor. I would monitor the file until 2014.

Senator Moore: It seems to say "could be retroactively pre-published." Could we get a commitment from them that they will do it? This looks like they might do it. Why do they not say they will do it on that date? Can you ask them to confirm that?

Mr. Bernhardt: We can ask them; we will make that suggestion.

Senator Braley: They have to do that to change the labels, do they not?

Mr. Bernhardt: Yes.

The Joint Chair (Senator Runciman): Yes. What they are suggesting could be — if you want to remain optimistic — earlier than 2014, but that is unlikely.

SOR/94-668 — CANADA LABOUR STANDARDS REGULATIONS, AMENDMENT

SOR/2006-231 — REGULATIONS AMENDING THE CANADA LABOUR STANDARDS REGULATIONS

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

The Joint Chair (Senator Runciman): Item No. 15 deals with amendments to address our committee's concerns that are currently being reviewed internally.

Mr. Abel: All that needs to be said here is that, previously, the department expected the amendments to be completed this year, following a regulatory review. In May, it was indicated amendments are now expected to be made in the 2012-13 fiscal year. If members find that satisfactory, counsel at this point can write again to see if this time frame remains valid.

Hon. Members: Agreed.

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

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

The Joint Chair (Senator Runciman): Next we have Item No. 16. Apparently the regulations are straightforward and under consideration. I think I recall us discussing this. There was a suggestion then that they were waiting with respect to the possibility of a national securities regulator. That does not look like it is in the cards. Counsel, what do you recommend?

Mr. Abel: That is correct. In fact, last time this was at committee, members were concerned that the delay with respect to that issue could go on for some time. It was not clear why the amendments in any case could not go forward themselves.

Fortunately, that is no longer an issue, at least for the purposes of this file. The July 24 letter indicates that these regulations, along with many others, are now being reviewed. Presumably, that means the amendments to address the committee's concerns will now be developed.

At this time, counsel could write back seeking more detailed information and continue to seek progress reports in the normal fashion.

The Joint Chair (Senator Runciman): Do members agree with that approach?

Hon. Members: Agreed.

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

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

The Joint Chair (Senator Runciman): Next we have Item No. 17, On Board Trains Occupational Safety and Health Regulations, amendment. This file goes back to 1996.

Mr. Bernhardt: That is correct. Amendments have been submitted to the Department of Justice for drafting. At least the process seems to be ongoing and moving forward, although slowly. In June, the department advised that the drafting process could take several more months. That being the case, and given the advice was in June, perhaps it would be time for the committee to ask for a progress report, if members concur.

Hon. Members: Agreed.

The Joint Chair (Senator Runciman): We will ask for a progress report.

SOR/2005-141 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1402 — DRUGS FOR DEVELOPING COUNTRIES)

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

The Joint Chair (Senator Runciman): Next is Item No. 18 on amendments to the Food and Drug Regulations. This involves drugs for developing countries and the length of time a manufacturer must retain records.

Mr. Abel: When the committee last considered this instrument in March, members had expressed some displeasure that two amendments that would set time limits on record retention requirements for drug manufacturers had not been made. These amendments were first promised in July 2007 and dates for completion provided by the department have been pushed back repeatedly or simply did not exist. These amendments were separated from other planned amendments in 2009 at the recommendation of the committee. Additionally, the department has explored the possibility of expediting at least one of the two amendments. That is in the correspondence before the committee today. This was determined not to be possible. According to the department, there is no getting around the need for lengthy pre-publishing for consultation steps with stakeholders.

The letter of July 23, 2012, projects that one of these amendments will be pre-published for consultation in the autumn of 2013. The other is expected to be pre-published in the winter of 2014 and completed in the spring of 2015. The question for members is whether this is satisfactory.

The Joint Chair (Senator Runciman): Are there comments?

Senator Hervieux-Payette: I suppose it is satisfactory, but the date is 2015. It is a bit ridiculous to tell us that if it does not work this time, they will do it in three years' time. I do not know what other members think of this. Certainly, we are talking about something important. I would like to reduce the time frame.

The Joint Chair (Senator Runciman): Are you suggesting that we write back?

Senator Hervieux-Payette: Yes, to ask why we have to wait until 2015. Why do they not proceed temporarily? If they want to revise it in 2015, we do not mind. However, they must at least ensure us that they are confident it will be done before the end of that year. I do not think that I can buy their rationale.

Mr. Breitkreuz: Did we not write a letter to ask why these delays are taking place? What kind of explanation have we received? Can we change the timelines?

Mr. Bernhardt: As was mentioned, they have tried to do a couple of things. At the committee's request they took these amendments outside of a bigger package. It was hoped that would speed things up. Then they went to Treasury Board to see if they could use an expedited process. They were told that it would not be appropriate and that in this case, they would have to go through the full regulatory process.

Most recently, they are advising that there is a need for extensive consultations with stakeholders — drug manufacturers in this case — to negotiate the appropriate times for keeping various records. It seems that that process will take time.

Mr. Breitkreuz: It appears as if they are trying to comply. Should we monitor the file? That is what I would suggest.

The Joint Chair (Senator Runciman): Does any other member wish to comment on this? We have two options: writing and encouraging speedier action or simply monitoring the file.

Senator Moore: Are they locked into the time frame that we have set out for these two issues? Is that as quickly as they can do it within the process? They seemed to be pretty confident that it was to happen over the winter of 2012-13. Down the road, can they say that they do not think they can do it, again? What is driving this that has to change?

Mr. Bernhardt: I have no more information than what they provide. The reason now is that they need to consult with the industry.

Senator Moore: Would they not have done that already? What have they been doing?

Mr. Bernhardt: There has been some time; and they have reported some attempts to expedite it. It seems that they have not been entirely successful. The efforts they have made have not led to anything being done to date.

Senator Moore: What do you think we should do?

Mr. Bernhardt: The committee can write back to say that it appreciates that they are trying, but the time frames seem to be very lengthy, and to ask whether there is a way to speed it up. I suppose the committee could write to the minister to make the same request about getting this done before 2015. There is agreement to make the amendments, and they have made a couple of efforts to try to expedite things.

Senator Moore: They were trying to do it and thought they could do it over the winter of 2013. Is the fact that they cannot meet that schedule not of their doing? If that is the case, then it seems to be in good faith. Is that the situation?

Mr. Breitkreuz: From what you have suggested, it appears they are trying to consult with the drug companies. My concern is that no one's health is at risk in some Third World country.

Mr. Bernhardt: It comes very much under the heading of "reducing a burden for manufacturers." This situation is seen by the committee from time to time whereby there is a provision that requires the keeping of certain records; but that is all it says. The only way you can be sure you are meeting that requirement is to keep the records forever. The committee will write back routinely to ask whether the requirement to keep the records should have a length of time attached, such as 2 or 5 or 10 years, so that a business knows that after that time, they no longer need to keep those records. The consultations that presumably we are dealing with are a matter of sitting down with industry and hammering out the time frame for keeping records.

Mr. Breitkreuz: My suggestion is to monitor the file. Perhaps we could communicate to them that we are watching this closely.

The Joint Chair (Senator Runciman): Yes, we could simply write to them to say that the committee appreciates their efforts but continues to be concerned about the timeliness and encourages speedier action. We will continue to monitor.

Senator Moore: Agreed.

Mr. Breitkreuz: Agreed.

Senator Braley: They wrote to Treasury Board. Were they not told that they could not speed it up because they had to go through this process?

Mr. Bernhardt: Yes. Treasury Board does a triage when you want to do a regulation. They have various levels based on the impact and the significance and the controversy. Some things can be fast-tracked while other things require pre- publication and consultation — all the various hoops.

Senator Braley: Perhaps we should recognize that they tried to make the effort. At the same time, that letter is necessary.

The Joint Chair (Senator Runciman): We will compliment them on making the effort.

Hon. Members: Agreed.

SOR/2011-1 — RULES AMENDING THE RULES OF PROCEDURE FOR BOARDS OF REVIEW

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

The Joint Chair (Senator Runciman): Under Action Promised, we have Item No. 19, amendments to the Rules of Procedure for Boards of Review. This item deals with drafting errors and new errors have been identified as a discrepancy between the English and French versions.

Mr. Bernhardt: Action has been promised, and we will simply follow up on that in the usual manner after the meeting.

Hon. Members: Agreed.

SOR/2011-22 — TEXTILE FLAMMABILITY REGULATIONS

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

The Joint Chair (Senator Runciman): Item No. 20 concerns the Textile Flammability Regulations. An amendment is promised to address the French-English discrepancy.

Mr. Bernhardt: This is the identical situation to the previous one.

The Joint Chair (Senator Runciman): Is everyone agreed?

Hon. Members: Agreed.

SOR/2012-16 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1593 — CLINICAL TRIALS — MISCELLANEOUS PROGRAM)

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

The Joint Chair (Senator Runciman): Item No. 21 concerns Regulations Amending the Food and Drug Regulations, by which 13 amendments have been made to correct minor discrepancies in the English and French terminology and other points of drafting. There is one remaining discrepancy that they have promised to address.

Mr. Bernhardt: Again, we will follow that up.

SI/2012-21 — ORDER AMENDING THE RIGHT OF PERMANENT RESIDENCE FEES REMISSION ORDER

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

SOR/2009-28 — REGULATIONS AMENDING THE AIR TRANSPORTATION REGULATIONS AND THE CANADIAN TRANSPORTATION AGENCY DESIGNATED PROVISIONS REGULATIONS

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

SOR/2011-147 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE BROADCASTING ACT

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

SOR/2012-21 — REGULATIONS AMENDING THE ALBERTA FISHERY REGULATIONS, 1998

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

SOR/2012-133 — ORDER AMENDING SCHEDULE 1 TO THE SPECIES AT RISK ACT

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

The Joint Chair (Senator Runciman): On the remainder of the agenda, are there any comments or questions from counsel or members?

Mr. Bernhardt: I would note for the record that the five instruments under Action Taken together make 18 amendments that the committee had asked for.

SOR/2007-94 — REGULATIONS AMENDING THE INTEGRATED CIRCUIT TOPOGRAPHY REGULATIONS

SOR/2008-178 — PERFLUOROOCTANE SULFONATE AND ITS SALTS AND CERTAIN OTHER COMPOUNDS REGULATIONS

SOR/2008-182 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS

SOR/2009-96 — REGULATIONS AMENDING THE EMPLOYMENT INSURANCE REGULATIONS

SOR/2009-130 — REGULATIONS AMENDING THE EMPLOYMENT INSURANCE REGULATIONS

SOR/2009-233 — REGULATIONS AMENDING THE EMPLOYMENT INSURANCE REGULATIONS

SOR/2010-15 — REGULATIONS AMENDING THE CONTRAVENTIONS REGULATIONS

SOR/2010-92 — REGULATIONS AMENDING THE CONTRAVENTIONS REGULATIONS

SOR/2010-243 — REGULATIONS AMENDING THE STATISTICS CANADA CENSUS-RELATED TERM EMPLOYMENT REGULATIONS

SOR/2010-300 — REGULATIONS AMENDING THE CANADA PENSION PLAN REGULATIONS

SOR/2011-55 — SECURITY INTEREST (GST/HST) REGULATIONS

SOR/2011-320 — ORDER AMENDING THE EXPORT CONTROL LIST

SOR/2012-35 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (SYRIA) REGULATIONS

SOR/2012-39 — ORDER EXTENDING EXPORT DEVELOPMENT CANADA'S TEMPORARY DOMESTIC POWERS

SOR/2012-52 — REGULATIONS AMENDING THE ALBERTA SEX OFFENDER INFORMATION REGISTRATION REGULATIONS

SOR/2012-56 — ORDER AMENDING THE QUEBEC BEEF CATTLE PRODUCERS' LEVIES OR CHARGES (INTERPROVINCIAL AND EXPORT TRADE) ORDER

SOR/2012-58 — ORDER AMENDING SCHEDULE IV TO THE FINANCIAL ADMINISTRATION ACT

SOR/2012-59 — ORDER AMENDING SCHEDULE I TO THE PUBLIC SERVICE SUPERANNUATION ACT

SOR/2012-74 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (SYRIA) REGULATIONS

SOR/2012-75 — REGULATIONS AMENDING THE REPORTABLE DISEASES REGULATIONS

SOR/2012-78 — REGULATIONS AMENDING THE CANADA STUDENT FINANCIAL ASSISTANCE REGULATIONS

SOR/2012-79 — REGULATIONS AMENDING THE CANADA STUDENT FINANCIAL ASSISTANCE REGULATIONS

SOR/2012-81 — ORDER AMENDING THE SCHEDULE TO THE EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT AGREEMENT ACT

SOR/2012-82 — REGULATIONS AMENDING THE CANADIAN WHEAT BOARD REGULATIONS

SOR/2012-83 — APPOINTMENT OR DEPLOYMENT OF ALTERNATES REGULATIONS

SOR/2012-84 — REGULATIONS AMENDING THE CANADIAN TURKEY MARKETING QUOTA REGULATIONS, 1990

SOR/2012-86 — ORDER AMENDING THE AREA CONTROL LIST

SOR/2012-87 — INTERNATIONAL ORGANIZATION FOR MIGRATION PRIVILEGES AND IMMUNITIES ORDER

SOR/2012-89 — GENERAL EXPORT PERMIT NO. 43 — NUCLEAR GOODS AND TECHNOLOGY TO CERTAIN DESTINATIONS

SOR/2012-100 — REGULATIONS AMENDING THE ENERGY EFFICIENCY REGULATIONS (MISCELLANEOUS PROGRAM)

SOR/2012-103 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1599 — FOOD ADDITIVE)

SOR/2012-105 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1638 — LECITHIN)

SOR/2012-106 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1640 — FOOD ADDITIVES)

SOR/2012-108 — ORDER 2012-87-02-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2012-109 — REGULATIONS AMENDING THE COMPENSATION FOR DESTROYED ANIMALS REGULATIONS

Mr. Bernhardt: Under Statutory Instruments Without Comment, 35 instruments are listed that counsel have reviewed and have found to comply with the committee's criteria.

The Joint Chair (Senator Runciman): If there is nothing else, the committee is adjourned.

(The committee adjourned.)

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