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Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue 14 - Evidence - November 20, 2014

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OTTAWA, Thursday, November 20, 2014

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

Senator Denise Batters and Ms. Chris Charlton (Joint Chairs) in the chair.

[English]

The Joint Chair (Ms. Charlton): Good morning, everyone. Let me begin by thanking counsel for providing all of us with the memo about the tools in our tool kit with respect to how we encourage ministries to respond to our concerns. I don't think we need counsel to go through the memo for us, but if members have specific questions about the content of the memo, feel free to ask them now or as we go through items and discuss options we want to pursue. Does that seem reasonable?

Hon. Members: Agreed.

ORDERS MADE BY BOARDS AND AGENCIES UNDER THE AGRICULTURAL PRODUCTS MARKETING ACT

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

The Joint Chair (Ms. Charlton): We begin our agenda with Item 1 under "Letters To and From Ministers." We had raised defects in the exercise of federal powers delegated to provincial marketing boards before. As so often with matters before our committee, it involves the imposition of levies. The minister says he's working with the Farm Products Council of Canada and Treasury Board to get those matters resolved.

Peter Bernhardt, General Counsel to the Committee: That's correct, Madam Chair. It seems that some 82 orders will need to be amended, 54 of which are delegation orders that delegate various powers to the provincial boards and agencies. It is proposed to delete the words "by order" from those delegation orders. This is based on interpretation by the Department of Justice — but it's not an interpretation this committee has ever accepted — that these words are necessary in order for the resulting instrument to be a statutory instrument under the Statutory Instruments Act. If something isn't required to be made "by order," it doesn't need to be registered and doesn't need to be published in the Canada Gazette.

Obviously this will solve the problem that the provincial boards and agencies are having with transmitting things to Ottawa to be registered. Also, it will solve the problem that if it is required to be registered, it doesn't come into force until it is registered.

The committee had some concerns, however, that there might be problems as a result in terms of transparency and access. The minister indicated in his letter that the possibility of appropriate control mechanisms to identify changes to the provincial levies is being explored. In this connection, the minister refers to the regulation-making powers in the Agricultural Products Marketing Act.

It may be that what's being contemplated is making a regulation under the act that, for example, would require the provincial boards to send copies of their orders to some federal body, such as the Farm Products Council of Canada, which would take the place of registration and publication and provide some means by which there could be federal oversight and a guarantee that changes to these orders were properly made.

The committee had suggested as well that perhaps some consideration should be given to retroactively validating the collection of money that had been done without proper authority in the past. The minister indicated that at the appropriate time every option will be evaluated to ensure that all levies that have been paid are valid. I suppose perhaps that's not the most firm undertaking the committee has ever seen; however, it does not rule out the possibility that it will be decided down the road that there should be retroactive legislation.

As for a time frame, as indicated, this project started about six years ago. The minister's letter doesn't indicate an expected completion date, so that's an issue the committee may still have some concern with.

The Joint Chair (Ms. Charlton): Any comments on this file?

Mr. Albas: I want to thank counsel for their continued work on this. It involves a wide variety of organizations, and I'm sure that the Farm Products Council of Canada is doing what it can to get a handle on the problem.

I'm also happy that the minister said:

. . . I am committed to evaluating at the appropriate time every option to ensure that all levies that have already been paid by Canadian producers are valid with respect to legal processes.

I think we've done a good job of engaging the minister, as well. I would simply point out that this will probably be a longer term project.

Is there any value, counsel, in writing to the FPCC to ask for an update, or would you suggest we do that in three to six months' time? I believe we have to give them the time to work. However, if steps are to be taken, we should work with them as productively as we can.

Mr. Bernhardt: The letter from the minister was dated September 25, 2014. In reading the letter, it seems that he contacted the FPCC before drafting the reply. We can take it that as of September 25, the advice in the minister's letter was the most recent advice. As it was only about two months ago, it may be too soon to expect any new developments of any consequence. Perhaps as a recommendation we could follow up with the FPCC in the new year to see where things are heading.

Mr. Albas: I don't want to prescribe a set of action on this, but that sounds most reasonable.

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

Hon. Members: Agreed.

SOR/2014-175 — REGULATIONS AMENDING THE BRITISH COLUMBIA SEX OFFENDER INFORMATION REGISTRATION REGULATIONS

The Joint Chair (Ms. Charlton): Moving on to Item 2 under "New Instrument," as you know, when a new regulation is made it must be transmitted within seven days to the Clerk of the Privy Council. With respect to the regulations amending the British Columbia Sex Offender Information Registration Regulations, it wasn't clear to counsel whether that transmission had taken place in a timely fashion. The Public Safety Department is suggesting that it was.

[Translation]

Evelyne Borkowski-Parent, Counsel to the Committee: In this case, the regulations failed to indicate the date on which they were made by the Lieutenant Governor of British Columbia. The documentation provided by the department helps establish the date and indicates that subsection 5(1) of the act was complied with.

[English]

The Joint Chair (Ms. Charlton): We can close this file.

SOR/2006-50 — CANADIAN FORCES MEMBERS AND VETERANS RE-ESTABLISHMENT AND COMPENSATION REGULATIONS

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

The Joint Chair (Ms. Charlton): Next is Item 3 on our agenda under "Reply Unsatisfactory." The reply is deemed unsatisfactory because the Department of Justice has made no concrete commitment to act with respect to either the two amendments they had originally promised they would make or the discrepancy between the English and French versions.

Mr. Bernhardt: That is it in a nutshell, Madam Chair. The committee is waiting for the remaking of two provisions. The committee decided there was no authority for those provisions when they were made. The act was subsequently amended, so now there is authority and it's simply a case of remaking under the new authority.

The August letter from the department states that all statutory and regulatory options are being explored. It's not really clear what we should take this to mean. The question of statutory authority has already been resolved; it's a simple matter of remaking provisions.

Members may recall the other point, which concerned the use of the word "tout" in the French version of a number of provisions. These provisions require people to submit information and documents relating to certain matters. The English version simply requires that information be submitted. The French version requires, depending on how you read it, that either any or all information be submitted. The phrase used in French is "tout information." The department has always claimed that "tout" should be taken to mean "any." The committee considered, and here's the grammatical explanation: When used as an indefinite adjective, "tout" may mean "every" or "all," and the meaning is ambiguous.

The department has indicated that if these provisions are reopened it would consider doing something about this. The committee initially wasn't satisfied with that and asked if the department actually intended to bring forward amendments. The latest reply simply repeats the department's previous statement.

All that being said, the information in question here is information that accompanies an application for benefits. You, therefore, would think it's in the applicant's own interest to provide as much information as possible because they're looking to be approved for the benefit. There is also authority for the minister to request additional information, where necessary, to make a decision on eligibility. When you look at the whole issue in context, I suppose it would be open to the committee to conclude that any ambiguity strictly speaking on the grammar that exists here in the French version is quite unlikely to actually cause a problem in practice.

It falls to members as to whether they wish to pursue this issue of grammar.

Senator Runciman: So you're not making a recommendation. It's been around for five years. Should we write back, trying to seek clarification on what they intend to do and when? Is there anything to be gained by that?

Mr. Bernhardt: I think certainly on the first two points it would be a reasonable approach to say, "You told the committee you're going to do this."

Senator Runciman: And the ambiguity one?

Mr. Bernhardt: I'm in the hands of members, particularly as an anglophone. I'm somewhat hesitant to make a recommendation to the committee strictly on a point of French grammar.

Senator Runciman: Why don't we write back on all three, and then we can make a decision based on their response on the ambiguity issue?

[Translation]

Mr. Bélanger: I agree. We have a responsibility to ensure that there is no ambiguity in legislation, in either English or French. If there is any ambiguity, someone might use it to their advantage that would be against the public interest. We therefore have a responsibility to ensure that there are no discrepancies between the legislation and the regulations in English and in French. I think we should insist that they eliminate the ambiguity.

[English]

Mr. Albas: I don't disagree with what the senator has proposed. If we need to write back, I'm not going to stand in opposition to that.

From a practical standpoint, if I were someone who was applying for the benefits, would this particular rendition of "any" versus "all" prevent me from being able to get the benefits at all?

Mr. Bernhardt: In theory it would be possible that if a person submitted some information and someone in the bureaucracy decided that they didn't submit all the information, therefore they don't get the benefit.

In such a case, I think if you didn't submit enough information, the department would contact the person and say, "You have not established your eligibility; is there any other information you can provide?" In practice, I think that's how it would play out, which doesn't address the question of whether, on the face of the words, the —

Mr. Albas: They have said that if the package is reviewed, this will be included with it. Every time I've dealt with Veterans Affairs, they seem to go above and beyond. If they don't have enough information, they immediately say, "Can you get your constituent to give us more?" They work very hard to do that.

Again, I will leave it in the hands of the committee. To me, if they've already agreed that there is some ambiguity but that they will include this in an upcoming package and, in a practical state, they are operating within the laws, I don't necessarily see why we continue to press the point.

That being said, I appreciate the opportunity to speak.

The Joint Chair (Ms. Charlton): Since we're writing a letter anyway and since there seems to be broad agreement that we raise all three points, why don't we do that? I don't think there is any harm done in raising all three. Agreed?

Hon. Members: Agreed.

SOR/2012-138 — FIREARMS INFORMATION REGULATIONS (NON-RESTRICTED FIREARMS)

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

The Joint Chair (Ms. Charlton): Next is Item 4. I think, on this file, we've probably come to an impasse. The Department of Public Safety continues to disagree with our committee's concerns with respect to the powers of the Chief Firearms Officer.

Mr. Bernhardt: That's correct. The purpose of these regulations is to ensure that businesses would not be required as a condition of a licence to collect and keep point-of-sale data with respect to long guns after the elimination of the long gun registry. Although there are general provisions in the act authorizing regulations regulating the issuing of licences and the keeping and destruction of records, it's also the case that the act provides that the Chief Firearms Officer has discretion to attach conditions to a licence. There is no express authority in the act to make regulations altering the scope of that discretion. The committee, therefore, suggested that any attempt to place limits on that discretion would be an unlawful fettering of the Chief Firearms Officer's authority.

In accordance with the committee's wishes at the last meeting when this file was considered, we have attached a copy of the proceedings from the Commons and Senate committees that studied the proposed regulations. Of course, these regulations are also permanently referred to this committee.

The reasons for the committee's view are set out in some detail in the note. In a nutshell, the applicable principle is that regulations may not be used for purposes of clarifying or giving a particular meaning to the parent act. That's inherent in the nature of regulations as subordinate legislation.

The latest letter from the department doesn't really attempt to counter any of those arguments. It simply makes the assertion that the government is of the view that the regulations are lawful.

It took the department over a year to provide that response. No doubt there was ample time to consider the matter, and I think if there were serious arguments that could be advanced in defence of the regulations, the department would have done so.

That being said, there does seem to have been some recognition that there is an issue here because we have Bill C-42, which would add subsection 58(1.1) to the Firearms Act. That would provide that the power of a Chief Firearms Officer to attach conditions to a licence is subject to the regulations made under the act. This would clearly permit regulations that restrict the discretion conferred on the firearms officer.

One question that might still remain is whether the regulations prohibit something that the firearms officer wouldn't be allowed to do in the first place. As explained in the note, it is suggested that the authority of the firearms officer to put conditions in a licence is expected to be issued on a case-by-case basis after considering the circumstances of the licence. A policy of simply putting a condition in every licence would be an abuse of that discretion, we suggest, and would be unauthorized in the first place.

That issue might still remain after Bill C-42 passes. We could question whether there was a need for the regulations, but there would be no question that the regulations could be legally made.

I suppose what would still remain is to simply remake the regulations under the new power after Bill C-42 passes.

Mr. Breitkreuz: Counsel has outlined the issue quite well. We're obviously at an impasse. The view here is contrary to that which the government holds. Bill C-42 does offer at least a partial solution to that.

I think the choice of the committee is whether we should push ahead or wait until Parliament deals with this bill. It will probably be sooner rather than later. We're not going to get a response from them before Bill C-42 goes through Parliament.

My suggestion would be write back to let them know that the position of the committee hasn't changed, and monitor the file.

Mr. Bélanger: Bring it back once the bill is done.

Mr. Breitkreuz: Once Bill C-42 is done.

The Joint Chair (Ms. Charlton): Is there agreement on that? We will write a letter, continue to monitor and bring it back after the bill passes.

Hon. Members: Agreed.

SOR/90-264 — MARINE MACHINERY REGULATIONS

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

The Joint Chair (Ms. Charlton): Next is Item 5, the Marine Machinery Regulations, under "Reply Unsatisfactory (?)." In this case, amendments were promised to be made by 2009, and now the committee has been told they will be delayed until 2017.

[Translation]

Ms. Borkowski-Parent: So, 46 drafting points were raised for the first time in 2004. The delays have since been accumulating and the department keeps pushing back its deadline for making the requested amendments.

In November 2010, the department anticipated that the amendments would be prepublished in Part I of the Canada Gazette in early 2011, but to no avail. In the spring of 2013, the committee's chairs wrote to the minister concerning a number of regulations made pursuant to the Canada Shipping Act, 2001, the corrections to which had been constantly postponed.

According to the letter of September 24, 2014, the department intended to initiate consultations with the goal of consolidating several existing regulations, including the Marine Machinery Regulations, into a single set of regulations. The project is to be completed by the end of 2017.

[English]

Mr. Anders: Given the fact that it's all part of a consolidation project, as they say, and it is mostly discrepancies over the drafting of the English and French, I suggest we monitor and ask counsel to seek periodic updates.

The Joint Chair (Ms. Charlton): Everyone is okay waiting another three years?

Mr. Anders: Periodic updates.

The Joint Chair (Ms. Charlton): Is it agreed that counsel provide us with periodic updates between now and 2017?

Hon. Members: Agreed.

SOR/2005-62 — CANADA PRODUCTION INSURANCE REGULATIONS

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

The Joint Chair (Ms. Charlton): With respect to Item 6 on our agenda, committee members will recall from April that we had two outstanding concerns with respect to the Canada Production Insurance Regulations. The department still hasn't given us a commitment for dealing with those, nor have we received a timeline for dealing with amendments that were promised to us earlier.

Mr. Bernhardt: That's correct. The previous time frame we had was October 2015 to complete a broader review. Most recently, the department is telling us they cannot provide a proposed timeline because of the size and complexity of the review. I think it seems to be the case that October 2015 is now no longer considered the viable completion date.

I suppose by way of recommendations it would be open to the committee to ask the department to consider proceeding with its amendments independently.

Mr. Clarke: I think we should ask the department for a timeline and get some clarification on the last two points.

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

Hon. Members: Agreed.

SOR/2012-135 — REGULATIONS AMENDING THE SULPHUR IN DIESEL FUEL REGULATIONS

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

The Joint Chair (Ms. Charlton): Moving on to agenda items under "Part Action Promised," the first is No. 7. The part action on this item is that some minor amendments have been promised as part of an omnibus package by the end of the year, but some larger issues continue to remain unresolved.

Mr. Bernhardt: That's correct. The unresolved matters concern points 3, 5 and 6. These relate to sulphur concentration limits that appear as if they may not actually be enforceable and requirements to report certain information for purposes that are not clear. Again, these are discussed in the note.

On points 3 and 6, the department has indicated that certain information is useful in enforcing the regulations and requiring it helps clarify requirements that must be met.

It is unclear exactly how this would be since the information doesn't appear to relate to any other particular provision. In other words, nothing turns on the distinctions that are reflected in the information on which the reporting requirements are based.

The department has also now indicated that some of this information, in its words, is used "to gather information to help focus compliance promotion and enforcement efforts and is used in developing compliance promotion plans and compliance strategies." However, the other provisions of the regulations don't refer to any of these matters.

Point 5 concerns a provision that requires producers to keep certain records with respect to the date of dispatch or importation of certain diesel fuel in relation to the concentration limits of sulphur in that diesel fuel. The concentration limits established under the regulations relate to import, production or sale. There are no concentration limits applicable as of the date of dispatch.

It seems, from the various explanations provided by the department, the reason for this is that it's difficult to determine at exactly what point you consider diesel fuel to have been produced. It's easier to sample it when it leaves the facility. The problem, of course, is that the sulphur content requirements relate to the times of production, import and sale, not to the time it leaves the facility. It is my understanding that the sulphur content in diesel fuel can vary somewhat over time.

The second issue raised in point 5 concerns a requirement that producers and importers of diesel fuel keep a record that certain diesel fuel is not suitable for use in some engines, even though under the regulations the fuel can be sold for use in those engines. The department has now acknowledged there is a problem and is stating that it will consider a change when the regulations are next amended. Perhaps a firmer commitment could be sought there.

As well, as far as we can tell, the record is simply kept by the producer or importer. It doesn't have to accompany the fuel when shipped, so it's difficult to know the purpose of this requirement. You have to keep a record saying the fuel isn't suitable for use in something, and then you dispatch the fuel and keep that record to yourself. Why do you have to tell yourself that? It seems a rather odd requirement. Perhaps we could ask exactly why they feel they need this.

Senator Runciman: Following counsel's recommendations, and going beyond what you're suggesting and commented on about the date of dispatch, which doesn't seem to make a lot of sense, we should be asking why that continues to be the case.

You talk about a firmer commitment on the locomotive issue and the fact that they're apparently not going to include it in the omnibus regulations that are coming up shortly. You're talking about a firmer commitment on a timeline, but we should also ask them why they have not intended to incorporate this as part of the omnibus regulatory change.

You're talking about clarifications in respect to schedules, and asking for clarification is fine.

On your final suggestion relating to compliance with respect to biomass, et cetera, again I think we should follow your suggestion in that regard.

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

Hon. Members: Agreed.

SOR/2013-117 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE MOTOR VEHICLE SAFETY ACT

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

The Joint Chair (Ms. Charlton): Item 8 relates to regulations made under the Motor Vehicle Safety Act. The Department of Transport has now promised to deal with the one issue on which we previously did not have an agreement. You will also recall there was one other outstanding amendment that we have been waiting for, and they are now promising action on that.

[Translation]

Ms. Borkowski-Parent: Just a few words on the outstanding item. The regulations in question made it possible to correct a number of the points raised regarding the Motor Vehicle Safety Regulations.

Four new matters were actually raised in connection with the amending regulation. In terms of items 2 and 3, the committee deemed satisfactory the department's explanations at the meeting of May 15.

An amendment was also promised to item 1 regarding the colour retention requirements for seat belt assemblies, which were removed from the Motor Vehicle Restraint Systems and Booster Seats Safety Regulations and should have also been removed from the Motor Vehicle Safety Regulations.

With respect to item 4, paragraph 213.4(22)(a) of Schedule IV of the regulations requires that the printed instructions for a built-in restraint system or built-in booster seat include an explanation of the consequences of not following the manufacturer's warnings. Since the warnings describe a risk of serious injury or even death, we asked the department what was the purpose of asking manufacturers to explain the consequences of not following the warning in addition to having the warning itself.

In other words, why not simply require the printed instructions to include the warnings of death or serious injury?

After examining the issue, the department acknowledged the committee's concerns and said that the first time it will be able to rectify the issue will be sometime after mid-2015.

[English]

Mr. Albas: Obviously, we have done a lot of good. I want to highlight that former Senator Braley's interventions on this were quite helpful. His industry knowledge was very good.

It seems that we're moving in the correct direction. I'm glad counsel was able to address Schedule IV to the Motor Vehicle Safety Regulations to make sure everything is consistent. I would suggest that with the commitment of the department to make further changes we just monitor the file to see that this work is done.

[Translation]

Senator Hervieux-Payette: After 2015, does that mean 2016 or in 2015? You said "after 2015."

Ms. Borkowski-Parent: After mid-2015, so probably after the end of fiscal year 2014-15.

[English]

The Joint Chair (Ms. Charlton): Counsel will continue to monitor and report back if there are any problems.

SOR/2014-17 — REGULATIONS AMENDING THE COLLISION REGULATIONS

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

The Joint Chair (Ms. Charlton): Moving on to "Reply Satisfactory (?)," Item 9 deals with regulations amending the Collision Regulations. Although counsel finds the drafting approach taken by the Department of Transport "unusual," the department's rationale is now deemed acceptable.

Mr. Bernhardt: If members agree that it's acceptable, it would be deemed acceptable.

These amendments were intended to address an issue raised in connection with these regulations that it wasn't clear in some cases whether a legal obligation was being imposed. These provisions add new provisions that tell the reader to interpret the provisions that they have been added to in a way other than how they're written.

In essence, by way of trying to make that a little clearer, the regulations set out word for word the text of each provision of the Convention on the International Regulations for Preventing Collision at Sea 1972. They are then followed by statements as to how the provision is to be adapted in the Canadian context.

For example, in the first instance set out on pages 2 and 3 of the note, you have a requirement, followed by a table with three columns, followed by a series of notes telling you that some of this is for information, that some of it can't be strictly enforced, and so on. At the very end, you get a note that says, "By the way, ignore column 3 of the table and don't pay any attention to the notes."

This is, to say the least, unusual. Transport Canada suggests that this makes it easier for mariners to transition from one jurisdiction to the next — in this case, between Canada and other jurisdictions that implement the convention. I have no idea whether that's the case.

In a sense it addresses the committee's concern. If you read through to the end of each provision carefully, you understand what you're supposed to do and what's a binding legal obligation and what isn't. On the other hand, it's passing strange to include material in the regulations only to tell you at the bottom of the page to ignore it.

Be that as it may, I suppose at the end of the day it does provide a certain amount of clarity.

Mr. Albas: I appreciate counsel's work on this matter. Out of a commitment to clarity in drafting, we should write to the minister to raise that although the technical drafting concerns raised previously are now addressed, there is something to be said that good drafting creates clarity and understanding. From a cursory review of this, I found that the logical sequence of these draftings, although technically correct, are not easily understood or clear.

We should encourage the minister to not take this approach in other respects, and we should leave it at that.

The Joint Chair (Ms. Charlton): The suggestion on the floor is to write to the minister. Is that where you would like this to go or to the department?

Mr. Albas: The minister is fine.

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

Hon. Members: Agreed.

SOR/2001-32 — CONTROLLED GOODS REGULATIONS

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

The Joint Chair (Ms. Charlton): With respect to Item 10 under "Progress," we have indeed made progress. One amendment was made in May this year, and the outstanding ones are now promised by April 2015.

[Translation]

Ms. Borkowski-Parent: As indicated in the note prepared for you this morning, the purpose of the amendments expected on this file was to correct three substantive issues identified in the regulations. First, the regulation for the first item is ultra vires, and second, the other points relate to the minister's poorly defined discretionary powers. In addition, while reviewing the regulations, an incorrect internal reference was identified in the act.

In terms of the regulatory amendments, the Department of Public Works still expects them to be completed by April 2015. The legislative amendment to correct the internal reference in the Defence Production Act is included in the proposals for a Miscellaneous Statute Law Amendment Act, 2014, tabled in both Houses on May 15, 2014.

[English]

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

Mr. Albas: We should just monitor the file to see that this work is done.

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

Hon. Members: Agreed.

SOR/2005-380 — DECISION BODY TIME PERIODS AND CONSULTATION REGULATIONS

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

The Joint Chair (Ms. Charlton): Moving on to Item 11, members will recall a discrepancy between the English and French versions of the regulation. The amendment is now included in Bill S-6, which is currently before Parliament. I see counsel has nothing to add. Shall we monitor until the bill is passed?

Hon. Members: Agreed.

SOR/2001-34 — REGULATIONS AMENDING THE EXPORT PERMITS REGULATIONS

SOR/2003-216 — REGULATIONS AMENDING THE EXPORT PERMITS REGULATIONS (MISCELLANEOUS PROGRAM)

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

The Joint Chair (Senator Batters): Item 12 on our agenda falls under the heading "Progress (?)." After long-standing delays in this matter, there appears to be light at the end of the tunnel. Foreign Affairs, Trade and Development Canada agreed to make the requested amendments in 2004. Delays to this plan occurred numerous times, and amendments will be made this fall.

Ms. Borkowski-Parent: The only thing I would add is that as of today, the amendments have not been made.

Mr. Breitkreuz: Let's continue to monitor the file.

The Joint Chair (Senator Batters): Is it agreed?

Hon. Members: Agreed.

SOR/2005-383 — REGULATIONS AMENDING THE ACCOUNTING FOR IMPORTED GOODS AND PAYMENTS OF DUTIES REGULATIONS

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

The Joint Chair (Senator Batters): Next is Item 13. The Canada Border Services Agency agreed in July 2009 to amend these regulations to address the committee's concern, that is, the "good character" requirement for importers and carriers is overly vague. Delays have pushed back implementation on a few occasions. Now the mid-2014 completion date has changed to "at the earliest possible opportunity" with an update to the committee by December 2014.

I see counsel has nothing to add.

Mr. Anders: Since they've actually stipulated a date of December 2014 and we're almost upon it — weeks away — I would suggest that we follow up in the new year.

The Joint Chair (Senator Batters): Agreed?

Hon. Members: Agreed.

SOR/2008-97 — ADMINISTRATIVE MONETARY PENALTIES REGULATIONS.

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

The Joint Chair (Senator Batters): Moving on to Item 14, Transport Canada had planned to correct a statutory error in the Miscellaneous Statute Law Amendment Bill, but the amendment wasn't included in the bill that's now before Parliament. The department now promises to resolve this error in other ways.

Basically, the act contains a provision that is incapable of being contravened, so it can't be validly prosecuted as an offence and shouldn't be designated under the regulations.

Mr. Bernhardt: What the department is proposing to do now is simply to revoke the provision of the regulations that designate the defective provision in the act as a provision that can be proceeded with as a ticketing offence, while at the same time seeking an amendment to the act. We don't know when that will be, but the department does confirm that it is not issuing tickets for contraventions of the defective provision in the interim.

Mr. Clarke: Write back.

The Joint Chair (Senator Batters): Agreed?

Hon. Members: Agreed.

Senator Moore: Sorry, chair, we're writing a letter back to the department to do what?

Mr. Bernhardt: We could ask when they plan to make the amendment that they promised.

Senator Moore: I just wanted to know what we were saying. Thank you.

SOR/2009-162 — CHROMIUM ELECTROPLATING, CHROMIUM ANODIZING AND REVERSE ETCHING REGULATIONS.

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

The Joint Chair (Senator Batters): Item 15 on our agenda is a comparatively recent file. It was only before our committee once, in May 2013. I wanted to point that out, because we don't get these too often. The amendments to these regulations were initially going to be made this fall, and now the Environment Department advises that consultations on the proposed amendments are under way and it aims to publish proposed amendments "towards the end of 2015."

Mr. Albas: I suggest we monitor.

The Joint Chair (Senator Batters): Agreed?

Hon. Members: Agreed.

SOR/2012-71 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE CANADA CONSUMER PRODUCT SAFETY ACT (MISCELLANEOUS PROGRAM)

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

The Joint Chair (Senator Batters): On Item 16, an amendment was promised to correct a French-English language discrepancy in the Glass Doors and Enclosures Regulations and the Corded Window Covering Products Regulations. I needed to read that all out because my husband's family has been in the glass business in Estevan, Saskatchewan, for 50 years, and my husband Dave would have liked to hear that today. These amendments were to be made by the end of the previous fiscal year and are now due to be completed this fall.

Does anybody have any comments? Just monitor?

Hon. Members: Agreed.

SOR/2011-139 — ESTABLISHING TIMELINES FOR COMPREHENSIVE STUDIES REGULATIONS.

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

The Joint Chair (Senator Batters): Moving on to Item 17 under "Action Promised (?)," counsel noted several wording inconsistencies and discrepancies between the English and French regulation versions. The Canadian Environmental Assessment Agency responded that these regulations will be revoked once all comprehensive studies commenced prior to the coming into force of the new Canadian Environmental Assessment Act are completed. As such, the agency proposes not to amend the regulations in the meantime.

Ms. Borkowski-Parent: Of the 22 comprehensive studies previously undertaken under the old act, it appears that only one would still be at the stage where the regulations are of some relevance. As Madam Chair mentioned, the department proposed to address any potential ambiguities caused by inconsistent wording and discrepancies between the two versions of the text directly with the remaining proponent and not to amend the regulations pending revocation.

If things go well, all studies could be completed within the next two years, which would then clear the way for the revocation. It bears noting that the regulations replacing these regulations did not give rise to the same concerns.

Mr. Vellacott: I suggest we monitor the file over this next period of months and years here and make sure they're on track.

The Joint Chair (Senator Batters): Is it agreed?

Hon. Members: Agreed.

SOR/2013-169 — REGULATIONS AMENDING THE CENTRAL REGISTRY OF DIVORCE PROCEEDINGS REGULATIONS.

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

The Joint Chair (Senator Batters): Our next agenda item is No. 18. When I read this one, it took me back to my days practising family law. I haven't seen some of those terms for a while.

Counsel wrote to the Department of Justice seeking clarification on several points in these regulations. The department responded in detail suggesting that in most cases amendments will be considered. Counsel feels that the response appears to be interim in nature but also points out that our committee may be satisfied with the departmental response on certain points.

Mr. Bernhardt: That's correct. It's a rather unusual response that we have received from the Department of Justice. For most of the points they begin by saying that further examination will proceed on a timely basis. We're not really sure, having given us a reply, exactly what that refers to. For a number of the other matters, the department states that it's prepared to consider amendments, although in some instances this is a concluding statement, and, before that, they've made a number of arguments as to why there shouldn't be amendments.

We suggest in the note that given that the indication is that they would be prepared to consider amendments, rather than arguing back and forth on the substance, it might be better for the committee to simply ask them to now proceed with those amendments they said they were prepared to consider.

There are a number of points, as explained in the note, on which the response does seem to be satisfactory and on which no further action is required.

Point 13 remains to be resolved. It relates to a drafting issue of inconsistent use of terminology and the substance of that could be followed up.

As to how to proceed, I would certainly suggest writing back to the department, but I'm in the hands of the committee as to whether it wishes to deal with the counter-arguments that were presented or to simply tell the department, "You said you were prepared to consider the amendments; please make them."

Senator Moore: I think we should proceed, pursuant to your last comment, counsel, and try and get an indication of a time when this might happen.

Mr. Bélanger: I read this file rather carefully. In item three:

Departmental officials agree with the suggestion in your letter to amend the French in these provisions so that it is more in line with the English version. This amendment will be considered.

What does that mean, "will be considered"? Is that judicial language that it will be done, or is it that it will just be considered?

Mr. Bernhardt: I generally would take that to be bureaucrats being careful, but it certainly behooves the committee to write back and ask, "Having considered it, will you now make it?"

Mr. Bélanger: This one is clear. They agree; they will consider it. With regard to points 1 and 2 of their response, they "are prepared to consider the amendment to provide clarity." Even though they've argued that everything is clear, they agree that it needs clarity. Is your letter going to say to them, "Proceed"?

Mr. Bernhardt: If that's the wish of the committee, certainly.

Mr. Bélanger: With a timeline and a request to respond before eight months, as this one was? Seriously, you wrote in January and you got an answer in August.

Senator Moore: I think we should be seeking a time frame in the letter.

Mr. Albas: I would like to second what Senator Moore has proposed. Obviously the strength of our arguments has caused them to consider. I think that we follow up and do so in a positive way because they certainly have a copy of the previous letter.

I would point out to the honourable member that for many of these, especially when you start getting into complicated legal cases where case law does apply, they do have to do their due diligence. I would much rather have a response where they are open to it, because they have done the proper review, than a hasty "no." I certainly can understand the member's concerns, but I think the model presented by Senator Moore should be followed through, a positive letter following up, asking for a timeline for the changes to be made.

Mr. Bélanger: On point 5, they say no. Do you agree with that, counsel?

Mr. Bernhardt: Yes, upon reflection our conclusion was that their explanation on point 5 can be accepted.

Mr. Bélanger: And on point 10? I don't agree, because it's a matter of opinions again. They write that "it is the opinion of officials that, as a general rule," but which general rule? The singular includes the plural. Which general rule are they referring to?

Mr. Bernhardt: There is a provision in the Interpretation Act.

Mr. Bélanger: The singular includes the plural?

Mr. Bernhardt: If we talk about "no person shall" or "any person who" or "a truck," generally you can read these things as applying to groups of the things named.

Mr. Bélanger: In this case, it complicates matters if they apply that because if you have two spouses submitting together, it's clearer than one spouse. It's different. If you have only one spouse, it doesn't include the plural, necessarily. If you have one spouse applying for a divorce, it doesn't mean you have two.

Mr. Bernhardt: No, but if you have two it's covered by the provision.

Mr. Bélanger: I understand, but that's not what the request is. The request is to specify whether it's plural or singular. As a general rule, the singular may include the plural, but as a rule in this case, it doesn't. If it is one applying for divorce, as opposed to two, it doesn't include the other.

The Joint Chair (Senator Batters): I can offer an explanation. This wouldn't be a case where one spouse is applying for their own singular divorce and in that same situation the other spouse is applying for a singular divorce. It's a joint petition where they're applying together, probably as a matter of expediting things and getting it done quickly.

Mr. Bélanger: Agreed, but applying this general rule of interpretation may confuse the registries. I think we should question their judgment there.

Mr. Albas: Madam Chair, going back, point 10 states:

Paragraph 6(b)

Departmental officials agree, in part, with your suggestions.

I think we should continue to work with them and find out which ones they will be putting forward and on what timely basis.

While the member may have specific concerns about the interpretation and the general rule, I don't think this should slow us down from responding and trying to follow up with all the pertaining points.

Mr. Bélanger: They agree with one, which is to consider amending the French so it reflects the English. That's what it means when they say they agree with it. They don't agree with the other one, which was to include the plural of spouse. That's the problem I have because if they don't, they're confusing the registries. I don't want to repeat what I said, but I think it's fairly obvious that if they don't apply it, it could cause confusion in the registries between divorces where the two spouses apply together or not. I think that may be significant.

The Joint Chair (Senator Batters): What if counsel included the clause in his letter asking about that particular part?

Mr. Albas: I can certainly understand if the member has questions of Justice officials, he may wish to raise them privately. I don't see that the rest of us are feeling the same point. Again, we are seeking to work with them. We are asking them to come back with what their amendments will be and in which areas. I'm sure this will all come out in the wash.

I understand your feelings particular to this point. However, for good process, perhaps when the letter comes back, we can revisit the point and you can see what they have agreed to and if you're comfortable with that.

Mr. Bélanger: Madam Chair, I didn't realize he assumed that everyone disagrees with me.

Mr. Albas: No one else is speaking up.

Mr. Bélanger: Second, they don't accept the committee's recommendation here. That's what they're saying. I think they're wrong. I would like that they be asked to reconsider the argument that I've specified.

Senator Moore: Throw that phrase in; it's no big deal. I don't want to kill the positive initiative here, but if it's a matter of putting in an ask about that one, I don't mind.

Mr. Albas: More for information purposes, maybe we can ask for a further detailed response. I'm fine with that, but I agree with Senator Moore, we should try and work with them.

Mr. Bernhardt: We can simply put the situation in the letter, as described, and ask for their reaction to it.

Mr. Bélanger: Thank you. I have not suggested that we not be cooperative with them. I don't see where that's coming from.

The Joint Chair (Senator Batters): Will we proceed in that fashion, then?

Hon. Members: Agreed.

SOR/2012-161 — BY-LAW AMENDING CERTAIN BY-LAWS MADE UNDER THE CANADIAN PAYMENTS ACT

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

The Joint Chair (Senator Batters): Next is Item 19 under the heading "Action Promised." On this matter, an in-person meeting between counsel and representatives from the Department of Finance and the Canadian Payments Association seems to have yielded positive results. The department agreed to make the committee's suggested changes. The timeline being considered is mid-2015, the same time as other changes related to the Canadian Payments Act. Shall we monitor the file?

Hon. Members: Agreed.

SOR/2014-23 — REGULATIONS AMENDING THE HEALTH OF ANIMALS REGULATIONS

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

The Joint Chair (Senator Batters): With regard to Item 20 on our agenda, an instrument is attached that resolves five remaining concerns raised by the committee previously. Counsel has written additional correspondence to the Canadian Food Inspection Agency dealing with new matters.

Ms. Borkowski-Parent: Two concerns were raised with regard to this instrument. The first dealt with a discrepancy between the French and English version of subsection 175.01(7), while the second dealt with the practical application of subsections 183(3) and 183(4). With regard to the latter, subsection 183(3) requires that in order to be listed as a tagging site, the manager of an establishment has to provide a written statement declaring that he understands the requirements of subsection 183(2). This is quite different from requiring him to actually understand the requirements or that the tagging site meets the requirements of that subsection.

Subsection 183(4) then purports to have a tagging site removed from the list if the manager does not comply with subsections 183(2) or (3). Once again, the only requirement provided for in subsection 183(3) is that the manager files a written statement. Furthermore, since the statement is a precondition to have the tagging site listed, there should never be a case where the manager of a listed site has not provided the required statement. It shows a certain misunderstanding of how the regulations operate.

That being said, the department acknowledges these concerns and will seek to address them at the next available opportunity.

Mr. Anders: I would suggest we write back seeking a timeline. The way I understand it, the chief purpose of the regulations is to make sure you can trace the bovine from its origin for the swine disease issues we've run into. It's kind of a tangential point.

The Joint Chair (Senator Batters): Agreed?

Hon. Members: Agreed.

SOR/2011-164 — REGULATIONS AMENDING THE LIST OF TARIFF PROVISIONS SET OUT IN THE SCHEDULE TO THE CUSTOMS TARIFF, 2011

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

The Joint Chair (Senator Batters): Item No. 21 under "Action Taken," these regulation amendments correct 11 drafting errors. Good work.

SOR/2014-134 — REGULATIONS AMENDING THE CANADA DISABILITY SAVINGS REGULATIONS

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

The Joint Chair (Senator Batters): In relation to Item 22 on our agenda, counsel states in his memo:

This instrument removes the words "in the opinion of the Minister" from two provisions, so as to eliminate the subjective aspect of these provisions.

That's always something we like to see, so good work on that.

Mr. Bernhardt: Those two files can be closed.

The Joint Chair (Senator Batters): Great. Numbers 21 and 22 can be both closed.

SI/2014-22 — REMISSION ORDER IN RESPECT OF FEES FOR THE ISSUANCE OF PASSPORTS, CERTIFICATES OF IDENTITY AND REFUGEE TRAVEL DOCUMENTS (ALBERTA)

SI/2014-26 — ORDER AMENDING CERTAIN ORDERS RESPECTING THE INDIAN RESIDENTIAL SCHOOLS TRUTH AND RECONCILIATION COMMISSION

SOR/2003-328 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS (PARTS II, XLVIII, L, LXII, LXXXIII AND LXXXV)

SOR/2005-371 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS (CAPITAL COST ALLOWANCE)

SOR/2007-212 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS (OMNIBUS AMENDMENTS — 2007)

SOR/2013-206 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS (LIVESTOCK DEFERRALS)

SOR/2014-32 — REGULATIONS AMENDING THE BROADCASTING DISTRIBUTION REGULATIONS

SOR/2014-35 — ORDER AMENDING THE SCHEDULE TO THE SECURITY OF INFORMATION ACT

SOR/2014-71 — REGULATIONS AMENDING THE CANADIAN TRANSPORTATION AGENCY DESIGNATED PROVISIONS REGULATIONS

SOR/2014-73 — REGULATIONS AMENDING THE PRELIMINARY SCREENING REQUIREMENT REGULATIONS AND THE EXEMPTION LIST REGULATIONS

SOR/2014-86 — REGULATIONS AMENDING THE PORT AUTHORITIES OPERATIONS REGULATIONS

SOR/2014-100 — REGULATIONS AMENDING THE CANADA STUDENT FINANCIAL ASSISTANCE REGULATIONS

SOR/2014-101 — REGULATIONS AMENDING THE FAMILY SUPPORT ORDERS AND AGREEMENTS GARNISHMENT REGULATIONS

SOR/2014-105 — ORDER AMENDING THE QUEBEC BEEF CATTLE PRODUCERS' LEVIES OR CHARGES (INTERPROVINCIAL AND EXPORT TRADE) ORDER

SOR/2014-110 — ORDER AMENDING THE BEEF CATTLE RESEARCH, MARKET DEVELOPMENT AND PROMOTION LEVIES ORDER

SOR/2014-127 — REGULATIONS AMENDING THE REPORTABLE DISEASES REGULATIONS

SOR/2014-128 — 2014 SUMMIT ON MATERNAL, NEWBORN AND CHILD HEALTH — PRIVILEGES AND IMMUNITIES ORDER

SOR/2014-135 — REGULATIONS AMENDING THE CANADA PENSION PLAN REGULATIONS

SOR/2014-137 — INTERNATIONAL DEVELOPMENT ASSOCIATION, INTERNATIONAL FINANCE CORPORATION AND MULTILATERAL INVESTMENT GUARANTEE AGENCY PRIVILEGES AND IMMUNITIES ORDER

SOR/2014-150 — REGULATIONS AMENDING THE CANADA GRAIN REGULATIONS

SOR/2014-166 — REGULATIONS AMENDING THE REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS (AMENDMENT CONSEQUENTIAL TO THE ECONOMIC ACTION PLAN 2013 ACT, NO. 1)

SOR/2014-169 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

The Joint Chair (Senator Batters): Lastly, this week we have 22 "Statutory Instruments Without Comment" for your reading pleasure.

The next meeting will be on December 4. If there is nothing further, see you in two weeks.

(The committee adjourned.)

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