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Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue 16 - Evidence - February 5, 2015

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OTTAWA, Thursday, February 5, 2015

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. You have in front of you a piece of paper with the committee's proposed schedule for this part of the session. It is an information item, unless anyone has significant concerns with any of those dates.

SOR/94-686 — INCOME TAX REGULATIONS, AMENDMENT

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

The Joint Chair (Ms. Charlton): Let's move right into the agenda for today and Item 1 under "Letters To and From Ministers.'' You will remember that we contacted the minister about English/French discrepancies that we had drawn to his attention. Minister Oliver has now acknowledged those discrepancies but says the definition is obsolete, and he has asked the department to expedite the resolution to this file.

[Translation]

Peter Bernhardt, General Counsel to the Committee: This instrument amended the French version of the definition of "Canadian oil and gas exploration expense'' in order to update references to various paragraphs of subsection 66.1(6) of the Income Tax Act consequential to amendments to that statutory provision. Corresponding amendments to the English version of the definition were not made.

The department has informed the committee that it concluded that the definition was obsolete. An examination of the relevant provision of the Income Tax Act shows that the definition has no application to provisions regarding tax years prior to 1984.

[English]

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

Mr. Albas: I've read through the file and I'm satisfied with the report of counsel. I think it would be of benefit for us to monitor and see this action done.

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

Hon. Members: Agreed.

SOR/2013-64 — REGULATIONS AMENDING THE EMPLOYMENT INSURANCE REGULATIONS

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

The Joint Chair (Ms. Charlton): Next is Item 2 on our agenda. We had drawn to the attention of the Minister of Employment and Social Development that the phrase "without delay'' seems vague and rather unhelpful. The minister does not seem to agree, although he offers no justification or clarification for that position. The question before us today is: Where would we like to go next with this file?

Mr. Bélanger: I know it's not going to happen, but I would love to have the minister come and explain the rationale.

Mr. Albas: I can agree that it's always wonderful to see Minister Kenney perform and speak up for his department. I would suggest, though, that this is not necessarily an issue germane only to his department.

The Joint Chair (Ms. Charlton): So we should call the whole cabinet?

Mr. Albas: It would be great to see if we could fit them into this room, Madam Chair, but I do believe there is a public interest in reviewing this drafting misuse of the phrase "without delay.'' There is really no positive benefit. In fact, there could be, as counsel pointed out, a negative drawback from its continued use. That's why I would suggest we instruct counsel to write a report that would be brought back to the committee. We could review that report and then submit it to both houses. More or less, the purpose of said report is to outline concerns the committee has raised and to be more proactive.

I should point out one part from the report. There is a discussion where it actually says that this department has not made use of the term "without delay'' in more of its recent iterations of regulations, so it seems to me this is more a practice that we want to stamp out. Although in this case we don't have the agreement of the minister, we do have a responsibility as an oversight committee to encourage this practice to cease from being used.

Again, I suggest a report that would come back here. Our committee can review it to see if it's a complete report and then table it in both houses. My expectation is that it wouldn't be a report the government would need to respond to, but I think we would then send it to the right people to make sure they know our committee's view.

The Joint Chair (Ms. Charlton): Other thoughts on this matter?

Senator Moore: That's a good idea, but who do we send it to? Say we get the report from counsel and we're happy with it, who do we send it to? Mr. Albas, what do you have in mind?

Mr. Albas: Very good question, senator. My thought is that this report could be tabled in both houses. From that point, we could send it to the Justice drafting department so they can see our concerns with the use of "without delay'' as a drafting tool.

[Translation]

Ms. Ayala: What is the impact of not having made that amendment? Is there a direct impact on citizens? Because that is something that should be considered.

We know that this is just a housekeeping amendment, but it took six years to make it. How long do we expect it to take for more important amendments? I would simply like to know what the impact is, because we are talking about income tax here.

[English]

Mr. Bernhardt: I think in most cases that sort of requirement doesn't add anything that wouldn't be the case in any event. Generally, if you're under a duty to do something, you're under a duty to do it within a reasonable period of time. When you look at the authorities on what phrases like "as soon as possible'' and "without delay'' mean, the courts have said they mean as soon as possible, within a reasonable period of time.

The difficulty with a lot of these references is that because they are not certain, it does at least raise the possibility that someone will have to go to court, that there will be an issue as to whether something was done "forthwith'' or "as soon as possible.'' As some of the authorities that are cited in the letter point out, because of that possibility, it's often considered a failure on the drafter's part to be precise enough.

If I understand Mr. Albas, he's suggesting that the report identify what the committee considers to be best practices in drafting time limits.

Mr. Bélanger: Before deciding what to do with the report, I'd like to be able to read it. In other words, before we decide not to ask for a government response, I'd like to read it first.

Second, when does counsel think the report would be presented to committee?

The Joint Chair (Ms. Charlton): Does March 12 seem reasonable to committee members?

Mr. Bélanger: It does to me.

The Joint Chair (Ms. Charlton): I'm sensing agreement that the draft report will come back to us on March 12.

Hon. Members: Agreed.

SOR/99-142 — CANADA LANDS SURVEYORS REGULATIONS

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

The Joint Chair (Ms. Charlton): Next is Item 3 under "Reply Unsatisfactory (?)''. There had been an outstanding French and English discrepancy that we had drawn to the ministry's attention for some time. We have had no substantive acknowledgment yet, except to say that if there's an opportunity to amend, they'll include this issue.

Counsel, did you want to add anything?

Shawn Abel, Counsel to the Committee: There's not much to add, Madam Chair. The background is set out in the note. At one point, the committee had taken the department to have agreed to make the amendment. That was from 2005 onward. In 2011, the department then stated that they hadn't agreed to make the amendment, but they consulted with the Department of Justice to see if it could go forward. It was then hoped that it would be in the miscellaneous statute amendment proposals. As members know, that was tabled in May of last year, and the amendment the committee seeks here wasn't in there. That brings us to where we stand now. The department has, I would suggest, an open-ended commitment, with no apparent time frame.

Mr. Albas: Why don't we write back and ask for a commitment with a timeline?

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

Senator Moore: In these issues regarding the miscellaneous statute process, who keeps the list?

Mr. Bernhardt: The Department of Justice.

Senator Moore: The current bill is now in the Senate, so who keeps a list of what our concerns are from this committee for possible inclusion in the next bill? Is that something you do, counsel, or does somebody else do that?

Mr. Bernhardt: Formally, the list of proposals is assembled by the Department of Justice for all things across the government. Where there is something the committee has raised that the committee has been told should appear in the next set of proposals, that's something we keep track of. We make a note of so many amendments.

Senator Moore: How does that information get to Justice? Is there a time when they ask for input from different bodies? How does that happen?

Mr. Bernhardt: We don't know until the proposals are tabled. At that point, we look at the proposals that have been tabled and see what's there and if anything isn't.

Senator Moore: Thank you.

Mr. Albas: My understanding is that the individual department has to look and see whether the miscellaneous statute amendment process will fit the case, and then they seek clarification with Justice. They would then formally request that the Justice Department include it in the upcoming proposals, whatever it would be.

Senator Moore: This is not controversial. These are just housekeeping matters.

When was the last one done? How many years ago?

Mr. Bernhardt: It has been 10 years since the last one. It was quite a while ago.

The Joint Chair (Ms. Charlton): So we are writing a letter asking for clarification of a timeline. Agreed?

Hon. Members: Agreed.

SOR/2014-91 — REGULATIONS ESTABLISHING CONDITIONS FOR MAKING REGULATIONS UNDER SUBSECTION 36(5.2) OF THE FISHERIES ACT

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

The Joint Chair (Ms. Charlton): Moving on to Item 4 on our agenda, the committee raised a number of questions with respect to the meaning of the word "authorized.'' That ambiguity does not appear to have been resolved yet, nor have our concerns with respect to the incorporation of reference of recommendations that don't seem to be contained in a single document.

Counsel?

Mr. Bernhardt: That's correct. The scheme here is somewhat convoluted. Section 36(5.1) of the Fisheries Act authorizes the Governor-in-Council to make regulations establishing conditions for the exercise of the minister's regulation-making power under subsection (5.2). Once these Governor-in-Council regulations have been made, then the minister can in turn make regulations that authorize the deposit of certain deleterious substances that would otherwise be prohibited.

Under paragraph 4(a) of the regulations, one of the conditions that must be met is that the substance to be deposited, the deposit, or the activity that results in the deposit must be authorized under federal or provincial law.

It's not entirely clear what is meant by a deleterious substance being authorized. Typically what you would expect is that a certain deposit or certain types of deposits of a substance would be authorized. For example, it's difficult to say that there would be a law somewhere that says lead is authorized: Authorized in what context and for what purpose?

The question was also asked as to what the actual scope of the minister's power to make regulations authorizing the deposit of substances could be under this provision. Paragraph 4(a) establishes the precondition that the deposit or the substance already be authorized. Either the deposit is already authorized elsewhere and so it can't be said to be authorized by the regulations, or it's not authorized elsewhere, in which case the minister can't authorize in relation to it.

The department's response is simply a general overview of the effect of paragraph 4(a) in the broader scheme of the Fisheries Act. I think it can perhaps be inferred that what is intended is that a deposit will be authorized elsewhere for some other purpose, and then the regulations under the Fisheries Act could authorize that same deposit for purposes of the Fisheries Act. In other words, something can be authorized, i.e. legal, and unauthorized, i.e. illegal, at the same time, depending on the particular legislative scheme involved.

On the question of what is meant by a substance being authorized, the only reference in the department's letter to the substances being authorized, as opposed to the deposits, simply paraphrases the regulations. I would suggest that, overall, you get a sense of what the regulations are trying to do, but I think there definitely needs to be some clarification here and some sharpening of the focus.

The other point concerns subparagraph 4(b)(i), which states that the quantity of concentration of the substance has to satisfy the recommendations of the Canadian Water Quality Guidelines for the Protection of Aquatic Life, published by the Canadian Council of Ministers of the Environment, or the recommendations derived from those guidelines. When one searches, there doesn't appear to be a particular document that has this exact title. If you go to the website of the Canadian Council of Ministers of the Environment, there is a heading that says "Canadian Water Quality Guidelines for the Protection of Aquatic Life,'' under which there are a number of documents. Apparently what is intended is that the guidelines they're referring to in the regulations consist of parts of these documents and recommendations set out in some of them. However, there doesn't appear to be a comprehensive single document with the title mentioned in the regulations, so perhaps it would be more accurate and helpful to refer to the specific documents in question, if only to promote accessibility and transparency. Again, it's just a matter of some clarity and accuracy.

Senator Runciman: Your note suggests, in the last sentence: "... readers will generally understand what component pieces comprise this Guidelines.''

Mr. Bernhardt: Yes. If one goes to the website, one sees that heading and can click on it to see the list of documents. You can then start hunting and pecking your way through those documents. Eventually, you'll probably figure out what it is they're getting at.

Senator Runciman: I suppose we could get back and outline the committee's concerns and engage in the usual back and forth for a couple of years. I wonder if this would not be more appropriate for a conversation because it doesn't seem to be that problematic. You may be able to resolve it without the usual to and fro and perhaps report back to us within a month. That might be a faster way to deal with this.

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

Hon. Members: Agreed.

SOR/2005-379 — ASSESSABLE ACTIVITIES, EXCEPTIONS AND EXECUTIVE COMMITTEE PROJECTS REGULATIONS

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

The Joint Chair (Ms. Charlton): The next heading on our agenda is "Part Action Promised. Item 5 concerns four issues that we had raised and have been resolved satisfactorily, but we didn't receive an absolute timeline. We're being told that a comprehensive review of the regulations is under way.

Counsel, do we know anything more specific than that?

Mr. Abel: For members' benefit, I can provide a little background on the points.

Out of the 12 points raised, there were promised amendments on 8, and these all concern French-English equivalency, drafting errors or clarifications, and updating the regulations to reflect statutory changes.

For the four points that it suggested are satisfactory, point 1 concerns a discrepancy between the French and English definitions of the term "aerodrome.'' However, both versions are drawn from definitions found in the Aeronautics Act. That's not the enabling act for these regulations, but as you can imagine, it's the act that directly governs most aspects of aerodromes. Given that Parliament has used that language in that context, it may be acceptable that the department does so as well.

Point 4 is quite similar. It concerns the usage of terms that should be clearly defined. However, the terms are used and to some extent defined in the enabling act and a related intergovernmental agreement. The existing definitions are not overly helpful, but given that they've been put forth by Parliament, it could be acceptable that the department relies on them.

Point 6 concerns a possible discrepancy between the use of the word "threaten'' in the English version of the regulations and "entrave'' in the French version. This is in relation to potential ecological harm caused by an activity in a particular region. The more typical terms used as the equivalent of "threaten'' in French would be "menace'' or "mettre en danger.''

The note prepared for members today sets out in detail why the department's explanation justifying the use of "entrave'' may not be sufficient. However, the practical difference between how the French and English versions of the provisions in this context may be interpreted are likely nil. In that case, it may be acceptable that the department does not want to make an amendment.

Finally, point 12 concerns the use in English of the phrase "purpose or function'' and in French merely of "fonction.'' The department suggests that these two forms are linguistically equivalent even though they are not syntactically equivalent. Further review by counsel comes to the same conclusion, thus no amendment seems necessary.

As Madam Chair mentioned, there's not a firm timeline for the promised amendments, so at this point I would suggest following up and seeking something further.

Senator McInnis: Perhaps we should put it in writing, asking for a timeline as to when this might be accomplished. I would note this has taken place over the last two years with numerous pieces of correspondence, and it might be wise to pick up the phone and call someone to get something orally with respect to a commitment. You always want to put it in writing, of course. It seems this has gone on since December 2012, which is quite amazing.

The Joint Chair (Ms. Charlton): Is it agreed that we send a letter asking for a timeline and perhaps have a phone conversation in advance?

Hon. Members: Agreed.

SOR/2011-284 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PARTS I AND IV — CONDUCT OF FLIGHT TESTS)

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

The Joint Chair (Ms. Charlton): Moving on to Item 6, we had raised two concerns three years ago and are now being promised action.

Counsel?

[Translation]

Mr. Bernhardt: Under subsection 103.01(3) of the regulations, a new standard or amendment shall not come into effect less than 30 days after it is made. Yet, when consulting Transport Canada's website, it is impossible to tell when the amendments came into effect. The department therefore intends to change its practice in order to eliminate any ambiguity regarding the coming into effect of an amendment.

In addition, under subsection 103.01(2) of the regulations, the department must consult the Canadian Aviation Regulation Advisory Council prior to making or amending a standard. The question asked concerned the legal consequences of making or amending a standard if the necessary consultations were not undertaken. The department confirmed in its letter of November 28, 2014, that such a standard or amendment would have no effect. This response may be considered satisfactory.

Lastly, the department promised to harmonize the terminology used in the French version of a provision. A miscellaneous regulatory amendment will be made in spring 2015 to take account of this amendment.

[English]

Mr. Albas: This particular area has taken a long time, and I'm glad to see that we are slowly but surely moving forward. I would suggest we monitor to see if these commitments are made.

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

Hon. Members: Agreed.

SOR/2012-23 — NEGATIVE OPTION BILLING REGULATIONS

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

The Joint Chair (Ms. Charlton): Item 7 on our agenda is another case where the committee had suggested that perhaps less is more, as two provisions in the regulations appear to add nothing to prohibitions found elsewhere, and amendments to that effect have now been promised.

Counsel?

Mr. Abel: That's correct, Madam Chair. Of the three points originally raised, two are now subject to promised amendments.

The second matter raised in the correspondence deals with a duplicated prohibition between the regulations and the multiple acts under which these regulations are made. Both the regulations and those acts bar financial institutions from providing false or misleading information.

The department's reply simply asserts that these are not duplications because they serve different purposes, but there's no explanation provided as to how or why that might be. The enabling acts prohibit any person from knowingly providing false or misleading information in relation to any matter under the act or the regulations. Subsections 3(4) and 4(1) of the regulations require that information be presented in language and in a manner that is, among other things, not misleading.

So either these regulatory prohibitions merely duplicate what is found in the acts or they broaden those prohibitions by removing the reference to "knowingly.'' In the latter case, the provisions would be ultra vires. In either case it appears these references in the regulations to misleading information should be removed.

I would suggest perhaps a further letter to the department explaining that and seeking a timeline on the other promised amendments.

[Translation]

Mr. Bélanger: To whom would the letter be addressed?

[English]

Mr. Abel: To the department, I would suggest, Ms. Hassan.

[Translation]

Mr. Bélanger: Could we take it up one level? Could we not send it to whomever that person reports to?

[English]

Mr. Bernhardt: We can. Ms. Hassan is assistant deputy minister and legal counsel.

[Translation]

Mr. Bélanger: Would it be appropriate to send it to the deputy minister?

[English]

Mr. Bernhardt: That's for the committee to decide.

[Translation]

Mr. Bélanger: I am asking you whether, in your opinion, it would be appropriate.

[English]

Mr. Bernhardt: Typically the committee would either choose to write back to the usual contact person or elevate it to the minister directly. If you wish to split the difference, that's entirely appropriate.

Mr. Bélanger: Split the difference.

Mr. Bernhardt: Between the assistant deputy minister and the minister and go in with the deputy.

Mr. Bélanger: Your opinion on that?

Mr. Bernhardt: Yes, it would be appropriate. It's not the usual practice, but there's certainly nothing wrong with it.

Mr. Albas: We can write letters to whoever we please. It's just who ends up giving the response. I would suggest that by sending it to the deputy minister, he or she may say, "I'll refer it to the person in charge of dealing with these kinds of regulatory matters,'' so we're no better off.

However, I suggest we write back and encourage the deletion of "not misleading'' so it just says that documents have to be clear and simple. That way, we're not dealing with the ultra vires issue and bad drafting, which may lead people to have a wrong impression. We can always move it up to a minister if necessary, but I think we have a very good argument and we should present it.

[Translation]

Mr. Bélanger: The reason I am suggesting this is that, clearly, for three years the committee has not received any witnesses, it is not inviting any witnesses. This disturbs me, because by inviting witnesses, I think the process would be accelerated. Since that is not being done, there might be another way of attempting to accelerate the process by advising the deputy ministers. They know that there is indeed a committee that is supervising this, and advising them of the fact that people are dragging their heels might accelerate things.

I thus think that it would be appropriate to write to the deputy minister, not to the minister at this time, but to the deputy minister. I am making that suggestion.

[English]

Senator D. Smith: I think it's appropriate to move it up the ladder when you're fundamentally unhappy with the way it's being handled, if you feel it's not being taken seriously enough or they're taking way too long. I think that meets the criteria, so I don't have a problem with moving it up.

The Joint Chair (Ms. Charlton): I get the sense, Mr. Albas, that you don't feel strongly one way or the other, and you're okay with it going to the deputy.

Mr. Albas: That's fine. It's just that, at the end of the day, to be effective is what we should be seeking. If we can't be effective with the ADM who is in charge of our particular interactions, then we can go to an elected official. We can take it to the minister. I think that's perfectly reasonable. As to sniping over who gets what, you can cc as many people as you want, but that doesn't make your argument any better.

I would simply suggest that we write to the ADM. If we don't get a response that we like, we'll elevate it to the minister. That's the way we usually work. That being said, Madam Chair, if this will get this issue off the table and if we send it to the DM, I will be interested to see who we get a response back from.

Senator Moore: I think, too, that we should indicate that we'd like to have a response in a timely way. Surely they could probably respond within 30 days. They're going to give the response right away, I expect. They know what they're going to say, but we should let them know that we attach some form of urgency to this so that it doesn't float along for another number of months. Then we get to the summer, and, oh, well, we don't get to deal with it until the fall.

Mr. Albas: I understand where the senator is coming from. The challenge we have with that is that the department is going to have to look at it, and if we're going to be using ultra vires as an argument, that is immediately going to go to the Justice Department. The Justice Department is going to have to evaluate that. On these complex legal matters that touch criminal breach, we can't expect a 30-day turnaround. To tell you the truth, I don't think our counsel can have a 30-day turnaround with a response if it comes back with a complex argument.

So I'm willing to go with Mr. Bélanger's suggestion. We're a parliamentary committee, for Pete's sake; we're expecting a response in a timely way.

The Joint Chair (Ms. Charlton): Agreed?

Hon. Members: Agreed.

The Joint Chair (Ms. Charlton): We're writing to the deputy and asking for a timely response but with no specific timeline.

Mr. Albas: Madam Chair, I think we just hit with our argument that we're a parliamentary committee; they're going to respond.

Senator Hervieux-Payette: Can we send a copy to the assistant deputy minister so that he knows we're writing to his boss, because that's exactly the reason we're writing to the DM?

Mr. Albas: Can we just make up our mind who we're writing to? We can cc the whole of government if we want.

Senator Hervieux-Payette: The cc is just to make sure that he or she knows that we are not pleased that after three years we haven't received the answer, so probably things will move around a little bit faster.

The Joint Chair (Ms. Charlton): I suspect that the assistant deputy minister will see the letter in any event, so I don't see how it would do any harm to cc the person.

SOR/2002-76 — MARINE ACTIVITIES IN THE SAGUENAY-ST. LAWRENCE MARINE PARK REGULATIONS

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

The Joint Chair (Ms. Charlton): Moving on to No. 8 under the heading "Progress,'' we're being told that the regulations governing marine activities in the Saguenay-St. Lawrence Marine Park are now in the final approval process and should be in effect before the end of the current fiscal year.

Counsel?

Mr. Abel: That's correct, Madam Chair. For the benefit of members, the two amendments previously agreed to would remove aspects considered ultra vires by the committee. An amendment that would address an inconsistency in the enabling act has been included in the miscellaneous statute amendment proposal, the bill now before the Senate.

Also, at members' direction, the department was reminded of the committee's position set out in its Report No. 87 concerning overlapping authorities to set fees. A copy of that report was provided to the agency with the last set of correspondence. If members are satisfied at present, counsel could continue to monitor the file as the fiscal year-end approaches.

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

Hon. Members: Agreed.

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

Senator Batters?

SOR/2010-4 — BY-LAW AMENDING THE CANADA DEPOSIT INSURANCE CORPORATION DIFFERENTIAL PREMIUMS BY-LAW.

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

The Joint Chair (Senator Batters): Continuing with our agenda, next is Item 9 under "Progress,'' and after some delays it appears that good progress has been made. Our counsel has previously identified the need for amendments, including to resolve inconsistent terminology with the French version. We have now been advised that the CDIC board expected to deal with this issue at its early December meeting and have the requested amendments in force next month.

Counsel?

[Translation]

Mr. Bernhardt: I have nothing to add.

[English]

The Joint Chair (Senator Batters): Is it agreed that we will monitor the file?

Hon. Members: Agreed.

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

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

The Joint Chair (Senator Batters): Next is Item 10 under "Progress (?)''. In 2010, the Farm Products Council indicated that this order would be repealed and replaced. As of September 2014, the council now advises that the process has been slightly delayed, but there has been no indication given about completion date. Three amendments have been promised.

Counsel?

Mr. Abel: That's correct, Madam Chair. Perhaps a progress report and a new projected completion date for the amendments should be sought.

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

Hon. Members: Agreed.

The Joint Chair (Senator Batters): We will seek that progress report. Thank you.

SOR/2007-76 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1158 — FOOD ADDITIVES

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

The Joint Chair (Senator Batters): Item 11 has to do with amendments that were promised to resolve terminology inconsistencies. The Health Department advised that the whole of the tables would be repealed in fall 2014. The timetable for that has now been revised to 2015.

Other amendments "should be resolved in a timely manner,'' although the department has not given us a timeline.

Counsel?

Mr. Abel: That's correct, Madam Chair. I would draw a couple of things to attention of members.

The timeline for the publication of amendments to the tables in section B.16.100 is projected only for prepublication in the Canada Gazette Part I, so there's still no indication of when the final publication would happen.

Additionally, as the note sets out in detail, members should be aware of the current regulatory situation. In 2012, the Food and Drugs Act was amended to confer upon the minister the power to make marketing authorizations to issue broad exemptions to the act and to the regulations, subject to any conditions that the minister may set out. This can concern any and all portions of the food industry. These marketing authorizations may incorporate by reference documents created by the minister or by the Department of Health. In effect, they can be used as substitute regulations.

Subsequently, the minister issued 15 authorizations that deal with classes of food additives found in the tables to section B.16.100 of these regulations. These authorizations incorporate by reference lists of permitted food additives maintained by the department. It's for this reason that the tables are to be repealed.

However, there are discrepancies between the tables in the regulations and the lists in the marketing authorizations. This is at least in part because the department has made some changes to the lists on the basis of the committee's concerns about the tables.

The department considers the list to be, in their words, "deemed authoritative,'' but there's no such legal determination. Presently, both are authoritative. The tables to section B.16.100 of the regulations should be repealed with haste, I would suggest.

Members may recall that a very similar circumstance arose in connection with the marketing authorization for maximum residue limits for veterinary drugs in foods. This was at the committee's meeting of February 27 last year. Members noted that maximum limits for residues of veterinary drugs in foods were set out in an inconsistent manner in both the regulations and the marketing authorizations. In that case, the department intended to repeal the regulatory provisions but had not yet done so. Members considered it to be a serious matter that two conflicting sources of law existed at the same time. It was agreed in that case that the chair should write to the minister and seek action as soon as possible.

In this case, inconsistencies relating to language equivalency may not be as severe as numerical inconsistencies for veterinary food additives, so I'm in members' hands as to how they wish to pursue the matter. Whatever the option, I would also suggest seeking a progress report on the other amendments promised to Part B of the regulations.

Mr. Albas: I do appreciate the diligence of counsel on this file. Obviously this is an area of concern for everyone, although as we've seen with other files, Health Canada has been good as far as giving us the information that we need.

As to the revocation of those tables, I think we should re-emphasize that in a letter. I think we should also ask that the rest of the commitments that have been made receive a timeline and that we should continue to monitor this file to make sure that everything gets done. Counsel pointed out in his overview that some improvements are coming. There are some flexibilities the minister will have which will allow them to regulate faster and be more responsive.

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

Hon. Members: Agreed.

SOR/2009-20 — REGULATIONS AMENDING THE WILD ANIMAL AND PLANT TRADE REGULATIONS

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

The Joint Chair (Senator Batters): On Item 12, because of a requirement in the Convention on International Trade in Endangered Species of Wild Fauna and Flora, the act requires that species added to the convention be added to the regulation not later than 90 days after a change is made to the convention. Many times, that 90-day timeline has not been met. Once it took almost a year and a half. The department has stated that "it is increasingly difficult, even impossible'' to meet this deadline set by Parliament.

Counsel?

Mr. Bernhardt: Back in 2013 the committee decided, in addition to dealing with the responsible department, Environment Canada, to also ask Treasury Board and the Department of Foreign Affairs, Trade and Development for their views on measures to be taken to help aid compliance with the act.

The President of the Treasury Board replied that his department was prepared to work with Environment Canada to consider options to expedite the process, including an exemption from the requirement to prepublish proposed amendments. He also indicated that Treasury Board was prepared to work with Justice and Environment Canada to establish a time frame that would make it possible to begin work on amendments earlier in time than would be usual under the regulation-making process.

For its part, Foreign Affairs pointed out that there is a provision in the convention for countries to make reservations from amendments to the convention, although the department wasn't clear whether a party could enter a reservation concerning the date when an amendment would be incorporated into its domestic legislation.

Senator Runciman: What is a reservation?

Mr. Bernhardt: A reservation is simply an announcement that a particular country is not going to adhere to a particular change to the convention.

Last March, the committee decided it should go back to Environment Canada and ask whether it had been following up with the other departments on these various initiatives that had been explained to the committee. We now have the reply from Environment Canada. They indicate that they have been in contact with Treasury Board. They also state they're in regular contact with Foreign Affairs, although apparently they're not going to seek an exemption from the policy that treaty amendments have to be tabled in Parliament for 21 sitting days before any action is taken to implement them.

The department also indicates it is working with the Department of Justice to explore potential amendments to the act and, in its words, "Initial indications are that potential solutions may be possible.'' It concludes by assuring the committee that respecting the act and convention is of utmost importance to it.

As an additional note, I should add that in the meantime, at least from certain reports that have been in the press, it does seem that this mechanism of making reservations from the most recent amendments to the convention is being used as a means for Canada to avoid being in non-compliance with the convention and the act while it's processing the amendments to the regulations to implement those changes.

Senator Runciman: How many reservations have been put in place?

Mr. Bernhardt: I don't believe I have seen a number. I understand there have been at least several, if not a few more.

Senator Runciman: You reference in your note the deeds not matching the words, essentially. Even though Treasury Board is willing to be very helpful, we're not getting a comparable response with respect to how they're dealing with this. It strikes me that we should not simply write back to ask how are things going. We should indicate pretty clearly and strongly that, again, their deeds are not matching their words. The committee is quite concerned that even though there are opportunities out there that have been afforded to them, other departments of government and other means that could be available, they are not pursuing.

One of the references they talked about was an exemption from the policy. That won't guarantee it. So what? That's got to be one component of achieving this, so why aren't they moving on it?

We should be quite detailed in our frustration and ask for a more adequate response.

Mr. Albas: While I agree that there are concerns in the implementation, let's take a step back. There was a case raised by counsel to this committee that the government was not meeting its international commitments and timelines. We wrote to the various departments and decided to loop in Treasury Board and Foreign Affairs to ask for a change, and we have seen the reservation policy being used so that sufficient time is given. We've seen Treasury Board's willingness to work with all parties.

For Environment Canada, although I do agree there is a sense of being cryptic, they have said they are working with the other groups to deal with our concerns.

This system was put in place by Parliament. These actors are working under the rules we've given them, so if we're going to be frustrated at them for not conforming, gosh darn it, we all have legislative abilities and we should be looking to ourselves to some extent.

I agree we should be writing to Environment to ask for a progress report, but let's have some proportionality to our concern and not confuse that with frustration.

The Joint Chair (Senator Batters): We've had a "for Pete's sake'' and a "gosh darn it'' from Mr. Albas already today.

Senator D. Smith: I agree with Senator Runciman, with both of them. I think they figure that they can get away with this, and it almost falls under the loophole category. Loopholes need to be plugged. We should proceed and say that this can't go on.

Mr. Bélanger: Again, would this be an occasion to bring in witnesses? Senator?

Senator Runciman: Let's see what the response is and then make a decision.

Mr. Bélanger: Fair enough.

The Joint Chair (Senator Batters): Counsel?

Mr. Bernhardt: In trying to get some idea of what exactly I might put in the letter, and hearing all the comments, we could ask about the 21 days and make the point that the committee notes it could hardly have a downside, although it might not completely solve the problem.

They mentioned potential possible solutions. I suppose some question could be put as to what those might be.

At the end of the day, from what I'm hearing, the point could be made that while the use of the reservations solves the problem in the immediate time frame, the committee doesn't see that as a permanent solution. Am I reading the consensus of members?

Senator Runciman: My only other issue is their reference to this being of utmost concern. Again, I don't know whether we have to be that specific with respect to what we're saying, but it doesn't seem to register on that "utmost concern file'' with me. I'm not sure how others feel.

Mr. Albas: I agree that concern should be number one, but I want to go back.

This committee has a mandate about regulations and orders. We've seen that the government has changed its foreign policy approach to be able to meet our concerns, so I think this committee is doing a great job of articulating positions and seeing those reasonable arguments being well-received. I would continue to keep pushing along that path because we're doing good work in providing suggestions, solutions and encouraging the government to look for further measures. I think we should continue in that vein.

The Joint Chair (Senator Batters): All right. I am always happy to accept kudos for this committee. We'll proceed that way.

SOR/2011-281 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1618 — FOOD ADDITIVE)

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

The Joint Chair (Senator Batters): We will move on to Item 13, another one dealing with food additives. The Health Department told us that the one outstanding interim market authorization expired in 2012, but it has chosen not to enforce the prohibition on the use of the food additive previously permitted by that authorization pending amendments that would permit its use.

While the department had previously indicated that the amendments to those marketing authorizations were expected to be completed in the fall of 2014, now it advises that the anticipated time of completion is this spring, 2015.

Counsel?

Mr. Bernhardt: That's correct, Madam Chair. As you've noted, this file concerns an aspect of the transition from the old regime of interim marketing authorizations to marketing authorizations of indefinite duration issued by the minister. Under the old legislation, these interim marketing authorizations allowed a food or food additive that doesn't comply with the regulations to be marketed while an amendment to permit its sale is being developed. These interim marketing authorizations had effect for up to two years.

It was frequently the case, however, that the marketing authorization expired before the regulatory amendment was ready. In these cases, it seems that Health Canada had a practice of simply ignoring the unlawful use of food in the interim in anticipation that eventually the regulation would be in place that allowed it. The department characterized this as, in its words, "regrettable,'' explaining that the number of regulations under development put a strain on resources.

At this point, as you indicated, Madam Chair, there's only one expired interim authorization left that has to be transitioned. It expired on September 11, 2012.

In the meantime, the department, in keeping with its past practices, has chosen to simply not enforce the prohibition on the use of the food additive previously permitted under this authorization. I believe it told the committee that it simply was of the view that enforcement, in this case, was not one of its priorities.

That being said, the department previously indicated that the amendments to put all of this in order were expected to be completed last fall. Again, in keeping with the other amendments dealing with this initiative, we now have a prepublication timeline for this coming spring.

[Translation]

Ms. Quach: If the prohibition is not applied, will there be consequences for consumers? Has that been examined? If it must be applied in 2015, can we be assured that this will be done?

Mr. Bernhardt: Probably not.

[English]

Marketing was taking place between 2010 and 2012, and it was taking place legally. Since then, that marketing has continued illegally. It's simply been the case that the officials have decided that given that it would be made legal again eventually, they would not go looking to enforce and charge people.

Assuming that the authorization was properly issued in the first place and that there was no public hazard, there would be no public hazard now and there will be no public hazard in the future when it's made legal again.

It's an interesting question: What would happen if there turned out to be health concerns? If someone took those to court, if there was litigation and it turned out that in fact Health Canada knew this was being done illegally and simply chose not to worry about it in the interim, lawyers might have a field day. Is that likely to happen? I think not.

From the committee's point of view, I think the issue that raises concern is simply the principle that there's a fine line between ignoring an illegality and selecting enforcement priorities.

Mr. Albas: I appreciate that counsel has continued to work very diligently on this file, particularly because of the sensitivities to what the member raised earlier. However, the anticipated time for completion is spring 2015. Let's hope spring comes sooner than later, and then if this is not done, I think we have a different conversation.

The Joint Chair (Senator Batters): All right. We will do that. Thank you very much.

Senator Moore: So we're just going to monitor for the next month or so?

The Joint Chair (Senator Batters): Monitor until March.

SOR/2014-44 — FREEZING ASSETS OF CORRUPT FOREIGN OFFICIALS (UKRAINE) REGULATIONS

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

The Joint Chair (Senator Batters): Given my Ukrainian background, I have a personal interest in Item 14 under the heading "Action Promised.'' There was a discrepancy between the English and French versions of the schedule to the regulations, where the English version referred to a particular man by his title and name and the French version only by his title. We asked for that missing information to be added, and the department has written back saying that that was an oversight and will be corrected as part of a larger regulatory amendment initiative. We always want to make sure that these people get their correct names in.

Counsel, do you have anything further?

Mr. Abel: I would just note that the reply from the department came in December. Our usual practice would be to follow up in about March. If members are satisfied with that, we can write back and seek a timeline or check if it's done at that time.

The Joint Chair (Senator Batters): All right. Agreed?

Hon. Members: Agreed.

SOR/2010-111 — REGULATIONS AMENDING THE PHYTOPHTHORA RAMORUM COMPENSATION REGULATIONS.

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

The Joint Chair (Senator Batters): We will move on to the two items under "Action Taken.'' The first one corrects a French and English discrepancy about non-standard plant pot sizes. We thank counsel for his good work on that one.

Anything further, counsel?

Mr. Abel: Nothing to add, Madam Chair.

The Joint Chair (Senator Batters): Thank you. Action has already been taken. That instrument corrected the discrepancy.

SOR/2014-225 — REGULATIONS AMENDING THE INDUSTRIAL DESIGN REGULATIONS (MISCELLANEOUS PROGRAM)

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

The Joint Chair (Senator Batters): I will let counsel speak to Item 16. Some good work has been done under this "Action Taken'' item.

Mr. Bernhardt: This instrument repeals a provision the committee concluded was unlawful. It stated that documents filed in electronic form in connection with applications and designs must be in a format specified by the Commissioner of Patents.

Under the French version of the Industrial Design Act, the Governor-in-Council has the power to "determine'' the form and contents of applications. The English version authorizes the Governor-in-Council to make regulations "respecting'' the form and contents of applications. Under the provision in the regulations, of course, the form of the application was determined not by the regulations but by the commissioner. This was permitted under the English version of the act. It was not permitted under the French version of the act.

When trying to resolve a discrepancy between two versions of a legislative provision, the general principle is to find a common meaning. In this case that means the narrower meaning must govern because that's the meaning common to both provisions. Here, that was the French version, and it led to the conclusion that this section of the regulations was ultra vires.

Initially there was an undertaking to amend the act to solve the problem. In the end, it was decided to simply revoke the provision in the regulations. Obviously that addresses the committee's concern with the regulations.

The Joint Chair (Senator Batters): Thank you, counsel.

SI/2013-129 — PROCLAMATION GIVING NOTICE THAT THE AGREEMENT ON SOCIAL SECURITY BETWEEN CANADA AND THE KINGDOM OF NORWAY COMES INTO FORCE ON JANUARY 1, 2014

SI/2014-54 — PROCLAMATION GIVING NOTICE THAT THE SECOND PROTOCOL AMENDING THE CONVENTION BETWEEN CANADA AND THE REPUBLIC OF AUSTRIA FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME AND ON CAPITAL, DONE AT VIENNA ON DECEMBER 9, 1976, AS AMENDED BY THE PROTOCOL DONE AT VIENNA ON JUNE 15, 1999 CAME INTO FORCE ON OCTOBER 1, 2013

SI/2014-55 — PROCLAMATION GIVING NOTICE THAT THE PROTOCOL AMENDING THE AGREEMENT BETWEEN CANADA AND BARBADOS FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME AND ON CAPITAL, DONE AT BRIDGETOWN ON JANUARY 22, 1980 CAME INTO FORCE ON DECEMBER 17, 2013

SI/2014-67 — PROCLAMATION GIVING NOTICE THAT THE AGREEMENT ON SOCIAL SECURITY BETWEEN CANADA AND THE FEDERATIVE REPUBLIC OF BRAZIL COMES INTO FORCE ON AUGUST 1, 2014

SI/2014-77 — YOLANDE LAURENCE REMISSION ORDER

SI/2014-79 — ORDER FIXING OCTOBER 12, 2014 AS THE DAY ON WHICH CERTAIN SECTIONS OF THE ACT COME INTO FORCE

SI/2014-80 — PROCLAMATION DESIGNATING "FIRE PREVENTION WEEK''

SI/2014-82 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH SECTION 277 OF THE ECONOMIC ACTION PLAN 2013 ACT, NO. 2 COMES INTO FORCE

SOR/2014-15 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PART IV)

SOR/2014-70 — ROYAL CANADIAN MOUNTED POLICE (DEPENDANTS) PENSION FUND INCREASE IN BENEFITS ORDER

SOR/2014-188 — ORDER AMENDING SCHEDULE I TO THE PUBLIC SERVICE SUPERANNUATION ACT

SOR/2014-194 — REGULATIONS AMENDING THE CANADA GRAIN REGULATIONS (TABLE 58 OF SCHEDULE 3)

SOR/2014-199 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS

SOR/2014-208 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS FISCAL MANAGEMENT ACT

SOR/2014-209 — ORDER AMENDING SCHEDULE I TO THE FIRST NATIONS GOODS AND SERVICES TAX ACT, NO. 2014-3 (SPLATSIN)

SOR/2014-211 — REGULATIONS AMENDING THE REGULATIONS ESTABLISHING A LIST OF ENTITIES

SOR/2014-216 — M/T KOMETIK AND M/T MATTEA REPAIR OR ALTERATION REMISSION ORDER, 2014

SOR/2014-217 — CHFTA RULES OF ORIGIN REGULATIONS

SOR/2014-218 — CHFTA RULES OF ORIGIN FOR CASUAL GOODS REGULATIONS

SOR/2014-219 — CHFTA TARIFF PREFERENCE REGULATIONS

SOR/2014-220 — CHFTA SUGAR AGGREGATE QUANTITY LIMIT ORDER

SOR/2014-226 — ORDER 2014-87-08-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2014-227 — ORDER 2014-66-08-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2014-229 — REGULATIONS AMENDING THE CANADIAN EGG MARKETING AGENCY QUOTA REGULATIONS, 1986

SOR/2014-230 — REGULATIONS AMENDING THE CANADIAN EGG MARKETING AGENCY QUOTA REGULATIONS, 1986

SOR/2014-231 — ORDER AMENDING THE CANADIAN EGG MARKETING LEVIES ORDER

SOR/2014-232 — REGULATIONS AMENDING THE CANADIAN TURKEY MARKETING QUOTA REGULATIONS, 1990

The Joint Chair (Senator Batters): Under "Statutory Instruments Without Comment,'' we have 27 items, which is a lot.

Thank you very much, counsel, for your good work.

If there's nothing further, we will see members on February 26. Have a good week in your constituencies.

(The committee adjourned.)

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