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Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue 31 - Evidence - March 1, 2018

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OTTAWA, Thursday, March 1, 2018

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:33 a.m. for the review of statutory instruments.

Senator Joseph A. Day and Mr. Harold Albrecht (Joint Chairs) in the chair.

The Joint Chair (Mr. Albrecht): Welcome, members. We have a number of agenda items today, and we’re happy to have Ms. Borkowski-Parent back with us.

Welcome back. We’ll now look to you for information relating to Item No. 1.

SOR/99-142 — CANADA LANDS SURVEYORS REGULATIONS

(For text of documents, see Appendix A, p. 31A:1)

Evelyne Borkowski-Parent, General Counsel to the Committee: This serves as an update both on that specific file and on the Miscellaneous Statute Law Amendment Program, or MSLA. As a quick background, the MSLA is a periodic program initiated by the Department of Justice used to correct anomalies, inconsistencies, outdated terminology or errors in federal statutes. All those amendments are then put together in one bill that benefits from a simplified legislative process.

A document is prepared and tabled in both houses. A committee of each house will examine the proposed amendments and make recommendations. Based on the recommendations of both committees, a bill is then prepared, tabled and usually receives the three readings at once.

In order to be part of the MSLA Program, amendments have to be non-controversial and not involve the spending of public funds. They should not prejudicially affect the rights of a person and not create new offences.

The program has been used 11 times, most recently in 1999, 2001 and 2015.

On this file, SOR/99-142, one issue remains: the discrepancy between the English and French versions of section 53 of the Canada Lands Surveyors Act. This file has been before the committee since 2005.

The first letters you will see as part of your package were the result of the previous MSLA Program in 2015. The amendment to the Canada Lands Surveyors Act was not included. The chairs then wrote to encourage the Minister of Justice to undertake the MSLA on a more frequent basis.

Bill C-60 was introduced on October 3 of last year. Again, the amendment to the Canada Lands Surveyors Act was not included. So at the request of the committee, the joint chairs wrote to the chairs of the Senate and House of Commons committees studying the bills, emphasizing there were a number of other issues for which the committee awaited resolution that were missing from the bill. Nevertheless, the bill was introduced without the missing amendments, and it received Royal Assent on December 12.

So where are we on this file? The Standing Senate Committee on Legal and Constitutional Affairs reported on the issue of the lack of consideration by the Department of Justice to outstanding committee issues. You can see the report in your materials. No government response was requested to the report, so it’s unclear whether or how the Department of Justice intends to follow through.

On this file, the amendment to the Canada Lands Surveyors Act is still outstanding, and it’s unlikely it will be resolved independently of the MSLA Program.

At this point, I would recommend that the chairs write to the Minister of Justice asking what the department intends to do in the future to follow through on the Senate recommendations on the MSLA Program.

The Joint Chair (Mr. Albrecht): In the last paragraph of page 2 of the letter of the Minister of Justice to us, dated December 13, she thanks us for our interest and says that the support of the committee will be invaluable, but there is no commitment to progress. Another question we have to ask is: What is the plan for the frequent tabling schedule being presented to us?

In my opinion, we have those two issues. What is the plan for the frequent tabling of the MSLA Program, and when will action be taken on the Canada Lands Surveyors Act amendment issue?

Is that a good summary?

Mr. Shipley: Mr. Chair, I agree with you.

Is it fair to set a time for a response? By year end? If we leave it open, when do we expect to receive a response?

This is one of the files after my first meeting when you talked about me waiting until I hear some that are 5 or 10 years old. This is 13. I’m looking for direction.

The Joint Chair (Mr. Albrecht): I definitely feel that we need to put a timeline on it. I suggest the end of the year is far too long, but I leave that up to the committee. I look to you for input.

Do you want to suggest a date? The end of June this year would be much more realistic.

Mr. Shipley: Okay.

The Joint Chair (Mr. Albrecht): Senator Gold, welcome. I didn’t notice you had joined us. It’s a pleasure to have new members.

Senator Gold: Thank you, sir.

The Joint Chair (Mr. Albrecht): Do we have a motion or suggestion that we ask for action on these two issues, the frequent tabling of the MSLA and a resolution of the Canada Lands Surveyors Act by June?

The Joint Chair (Senator Day): We’ll make reference again to the Senate report, which I think is very good.

Mr. Shipley: When do we have our last meeting before we break? It would be good to know before we break for the summer whether we’ve had a response. Maybe we can just look at the calendar. We don’t have to give that date now. All I’m suggesting is that before we break for summer, we would have that date set in place so we know whether they’ve responded or not.

The Joint Chair (Mr. Albrecht): Except if we give them until the end of June, we’ve technically cut ourselves off at the knees.

Do we want to make it the middle of June, June 15? That still gives them plenty of time. I see agreement. All agreed?

Hon. Members: Agreed.

The Joint Chair (Mr. Albrecht): Next is Item 2 under “Reply Unsatisfactory.”

MAINTENANCE DREDGING SERVICES TONNAGE FEES (U1998-2)

(For text of documents, see Appendix B, p. 31B:1. )

Ms. Borkowski-Parent: Coast Guard fee schedules are ministerial orders. Strictly speaking, they don’t fall within the definition of statutory instruments under the Statutory Instruments Act, but, because of subsection 50(3) of the Oceans Act, they are to be scrutinized as statutory instruments. They don’t go through the same regulatory process as Governor-in-Council regulations. That’s why they don’t have a SOR or an SI number. They’re not published in Part II of the Canada Gazette, and, generally speaking, their drafting has been deficient.

There are two issues on this file. First is the question of what it is to fix a fee. The long-standing committee position is that “fix” means arrange on a permanent basis. Because the regulations include an automatic increase based on the Consumer Price Index, the fees can’t be said to have been fixed.

We had occasion to meet with Coast Guard representatives in the last year. Although there were no specifics provided to us on their intentions regarding their fee schedules, there were a lot of questions to us about the new Service Fees Act. That act replaced the User Fees Act and imposes performance standards for federal entities when they establish fees. If, however, the Coast Guard intends to rely in any way on the provisions of the Service Fees Act, it can’t because the Coast Guard does not fall within the definition of federal entity for the purposes of that act, and therefore that act don’t apply to them.

At this juncture, though, there is no need for the committee to depart from its previous interpretation on fixing a fee.

More important, however, is the second question regarding the duties of the minister. The automatic increase provided in the regulation fails to take into consideration the very specific duties that are imposed by statute on the minister before fees can be fixed. Those duties are to consult prior to fixing a fee and to fix fees that don’t exceed the cost of providing the service. Those duties are called preconditions, which means that a failure to meet them invalidates the fees.

Therefore, by going through automatic increase, how can the minister be said to have consulted and to have fixed fees that are below or at the level of cost if it’s done automatically? It’s also hard to understand the Coast Guard’s resistance to amend its scheme considering it can make amendments with relatively few formalities, other than consulting and the cost issue. It does not have to go through the general regulatory process; it is a ministerial order.

Most importantly, one can’t rely on the fact that statutory requirements are inconvenient to ignore the express will of Parliament. Nothing would prevent the Coast Guard from setting a yearly fee based on the increase of the Consumer Price Index, provided that consultations take place and that there’s evidence that the fee increase would exceed the cost of the service.

At this point, it might be beneficial to write to the Minister of Fisheries, as the minister responsible for the Coast Guard, on this issue.

The Joint Chair (Mr. Albrecht): I guess you’re more patient than I would be on this one. I think it’s time to go for disallowance and say, “Let’s get this fixed.”

Committee members, what are your thoughts?

[Translation]

Mr. Dusseault: If I understand correctly, the Coast Guard is not subject to the Service Fees Act. I do not have the exact translation. I did not see it in the document. Perhaps I missed it?

Ms. Borkowski-Parent: That is correct. Let me explain. The Service Fees Act defines what a federal entity is. It must be listed in the schedule of the Financial Administration Act. I have the schedule here. The Coast Guard is not a federal entity as such under the Service Fees Act.

Mr. Dusseault: Is the Department of Fisheries and Oceans in this list?

Ms. Borkowski-Parent: Yes, this department is a federal entity, but the Coast Guard establishes the fees.

[English]

Mr. Badawey: I have a question on the first point with respect to fixing the fees. There seems to be a disagreement between us and them. Has there been a peer review? Has a third party been brought in to actually give an opinion?

Ms. Borkowski-Parent: The committee’s position on what it means to fix something is based on case law. The courts have interpreted fixing as a narrow enabling power, which means you have to be able to determine the result with certainty. According to the courts, that’s what “fix” means, and that is the position that the committee last adopted.

Mr. Badawey: Essentially you’re relying on that case law as a third opinion.

Ms. Borkowski-Parent: Yes.

Mr. Badawey: Okay.

With respect to the Coast Guard and next steps, I would be in favour of sending a stern letter to the minister giving them a time frame, say a few months, and expecting that response then.

Senator Stewart Olsen: I have a question. With regard to fixing a fee for something like this, maintenance dredging services, has the Coast Guard come back and said you can’t fix a fee because you don’t know the extent? If you put a fixed fee on maintenance dredging, I’m not sure that that can actually be done. Is that the Coast Guard’s argument, or do you know what their argument is?

Ms. Borkowski-Parent: I don’t have the regulations with me.

Penny Becklumb, Counsel to the Committee: On the Coast Guard’s position? Do you want me to speak to that?

Ms. Borkowski-Parent: No, on the dredging schedule. Is it the one where the cost is passed on to those entities?

Ms. Becklumb: To three entities.

Ms. Borkowski-Parent: To three entities in old Montreal, in the old port.

Ms. Becklumb: They charge a fee to everyone who comes through, and at the end of the year they do a reconciliation. They see how much they’re short to cover the full cost, and they divide that between three entities according to proportions which are set in the fee schedule. So it always comes out perfectly even, but it’s after the fact that they do that reconciliation. They’re not fixed in advance. It’s after.

Senator Stewart Olsen: I don’t see how they could fix them in advance, to be perfectly honest.

The Joint Chair (Mr. Albrecht): But they don’t. That’s what she said.

Ms. Borkowski-Parent: If that is inconvenient, then the act should be changed. Those duties are imposed by statute on the minister. The fact that in reality it becomes an arduous exercise is not —

Senator Stewart Olsen: I know. But, perhaps if we write a letter, it could reflect that we’d like to hear about the reason why this has not been done.

Mr. Di Iorio: This case is different than all of the other situations we’ve examined so far, since I’ve been on this committee for over two years, in the sense that the interpretation put forward by the department does have the appearance of reasonableness. In many of the cases we have had, the department was coming up with interpretations that we had difficulty even figuring out. Here, we understand the rationale of their reasoning.

I mention this because the case law that we have is the Canada Post case where the wording is not the same: prescribing and fix. The committee decided that they were going to be antiquated, but it’s the committee that decides that so it’s our internal case law.

Do we have any other formula in our legislation where we use the word “fix”? And if so, have they been tested in court?

Ms. Borkowski-Parent: Yes. “Fix” and “prescribed” — I’m trying to think of a third example — have generally, in doctrine and in courts, been interpreted as narrow enabling power. It gives less leeway to the regulation-making authority than a power respecting something. If you have a power respecting fees, you can do pretty much whatever you want with it. But when Parliament uses the words “fix,” “determines” or “sets,” those are considered — and I can provide doctrine on that — as narrow enabling powers, and they are interpreted narrowly.

Now, if the committee wants to depart from that, it is up to the committee.

Mr. Di Iorio: The only reason I mentioned that is that it could be the department is right. I’m not saying they are, but I can’t state categorically, with whatever summary work I’ve been able to do, that they would be wrong.

As we have seen in many cases in the past where we could clearly see the position of the department was hard to justify, then we couldn’t even assume or have any indication they could have some solid footing for their position.

Here, let’s say this case is in front of a court and they truly analyze all the aspects of it. It could be that they say it’s fixed in the sense that all the variables don’t depend on the department. They depend on something that is certain and is not debatable and, therefore, they should be accepted. That’s the only reason why I hesitate.

There is also the fact that it is not one of the usual instruments. Our degree of intervention is not the same as in the Canada Post case because the Canada Post case involved the Governor General and, therefore, our mandate has been historically established.

Those are the reasons why I have difficulty saying that this would be a case where we would take on the department.

Ms. Borkowski-Parent: On the issue of the committee’s authority over the instrument, it is true that it’s a ministerial order. Because of subsection 50(3) of the Oceans Act, they are, therefore, to be scrutinized by the committee as a statutory instrument. That is specified in the act. We’ve been applying the same level of scrutiny as other Governor-in-Council instruments, which we wouldn’t necessarily do in other ministerial orders cases.

Mr. Di Iorio: I only mention this because in Canada Post, the committee was willing to go up until disallowance. We haven’t done it very often, so if we’re going to choose our battles, we should maybe choose them carefully.

Ms. Borkowski-Parent: In fact, because it is not a statutory instrument, it is unlikely that the disallowance procedure would apply.

Senator Gold: Somewhat along the lines of Senator Stewart Olsen’s comments and those of Mr. Di Iorio, I think in the letter we send, we should at least acknowledge that we understand the rationale, not necessarily behind their position on what it means to fix a fee but on the manner in which they fix fees and regulate that. We could ask them, perhaps less aggressively than in other circumstances, to seriously consider changing the legislation such as to bring their current practices into line. I wouldn’t necessarily go further than that at this stage.

The Joint Chair (Mr. Albrecht): Is there a consensus developing?

The Joint Chair (Senator Day): I agree on that point. It just occurred to me that of the promised amendments, they said they would go ahead and make six of the eight. It was two years ago they said they were doing that. Do we know if that was done?

Ms. Becklumb: It hasn’t been done yet, but there are two other fee schedules and they’re going to do all three at the same time. They’re waiting to hear back from the committee that all the amendments they’ve proposed in all three are good, and they are getting that after this meeting.

The Joint Chair (Senator Day): In sending a letter, we might make passing reference to the fact that we’re still awaiting the six other amendments that they promised more than two years ago.

The Joint Chair (Mr. Albrecht): Is there any further discussion from members? I see consensus. We’ll send a letter requesting clarification and an update on the amendment process. All agreed?

Hon. Members: Agreed.

The Joint Chair (Mr. Albrecht): So ordered.

Next is Item 3.

SOR/2015-212 — REGULATIONS AMENDING THE NATIONAL ENERGY BOARD ACT PART VI (OIL AND GAS) REGULATIONS

(For text of documents, see Appendix C, p. 31C:1.)

Ms. Borkowski-Parent: The regulations define the term “natural gas” for the purpose of natural gas export licences under the National Energy Board Act. The definition reads that “natural gas” means a mixture of gas that is composed of at least 85 per cent methane and that may also contain other hydrocarbons that, at a temperature of 15 degrees Celsius and in an absolute pressure of 101.325 kPa, are in a gaseous state as well as “minor amounts” of non-hydrocarbon gas and impurities.

The issue is the meaning of “minor” amounts of non-hydrocarbon gases. Does that mean 7 per cent of the total composition? Does that mean more or less? No one knows.

The National Energy Board states that in practice, limits are generally placed by the long-haul transmission pipelines for them to accept a product in their system. The determination of the appropriate level of impurity is left to be determined by pipelines. Can one say that the Governor-in-Council has designated a substance?

Unlike what was hinted at in the National Energy Board’s response, the goal is not to eliminate the presence of impurities generally; mainly that a threshold that everyone can grasp should be set.

Furthermore, while it recognizes the vagueness of the phrase, the National Energy Board refuses to address it unless it has been raised by stakeholders. I realize the committee is not a direct stakeholder, per se, but it bears asking the question of what the National Energy Board sees the committee’s role to be.

That being said, after the agenda was assembled, Bill C-65 was introduced, which would repeal the National Energy Board Act and replace it with the “Canadian Energy Regulator Act.”

The definition of “gas” under the new act and the enabling power found in section 390 are in essence the same as they were in the former act. Both provisions refer to the Governor-in-Council designating a substance, which is considered, once again, a narrow enabling power.

That being said, it’s unlikely at this point that amendments to the regulations will be made until Bill C-65 is passed. Presumably, regulations will be enacted under the new act, and the committee could insist that the language be clarified in the new regulations.

The Joint Chair (Mr. Albrecht): I saw general nodding of heads in affirmation that that would be a wise way to move. Is there any further discussion? So ordered.

Next it Item 4 under “Reply Unsatisfactory (?)”.

SOR/2015-152 — REGULATIONS AMENDING THE FREEZING ASSETS OF CORRUPT FOREIGN OFFICIALS (TUNISIA AND EGYPT) REGULATIONS

SOR/2016-41 — REGULATIONS AMENDING THE FREEZING ASSETS OF CORRUPT FOREIGN OFFICIALS (TUNISIA AND EGYPT) REGULATIONS

(For text of documents, see Appendix D, p. 31D:1.)

Ms. Borkowski-Parent: Those two instruments added and removed individuals deemed to be politically exposed. To make an order under the Freezing Assets of Corrupt Foreign Officials Act, the Governor-in-Council must be satisfied of three conditions: that the person is politically exposed, that there is internal turmoil in the foreign state, and that the order is in the interest of international relations.

The recommendation portion of these instruments mentions only the listing and not the delisting of individuals, which is not very transparent. The department relies on what it calls “significant discretion” of the Governor-in-Council to delist individuals when in fact there is no mention of delisting in the act. So to call that “significant discretion” is a bit of a misnomer.

In the past, the delisting of individuals was mentioned in general terms in the executive portion of these orders. This solution does not entail inquiring as to the specific motives behind the delisting of each individual but just that it should be mentioned in general terms.

For correctness and transparency, the committee could seek the department’s assurance that delisting will be invoked in the recommendation portion, at least in general terms, for all future instruments of that nature.

The Joint Chair (Mr. Albrecht): Is someone prepared to make a motion to that effect? Mr. Diotte.

Is there any further discussion? All in agreement?

Hon. Members: Agreed.

The Joint Chair (Mr. Albrecht): So ordered.

Item No. 5 is next, under the heading “Part Action Promised.”

SOR/2005-143 — USE OF PATENTED PRODUCTS FOR INTERNATIONAL HUMANITARIAN PURPOSES REGULATIONS

(For text of documents, see Appendix E, p. 31E:1.)

Ms. Becklumb: These recommendations allow people to make and sell patented drugs to developing countries, such as Africa, to treat diseases such as HIV and AIDS. Counsel identified six issues with the regulations and the department is considering addressing five of them in a miscellaneous amendments regulations — a MARs package — but we don’t know when that’s coming out. We propose to follow up on that and get a timeline for those five amendments.

The one issue that the department has not agreed to fix relates to subsection 3(2). It reads:

Any correspondence sent to the patentee’s representative in Canada is deemed to have been received by the patentee.

If the purpose of the section is simply to allow for a patentee to use a representative, then there’s no reason to use the two different words; correspondence “sent” to one person is deemed “received” by another. It introduces a new and potentially unintended purpose for the provision in that it makes the patentee bear the risk that correspondence that gets lost in transit. As long as it is sent to the representative, it’s deemed received by the patentee, even if no one ever received it.

Accordingly, counsel suggested that the wording could be amended to read “any correspondence received by the patentee’s representative in Canada is deemed to have been received by the patentee.”

Now, the department disagrees with this. It maintains that the word “sent” needs to be used because “sent” is the word used in the Patent Act, the enabling act. But they’re missing the point. It’s not whether we use “sent” or “received”; it’s that we use the same word twice.

We could propose that the provision be amended to read “any correspondence sent to the patentee’s representative in Canada is deemed to have been sent to the patentee.” We propose to propose that wording and follow up on the other points.

Senator Stewart Olsen: I’m a little concerned. I know why the department would have put this in, because in the past there were cases where it has been said, “Oh, yes, you said you sent it, but we never got it.” That’s why it’s there. Is there not a way around that? I think that’s why they drag their heels on something like that, because the receiver is not where they need to go for this. There have been some pretty horrendous cases on drugs manufactured and going into countries. I understand where you’re coming from, but I think the department is trying to say, “When we send that out, don’t tell us you didn’t get it.”

I think we should be careful in trying to —

Ms. Becklumb: Just to clarify, it’s not the drugs we’re talking about; it’s correspondence.

Senator Stewart Olsen: That’s exactly what I’m saying.

Ms. Becklumb: Alternatively, we could ask the department if it does have that secondary purpose and if that’s intentional.

Senator Stewart Olsen: I think we should, because it’s very important.

Ms. Borkowski-Parent: Then if that is the intent, that’s not the right way to draft it. That’s a deeming provision you need; “any correspondence sent is deemed to have . . . .” It creates a fiction where one action —

Senator Stewart Olsen: There’s always a reason behind why they do things, and if it’s not the right way, maybe that’s the way we should approach this.

Ms. Borkowski-Parent: I think the new wording “any correspondence sent to the patentees is deemed to have been sent” could probably address that concern.

Senator Stewart Olsen: You sent it, but then they get away with whatever they’re doing because they say they didn’t get it.

The Joint Chair (Mr. Albrecht): We’re referring to the patentee and the patentee’s representative, those two people.

Senator Stewart Olsen: I hear you, but I know what the department is trying to get at here.

I don’t like to throw up roadblocks. Maybe we could ask them what they’re trying to achieve by doing it this way and not using the same terminology. I’d like to know if that would seriously impede them following up on badly produced medications.

Ms. Borkowski-Parent: That does not relate to badly produced. It’s to inform them that their patent is, in effect, being infringed to produce —

Senator Stewart Olsen: Yes, I know.

Ms. Borkowski-Parent: But we’ll follow up with the question.

Mr. Badawey: I agree. I think they’re missing the point. What is sent is sent, but what is sent is not necessarily received. I think you’re correct in both paragraphs 2 and 3 whereby you want to clarify the words “sent” and “sent” and then “received” and “received.” They can send letters off about patents all they want, but at the end of the day, it doesn’t validate it being received by the person who is supposed to be receiving it. I think that has to be clarified.

I don’t want to put words in your mouth, but I’m assuming that is the crux of this.

Ms. Becklumb: That’s right.

Mr. Badawey: If we can actually have that letter sent out to these folks so that they understand exactly what our concern is and be very deliberate, they will know that we can’t assume that just because a letter has been sent that they received it.

You are correct in your second paragraph in outlining the way to do that, simply by registered or certified mail.

Senator Stewart Olsen: We can do that, but one of the reasons we are behind in some of these, I think, is because the department is trying to do something that we don’t understand and could maybe clarify for them.

I’m new on this committee, but this file is very important, and we should be careful of impeding the department on this issue.

The Joint Chair (Mr. Albrecht): I think, Senator Stewart Olsen, to be fair to all members, the purpose of the committee is to make sure we’re on good legal grounds. We are not defining what the regulations should be, but they have to be legal. That’s what our staff are trying to recommend to us. Regardless of whether it makes sense or not, is it legal?

Senator Stewart Olsen: It’s not that it doesn’t make sense. I hear you and understand you, but we should be cognizant that this committee is working with the department so that we’re not putting up roadblocks in what we’re asking departments to do.

The Joint Chair (Mr. Albrecht): I totally agree; we have to work within the law.

We need to make sure, Mr. Badawey, that when we send this letter, it is received by the department.

Senator Gold: This a bit of a rookie question, but in our letters and in the communications back, is it the practice of the department when they disagree with us to explain why, or do they simply say, “Thanks, but no thanks”?

I do think there are circumstances where it would behoove us to understand their rationale so that we can find a legal way for them to achieve their purposes.

Ms. Borkowski-Parent: In my informal communications I have with departmental representatives, we always make the point that the more information a department provides in its response to the committee, the better the committee is in a position to address its concerns. That is always passed on to departments.

Nevertheless, sometimes we will get responses that are devoid of —

Senator Gold: Is this one such case? In other words, you’re not able to tell us what lies behind their use of these two words.

Ms. Becklumb: They have given us an explanation, which was that we need to use “send” because that’s what the Patent Act says. The Patent Act actually says “provide.” Those are fairly similar. They said we had to use “send” because that’s what the Patent Act requires us to do, but they didn’t address the question around “do you intend to be sent and then deemed received” —

Senator Gold: They didn’t explain it.

Ms. Becklumb: I don’t think they put their mind to our particular point. They were just focused on whether it should be “received” or “sent,” which word to use. So we’d have to ask the next question: We need to use “send,” and is there a reason we can’t use it twice? Do you intend that it’s “sent” to one person and deemed “received” by another? Is there a reason we can’t say “sent” to one and it’s “deemed sent” to the other?

The Joint Chair (Mr. Albrecht): This is a good illustration of the help the committee can give to our counsel as they redraft the letter with the input they received from our committee members.

Thank you for that. Are you clear in the direction? Okay.

Item 6 is next on our agenda.

SOR/2013-60 — SOCIAL SECURITY TRIBUNAL REGULATIONS

(For text of documents, see Appendix F, p. 31F:1.)

Ms. Becklumb: These regulations set out procedures for the Social Security Tribunal, which hears appeals of decisions about Employment Insurance, Old Age Security and the Canada Pension Plan.

Counsel raised five issues with the regulations, and Service Canada has agreed to address two of them. We’re not sure when this will happen. The amendments might get bundled with amendments stemming from the Social Security Tribunal review, which wrapped up in October 2017.

I would propose we could follow up on this and request a timeline for making those two amendments.

But this leaves three issues in contention. I’m going to propose to go through each one individually and get the committee’s instruction on how to deal with them.

The first one is the French version of paragraph 10(2)(a) that appears to be missing some words that are included in five other similar provisions of the regulations. However, Service Canada has provided an explanation. They’re distinguishing between this particular paragraph and the other similar provisions in that the paragraph in question requires a person to provide contact information relating to themselves, but the other similar provisions require the person to provide contact information relating to their authorized representative, if they have one.

Because of the construction of the sentence in French, these other provisions include the extra words “qu’elle possède,” or “that the person possesses,” to clarify that they’re referring to information about the person’s authorized representative and not to information about the person themselves.

This appears to be a satisfactory explanation. Is the committee satisfied with that?

The Joint Chair (Mr. Albrecht): I see a nodding of heads. Affirmation.

Ms. Becklumb: The second point relates to subparagraphs 19.1(b)(i) and (ii). There appears to be potential for conflict between these two subparagraphs. They specify when a decision is deemed to have been communicated to a party if it was sent by registered mail or courier. Under subparagraph (i), the decision is deemed communicated on the date recorded on the acknowledgement of receipt, but under paragraph (ii), the decision is deemed communicated on the date it was delivered to the last known address of the party. There’s no way of telling which one prevails.

It was pointed out that these two dates could be different. For example, if the person signing the acknowledgement of receipts writes down the wrong date, then you will have two different dates and no way of telling which one is the one to follow.

Service Canada responded. They said that this is unlikely to happen, first, because it doesn’t deliver decisions by registered mail or courier. Its standard practice is to use regular mail. Second, it said that even if it deviated from its standard practice and used registered mail or courier, the date on the acknowledgement of receipt is filled in by the company that makes the delivery and not by the recipient. They’re implying that the delivery company is unlikely to get the date wrong, so there’s not going to be a conflict in practice.

The committee can consider if it’s satisfied with this response, because it’s unlikely that a conflict will occur in practice, or whether the committee wants to insist upon better drafting, because they’re opening the regulations and making those two amendments anyway, so they could fix this at the same time.

Mr. Scarpaleggia: I see their point about it being unlikely, but we have all been at the receiving end of errors from huge institutions “unlikely to make mistakes,” including banks. We’ve seen on the news recently where people have discharged their debt and the bank will not register it. So I feel strongly that “unlikely” is not a satisfactory response.

The Joint Chair (Mr. Albrecht): We’re in agreement with that. Let’s get clarification as to whether they could clarify.

Ms. Becklumb: There is one more point they haven’t agreed on.

The third and final outstanding point relates to an apparent omission in the regulations. They don’t provide rules of procedure for an appeal made under the Labour Adjustment Benefits Act, even though that act provides for an appeal to the Social Security Tribunal. Counsel asked why it’s missing, and Service Canada responded that the Labour Adjustment Benefits Act isn’t currently being used, so there is no possibility of an appeal under this act being sent to the tribunal.

Service Canada also stated that if the government makes an order that allows them to resume using the Labour Adjustment Benefits Act, then the regulations will be updated as needed at the same time that order is made.

Is that undertaking sufficient?

Mr. Di Iorio: The short answer is “no” based on observations made in this committee. The opposite likelihood, as my colleague just referred to, of them not triggering both at the same time, from what we’ve observed, is quite high. We can’t simply say, “Oh, yes, sure. Then we’ll reconvene some day and we’ll look into it and see that you haven’t done it.”

They said there is no need for the process because the act is not currently being triggered, but the process has to be there. You can’t simply say, “We have that, and we have your word for it.”

I had a chance to work with Chinese law recently where there is legislation but no process to have it applied. That’s China. We don’t tend to copy methods from that country when it comes to a legal framework. We have our own legal tradition, and our legal tradition is not one where we rely on some department official’s words. We’re more concrete than that.

We should indicate that if they don’t want to enact the process, they would have to provide something that is certain, that assures the committee that one cannot happen without the other.

The Joint Chair (Mr. Albrecht): Counsel, are you comfortable with that direction? It’s clear? Okay. That will deal with the last part.

Regarding the first part, you indicated we’re good; we’re all fine. That, in my opinion, clears up that entire file, then, if we’re all in agreement with that.

With that, I’m going to turn the chair over to Senator Day.

The Joint Chair (Senator Day): We’ve moved along very nicely, colleagues. Next is Item No. 7 under the heading “Part Action Taken.”

CANADIAN FOOD INSPECTION AGENCY FEES NOTICE (U2001-1)

(For text of documents, see Appendix G, p. 31G:1.)

Ms. Becklumb: First, I want to draw your attention to an error in the note. Under the heading “Issue,” it says, “Amendments addressing two of the three remaining issues have been published on August 12, 2016.” In fact, those amendments were prepublished on August 12, 2017. I apologize for that error.

[Translation]

The Canadian Food Inspection Agency Fees Notice is a long, 57-page document setting out the fees payable for services, products, rights and use of facilities provided under the various regulations administered by the CFIA. In 2004, legal counsel raised 33 issues relative to the Fees Notice. All, except for one, have now been corrected or pre-published.

The remaining issue concerns Item 17 of the table in Part 11 which sets out the fees for services provided to aircraft or ships entering Canada with an animal. Item 17(2) states that the fees do not apply to aircraft or ships operated by the armed forces of a country that, under an agreement with the Department of National Defence, is exempt from payment of the fees. The problem is that the Department of National Defence does not have the authority to make an agreement that would grant an exemption for the payment of fees set out in the Canadian Food Inspection Agency Act. Last summer, the agency agreed to amend this provision for its cost recovery initiative during the summer of 2018. Legal counsel could check with the agency to see if the corrective measures are still under way.

Senator Gold: That seems adequate to me.

The Joint Chair (Senator Day): Does everyone agree?

[English]

The Joint Chair (Mr. Albrecht): Just for the interpretation, Senator Gold, just repeat what you said.

[Translation]

Senator Gold: Pardon me. I think that it is an adequate response, given the commitment to do the follow-up.

[English]

Mr. Shipley: Can we put a time on it again? It would seem to me that we could likely get that correspondence prior to the summer break.

The Joint Chair (Mr. Albrecht): It says “in the summer,” so I don’t know.

Mr. Shipley: Yes, I guess there is not an urgency.

The Joint Chair (Mr. Albrecht): I think September would be fine.

Mr. Shipley: Okay. That’s fine.

The Joint Chair (Senator Day): Could we have a quick explanation of the prepublication of the regulations? You mentioned it a couple of times.

Ms. Borkowski-Parent: This is an unregistered instrument; therefore, there is no prepublication. It’s akin to those ministerial orders we were discussing for Coast Guard fees. It is akin to a ministerial order made by the Canadian Food Inspection Agency. It does not go through the same Governor-in-Council regulatory process. They are published only in Part I of the Canada Gazette, just like the Coast Guard fees, because they are not statutory instruments, per se.

When we look at a Governor-in-Council regulatory process, departments put together their package. When there are substantive amendments to regulations, they have to go through a process of prepublication. This is under a cabinet directive administered by the Treasury Board. So the draft regulations will be prepublished in Part I of the Canada Gazette, followed by a consultation period that varies from a couple of days to several months, after which the department goes back to drafting to take into consideration the comments they might have received during the consultation period. Then they enact the regulations, which will then be published in Part II of the Canada Gazette as a regulation or a statutory instrument.

That’s what prepublication in Part I generally means. It’s that first step where consultations will follow. In this instance, because it is not a Governor-in-Council instrument, it is only published in Part I.

The Joint Chair (Senator Day): Thank you. That’s helpful.

Are there any questions with respect to that? Okay, then, with respect to Item No. 7, we’re okay. As per your direction, we’ll wait to see what happens this summer. Correct? Counsel, we’re okay?

Ms. Borkowski-Parent: Yes.

The Joint Chair (Senator Day): We’ll move on to Item No. 8.

[Translation]

SOR/2006-124 — PEST CONTROL PRODUCTS REGULATIONS

(For text of documents, see Appendix H, p. 31H:1.)

Ms. Becklumb: Legal counsel identified 33 issues relative to the regulations in 2008, 30 of which have been resolved by amendments made in 2014. After the committee published a notice of disallowance in 2016, two other issues were resolved in 2017.

One issue, which was not included in the notice of disallowance, remains. It concerns Section 31 that uses the undefined term “bulk container.” The regulations require that certain information be affixed to the display panel of a bulk container, but we do not know how big the container must be to be considered a “bulk container.” The committee concluded that the term should be defined. In July 2017, the department indicated that it wanted to solve the problem by publishing an amendment in Part I of the Canada Gazette during the 2017-18 financial year, that is, by the end of this month. We are still waiting for pre-publishing. Counsel could check with the department whether the definition will indeed be published this month.

[English]

The Joint Chair (Senator Day): Counsel is recommending that they follow up. Is everybody in agreement that we should do that?

Hon. Members: Agreed.

The Joint Chair (Senator Day): There is consensus.

Item No. 9.

SOR/2008-124 — BOWIE SEAMOUNT MARINE PROTECTED AREA REGULATIONS

(For text of documents, see Appendix I, p. 31I:1. )

Ms. Becklumb: The Bowie Seamount is a submarine volcano, which is about 189 kilometres west of Haida Gwaii, off the coast of British Columbia. It became a marine protected area, under the Oceans Act, back in 2008.

Counsel originally raised four issues with the regulations, and three of the issues were addressed by amendments made in 2011 and 2017. So there’s just one issue that remains.

That issue relates to zoning of the MPA and regulating which activities are allowed in different zones. The Oceans Act authorizes zoning of an MPA through regulations, but the Bowie Seamount regulations don’t establish any zones within this MPA. They have set out certain prohibitions that apply throughout the MPA, and they provide exemptions from these prohibitions, which also apply throughout the MPA. So, essentially, it’s just one big zone. That would be fine except the last version of the MPA’s draft management plan that we saw purports to divide the MPA into three zones, with varying levels of protection.

The problem is that a management plan is an administrative document, and unlike the regulations, a management plan does not have the weight of law. So the management plan can’t be used to prohibit certain activities in a zone of the MPA if those activities are otherwise allowed under the regulations, nor can it provide exemptions from prohibitions that, under the regulations, apply across the entire MPA.

This issue was communicated to the department back in 2008, and in 2012 counsel had occasion to meet with the department to discuss it.

Last year, in February 2017, the department informed the committee that it had removed references to the zones from its draft management plan. We haven’t seen it yet. It appears that the management plan hasn’t been finalized yet. The department explained that it’s taking time because it’s being developed in cooperation with the council of the Haida Nation. We haven’t seen it to confirm that it has no zones in it.

At this time, we would propose to write to the department, ask for their timeline of finalizing it and request that we receive a copy once it’s finalized so that we can verify that it does not include zones.

The Joint Chair (Senator Day): Is that course of action acceptable?

Hon. Members: Agreed.

The Joint Chair (Senator Day): There is consensus on that. Thank you. We will look forward to the results of your following up.

Next on our agenda is Item 10, under the heading “Progress.”

SOR/2003-196 — NATURAL HEALTH PRODUCTS REGULATIONS

(For text of documents, see Appendix J, p. 31J:1. )

Ms. Becklumb: These regulations apply to natural health products, so that’s vitamins, minerals, probiotics, essential fatty acids, things like that.

Counsel raised 26 issues with the department in December 2006. The majority were requests for clarification, matters of drafting and discrepancies between the English and the French.

The department has provided satisfactory explanations for four issues, and they have promised to make amendments to address the other 22. Previously, the department was planning to roll all 22 amendments into its bigger project of modernizing the regulatory framework for self-care products. That means cosmetics, natural health products and non-prescription drugs.

The department has described its development of this new framework as a significant undertaking. They started consultations back in 2014. The last we heard, in a letter dated September 6, 2017, they’re still not in a position to provide an anticipated date of prepublication of the new regulations.

However, in that same letter the department informed the committee that it now intends to make 15 of the 22 promised amendments earlier. They’re going to put them into a MARs package, which they expect in early 2018.

For next steps, we could follow up with them and find out the progress of that MARs package, when it’s likely to be published, and also follow up on the framework to see how it’s coming and when it’s likely to be prepublished to address the other seven.

The Joint Chair (Senator Day): Is that course of action acceptable? It sounds like there has been some good discussion going on. Thank you. That’s what we’ll do.

Next is Item 11 under “Progress (?)”.

SOR/2002-301—INTERPROVINCIAL MOVEMENT OF HAZARDOUS WASTE REGULATIONS

SOR/97-109 — PCB WASTE EXPORT REGULATIONS, 1996

(For text of documents, see Appendix K, p. 31K:1.)

Ms. Borkowski-Parent: History repeats itself with Environment and Climate Change Canada unable to meet its projected time frames.

In this instance, the department advised in 2006 it would replace a set of regulations with new regulations concerning cross-border movement of hazardous waste. Since then, the completion date has been pushed back seven times for a total of five years. Since the file was last before the committee, the time frame has been pushed back from spring of 2017 to fall of 2018.

Every time the completion looks imminent, the committee takes the commitment on good faith and decides to monitor progress, and then at the last minute things are pushed back once again.

I won’t speculate as to whether this is done deliberately or because the department has been repeatedly unable to anticipate its time frames. Nevertheless, this is not an isolated incident. We have at least seven other files where time frames have been pushed back at least three times.

The Joint Chair (Senator Day): With the same department?

Ms. Borkowski-Parent: Yes. In fact, witnesses appeared before the committee in the spring of 2016 on that issue. The explanation provided was that Environment and Climate Change Canada is the largest regulator. That being said, Health Canada is the largest regulator and it’s also the gold standard as far as timely completion of their initiatives.

This file also serves as a cautionary tale against bundling things into big regulatory projects rather than immediately effecting changes requested by the committee.

At this point, either the committee exercises patience once more and sees whether prepublication does indeed happen in the fall, or building on Dr. Neudorf’s testimony in December, the committee can table a report in Parliament regarding the department’s repeated tardiness.

I would also mention that the committee could benefit from reasserting a general deadline on big regulatory initiatives for future cases of this sort. For example, the committee will no longer accept commitments to remake regulations or modernize regulations in lieu of regulatory amendments unless these new regulations are expected to come into force in the next two years.

Mr. Di Iorio: There comes a point where the word “patience” loses its meaning and then it’s replaced by other words that would not be flattering to this committee. If we lined up the usual suspects or requested that the usual suspects be lined up, they would be by the wall by now.

I think that we have to look at more concrete measures in addressing the way it is being done. It doesn’t abide by anything we see as normal best practices that should be complied with in government.

Mr. Diotte: What are the real-life consequences for these delays? Does it mean that hazardous waste is not moving or is moving illegally?

Ms. Borkowski-Parent: It varies with each regulation. I would have to go back as to the specific nature of the amendments. It does not block. There are regulations in place, and despite their deficiencies, they’re being administered, although, if I remember correctly on PCBs, there is no cross-border movement.

Mr. Diotte: Is that a good thing or a bad thing? That means they can’t be moved somewhere they can be destroyed. I guess that’s what we get bogged down in. It’s a lot of legalese, but there are real-life consequences by not getting these things set.

Ms. Borkowski-Parent: Indeed.

Mr. Diotte: I agree with Mr. Di Iorio that we have to do something very strong in this case because it’s been unacceptably long.

Ms. Borkowski-Parent: In December, Dr. Neudorf mentioned the case of the U.K., where there are more reports tabled on that kind of issue in Parliament and it’s a bit of a naming and shaming exercise and that it has sometimes proven useful. So that’s the alternative I can provide at this point.

Mr. Dusseault: That was exactly my point, to move that we draft a report to expose or name and shame what is happening in this case. So we would be ready at some point later on to table a report to expose the situation and expect that things will move faster after that.

Mr. Oliver: I don’t disagree with doing something. I’m just trying to understand the different consequences.

So this report, we’ve never done one before, I don’t think. This would be the first name-and-shame. How does it get filed? How does it get read? Who reads it? What is the process of this report?

Ms. Borkowski-Parent: Last year, the committee tabled two subject-matter reports. They weren’t specifically on a department, but one was on incorporation by reference and marginal notes. I would see it as the same exercise, which is to table a report on an issue, asking for a government response to that issue to the Minister of Environment.

Mr. Oliver: The other option is to ask them to come and we could interview them as to why they’re not proceeding, or we have a disallowance notice. Those are the other options. Drafting a letter, as you propose, is sort of a kick in the pants before we would have them in for an interview, or should we do an interview first and see what the issues are?

Ms. Borkowski-Parent: That is up to the committee. They did come here in the spring of 2016.

Mr. Oliver: That was before my time.

Ms. Borkowski-Parent: It has not yielded anything on the specific issue of tardiness. Whether the committee wants to see them before or after is up to the committee.

Mr. Oliver: I have no problem with the letter going out.

The Joint Chair (Senator Day): Counsel, I note in the letter of November 14 of last year that they indicated they were hoping for prepublication in the spring of this year, but then giving us a warning that it may be the fall of this year. Should we get an answer as to what’s happening before we take the other step?

Ms. Borkowski-Parent: Once again, that is up to the committee, but it is a repeated pattern of it looks close, the committee is patient and it gets pushed back again.

Senator Gold: Counsel, you’ve been very deferential to the committee. Am I wrong in reading a tremendous amount of frustration in your presentation? Are you prepared to give us a recommendation from your point of view as to what we should do?

Ms. Borkowski-Parent: I would recommend tabling a report. The committee is exploring ways of moving things forward. In December we have heard Dr. Neudorf’s experience in other jurisdictions. Based on that, I think it’s worth a try.

The Joint Chair (Senator Day): Could we have a motion to that effect?

Mr. Dusseault: I did move it just a couple of minutes ago.

The Joint Chair (Senator Day): Thank you.

Are we all in favour of taking that action? Contrary-minded, if any? Motion carried.

Counsel will be interested to follow this new procedure.

Next is Items 12 and 13 on our agenda.

SOR/2009-90 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PARTS I, VI AND VII)

(For text of documents, see Appendix L, p. 31L:1)

SOR/2009-152 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PARTS I AND VII)

(For text of documents, see Appendix M, p. 31M:1. )

Ms. Borkowski-Parent: I will give general background on Items 12 and 13, and the Canadian Aviation Regulations generally.

There are roughly 20 files that deal with the Canadian Aviation Regulations, covering 183 issues that go from drafting defects to problems of illegal subdelegation. Some five years ago, it became impossible to obtain any response whatsoever on any of the CAR files, that being the Canadian Aviation Regulations. The committee then mandated counsel to meet with the department to move this quagmire along, which I did semi-annually for three years.

A large portion of the issues raised by the committee dealt with the conformity with administrative manuals. Those issues are derived from the implementation of the safety management system in the Canadian regulations. In other words, rather than having the regulations dictate certain requirements, they imposed a duty on the certificate holder to develop and implement procedures in their own administrative documents, the content of which is largely left to their discretion. Whoever contravenes those administrative documents can be liable for a penal offence.

The department elected to undertake a special initiative to review that particular issue, except that three years later the committee was informed that the initiative did not proceed, contrary to what had been communicated. In light of that, meetings are no longer taking place and the committee has asked that the department provide the substantive answers it has failed to provide thus far.

That covers the status of the Canadian Aviation Regulations file more generally. There will be more of these files coming through this spring.

On SOR/2009-90, eight of the twelve issues have been resolved. On the remaining four, only part of one will be addressed by miscellaneous amendments regulations this spring. On this point, the committee can monitor.

Of note, there is the issue of subjective language used to describe a level 1 interference incident in the regulations. While the department provides some guidance in an advisory circular on the subject, that remains an administrative document that the committee does not consider to mitigate the deficiencies in the regulations.

Amending the advisory circular was supposed to be an interim step to clarify the overlap between level 1 and level 2 incidents. When Mr. Diotte referred earlier to the potential implications of that wording, that is one where if the same conduct falls both under a level 1 incident and level 2 incident, a level 2 incident has serious penal consequences whereas a level 1 does not. That is one instance where that clarification has serious consequences.

The last update provided last fall indicates that the remaining amendments, as well as as all other amendments that are considered substantive by the department, would take two to three years. If that is to be the case, Transport Canada will have taken a decade to resolve some of the issues.

It bears noting that one of the main purposes of delegating the power to make regulations is to be able to enact legal instruments in a more expeditious way. I should also point out that the Auditor General has, in its 2012 report on civil aviation, already mentioned that the civil aviation section has trouble addressing emerging safety issues a timely fashion, taking nearly a decade to address those new emerging safety concerns. I think they’re working on doing a better job for the safety risks, but it gives you an indication as to what happens to concerns that don’t fall into that category.

This might also be a candidate for the tabling of a report or for witnesses at this point.

The Joint Chair (Senator Day): Before I go to Mr. Diotte, could you just clarify a point? You say this is a forerunner of more of these files. Can you explain that?

Ms. Borkowski-Parent: Yes. If you look in your materials at the letter of September 12.

The Joint Chair (Senator Day): Under Item No. 12?

Ms. Borkowski-Parent: Yes, it’s in both items, but in the September 12 letter, you will see all these files. In the last table, those require substantive amendments that will take two to three years. Eight files fall under that category.

That last update does not address all the other issues that deal with the certification project, which I mentioned earlier did not go ahead. Unless it’s currently sitting on my desk and I haven’t seen it, we have not received substantive responses on these issues from the department. They will more than likely require substantive amendments in the future.

Mr. Diotte: Because the Auditor General has weighed in, it is obviously a very serious matter. I would say take the strongest possible action.

Senator Stewart Olsen: I would agree with that. It was very clear from the presentation that this is a matter of public safety, and I think it’s incumbent on us to do that.

The Joint Chair (Senator Day): Do we do this by report, a letter, or do we try to bring somebody in here?

Ms. Borkowski-Parent: Or witnesses.

The Joint Chair (Mr. Albrecht): Mr. Diotte, you suggested tabling a report.

Mr. Diotte: I’ll leave it to your opinion. In your opinion, what would be the most effective, because you’ve been here longer than I have?

Ms. Borkowski-Parent: That’s an excellent question. Unlike Environment which appeared only the issue of tardiness already, Transport has not, so that’s the mitigating factor to possibly have witnesses first, or we could make a joint report on the Environment and Transport aviation files.

Mr. Diotte: I would probably opt for witnesses if you feel it’s going to bring a better result. Obviously, this has been going on far too long, and the Auditor General has weighed in. That would be my vote.

Senator Gold: Again, I just find it stunning that these things take so long.

Mr. Badawey: Welcome to our world.

Senator Gold: I’m happy that you haver not become numb to this over time. I take your point, counsel, about the theory behind using regulations rather than legislation. We hear it all the time.

I would agree that it’s important to bring people in and hold their feet to the fire, but might I suggest that we advise them that we are in the process of issuing a report, which we will table and publicize because of our concerns about the tardiness and the risk to public health. We want to give them an opportunity to provide input into that report. I would do it that way.

I may not be here, but I think we would like to know why in the world it takes years and years to do something. I come from the private sector, and you put your mind to something. If it’s important enough, you just get it done.

Mr. Oliver: I don’t disagree with any of the comments. I’m just paying attention to our committee process and how we escalate so that we aren’t seen to be arbitrary or indifferent.

It has been 10 years, and I’m sure there is a massive amount of documentation I’m not seeing here, but normally after counsel-to-department communications, there’s normally a letter from the joint chairs to a minister. I don’t see that. Have we gone joint chairs-minister in this one?

I would suggest that the next step, before we do a blame-and-shame report, is to have witnesses come in and interview them, as Senator Gold recommended.

But have we done that joint chairs-to-minister letter?

Ms. Borkowski-Parent: When you refer to the tremendous amount of paperwork, it takes trolleys to bring all of this to my office. So I don’t have that answer. The committee decided to go a bit of an alternate route on that one, because we were at a stalemate. We couldn’t even get letters from the department five years ago, so the committee decided to have informal meetings with me and my predecessor, Peter, with the department twice a year where we could try to clarify issues and move things forward. The committee went that route instead.

It might have moved some of them forward, but the whole certification was, unfortunately, subpar.

Mr. Oliver: If the decision of the committee is to have them in for interviews before we do a report, it would be on all of the outstanding substantive issues, not just the one we’re dealing with right now, right?

Ms. Borkowski-Parent: Yes.

The Joint Chair (Senator Day): I think that’s an important point. If we really want to have a case to illustrate our frustration — all of these that are coming and years of years. Dealing with all the ones that are forthcoming is going to take the committee’s time for the next 10 years .

The Joint Chair (Mr. Albrecht): I’m just concerned about the possibility of doing the joint chairs-to-minister letter and then waiting another couple months for that, and then possibly having them in for an interview. I’m wondering if we could combine in the letter to the minister that we expect this to be dealt with by a certain date. Failing that, we want the minister to appear before the committee. We know that, generally, they send their officials; we understand that. But I think that would elevate the seriousness of the matter.

Mr. Shipley: It’s pretty unacceptable. We’re not talking about an environmental issue or something like that. This is our safety in transportation. Everybody talks about the significance of it. We are transporting hazardous goods. Do we have an option? Mr. Badawey talked what a real-life issue is here.

I agree with the senator. In terms of having these issues dealt with over a period of a decade, it’s just not acceptable.

Maybe what is happening is that they just get another letter so they just pass it off and say they will present on a date. Then we extend that date and nothing ever happens. Most offensive is when you can’t get in a letter in or a response back.

My conscience says to me that my patience is gone on these types of things. I suggest that we put timelines. If the chair wants to send the letter to the minister — but this is not about another letter back; this is about wanting them to come in as witnesses. This is a predetermination of what comes out of that, before a report. I think we need to be really clear about it.

Mr. Badawey: I wanted to touch on two comments, one being the comments made by Senator Gold as well as the issue itself.

Senator Gold is quite correct: This committee has been accustomed to seeing lapses in time with respect to the files we dealing with. Some go back decades, and it is frustrating. However, we haven’t been numb to it; actually, quite the opposite.

I have to say this with a great deal of confidence and, to some extent, authority from the time I’ve spent on this committee: This committee is not about politics. It’s not about the Senate or House of Commons, or Liberal, NDP or Conservative. This committee is all about ensuring that we put in place a level of accountability. We try to do that by passing on to those we’re communicating with, vis-à-vis the ministries, a very proactive, respectful — which we expect in return — disciplined business practice, as you would in the private sector, and as I did in the private sector.

That said, yes, we are trying to get the job done, but we’re also trying to get the job caught up in most cases. We’re trying to prompt the people we’re dealing and communicating with about those expectations, again taking into consideration we understand where they’re coming from, too, and have that respect. We also understand they’re quite busy themselves.

However, it’s not like this is a new item; it’s been around for quite some time. The reason is obviously positive outcomes. The intention on every regulation or issue we deal with is to ensure that the basis for that becomes a positive outcome.

With all that said, yes, it is frustrating, but under the leadership of a member of Parliament and a senator, we’re trying to ensure we’re re-culturing the thought processes of ministers. Yes, we do that with different instruments vis-à-vis disallowance, reports, witnesses and letters, and we’ve stepped it up. I think we are sending a message.

Having said all that, we still have to be respectful. We still have to be stern and disciplined, but at the same time, respectful. Someone said earlier that we’re all in this together. It’s not us against them; we’re all in this together.

Having that culture and that respect — and with that, a little bit of sternness toward moving the yardsticks down the field. I may be too optimistic, but I’m hoping that we all get it so that a lot of these files, especially those that are 15 to 25 years old, finally start getting cleaned up.

I would recommend, as Mr. Oliver stated and as someone else — I believe Mr. Albrecht stated — we can do both in one letter. In a letter to the minister, we can express our concerns with this specific issue of public safety and bring his or her attention to it, as well as invite them and staff to a meeting so that we can then express our concerns and the reasons we think this should be resolved.

From there, I would expect that the respect that we pass on to them by enduring that process will be returned with positive outcomes.

The Joint Chair (Senator Day): Very well said, and I will take that as a comment on Mr. Oliver’s motion that we invite the minister to come here for a discussion about this matter, which we find to be very troubling.

On motion as well, Mr. Di Iorio?

Mr. Di Iorio: I’m not sure I understood it as a motion, but anyway, I’ll comment.

I share my colleagues’ views. In particular, I’m sensitive to Mr. Oliver’s concern about not being arbitrary. However, I would add this: I don’t believe we need a matrix; as a committee, we don’t need a matrix. We need a compass. I’m very comfortable with the compass we have here collectively. I always sense concerns from my colleagues about not being arbitrary, and that satisfies me that we do have a compass.

I believe we should have a course of action. Of tremendous concern is the size of the file, which counsel has referred to, and the time.

If I had to guess at this point, I don’t think the department is going to do it. I’m being very open with everyone. Because of that, I think we should set a course of action that would include three steps: the letter, come and testify, and we’re preparing a report.

The department will be informed that they have to comply with the three steps. If at any point they bring it in, we put an end to the process. Otherwise, we’re clear and open; this is what we’re going to do and we set timelines. We start driving, and we start pushing on the gas pedal or — I drive an electric car — the accelerator.

We should do this because otherwise we’re just going to drag it on. I can’t believe somebody intends to do something when they wait so long to do it.

Senator Stewart Olsen: That would be my point also.

The Joint Chair (Senator Day): Mr. Oliver, in your comments earlier, did you contemplate specifically stating that we are in the process of preparing a report and that their attendance here and the exchange of correspondence is leading to that report?

Mr. Oliver: No, I hadn’t actually gone to the thought of a report. To be honest with you, I think we need to hear what they have to say about why they can’t get this work done and why they can’t move the regulations through like other departments are able to do, at least give them the courtesy of hearing that and having an honest conversation with them before we move to drafting a blame-and-shame report.

But I’m not hung up on it. It is outrageous that it has been a decade. I heard that there has already been — was it the Auditor General? Sorry, who was it that reported on their practice?

Ms. Borkowski-Parent: On their practice on addressing safety.

Mr. Oliver: Regardless, they’re slow. I think those are important things that we’ve heard today.

The Joint Chair (Senator Day): Mr. Di Iorio, the final step of the report, rather than threatening a report and saying we’re in the process of doing that and getting evidence for it, could we make reference to the fact that that is a possibility down the line if we’re not satisfied with the earlier steps?

Mr. Di Iorio: My view is that 10 years — and I respect the work that was done by my predecessors on this committee. I’m sure that they were as alert as we are. Therefore, another opportunity, another repeat, somebody has got to go over it. I think they have to be clearly informed. If we are going to set a highwater threshold, 10 years is going to be one.

The Joint Chair (Senator Day): Colleagues, do we tell the minister we’re in the process of preparing a report?

Senator Gold: Contemplating a report. There are softer ways.

Mr. Scarpaleggia: I like the idea of contemplating a report. It leaves our options open, but it sends a clear signal that we’re about to take that step.

The Joint Chair (Senator Day): Mr. Di Iorio, do you accept that?

Mr. Di Iorio: No.

The Joint Chair (Senator Day): No. Ten years is ten years.

Mr. Di Iorio: I don’t want to be contemplating; I want them to act. I think 10 years, as I stated a few seconds ago, is the highwater mark. Come on, guys. What more do you need? Do it. Get on with it. They accept to do this job for a reason, so please do it. “Clean up your act and move on. Life is good.”

Mr. Diotte: Maybe the way we get around it is just semantics, saying we are about to embark on a report, and that leaves it open. Truly, it leaves it open. If they came here and said, “Look, we’ve got it all straightened out now,” okay, well, maybe we can reconsider.

Mr. Badawey: I think we’re all saying the same thing here and with all the right intentions.

May I suggest, as Mr. Oliver stated, bringing the witnesses out? We can always communicate then and there, especially based on what we hear from their testimony, that it will be our intention to move forward with the report.

I have to say that the problem I’m having with moving forward with the report is twofold. One is that the Auditor General has already made comments, and you would expect that their feet are already in the fire, so to speak. Second, they’re going to have a second entity, us, then saying to them pretty well the same thing, “Listen, guys, let’s go, or else we’re going to write that report.”

I agree with what Nicola is saying; I think 10 years is 10 years. I’m more prone to leaning toward that direction. But as I said earlier, let’s show a bit of respect here. I know it’s hard because it has been 10 years, but let’s bite the bullet here and listen to what they have to say. Then, of course, when we are meeting with them as witnesses, we can always go as far as what Mr. Di Iorio is saying, “Listen, this is unacceptable. We’re moving forward with the report.”

Mr. Diotte: I hear what everybody is saying, but I think they are showing a lack of respect for this committee and the Auditor General. I think we have to take strong measures.

Ms. Borkowski-Parent: As far as wording is concerned, we could invite them to appear before the committee in view of considering the committee’s next steps or future options. There is no mention of a report.

Mr. Scarpaleggia: Why don’t we say, “We are seriously contemplating issuing a report and will proceed with one if you do not appear by a certain date”?

The Joint Chair (Senator Day): And provide satisfactory explanation as to why —

Mr. Scarpaleggia: But they have to appear by a certain date.

Mr. Shipley: If we don’t mention something about the next step, it will be the same as all the letters that have gone before. Somewhere in it, you can say, “Prior to the consideration of a report, we want to give you the opportunity to come in as witnesses to this committee to lay out the steps forward.”

I understand, Vance, your talk about how we want to be respectful. It works both ways. I’m not talking about the minister. I’m talking about the bureaucracy here that is running the show. They need to be held accountable.

We had to do this with the Auditor General a few years ago. He would say he would get back to us, and never changed anything. So we started putting dates on it: “This is the time, and you come back and report.” They had to be held accountable because the letters just kept rolling out to them, to whoever that was. Again, that was not about partisanship. It was about dealing with the issues of governance.

I think they need to know that we are in the process of considering a report. I would just say, “prior to the consideration of a report,” but counsel can word that in the best way.

Mr. Di Iorio: Wording that indicates that they are at the end of the runway. We could say, “failing which, the committee will proceed with a report.” Then they know what they’re facing.

The Joint Chair (Senator Day): I think there is a consensus building here.

Do you have the spirit of this? The joint chairs will have a chance to review this before the final letter goes out. Is that satisfactory?

Hon. Members: Agreed.

The Joint Chair (Senator Day): Thank you.

Does this deal with Item 13 as well?

Ms. Borkowski-Parent: Not specifically. There is one issue on Item 13. The English version uses a term that refers to individuals. The other version, the French version, uses a term that refers to corporate entities. Clearly, they’re not equivalent.

Seven years after the issue was raised, the department also indicates that it is part of its substantive amendments expected two or three years down the road.

No pun intended here, but this is not rocket science. If corporate entities are the intended target of the provision, then corporate names should be used, as it is in the Canada Business Corporations Act. If the department is targeting individuals and corporations, you can’t use “dénominations sociales” in French. You use “nom.”

The only explanation I have for why it’s taking so long is that they have trouble figuring out who they are targeting.

On that specific issue, I would recommend that the committee insists that the discrepancy be fixed by Miscellaneous Amendments Regulations. It is a French-English discrepancy. It falls within those criteria.

I am unclear and no explanation has been provided as to why it couldn’t have gone down that path rather than be bundled in the substantive amendments that will take two or three more years. So I would recommend that.

Mr. Badawey: I always admire your passion for every issue and every report.

I so move, Mr. Chair.

The Joint Chair (Senator Day): All those in favour?

The Joint Chair (Mr. Albrecht): Could we insist on a date?

Mr. Badawey: Always.

The Joint Chair (Mr. Albrecht): By September?

Ms. Borkowski-Parent: They have one in the works for spring.

The Joint Chair (Senator Day): Let’s get on board.

Ms. Borkowski-Parent: That might be difficult. Year end?

Mr. Badawey: Year end.

The Joint Chair (Senator Day): If we have the minister in here, we want to keep in mind that there are other issues besides Item 12, like Item 13. They’re all related to the same department. They’re all dragging on for years and years.

Is it agreed that we’ll take that approach?

Hon. Members: Agreed.

The Joint Chair (Senator Day): Thank you.

SOR/2007-113 — REGULATIONS AMENDING THE LEAMY LAKE NAVIGATION CHANNEL REGULATIONS

(For text of documents, see Appendix N, p. 31N:1.)

SOR/2017-67 — MARKETING AUTHORIZATION AMENDING THE MARKETING AUTHORIZATION FOR FOOD ADDITIVES WITH OTHER GENERALLY ACCEPTED USES

(For text of documents, see Appendix O, p. 31O:1.)

SOR/2017-94 — REGULATIONS AMENDING AND REPEALING CERTAIN CANADIAN FOOD INSPECTION AGENCY REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix P, p. 31P:1.)

Mr. Badawey: If I move that we deal the rest of the agenda items together. I think they are pretty straightforward.

The Joint Chair (Senator Day): With respect to Items 14, 15 and 16 under “Action Taken,” is there anything you need to bring to our attention ?

Ms. Borkowski-Parent: On Item 14, the correction was made in the Canada Gazette last week, so that’s good.

And there are 21 files under “Statutory Instruments Without Comment.” Those are files that have been examined by counsel and found to meet the committee’s 13 criteria.

The Joint Chair (Senator Day): We thank you for that, and I’m sure there is no objection to the motion by Mr. Badawey.

SI/2017-45 — ORDER DESIGNATING THE HONOURABLE KENT HEHR TO BE “THE MINISTER” FOR THE PURPOSES OF THE ACT

SI/2017-46 — ORDER DESIGNATING THE HONOURABLE GINETTE C. PETITPAS AS THE MINISTER FOR THE PURPOSES OF THE ACT IN RESPECT OF PHYSICAL ACTIVITY AND DESIGNATING THE HONOURABLE KENT HEHR AS THE MINISTER FOR THE PURPOSES OF THE ACT IN RESPECT OF SPORT

SOR/2016-198 — REGULATIONS AMENDING THE CANADA STUDENT FINANCIAL ASSISTANCE REGULATIONS

SOR/2016-199 — REGULATIONS AMENDING THE CANADA STUDENT FINANCIAL ASSISTANCE REGULATIONS AND THE APPRENTICE LOANS REGULATIONS

SOR/2016-241 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS

SOR/2017-2 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (BIRDTAIL SIOUX FIRST NATION)

SOR/2017-3 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (BIRDTAIL SIOUX FIRST NATION)

SOR/2017-4 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (TLA-O-QUI-AHT FIRST NATIONS)

SOR/2017-5 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (TLA-O-QUI-AHT FIRST NATIONS)

SOR/2017-7 — ORDER 2017-87-01-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2017-39 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS

SOR/2017-41 — REGULATIONS AMENDING THE ATLANTIC PILOTAGE TARIFF REGULATIONS, 1996

SOR/2017-42 — REGULATIONS AMENDING THE CANADIAN FORCES MEMBERS AND VETERANS RE-ESTABLISHMENT AND COMPENSATION REGULATIONS

SOR/2017-48 — REGULATIONS AMENDING THE GARNISHMENT AND ATTACHMENT REGULATIONS

SOR/2017-62 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (SYRIA) REGULATIONS

SOR/2017-69 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (SYRIA) REGULATIONS

SOR/2017-93 — ORDER AMENDING THE ORDER FIXING THE DAY FOR THE PURPOSES OF SECTIONS 131, 132, 134, 136 AND 137 OF THE ECONOMIC ACTION PLAN 2014 ACT, NO. 1

SOR/2017-154 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS

SOR/2017-158 — ORDER 2017-87-06-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2017-169 — REGULATIONS AMENDING THE PEST CONTROL PRODUCTS REGULATIONS (TEST DATA PROTECTION)

SOR/2017-211 — REGULATIONS AMENDING THE REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS

The Joint Chair (Senator Day): The list of Statutory Instruments Without Comment are other files that counsel has gone through and found nothing that needed action on. Thank you for doing that for us as well.

The next meeting is March 22. Thank you.

(The committee adjourned.)