---

Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue No. 52 - Evidence - June 6, 2019

---

OTTAWA, Thursday, June 6, 2019

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

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

APPEARANCE OF WITNESSES FROM INNOVATION, SCIENCE AND ECONOMIC DEVELOPMENT CANADA

SOR/2015-169 — REGULATIONS AMENDING THE PATENTED MEDICINES (NOTICE OF COMPLIANCE) REGULATIONS

SOR/2017-166 — REGULATIONS AMENDING THE PATENTED MEDICINES (NOTICE OF COMPLIANCE) REGULATIONS, 2017

(For text of documents, see Appendix A, p. 52A:1.)

[English]

The Joint Chair (Mr. Albrecht): I’d like to welcome everyone to this meeting today. Committee members, we have the appearance of witnesses from Innovation, Science and Economic Development Canada, Mr. Mark Schaan, Ms. Erin Campbell and Ms. Erica Pashley. Mr. Schaan will lead us off with an opening statement.

Mark Schaan, Director General, Marketplace Framework Policy Branch, Innovation, Science and Economic Development Canada: Thank you for having me back once again. I appreciate this opportunity to discuss matters related to the Patented Medicines (Notice of Compliance). My aim in appearing before you today is to provide insight into three specific issues raised by the committee in recent correspondence and during its November 1, 2018 meeting.

The first relates to the departmental process at Innovation Science and Economic Development for processing and responding to correspondence.

[Translation]

The second issue, which is more technical in nature, concerns a transitional provision in the 2015 amendments to the regulations. There appears to be a difference of opinion between the department and counsel for the committee as to whether that provision is impermissibly retroactive or retrospective.

Finally, the third is with regard to recent amendments to the regulations introduced as part of Canada’s implementation of the Comprehensive Economic and Trade Agreement with the European Union, or CETA.

[English]

Before I continue, I would like to note that I’m speaking today in my capacity as the Director General of the Marketplace Framework Policy Branch at Innovation, Science and Economic Development Canada. I am not a lawyer. I understand that these regulations have generated an immense and technical body of case law that has bearing on the issues to be discussed today. I will leave the legal analysis to the experts. If committee members would like a more technical conversation, I would be happy to arrange another visit to include legal counsel in a setting where we could more freely delve into a legal discussion.

[Translation]

The Patented Medicines (Notice of Compliance) Regulations are one of the department’s key marketplace framework laws. The minister and his staff are keenly aware of their importance to the life sciences industry and to the efficacy of Canada’s health policy. These regulations were most recently central to the negotiations of trade agreements with the European Union — CETA — and the United States and Mexico.

[English]

These regulations are extremely contentious due to the large sums of money potentially at issue in patent litigation. The market value of a single drug at issue can be as high as $1 billion per year. The industry scrutinizes every word of the regulations that could give them an advantage in litigation. As stated in a leading patent text, “almost every provision of the regulations has been the subject of challenge in the courts.” The Supreme Court of Canada has heard no less than six cases addressing the proper application and interpretation of the regulations since their introduction in 1998.

Given this context, departmental officials work closely with the minister and his office whenever issues arise.

[Translation]

This includes issues raised in ministerial correspondence. I appreciate the committee’s concern that senior departmental officials were tasked with responding to correspondence directed to the minister. However, I am here to assure committee members that this does not mean the minister and his staff are not aware of the issues raised by this committee in carrying out its important work.

In this particular instance, the assistant deputy minister was asked to reply on the minister’s behalf so that the response could be given the careful and detailed consideration it required. Departmental officials were specifically asked to work closely with legal experts given the implications raised by the committee’s most recent letters.

I will now move to the second issue: The transitional provision included in the 2015 amendments to the regulations.

To provide a little context to my comments, I will provide a brief background on the regulations.

[English]

The government’s pharmaceutical patent policy seeks to balance effective patent enforcement over new and innovative drugs with the timely market entry of their lower-priced generic competitors. The regulations are key to maintaining this balance. They create a patent-linkage regime, tying Health Canada’s ability to approve the market entry of a generic drug to the patent status of the equivalent innovative drug.

Central to this system is the Patent Register, maintained by the Minister of Health. Innovative drug manufacturers submit patents to the minister for listing on the register in accordance with the eligibility rules set out in the regulations. The patents listed on the register must be addressed by the generic manufacturer before they will be granted a marketing authorization.

Given the rights and obligations that arise from a patent being listed on the register, ensuring the Minister of Health is able to efficiently maintain the register is essential to the effective operation of the entire regime.

We regulate in the way we do so that the patent eligibility criteria keeps pace with quickly evolving health technologies and the patenting strategies of innovative drug companies. It is a complex area requiring difficult assessments. Our policy objective is to ensure that all the right patents and only the right patents appear on the register.

[Translation]

I will now turn to the 2015 amendments. These amendments were made in response to two Federal Court decisions that reinterpreted the patent listing requirements of the regulations in a manner inconsistent with the original policy intent of the regulations. As a result, numerous drugs were at risk of losing protection under the regulations. This was an urgent public policy problem that needed to be addressed in a timely manner, taking into account issues of fairness to innovators, generic manufacturers and the public.

The government moved quickly to amend the regulations in order to reduce market uncertainty, prevent disruptive changes to Health Canada’s administration of the patent register and, most importantly, prevent patent infringement by generic manufacturers seeking to take advantage of the court’s interpretation.

[English]

The intent of the transitional provision, which was included in the prepublished regulations and subject to stakeholder comments, was that the amendments would be applied in court applications brought on or after the date of prepublication and that were still pending when the amendments came into force. At the time, we and our legal advisers were well aware of the concerns surrounding retroactivity and retrospectivity. The structure and wording of the transitional provision went through extensive consultations with government experts at ISED, Health Canada and the Department of Justice — experts in policy, law, and legislative and regulatory drafting. This was not an instance where, in the words of the committee’s counsel, the provision was drafted with an attempt to conceal its retrospective nature. Our drafting processes included an extensive review of the laws on the temporal application of regulations. We considered the Interpretation Act, common-law rules and academic texts.

We note that it has been recognized by the courts that there is confusion and inconsistent use of terminology regarding the use of the terms “retroactive” and “retrospective.” This lack of clarity in the case law may have led us to where we are today, with ISED and the committee taking different positions on the validity of the 2015 transitional.

It is our position that certain types of regulatory amendments may be characterized by courts as retrospective, which are nevertheless presumptively allowable, specifically those that attach new legal consequences to facts that have not yet fully occurred when the legislation comes into force. In this case, amendments may apply immediately, including to ongoing or pending legal proceedings.

In contrast, where a regulation would impose new or additional consequences to concluded matters or otherwise interfere with vested rights, the provision is presumptively invalid.

Our position relies on a body of jurisprudence dealing specifically with the validity of regulations made under subsection 55.2(4) of the Patent Act in terms of their temporal application to pending proceedings and specifically their effect on pending drug approvals, the issue before us today.

The department’s position finds support in cases not cited by counsel for the committee. These cases establish the following: Any amendments to the patent eligibility criteria apply immediately upon coming into force to patents already listed on the register; interested parties do not have vested rights with respect to the application of amended eligibility rules to patents already on the register; and an applicant does not have accrued or accruing rights to the marketing authorization that would prevent the immediate application of the amended regulations.

I would be happy to provide these cases or their citations to the committee after this meeting. Alternatively, if the committee would prefer, we would welcome the opportunity to meet more informally in a setting where we can openly discuss our interpretation of the relevant jurisprudence.

[Translation]

I would like to talk about the most recent amendments to the regulations.

[English]

The Joint Chair (Mr. Albrecht): We’ll pause there. That takes care of our first item under No. 1 on our agenda. Rather than continue with your opening statement on the second part, I wonder if we could deal with the first section so we’re not going back and forth between the two.

Do I have agreement on that? The first part of Item No. 1 on your agenda deals with the part Mr. Schaan just summarized for us, so I’m going to question and comments on that first part. Hopefully we can deal with that and move on to the second section.

Mr. Miller: An underlying concern I have here is with Mr. Schaan’s first comments; basically, “If you don’t like this, I can get you another meeting with lawyers.” Then his last comments just before you intervened were basically, “We’ll meet in another setting.”

Well, why the hell are we here today? Why would we have to have more and more meetings?

As far as I’m concerned, you should have known that the committee wasn’t going to be happy. You should have gone ahead and sought that legal opinion, or whatever it was that you were referring to. It’s unacceptable. This is the kind of crap that upsets politicians and legislators like myself, and upsets the public. It shouldn’t happen. That’s why nothing ever gets done.

Mr. Shields: Well, my colleague has started right where I would have, and that’s great.

When you say it isn’t a lot, that’s the best legal brief I’ve seen in a long time. So when you say you’re not a lawyer, either a lawyer wrote it or that’s a hell of a legal brief done by a non‑lawyer. It is a legal brief. I mean, any judge would say, “That’s a great legal brief.”

As Mr. Miller said, when you said, “We want to have another meeting with a lawyer,” well, bring the lawyer with you. You know they’re there. Bring him with you and have him sitting there. It’s ridiculous to say we’ll have another meeting.

On the last one, well, we don’t agree with you. Let’s have another meeting where we tell you what we really think offline. Great, another meeting offline. Get real. Get something done.

[Translation]

Mr. Dusseault: I’m going to change the tone a bit and start by thanking you for being here and for providing us with one of the most comprehensive responses we’ve received thus far from certain departments, as my fellow committee member Mr. Shields pointed out. In some cases, officials are even more vague and unclear when they appear before the committee. At the very least, today, you’ve provided a considerable amount of information and a fairly thorough explanation.

What I’d still like to know is whether, in your view, the interpretation meant that the regulations were retroactive or retrospective, or neither. How would you describe the regulation that is at issue today?

Mr. Schaan: Thank you for the question.

Let me say again that I’m not a lawyer. The government’s position on this regulation is that it is retrospective, but it’s permitted under the authority granted by the act.

[English]

Section 55.2(4) allows for this type of regulation to be made, and it can apply to patents already on the register and those listed, even though the cases are still pending. So that would be the position.

If I may just respond to the previous two comments, I outlined in my opening remarks that these issues are extremely sensitive. The interpretation of the case law is not something that we would put on the public record lightly, which is why this type of forum is very challenging for us to be able to have a conversation with legal counsel present, absent the possibility that those interpretations and those comments may be actually used in litigation, which, as we’ve noted, there is no shortage of litigation on this particular aspect, and hence the rationale for why I’ve provided the most complete answer I can.

But if we want to get into the minutiae of case law or go point‑by-point in terms of the interpretation of statutes, that’s not something I can do and not something my legal counsel can do in this forum.

[Translation]

Mr. Dusseault: As far as the retroactive or retrospective nature of the regulation goes, could you further explain to the committee why the department’s interpretation is different? In the decision in Gilead Sciences, the court held that it was retroactive, but the department’s position was that it was retrospective.

You touched on this in your opening statement, I believe, but could you give us a better explanation of the difference between the two, so that we know exactly how you define retrospective versus retroactive?

[English]

Mr. Schaan: Our intention was that the transitional provision applied but did not expressly govern which eligibility criteria would apply to an application or motion brought before prepublication. This allowed the court to either apply the amended recommendations or follow the Gilead and Viiv decisions.

In terms of a discussion between retroactive and retrospective, I’m not in a position to provide you a legal distinction between those two as the case law is pending in many cases and, in many cases, is not absolutely clear. I wouldn’t hazard to enter into that space, simply to indicate that the question before us, which is whether this regulation was allowable, is that we have a solid belief that the regulatory authority is sufficient to allow for the transitional that we provided.

[Translation]

Mr. Dusseault: Correct me if I’m wrong, but the court didn’t rule on the eligibility of the retroactive or retrospective regulation. It didn’t rule on whether the regulation was valid.

[English]

Mr. Schaan: There has been actual case law related to the validity of subsection 55.2(4) and its capacity to be able to alter information, hence why we feel comfortable in the transitional that we provided.

Again, I won’t be able to get into the specifics of the interpretation of given case law, but I’d be happy to provide additional case law following my testimony.

[Translation]

Mr. Dusseault: Thank you very much. I think that helps me better understand the issue before us, which is the validity of the regulations. Arguments exist on both sides — for and against the validity of the regulations — but I listened carefully to your explanation.

[English]

The Joint Chair (Mr. Albrecht): Just before Mr. Simms speaks, I want to try to bring together some of the comments made and give you perspective on our frustration. Our frustration lies on two levels, and one is the lack of response to our many communications back and forth.

It appeared to us that there was a dismissive attitude to the work of the committee. The work of this committee is important in ensuring that the regulations that are made are authorized by the legislation. If we, as a committee, can’t hold any department to account on those, it hampers our ability to do our job. It’s in that context that you’re sensing this level of frustration.

Had we known all these things that are still questionable now in your opening statement, and had our counsel had been able to work with you collaboratively prior to this meeting, we could have saved a lot of your time and our time. I’m just trying to put that in perspective.

Mr. Simms: At the risk of piling on, first of all, I hope a whole bunch of lawyers from your department, sir, tapped you on the back and said, “Good luck, go get them,” because you deserve a prize after this.

I want to start with some of the things you stated about how we got here, retrospective or not. In your statement, you said:

This was not an instance where, in the words of the committee’s counsel [us], the provision was drafted with an attempt to conceal its retrospective nature.

I understand the sensitivity of that part, but I hope that your department is cognizant of the fact that we have a job to do, too.

Let me start by asking you this. I’m going to wade into some territory that I suspect might be too sensitive, but it bears the risk to ask.

How do generics get an unfair advantage? You said in your statement that generics could possibly get an unfair advantage if we do not pursue subsection 55.2(4) through case law.

Mr. Schaan: The transitional provision was drafted in such a way as to respond to a Federal Court ruling that it reinterpreted the regulations in a way that had not been intended. That would have potentially allowed for a generic to enter into the market without having to clear additional patents where there very clearly could have been a case of infringement.

Essentially, the generic only needs to clear the patents that are listed on the register before it can enter into the marketplace. Once that notice of compliance has been granted, there’s already market share and other issues at play.

Because the Federal Court reinterpretation had essentially changed the mechanism for what would potentially be allowable on the Patent Register, or what would have been deemed to have been on the Patent Register, there is the possibility that had we not acted quickly, the generic potentially could have continued to enter into the market without having to clear the patents that clearly should have been there, which was the intent of the regulation.

Mr. Simms: This is the European free trade agreement. Is that what spurned this from the beginning?

Mr. Schaan: No, this is a separate issue. The 2017 regulations relate to CETA. This amendment is a Federal Court case that essentially required swift action of a policy nature to make a determination that was ultimately satisfied through the transitional provision.

Mr. Simms: You said:

. . . where a regulation would impose new or additional consequences to concluded matters or otherwise interfere with vested rights, the provision is presumptively invalid.

Can you explain that? This is the retrospective part, right? This is why you think you’re in good territory, when you do this retrospectively, whereas we have concerns otherwise.

Mr. Schaan: Under section 55.2(4), we have the capacity to put a bright line in place immediately that would have essentially appeared even before the prepublication date. We chose the prepublication date out of fairness, as the continued balancing within the system of trying to ensure we’re actually allowing for reasonableness and a continued goal of all of our public policy objectives.

Essentially, we’ve articulated that the Federal Court case opened up a window. That window potentially could have been exploited. To be able to close it, we chose a date that was essentially allowing it to be closed. We could have closed it immediately, which would have meant any case currently or pending. But what we chose to do was pick the prepublication date to give some notice, essentially. So it does apply to ongoing cases and to patents still on the register. Hence, the nature of the fact is that those matters aren’t concluded.

Mr. Simms: I’m starting to get the thrust of what you’re getting at here, why you want to do this. I don’t think it’s particularly nefarious. However, the responses by which we want to clear this up certainly seem evasive, but maybe not intentional. They seem evasive to us, but you’re saying the reason why it may seem evasive to us is because we could be opening ourselves up to possible legal action that puts us in a lot of trouble. What kind of trouble?

Mr. Schaan: The reason I’m being very careful with my words and being very careful not to wade into case law is exactly as I indicated at the outset of my statement, which is that these are exactly the types of statements that have been utilized in the many pharmaceutical litigation matters before the courts. I believe, if I’m right, they’re the second-largest user of the Federal Court.

So what I need to be very careful of is to indicate what our intent was and why I believed that we were absolutely within our legislative authority to regulate the transitional as we did, but also to recognize that getting into the specifics of the case law is not something I can do.

The intent was to regulate in a manner that fixed a problem that had been introduced by an interpretation of the regulations by the Federal Court in a way that we had not intended. We sought to do so with urgency, and we sought to do so in a way that was fair in that it balanced the interests, recognizing that there were still pending cases, but also that this was a matter of urgency.

Mr. Simms: Mr. Schaan, I have a final point. I hope this doesn’t put you in an unfair position, but I’m going to ask: If I was to propose an in camera meeting with lawyers, does that put us in a safe zone?

Mr. Schaan: My legal counsel would certainly be in a much more free position to discuss case law in an in camera setting.

Mr. Simms: I’ll leave it at that. Thank you.

Mr. Shields: Can we go in camera at this point?

The Joint Chair (Mr. Albrecht): The committee is the master of its own destiny. If the committee chooses to go in camera, I question the helpfulness of that without the lawyers here.

Mr. Shields: At this point, he doesn’t seem to be able to speak freely.

The Joint Chair (Mr. Albrecht): If you want to make a motion, Mr. Shields —

Mr. Shields: He suggested because we’re in an open session, he can’t speak clearly. If we go in camera, does he have the ability to speak more freely?

Mr. Schaan: I’m still not a lawyer, so I would still need the presence of my legal counsel to get into the minutiae and the questions raised. If you want to get into the nitty-gritty of the case law, lawyer to lawyer, I would suggest an in camera session when my legal counsel can be present would be a better alternative.

The Joint Chair (Mr. Albrecht): I’m not sure where that leaves us. I think the suggestion of a future in camera meeting may be one option.

It seems to me, after looking at all of this, that it contravened the spirit of the law, if not the letter. This committee’s primary responsibility is to ensure that the regulations that are implemented are authorized by law.

I’m wondering if it wouldn’t be a better solution in the long term to have a suggestion that you table amendments to the legislation that allow you to do what you just did, as a non‑lawyer as well.

Mr. Schaan: I want to reiterate that we feel very comfortable with our ability to have enacted the transitional in the way that we did. We do not believe it contravenes the law.

The Joint Chair (Mr. Albrecht): But we have two court cases that disagree with that and our legal counsel that disagrees with that. So I think we’re at an impasse.

Mr. Schaan: There are additional cases that are cited and additional cases that are not cited. With all due respect to counsel, this is where I think we could have a counsel-to-counsel discussion. That was the intent of our last letter, which was to say that we think there is potentially value in exchanging legal understandings between lawyers, but to do so in a setting where legal counsel can actually do that in a way that’s —

The Joint Chair (Mr. Albrecht): Committee members, I think we have two options, maybe more. One is to ask for a future in camera meeting with legal counsel, for people on both sides, or to ask their legal counsel to meet with our legal counsel and try to work this out and bring a solution back to us. Those are the two options.

Mr. Badawey: I would suggest that we do both, to have counsel and legal counsel meet and come to — I wouldn’t say conclusions; I’m not sure that’s going to happen — some dialogue and report back to committee.

The Joint Chair (Mr. Albrecht): So legal to legal.

Mr. Badawey: If I can finish, Mr. Chairman, report back to committee at an in camera session.

As well, Mr. Schaan, at that in camera meeting, if we can have legal counsel attend.

The Joint Chair (Mr. Albrecht): That’s a suggestion. Is someone ready to make a motion?

Mr. Miller: I’ll move that motion.

Further to what Mr. Badawey said, we’ve wasted the first 30 minutes of this meeting, got absolutely zero accomplished. So, reluctantly, I move that motion.

The Joint Chair (Mr. Albrecht): I see general agreement from committee members, unless someone wants to speak. We will vote on it.

All in favour? Opposed? That is carried.

We’ll move on to the second part of your opening statement, 2017 amendments, and that’s under the second item on our agenda. It is not under Item No. 2; it is still under Item No. 1 but halfway through the material.

Please proceed, Mr. Schaan.

[Translation]

Mr. Schaan: Now I’d like to turn to the most recent amendments to the regulations. Issues related to the fairness and efficiency of legal proceedings were raised in negotiations leading up to CETA. In agreeing to CETA, Canada committed to affording all litigants equivalent and effective rights of appeal under the linkage regime, tying market entry and patent status. The regulations were amended to replace summary prohibition applications with full actions resulting in final determinations of patent infringement and validity. Essentially, the legal proceedings under the regulations now mirror the approach for patent litigation under the Patent Act. However, what did not change was the automatic 24-month stay on market authorization issuance once a court action commences.

To resolve the time pressures of attempting to conclude a full court action in a 24-month period, unique features were built into the regulations to provide the court the flexibility to govern the timing of certain procedural steps and to provide parties with a certain amount of flexibility to govern their litigation practice as efficiently as possible.

[English]

In this regard, we are aware of the committee’s preference for avoiding the use of a qualifier to limit time, such as “without delay” or “as soon as feasible.” It is our position that we have valid policy objectives to support their use. Timing is a contentious issue under the regulations and, given that the circumstances of each case are different, it would be impossible to set out a single period described in a fixed number of units of time for all cases.

I will limit my comments here as I understand that the Department of Justice has already provided the committee with its position on this drafting convention.

With respect to section 3(2.3), the Minister of Health’s authority to audit the Patent Register, we remain of the view that it has not been demonstrated that the object and purpose of the regulations, the interests of regulated persons or the suitability of administration by Health Canada would be furthered by prescribing procedural requirements as suggested by the committee. The Minister of Health has been judicially reviewed numerous times on a refusal to list a patent, and no applicant in those cases has argued that the minister breached procedural fairness.

I would like to end this part by saying that the 2017 amendments represented a significant overhaul of the regulations, introducing a new process with complex procedural considerations. Over the course of three years, we consulted with government experts, lawyers representing the pharmaceutical industry, 13 sitting judges and six expert lawyers from the practising litigation bar. The framework we now have in the regulations is prescriptive where it can be and provides flexibility to the parties and the court where necessary.

[Translation]

Finally, I would like to thank the committee for the invitation to be here today.

[English]

As I noted earlier, I would welcome an opportunity to follow up with the committee on any issues that cannot be addressed here today. I thank you again for your continued work on this committee.

The Joint Chair (Mr. Albrecht): Thank you, Mr. Schaan.

I will turn to committee members for questions or comments on this last section regarding the 2017 regulations. A contentious issue is the wording “without delay” and “where possible.” We’ve had an explanation. Is that satisfactory? Do you still want to push that issue? No comments?

Mr. Simms: I’d like to go back to CETA once more. In agreeing to CETA, Canada committed to affording all litigants equivalent appeal under the linkage regime. Could you describe what you mean by the linkage regime?

Mr. Schaan: The linkage regime rests the ability for a generic to enter the market on the successful clearance of the patents on the register held by the innovators. Essentially, the two are linked. Generic entry is linked to the patent status or the clearance of the patents of the innovator. That’s a regime.

There are other regimes in other jurisdictions where the generic can enter at risk without any legal necessity to clear the patents on the register, but that’s not the case in Canada. We have a linkage regime that puts those two together.

Mr. Simms: Being involved in CETA over the years, not directly but in the debates, there was a lot of pressure from the European side on many things dealing with pharmaceuticals. Obviously, this would be one that was not in the news but nevertheless was a prominent way of changing the way we do business in the ministry of health. Would I be correct in saying that?

Mr. Schaan: The effective appeal right was one important ask of the Europeans. The particular mechanism of the regulatory changes we’ve made here is broader than that. Essentially, we have, as we’ve indicated, overhauled the regulatory process to move from what was a summary judgment process with the ability to consider infringement under the act, to a joint process that will essentially combine those two.

I’d say it was a pressure point, but the contentious issue was about how litigation flowed on the act and under the regulations and the appeal rights that were afforded to parties under those two systems in the past. What we’ve done is create one system where there’s an effective hearing, with finality, of the issue at play.

Mr. Simms: And this is a result of the time pressures involved?

Mr. Schaan: There are still time pressures involved. There are still 24 months to get through that summary hearing, but it addressed other important considerations. In the old process, there was still considerable risk for both parties given that you could pursue both under the regulations and then under the act. Second, there wasn’t the ability for a full hearing. For instance, there wasn’t the opportunity to have cross-examination of witnesses or live hearings under the summary judgment process, only under the infringement process.

Mr. Simms: Thank you.

The Joint Chair (Mr. Albrecht): I think another concern is the difference between things spelled out clearly in regulation and then the administrative documents or guidance documents. To me, it creates some uncertainty on the part of those who need to access and have that interpretation.

Why rely on administrative documents and guiding statements when it would be simple to place it in the regulations so that any of the users accessing these regulations would have no question as to where we stand?

Mr. Schaan: I’d say two things. One is that the particular matter is more germane to my colleagues at Health in terms of the maintenance of the register, but the position is that the flexibility afforded to them under the guidance is actually not so simple to put in regulation and does afford itself the flexibility of guidance.

While I’d love to suggest that anything would provide sufficient certainty to persons in the pharmaceutical space, I think the reality is that every one of these has been adjudicated and litigated. As we indicated, procedural fairness is not an issue that has actually been raised in this particular issue.

The Joint Chair (Mr. Albrecht): I’m going to ask our counsel to weigh in.

Shawn Abel, Counsel to the Committee: I have a few questions following up on what you said.

When you say “flexibility” in speaking of procedural rights described in the RIAS and in the guidance document, do you mean that the rights described there won’t always be followed?

Mr. Schaan: No, I mean that the adjudication of those rights needs to be sufficiently agile to be able to respond to new and emerging situations.

Mr. Abel: Could you give an example?

Mr. Schaan: On the guidance of the listing on the Patent Register, I think that’s a better question for my colleagues from Health, but I would suggest the guidance there would need to relate to new factors or new medications, new elements of what might constitute effectiveness or other things in terms of the formulations.

Mr. Abel: That’s not the committee’s concern in this case. Specifically, when the minister, of their own volition, chooses to delete a patent or a certificate from the register, what is said in the RIAS and guidance document is that a person subject to that deletion will be given notice and a right to make representations. Is that not always the case?

Erica Pashley, Senior Policy Analyst, Marketplace Framework Policy Branch, Patent Policy Directorate, Innovation, Science and Economic Development Canada: As Mark mentioned, it’s more of Health Canada’s process, but these are sophisticated users of the regime. I’ve been told, to our knowledge, over the 25 years that Health Canada has been administering the register there’s never been a challenge to the lack of procedural fairness.

Mr. Abel: I don’t think you’re answering my question.

Ms. Pashley: I’m sorry.

Mr. Abel: It’s a simple yes or no question. Are notice and a right to provide representation always provided as set out in the RIAS?

Ms. Pashley: I can’t say with 100 per cent certainty, but I imagine so. Minus the procedure set out in the regulations, there are rules of procedural fairness and administrative law that must be followed. It’s always provided.

Mr. Abel: If it’s always provided, what would be the problem or harm in putting it in the regulations?

Ms. Pashley: Do you mean a specific timeline, like “You have 30 days to reply to this”; is that what you’re —

Mr. Abel: No. What the department has decided is that the appropriate procedural rights have already been written down. It’s in the administrative document; it’s very simple. It’s a right to respond and a notice that the deletion will happen. Can that not be put in the regulations?

Mr. Schaan: I think the question is potentially one of a policy nature. Should it or is it the will of Parliament for it to be so and of the cabinet for it to be so? If the question is can it not live in guidance, I think our answer is it can live in guidance.

Mr. Abel: So if a policy decision has been taken that these rights will be provided, then it comes back to the first question I asked: Are these rights always provided? Are they, in fact, rights?

Mr. Schaan: And I believe we’ve indicated that, to our understanding, yes. As I indicated, this is more a question of my colleagues from the Department of Health.

Mr. Abel: All right. I have one other question.

The procedures set out in the RIAS and in the guidance document cited by the department talks about the rights that would be provided with respect to a potential deletion of a patent off the registry, but none of it discusses a potential deletion of a certificate of supplemental protection on the registry. What is provided in that respect?

Ms. Pashley: I would have to check with my colleagues at Health Canada, but I believe their administrative document has been updated to include the certificate of supplementary protection. I can’t say with certainty.

Mr. Abel: But if it has been updated recently, it’s possible?

Mr. Schaan: The regime is still very early in its days, but I understand and I believe we’ve done all of the amendments necessary for CSPs.

Cynthia Kirkby, Acting General Counsel to the Committee: I was going to suggest that where there seem to be issues that are more appropriate for Health Canada, perhaps they could also be invited to the meeting with counsel.

The Joint Chair (Mr. Albrecht): Any further question there? Okay.

Again, we see a level of — frustration might be too strong a word.

[Translation]

Senator Mégie: I’m not sure I fully understood the discussion around the deletion of a patent or certificate. In my former life, it was common to hear about issues affecting companies that develop innovative drugs. They maintained that, after 15 years, their patent was no longer valid. They didn’t indicate their patent had been deleted. They would then rush to alter the formula or drug slightly so that their patent would once again be valid. In the meantime, generic drug makers would move quickly to acquire market share and obtain a patent. That means that the patent wasn’t deleted without notice. It means that the companies were notified or knew that the patent would run out after 15 or 20 years. I didn’t really understand what you said when committee counsel asked you about the notice process, in other words, whether companies are always given notice.

Mr. Schaan: Thank you for the question. The rights regarding the deletion of a patent from the registry belong to the innovative drug company, because it owns the patent.

[English]

The rationale for the register in the first place is that, in part, generics actually have full understanding of exactly what are considered to be the innovations necessary to either work around or potentially wait for the termination of the patent to be able to enter. There’s a very transparent process for the generic to know how it could potentially enter into the market with a medicine.

In terms of your broader questions about how companies play in that system, I would argue, yes, there is a ton of strategic movement on both parts throughout this process to try and maximize the advantage of either being able to enter at the first possible moment or on the part of the innovator to be able to continue to enjoy their market exclusivity.

[Translation]

Senator Mégie: They know the patent will expire, then. Is that correct?

Mr. Schaan: Yes.

Senator Mégie: I see. Thank you.

[English]

The Joint Chair (Mr. Albrecht): Any further comments or questions? Okay. So we will add Health Canada to the group we’re meeting with at the next meeting.

Unless there are further questions, I’m going to dismiss our witnesses. We look forward to more complete resolution at the next meeting. Thank you very much.

Mr. Abel: I have one question for members.

With respect to the issue of dealing with the terms “without delay” and “as soon as feasible,” are members satisfied or do they want to bring that back the next time the file is before the committee?

Mr. Miller: It’s not going to come back before the end of June, correct?

Mr. Abel: That’s true, yes.

Mr. Miller: Why don’t we let the next committee deal with that and make the decision. Do we even have the power to put that on the agenda for the new committee?

Mr. Abel: If the committee doesn’t resolve the matter today, it will stay on the file, and the next time we bring it back, it will be up for discussion.

Mr. Miller: That’s what I was thinking. Whatever the wish of the majority is, I’m fine with it.

The Joint Chair (Mr. Albrecht): He did attempt to give an explanation, which was a little bit fuzzy.

Mr. Miller: “Attempt” is a good word.

The Joint Chair (Mr. Albrecht): It kicked the ball down the field a bit more. It didn’t score, though.

[Translation]

Senator Mégie: My question is about the terms “without delay” and “as soon as feasible.” It’s something I always wondered about, but I figured many pre-existing regulations must have used the same wording. If the language were changed, wouldn’t the change need to be retroactive for all affected regulations, or would it apply only as of 2019? That way, if the change were made, all new regulations would have to impose a time limit, rather than continue using the terms “without delay” and “as soon as feasible.”

[English]

The Joint Chair (Mr. Albrecht): I can’t answer that. It would seem to me each regulation has to be dealt with individually. I’m going to look to our counsel.

Ms. Kirkby: That’s right. We do raise it where it appears in various regulations.

There was also the committee report in 2015 that attempted to convey to regulators, generally, that this is an approach to be avoided. That was sort of making it more broadly known.

The Joint Chair (Mr. Albrecht): You’ll notice that the last question our counsel provided for us mentions sections 5(3)(d), 5(3.4), 5(7), 7(7). It’s possible that they could put a date in some of them, but for many of them they would need to leave the vaguer terminology. But we didn’t actually get into that at all today.

We’ll move forward with that and assume that our counsel will continue to monitor it and bring it forward to us.

I’ll turn it over to Senator Day for the next part of the meeting.

The Joint Chair (Senator Day): Thank you. We’ll get into some of the lighter stuff now, I hope.

Ms. Kirkby: Sorry to do this, but Shawn asking for directions reminded me that I had forgotten to ask last week if members were satisfied with respect to the appearance of Global Affairs Canada witnesses, which was to do with the Order Amending the Export Control List. If members were satisfied that the order was authorized, then that file can be closed. If members would like to discuss it in more detail before deciding, I would suggest we go in camera since that was where the evidence was provided.

The Joint Chair (Senator Day): Or we could be satisfied.

Ms. Kirkby: If we’re satisfied, we can close the file.

Mr. Badawey: Is this on the agenda?

Ms. Kirkby: It’s not. I should have asked last week and failed to do so.

The Joint Chair (Mr. Albrecht): With all due respect, I think it was included in the in camera session. The general feeling was that we were satisfied with the solution, and we dismissed them.

Ms. Kirkby: We can close the file?

The Joint Chair (Mr. Albrecht): We didn’t actually have a motion to that effect, but it was clear, unless committee members feel differently.

Senator Duncan: I would be prepared to move that motion. I felt the same way, namely, that the committee seemed to be satisfied. But we’re missing a motion, and I would make the required motion.

Ms. Kirkby: Thank you.

The Joint Chair (Senator Day): Are we content to say that we were satisfied, that it’s implicit in what happened last week, and we’ll just close the file?

Agreed unanimously.

Ms. Kirkby: Thank you.

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

(For text of documents, see Appendix B, p. 52B:1.)

Ms. Kirkby: On these regulations, three issues were raised in 2005. One was a fairly straightforward drafting issue that the Department of Justice agreed in December 2011 to address at the earliest opportunity. They did address it in 2018.

The two outstanding issues concern the use of the vague terms “variant” and “commonly available” in describing which firearms are prohibited or restricted. The department advises that the Firearms Reference Table provides guidance on which firearms are variants of others, and it also sets out an objective definition of the term “commonly available,” but only law enforcement has access to the Firearms Reference Table.

As a result, the joint committee has been seeking amendments to clarify these terms in the regulations themselves for the past 14 years. A comprehensive chronology is set out in the materials, which has included letters to the ministers of Justice and Public Safety and the appearance of witnesses before the joint committee, as well as court cases occasioned by the vagueness of the term “variant,” and multiple consultations with working groups and committees.

Most recently, the joint committee decided to send a letter to the Minister of Public Safety asking for a clear indication by February 2019 of whether the intent was to clarify the terms in the regulations, failing which the committee would consider tabling a report in Parliament. No response has been received.

The Joint Chair (Senator Day): No response has been received. What’s your pleasure? I think February of this year has passed.

Ms. Kirkby: Yes.

Mr. Miller: This issue was something I tried to resolve with a private member’s bill two years ago. I was twenty-ninth on the list, so that gives you an idea how long after the election that was. The government said they were going to resolve this in legislation and nothing ever materialized.

I don’t know what we do with this, but what they’re saying here doesn’t really solve anything.

Mr. El-Khoury: With regard to the history of what happened in the exchange of letters between minister and ministry and we still, as a committee, have received no answer, I think presenting a report to Parliament is not a bad idea.

The Joint Chair (Senator Day): We already threatened to do the report if the minister did not get back to us by February, and the minister did not get back to us by February. Do we follow through with our threat, or do we bring the minister in here? What’s your pleasure? Mr. El-Khoury feels we should go ahead with the report.

Mr. El-Khoury: Absolutely.

The Joint Chair (Senator Day): Is there general consensus that we draft the report like we said we were going to do?

Unanimously agreed.

We’ll go on Item No. 3, under the heading “Reply Unsatisfactory.”

SOR/2018-139 — ORDER AMENDING THE QALIPU MI’KMAQ FIRST NATION BAND ORDER.

(For text of documents, see Appendix C, p. 52C:1.)

Mr. Abel: This file raises a fairly technical point, but one which may have significant consequences.

The membership of the Qalipu Mi’kmaq First Nation was determined by an enrolment committee on behalf of the Government of Canada and the Federation of Newfoundland Indians in accordance with certain agreements between these two bodies. Prior to this instrument, the names of every member were set out in the schedule to the order. This instrument amended the order and in doing so removed the schedule and amended section 2 to incorporate by reference the final members list as determined by the enrolment committee.

The potential problem this raises is that subsection 4(1) of the Qalipu Mi’kmaq First Nation Act provides civil immunity to the government and to any relevant Indian band or band council from legal claims arising from the omission or removal of a person “from the schedule.”

The membership list, of course, is no longer found in the schedule and the schedule itself no longer exists, which raises the question of whether this immunity provision would still apply. It also raises a connected question, in that Parliament expressed its intention or expectation that the membership list would be contained in the schedule to the order. Thus, the overall validity of the approach taken by this instrument could perhaps be called into question.

I would suggest there is no clear answer to these questions, prior to a court ruling on the proper interpretation.

The department’s response does not grapple with these questions at all. It makes two assertions. The first is that the Qalipu Mi’kmaq First Nation Act is intended to provide the authority to remove persons from the band membership. This is not in dispute and is irrelevant.

Second, there is no intention to reassess the applications of individuals who are on the membership list. This seems to miss the point. Whether or not the government or the Federation of Newfoundland Indians consider the band membership to be final, 82,107 applicants were denied in developing the final list. It seems at least plausible that one or more persons in this very large group may seek a judicial remedy to their claim. After all, Parliament clearly considered it necessary to attach civil immunity to this process.

The department appears unconcerned about the potential fallout from this apparent legal defect. If the removal of the schedule is seen to open the door to legal challenges to the membership list, it could result in an unnecessary waste of time and expense for individuals, for the government and for the court system.

Perhaps the department could confirm whether it believes that there will be no legal challenges to the membership list and give its reasons why.

Time may be of the essence in this case. Therefore, if members agree, I would suggest a letter could be drafted asking the department for this type of confirmation, but it could also indicate if that confirmation cannot be provided, an amendment should be pursued as soon as possible to bring the structure of the order back into line with the Qalipu Mi’kmaq First Nation Act.

Mr. Simms: I’ve been somewhat on the front line with this one, not necessarily for me as an MP, but certainly for the MP to the west of me. This is an ongoing issue that happened, as you stated. The Qalipu is a landless organization. There are two. One is land and the other is landless, and this is the landless one, which explains why the numbers are so large.

We had a run-up to this that had the schedule and — correct me if I’m wrong — it had the names in the beginning as was set out and intended, and then removed. What happened, as you pointed out, was too many people were included and they realized there were too many people at the time and they had to rejig what they were doing.

I’m not surprised you got the answers that you got. They’re obviously generic and evasive for our purposes because, as you say, they’re not doing what is explicitly said. My understanding is that for the Qalipu, there are cases currently in front of the courts dealing with admission to this.

How does this work now? Did the department get rid of the list for now because they feel it’s too fluid and things are changing so quickly that they don’t want to have this complete list, only to be changed over time?

Mr. Abel: It’s actually more technical than that. There is a final list, in the view of the government and of the federation, and it exists. It was finished on April 30, 2018. It’s incorporated by reference now through section 2 of the order. Instead of it being set out name-by-name in the schedule, there’s a document elsewhere which is name-by-name, and one can now refer to it.

Mr. Simms: Is that list changed right now? Is it fluid enough that it changes quite a bit and that’s why it’s there?

Mr. Abel: To my knowledge, from everything the government has stated, it won’t be changed after it was finalized on April 30. The government’s position is it will never be changed again.

I don’t know whether it may as a result of pending litigation. We have not been made aware of that litigation.

Mr. Simms: I would suggest we bring them in to ask them why it is there and not over here as originally intended, correct?

Mr. Abel: I suspect it was out of convenience. It’s much easier to incorporate a document, but in doing so they probably inadvertently put themselves in contravention with the act.

Mr. Simms: In this particular case, you mentioned some civil litigation. Are they trying to avoid a lot of this? There are cases ongoing, to my understanding.

Mr. Abel: I’m surprised to hear that because the only issue that comes up now is because of the way they have done this, and it’s strictly because of that. There’s now the question of whether that civil immunity provision in the act really does apply.

It would be an easy problem to fix by simply moving the list back into the schedule. They could put a reference to the list in the schedule. They wouldn’t have to list all the names.

Mr. Simms: Does that do anything to civil immunity?

Mr. Abel: Yes, because the act is very clear. It applies immunity to what is in the schedule — the removal or omission from the schedule, and the schedule only.

Mr. Simms: Okay.

Mr. Abel: While they could incorporate a list by reference instead of setting them out, they should have kept that incorporation in the schedule.

Mr. Simms: We should really bring these officials in to say, “We think we know what they’re up to.” Am I wording it too harshly?

Mr. Abel: No. I would suggest the problem is it’s June 6 and there’s a general election coming.

It may be more useful to the committee to put this in writing again to the department and to suggest that if they don’t have a better answer to provide over the summer, they should go ahead and make that change; the committee would expect that.

Mr. Simms: I’ll leave it at that.

Mr. Abel: There are practical realities now that the committee has to deal with.

Mr. Simms: I’ll leave it at that, chair, because that’s all we can do, despite the fact we have these answers.

The Joint Chair (Senator Day): You have dealt with the department. The answers have been pretty evasive thus far.

We’ve learned in the past that sometimes picking up the phone and just talking to them before you write the letter will help move things along.

Is it agreeable then that we write? You suggested earlier that we should ask about pending litigation as well. Are they concerned about litigation?

Mr. Abel: That would be part of my suggestion. If the department believes there’s no risk of this civil immunity ever being necessary again, then it would be understandable if they didn’t want to make any changes just out of convenience. But without reasons, I find that hard to believe.

The Joint Chair (Senator Day): Why don’t we find out, because there seems to be a lack of understanding. Mr. Simms thinks there may be some litigation. That should be easily determined. You could craft your letter based on that. Is that your motion, Mr. Simms?

Mr. Simms: I don’t want to lead the committee to believe there is litigation right now. I thought there was. If not, I hear that they’re winding up to do as such.

The Joint Chair (Senator Day): We’ll find out. The list is closed out. Any litigation here would be other people trying to get on the list, presumably, who aren’t on it now.

So you’ll draft another letter to the department asking these various questions and bringing clarity to some of the issues outstanding?

Mr. Abel: Of course; can do.

The Joint Chair (Senator Day): Is that satisfactory? Thank you. We’ll proceed in that matter.

Item No. 4 is under the heading “Reply Unsatisfactory (?).”

SOR/98-465 — REGULATIONS PRESCRIBING EXCLUSIONS FROM CERTAIN DEFINITIONS OF THE CRIMINAL CODE (INTERNATIONAL SPORTING COMPETITION HANDGUNS)

(For text of documents, see Appendix D, p. 52D:1. )

Ms. Kirkby: This file is similar to the earlier item concerning firearms, but in this instance the file has only been open since 2012.

One promised amendment is to definitions in the Criminal Code that continue to refer to the International Shooting Union, even though it appears that the name was changed in 1998 to the International Shooting Sport Federation. There had been some hope that the name would be changed through the Miscellaneous Statute Law Amendment Program, but to date this correction has not been made.

The other amendments discussed would be to the regulations, which exclude prescribed handguns from the Criminal Code definition of prohibited firearm when they are for use in international sporting competitions. The list of excluded handguns has not been amended since the year 2000, and it seems the schedule lists some firearms that are no longer used in competitions and does not list some firearms that are.

If the Regulatory Impact Analysis Statement from the amendments 19 years ago is correct, it would seem that failure to update the list could affect the participation of Canadian athletes in competitions in Canada or abroad and could also be an impediment to Canada hosting sanctioned shooting competitions at events such as the Olympics and the Commonwealth Games. It had previously seemed that amendments would be made by the end of 2017, but the most recent update from the Department of Justice last December advises that any work on the regulations would await the conclusion of an ongoing review.

A report from that review was published in April, which perhaps means that the review is complete, but it is not clear what the consequences are for these particular regulations.

The Joint Chair (Senator Day): What course of action do you recommend?

Ms. Kirkby: Given they were waiting on this review, we could certainly ask what the intent is now.

[Translation]

Mr. El-Khoury: The department advised the committee that the matter would be addressed by the end of 2017, but the problem still hasn’t been fixed. We agree with that. In his letter, the minister indicated that he was waiting for the Minister of Public Safety to complete his review in order to respond to the committee’s concerns, but that hasn’t happened. I suggest we send the minister a letter asking him to respond by a certain date. Once we receive his reply, the committee can decide how to proceed.

The Joint Chair (Senator Day): By what date?

Mr. El-Khoury: It’s up to the committee.

The Joint Chair (Senator Day): What date would you suggest?

Mr. El-Khoury: A specific date along with a timetable. With summer getting closer, we’ve only got one or two meetings left.

[English]

Ms. Kirkby: Was it a letter to the department or the minister?

Mr. El-Khoury: To the minister.

The Joint Chair (Senator Day): Outlining the lack of action on this?

Mr. El-Khoury: Exactly.

The Joint Chair (Senator Day): And we expect a satisfactory reply by —

Mr. El-Khoury: With an update also.

The Joint Chair (Senator Day): Does anybody have a date in mind, keeping in mind what’s happening?

Mr. Miller: June 30 should be lots of time for a letter.

The Joint Chair (Senator Day): We know the history. We’re writing to say, “Look, you guys . . . .”

June 30? So is it satisfactory that we write a letter? This one goes to the minister outlining our concerns of a lack of action, specifically referring to dates, and that we expect a reply by June 30 regarding their plans.

The Joint Chair (Mr. Albrecht): So we have Public Safety and Justice. Do we also include the Minister of Border Security? Who is the letter going to? I’m a little unclear.

Ms. Kirkby: In these instances, it’s Justice that actually makes the regulations, but the others are involved, given the content of it.

The Joint Chair (Mr. Albrecht): I would suggest that we at least copy the other two because there seems to be a lack of connection between the departments.

The Joint Chair (Senator Day): This may help.

Mr. Miller: If we’re done with that, I’m not clear given what we have heard from our legal team. In the meantime, is it or has it been compromising our teams that represent the country? You mentioned the Commonwealth Games. Are they allowed to compete under the old rules until this is fixed, or what is the status of that? I’m not clear.

Ms. Kirkby: I’m not actually sure what the status is. We could certainly include some questions to that effect, that we’re concerned this would have an impact.

I believe that this file came to the committee’s attention from a concerned citizen. This was brought to general counsel’s attention because of that.

Mr. Miller: If it’s okay with everyone, Mr. Chair, we could add in the letter that we sincerely hope that until government gets its act together — or whoever gets their act together — that this not affect the teams that represent our country. Because it’s an important thing. For sporting events, and it doesn’t matter what the sport is, it’s very important that Canada be represented on the international stage.

The Joint Chair (Senator Day): We’re not aware of any impact thus far, but counsel points out of the potential. This makes it real.

Mr. Miller: It does. I think that’s why it’s relevant.

The Joint Chair (Senator Day): Mr. El-Khoury, do you agree that could be added to the letter you proposed?

Mr. El-Khoury: I have no objection. Actually, it’s some of the same chronic issues.

The Joint Chair (Senator Day): Yes, and the potential for impact on the international representation of our athletes.

Thank you. We’ll take that course of action.

Next is Item No. 5 under “Progress (?).”

SOR/94-276 — CANADIAN FORCES SUPERANNUATION REGULATIONS, AMENDMENT

(For text of documents, see Appendix E, p. 52E:1.)

Mr. Abel: When this instrument was last before the committee in December 2016, members noted, with some dismay, that amendments which had been promised in 1997 were still outstanding. Members requested that a new time frame for making the amendments be provided within 30 days. The department did respond within that decline, indicating that new priorities owing to the minister’s mandate letter had led to these delays. However, this mandate would also require statutory amendments that would eventually lead to a repeal of the relevant regulatory provisions.

The department wrote that “if government direction regarding a bill . . . has not been announced by the end of June 2017,” the department would prepare amendments to address the committee’s concerns.

Despite follow-up letters from counsel in late 2017 and 2018, no further information has been provided by the department. The promised amendments have not been made and have not been prepublished. The department was informed that it would be preferable to have a response prior to this file coming back to the committee this spring, but again nothing has been received.

The Joint Chair (Senator Day): So what is the progress?

Mr. Abel: We don’t have a negative progress category.

The Joint Chair (Senator Day): Well, that’s two years and nothing has happened. What’s your pleasure? Do we bring somebody in here to explain this? It’s not going to happen for some time. We will keep the file open, obviously.

Mr. Abel: I will note that the committee has not previously engaged the minister on this file.

The Joint Chair (Senator Day): Is that a suggestion, that we write directly to the minister saying, “It is not satisfactory to have this kind of delay after you promised you’d do something”? Is that the course of action.

Mr. Shields, thank you.

Does everybody agrees with that?

Mr. Abel, you’ll take that in hand and get after the minister for us?

Mr. Abel: We’ll prepare something.

The Joint Chair (Senator Day): Thank you. That will be signed by the co-chairs.

Next is Item No. 6.

SOR/2002-421 — CANADIAN FORCES EMPLOYMENT EQUITY REGULATIONS

(For text of documents, see Appendix F, p. 52F:1.)

Mr. Abel: The situation here is essentially identical to the last file, save that the two amendments were promised in 2007 and 2013. Again, no information has been received since 2017. The time frames have been missed. The amendments haven’t been prepublished.

If members wish, the same approach can be followed as the last file. In fact, the letter could refer to both files if that would be convenient.

The Joint Chair (Senator Day): Do we combine them? I think it makes it even more grave when it’s two and a half years ago. Are we agreed with that?

Hon. Members: Agreed.

The Joint Chair (Senator Day): Thank you. That’s the course of action we’ll take.

The next item is the various regulations that you’ve looked at, the statutory instruments. Anything to comment on there?

SI/2018-41 — ORDER AMENDING THE OAK RIDGES MORAINE LAND EXCHANGE INCOME TAX REMISSION ORDER

SI/2018-42 — GENEVIEVE CROMARTY REMISSION ORDER

SI/2018-48 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH SECTION 121 OF THE ACT COMES INTO FORCE

SI/2018-49 — ORDER FIXING NOVEMBER 5, 2018 AS THE DAY ON WHICH CERTAIN PROVISIONS OF THE TWO ACTS COME INTO FORCE

SI/2018-103 — ORDER DESIGNATING THE MINISTER OF BORDER SECURITY AND ORGANIZED CRIME REDUCTION, A MEMBER OF THE QUEEN’S PRIVY COUNCIL FOR CANADA, AS THE MINISTER FOR THE PURPOSES OF THE CANNABIS ACT

SOR/92-541 — LIVESTOCK CARCASS GRADING REGULATIONS

SOR/2011-51 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON LIBYA AND TAKING SPECIAL ECONOMIC MEASURES

SOR/2011-172 — REGULATIONS AMENDING THE REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON LIBYA AND TAKING SPECIAL ECONOMIC MEASURES

SOR/2011-198 — REGULATIONS AMENDING THE REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTIONS ON LIBYA AND TAKING SPECIAL ECONOMIC MEASURES

SOR/2014-250 — REGULATIONS AMENDING THE PUBLIC SERVICE STAFFING TRIBUNAL REGULATIONS

SOR/2016-66 — REGULATIONS AMENDING THE PORT AUTHORITIES MANAGEMENT REGULATIONS AND THE PORT AUTHORITIES OPERATIONS REGULATIONS

SOR/2016-207 — REGULATIONS AMENDING THE REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE PROCEEDS OF CRIME (MONEY LAUNDERING) AND TERRORIST FINANCING ACT, 2016

SOR/2016-274 — REGULATIONS AMENDING THE OLD AGE SECURITY REGULATIONS

SOR/2017-46 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS LAND MANAGEMENT ACT

SOR/2017-224 — GUIDELINES AMENDING THE FEDERAL CHILD SUPPORT GUIDELINES

SOR/2018-9 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (CARRY THE KETTLE)

SOR/2018-29 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (EEL GROUND)

SOR/2018-30 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (EEL GROUND)

SOR/2018-73 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (LAKE ST. MARTIN)

SOR/2018-74 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (LAKE ST. MARTIN)

SOR/2018-104 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (FORT ALEXANDER)

SOR/2018-105 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (POTLOTEK)

SOR/2018-106 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (POTLOTEK)

SOR/2018-160 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS (FEDERAL CROWN CORPORATIONS)

SOR/2018-163 — ORDER 2018-87-05-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2018-164 — ORDER 2018-112-05-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2018-165 — ORDER 2018-66-05-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2018-167 — PROCLAMATION DECLARING THAT THE GOVERNMENT CORPORATIONS OPERATION ACT IS APPLICABLE TO PROJECT DELIVER I LTD.

SOR/2018-168 — PROCLAMATION DECLARING THAT THE GOVERNMENT CORPORATIONS OPERATION ACT IS APPLICABLE TO PROJECT DELIVER II LTD.

SOR/2018-270 — ORDER 2018-87-07-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2018-271 — ORDER 2018-112-07-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2018-282 — ISSUANCE OF A COMMEMORATIVE $1 CIRCULATION COIN COMMEMORATING THE 50TH ANNIVERSARY OF PARLIAMENT PASSING A SERIES OF AMENDMENTS TO THE CRIMINAL CODE OF CANADA (DECRIMINALIZATION OF HOMOSEXUALITY)

SOR/2018-283 — ISSUANCE OF TWO $2 COMMEMORATIVE CIRCULATION COINS HONOURING THE 75TH ANNIVERSARY OF D-DAY (6 JUNE 1944)

SOR/2019-13 — ORDER 2018-87-08-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2019-45 — REGULATIONS AMENDING THE REGULATIONS ESTABLISHING A LIST OF ENTITIES

SOR/2019-68 — REGULATIONS AMENDING THE FREEZING ASSETS OF CORRUPT FOREIGN OFFICIALS (UKRAINE) REGULATIONS

SOR/2019-69 — ORDER EXTENDING THE APPLICATION OF THE FREEZING ASSETS OF CORRUPT FOREIGN OFFICIALS (UKRAINE) REGULATIONS

SOR/2019-73 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS FISCAL MANAGEMENT ACT

SOR/2019-85 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS FISCAL MANAGEMENT ACT

SOR/2019-102 — ORDER AMENDING SCHEDULE 1 TO THE FIRST NATIONS GOODS AND SERVICES TAX ACT (MAANULTH FIRST NATIONS)

SOR/2019-112 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS FISCAL MANAGEMENT ACT

Ms. Kirkby: There are 41 such instruments at this meeting which have been reviewed and found to comply with all of the committee’s criteria. If members wish to consult any of those instruments, we have brought copies with us.

The Joint Chair (Senator Day): That’s great. Thank you for reviewing those for us. We appreciate that.

(The committee adjourned.)