REGS Committee Meeting

EVIDENCE

OTTAWA, Thursday, September 29, 2016

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:31 a.m. for the review of statutory instruments.

Senator Pana Merchant and Mr. Harold Albrecht (Joint Chairs) in the chair.

[English]

The Joint Chair (Senator Merchant): Good morning, everyone, and welcome. It's nice to see you all, and thank you to the people who are subbing today; it's nice to see you, too.

Colleagues, we have to deal with the first item in front of me. As you remember, our counsel, Peter Bernhardt, has left us, so I would like your agreement on the appointment of our new acting general counsel, Evelyne Borkowski-Parent.

Hon. Members: Agreed.

The Joint Chair (Senator Merchant): That's the first item.

Senator Moore: Before we leave that, I didn't know that Mr. Bernhardt was leaving.

The Joint Chair (Senator Merchant): He said goodbye to us. Maybe you weren't here at the last meeting.

Senator Moore: Did we give him an official thank you? Did the committee send him a note or something? Did we do that?

The Joint Chair (Senator Merchant): I think we should. Thanks very much, senator. That's a very good idea.

Adam, do you want to introduce the new clerk?

We have a new clerk, as Adam Thompson is also leaving us. Is that on the agenda somewhere else? Everything is new here.

Adam Thompson, Joint Clerk of the Committee: Yes, senator. Max Hollins will be taking over as joint clerk of this committee.

The Joint Chair (Senator Merchant): We thank you also for all your help. We won't tell you if we're going to write you a letter. It's going to be a surprise.

RECOMMENDATIONS FROM THE SUBCOMMITTEE ON AGENDA AND PROCEDURE

The Joint Chair (Senator Merchant): We'll start with the recommendations from the Subcommittee on Agenda and Procedure. You'll remember that we talked about that the last time, or a couple of times, maybe, when we met. Does anyone want to talk about any of the items there? Evelyne, do you have anything?

Evelyne Borkowski-Parent, Acting General Counsel to the Committee: No. All I have to say is that once the procedure is finalized we'll implement it on behalf of the committee secretariat.

Mr. Anandasangaree: I have a couple of suggestions, if I may just pass these along.

I believe most of it is self-explanatory, Madam Chair. With respect to number 6, the initial recommendation was the committee should consider making more frequent use of the power of recommended disallowance. I'm just amending it to say that the committee exercise all of the powers of the committee as authorized by the standing order, basically ensuring that we're seized of all the powers and we exercise a broader discretion. But certainly what was initially intended is also included in that.

The Joint Chair (Senator Merchant): Any comments?

Mr. Genuis: Can I pose a question for my clarification? Who is on the Subcommittee on Agenda and Procedure? Which members of this committee sit on the subcommittee?

The Joint Chair (Mr. Albrecht): I believe Senator Runciman. Does anyone else remember? There are two co-chairs.

Mr. Genuis: So Mr. Dusseault, and there would be a representative from the government on that subcommittee as well. So all parties are represented in all chambers.

Maybe Mr. Anandasangaree can further elaborate on this. I'm a little bit confused as to how we ended up here process-wise. I presume the very purpose of the Subcommittee on Agenda and Procedure is to deliberate about a way forward. Here we have presented at the table a set of changes to what I can only assume was agreed upon at the subcommittee. Maybe we could have at least some clarification on what is behind that from a process perspective.

Mr. Anandasangaree: Certainly.

We're relatively new here. We're approaching our one-year mark, but I know this committee really didn't start meeting until February. I think the subcommittee meeting happened early in the spring and we're relatively new to it. This was never adopted by the committee as a whole, and I think, upon reflection, this made sense. It's in that vein that I bring it forward.

The initial conversation wasn't exhaustive. It was an initial conversation but with some broad recommendations. I think this is just tightening up the language a little bit.

The Joint Chair (Mr. Albrecht): If I look over this quickly, it looks like the only substantive change from what we have in our agenda is number 6. To me, if we would include what we had in number 6 and leave what you have, I think we're fine. But to remove disallowance gets away from what our ideal was. We want to highlight that disallowance was a very good possibility. Otherwise, that's removed and I think it leaves it too fuzzy.

Mr. Anandasangaree: I think the idea was to make sure that the entire set of options is available and not just isolate disallowance as a whole. I would be open to saying " . . . up to mandate,'' and say, "including powers of disallowance.''

The Joint Chair (Mr. Albrecht): In your opening comments you made the point that you want what's here and you said not to take away from what had been here. In this, you've taken it away. I just wanted to clarify that.

Mr. Anandasangaree: It's not that I'm taking it away. What I'm to go is incorporating this into a broader catchment. I think the point is to emphasize, then what may be acceptable is, right after "mandate,'' say, "including the power to recommendation disallowance.''

The Joint Chair (Senator Merchant): Are you okay with that?

Mr. Genuis: First of all, can we go over it?

The Joint Chair (Senator Merchant): Did you want to read the whole thing, Gary?

Mr. Anandasangaree: That "the committee exercise all of the powers of the committee as authorized by the Standing Orders and the Rules of the Senate to ensure the effective discharge of the committee's mandate, including the more frequent use of the power to recommend disallowance.''

Mr. Genuis: Okay, including the more frequent use, so essentially just reinserting most of that section. As far as I'm concerned with respect to number 6 I have no problem with that change.

I would say, in general, respectfully, what I see in these proposed changes isn't just a tightening of language but a softening of language. I think this committee has thus far proceeded in a very non-partisan manner and should continue to. We're not talking about problems with any particular government. We're talking about addressing issues in terms of the machinery of government that are long-standing and that are about the responsiveness of officials to this committee. But we know that those problems are real and we've seen those problems. We've seen issues of long-outstanding items that are not being dealt with in the way that the committee would like.

If I go through and look at the changes, in number 2, the "committee's frustration'' has changed to "concern.'' No. I think the committee has expressed frustration repeatedly, and that's obviously a different tone from concern.

I could go through each one of these where there's a subtle softening of the language, the downgrading of the levels within government that would be informed that we've moved from notification being sent to the Clerk of the Privy Council to notification being sent to deputy ministers. Not that deputy ministers aren't important, but why wouldn't we be communicating with the Clerk of the Privy Council when we have concerns like this?

I don't have any problem with the agreed-upon language of number 6, but many of the changes seem to be a step backward from where we wanted to go as a committee, which is to say collectively, in a non-partisan way, that we, as elected officials, want to be able to do our job when it comes to exercising our scrutiny function. It would be disappointing to me if we took a step back from that. It would make us less effective.

The Joint Chair (Mr. Albrecht): I want a clarification. For agenda Item 1 in your packet, the wording is what Mr. Anandasangaree is recommending. The wording hasn't changed. That's the confusing part for me. You're making it look like the wording has changed from our original document, when in fact it hasn't. You had the word "frustration'' in here. It was not even in our original document.

The Joint Chair (Senator Merchant): Look at Item 1.

Mr. Anandasangaree: Right. I may have been working off an older version. My understanding is that we're discussing just numbers 6 and 8, and number 6 I think we've addressed.

As to number 8, frankly, I think it would be a waste of resources to have every item go to the Clerk of the Privy Council. I think that is an unnecessary level of elevation. I think the deputy minister level should be more than seized of the matter within a department, and I think that should be a sufficient level of authority to address it as opposed to the broader scope of the Privy Council.

The Joint Chair (Senator Merchant): Mr. Dusseault, do you have a comment?

[Translation]

Mr. Dusseault: I was also going to suggest adding the power of disallowance directly into section 6 and that has been done. I would also like to express my disappointment that we have the document in English only. I remind my colleagues that it is important to have documents in both official languages.

The Joint Chair (Senator Merchant): There is no interpretation.

[English]

Mr. Dusseault: I was just expressing my dismay at having this document in English only.

Mr. Anandasangaree: I apologize. I didn't have the time to do it, but that's definitely not an excuse. I do apologize for that. In the future we'll ensure that we have translated copies.

Mr. Dusseault: Thank you. I accept your apology.

The Joint Chair (Senator Merchant): Have we dealt with number 8?

Mr. Genuis: To be clear, if I understand where we're at now, we're not actually moving what the initially proposed changes were to numbers 2, 3, 4, 5 and 7. You're only proposing changes to numbers 6 and 8, and I think we've agreed upon language for number 6. So we're discussing the language on number 8.

I still disagree, for what it's worth. Including the Clerk of the Privy Council, who is the head of the public service, would seem to be sensible if we take our concerns sufficiently seriously. The initial proposal being I think is a good one; that we make sure that the head of the public service is apprised of the concerns that we have and that we're including communication with the highest sensible offices. Being clear about that is an effective way of ensuring that these things are dealt with in the most appropriate and high-level way. This is a high-level issue of the relationship between the legislative branch and the public service and our ability to do our jobs in terms of scrutinizing regulations. Again, given that the reference to the clerk was part of the original subcommittee report, I don't know that downgrading it is consistent with our desire to ensure that the recommendations and concerns of this committee are taken as seriously as possible.

Senator Omidvar: I think we're all working from different versions of the report.

The Joint Chair (Senator Merchant): Are you going through your folder?

Senator Omidvar: Yes, I am. I have it in front of me. Recommendation 8, the one that we have in the binder, does not mention the Privy Council. I think there is some confusion.

The Joint Chair (Senator Merchant): Oh, that's right. I think you're working from a very old copy, Gary, or a previous copy.

Thank you very much, senator.

Should we try to bring this to a conclusion, maybe vote on it?

Senator Omidvar: Regardless, you have a point.

Mr. Genuis: It looks here like the language of the subcommittee on number 8 was maybe somewhere in between the language that Gary was hoping for and the other language. Can we maybe move to amend number 6 as discussed and leave the rest as is? Is that the best way to proceed?

The Joint Chair (Senator Merchant): Does anybody object?

Hon. Members: No. Agreed.

The Joint Chair (Senator Merchant): Agreed.

Ms. Borkowski-Parent: For my own guidance, from an administrative point of view, at point number 1, after no substantive response, the committee sends a letter to the minister. Does the committee want to see the file back first, or do we send the file directly to the chairs so that they can sign the letter to the minister? Usually when we have no substantive response or things are lagging, we will send one or two or even three "chase-ups'' and bring the file back to committee. Then it's up to the committee to decide what it wants to do.

Point 1 proposes that if after four months there's no substantive progress on a file, a letter be sent to the minister. Does the committee want to see the file back before the chair sends that letter to the minister, or do we make it automatic that the chairs will sign the letter?

The Joint Chair (Senator Merchant): Automatic?

The Joint Chair (Mr. Albrecht): Yes, I think automatic.

Senator Omidvar: That's why we're developing the rules.

The Joint Chair (Senator Merchant): Then we're finished with the first item. Let's move on to Item 2 on our agenda.

DOCUMENT RELATING TO THE APPEARANCE OF WITNESSES FROM THE CANADIAN FOOD INSPECTION AGENCY ON JULY 16, 2016

Ms. Borkowski-Parent: As was mentioned in the note prepared for this meeting, following the appearance of witnesses from the CFIA at the June 16 meeting, departmental officials have sent the attached document.

Annex A lists organizations that were consulted during the course of the elaboration of the Safe Food for Canadians Regulations. Annex B is the report on the diagnostic for the missing correspondence, and Annex C sets out the new procedure to deal with committee matters.

The Joint Chair (Senator Merchant): Are there any questions?

The Joint Chair (Mr. Albrecht): After working through this document, it's frustrating to see the level of detail that's done in communication at the time when we have instant email. It surprises me that there would not be a scanned copy of all the correspondence immediately sent to the recipient so that there would be no question that they received either a scanned electronic copy or a hard copy. I think we would eliminate a lot of this confusion and a lot of trees. That's just my original frustration after reading 100 pages of responses to why people didn't respond to mail.

Mr. Kmiec: This is based on what I would call almost cross-examination. What the CFIA official said doesn't match with what we've been provided here. She said she resolved the issue; she identified it. But based on what you read here, they think there are two different scenarios where it might have gone wrong.

I think there are two issues. One is a process issues, which is three or four people involved with every single piece of paper that enters their office. And I agree, Mr. Chair: Scanning a copy and sending it to an email account seems easy. Coming from the business world where as a registrar we process thousands of pieces of mail, we didn't lose things. We have a database that helps us manage our work flow.

The second issue is they still have outstanding regulations from 25 years ago they haven't dealt with. None of this covers that issue.

Ms. Borkowski-Parent: We received early this week an update on the 38 files that will be brought back to you at the next committee meeting. It still doesn't address the fact why there's such an outstanding delay. But as for the update on the different files, it will come to you at the next meeting.

[Translation]

Mr. Dusseault: I am pleasantly surprised to see the level of detail in the department's response. At the time when the correspondence was lost, was it a practice to send an email and a paper copy? Perhaps that practice has changed and now an electronic copy and a paper copy are sent.

[English]

The Joint Chair (Senator Merchant): We are not hearing the interpretation. It may be this table. It appears that the English to French channel is not working for some. A technician has been called. They're trying to fix it.

Ms. Borkowski-Parent: The question was whether the practice was to send a paper and electronic copy. The answer to that is no. So far, the practice has only been to send a paper copy, which has never caused any issues to this point, but if the committee would like us to revise the secretariat's practice, by all means.

Mr. Dusseault: I think it should be, now in 2016, a practice we could use — sending electronic and paper — to be sure that it gets to the right person, with good timing, if the committee is agreed.

The Joint Chair (Senator Merchant): Agreed? We should get both electronic and the paper copy?

Ms. Borkowski-Parent: For all departments?

Mr. Dusseault: Yes, if you have all the emails.

The Joint Chair (Senator Merchant): Is there anything else?

We'll move on, then to "Letters To and From Ministers.''

[Translation]

SOR/2002-352 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PARTS I, VI AND VIII)

(For text of documents, see Appendix A, p. 7A:1.)

Ms. Borkowski-Parent: Only one point remains before this file can be closed. It deals with an amendment to the Aeronautics Act to specify an enabling authority in the regulations. Paragraph 801.09(3)(b) of the regulations requires the holder of the certificate to provide the minister with a copy of the training record. This provision comes under paragraph 4.9(s) of the act, which provides for the keeping and preservation of records.

For a long time, the committee's position has been that the requirement to provide documents could not originate in the power to keep and preserve records. However, in 2009, the committee concluded that paragraph 801.09(3)(b) could be based in the powers to inspect and copy provided for in sections 8.7 and 8.8 of the act. As a consequence, the section of the regulations was not ultra vires.

For more certainty, however, the committee asked for the requirement to provide documents to be expressly provided for in the act. The matter was brought to the attention of the Minister of Transport and you will find his response in this morning's documents.

In summary, the committee accepted the validity of paragraph 801.09(3)(b) of the regulations, but it asked for a specific provision in the act. That amendment is not foreseen in the near future. The committee must now decide whether it wishes to continue the debate on this matter.

[English]

The Joint Chair (Senator Merchant): Are there any comments?

Mr. Genuis: As much as it's important for us to chase after some of these things, I think we've gotten a response. It's probably to a point that's satisfactory — at least the best we're going to get at this stage. I would leave it going forward. That would be my inclination.

[Translation]

Mr. Di Iorio: I agree. But I would add one thing.

We have accepted it, so I would proceed and move on to something else. However, I would like it noted that, legally, this is not the same thing. The requirement to provide documents and the fact that an inspector has the right to make copies do not refer to the same obligation at all. One describes the situation of a specific investigation during which an inspector may gather documentation. Regardless of the circumstances, the clear and complete obligation to provide documents is a whole other matter. The two realities are separate.

This has been passed. I will accept it, but I would like it to be clear that, if it comes up again in other situations, this does not mean that, because we have accepted it in this case, we will close our eyes to other situations. The committee will be able to play its role on each occasion.

The Joint Chair (Senator Merchant): Yes?

[English]

The Joint Chair (Mr. Albrecht): I'm in total agreement. I wonder if it might be wise to ask for an update in a year just to see if there has been any movement. It sounds like they're going to move on it, but there's no commitment.

Ms. Borkowski-Parent: I'm not sure if they know if there's a possibility of amending the act at this point, so we can follow up. We can keep the file open and keep following up with the department, or we can accept the state of things and close the file. That is for the committee to determine.

The Joint Chair (Senator Merchant): Colleagues, what do you think we should do?

Mr. Genuis: I think Mr. Albrecht's suggestion is sensible, that we would touch base in a year and see where they're at.

The Joint Chair (Senator Merchant): Agreed?

Hon. Members: Agreed.

SOR/2013-7 — UNSOLICITED TELECOMMUNICATIONS FEES REGULATIONS

(For text of documents, see Appendix B, p. 7B:1 )

The Joint Chair (Senator Merchant): Next is Item 4 on our agenda.

Cynthia Kirkby, Counsel to the Committee: All of the issues relating to the text of the Unsolicited Telecommunications Fees Regulations were resolved in 2015. The two remaining issues relate to compliance with the User Fees Act and the Statutory Instruments Act.

First, with respect to the User Fees Act, the CRTC is of the view that it was not required to fulfill the requirements of that act prior to making these regulations. The letter from the joint chairs to the Minister of Industry sets out the background of this issue and ultimately suggests that any uncertainty could be addressed by specifying in the Telecommunications Act that the User Fees Act does not apply to these fees.

The response from the Minister of Innovation agrees that these fees were not intended to be user fees, as that term is defined in the User Fees Act, and states that he will keep in mind the suggestion to introduce a clarification to that effect in the Telecommunications Act.

The issue of compliance with the Statutory Instruments Act relates to the unsolicited telecommunications rules, which the regulations fund, and which were established in an appendix to Telecom Decision CRTC 2007-48. It was put to the CRTC that those rules would, in fact, appear to be regulations and, as such, the requirements of the Statutory Instruments Act ought to have been met before the rules could come into force.

The CRTC disagrees with this on the basis that it is a quasi-judicial body and so the instruments it issues fall within an exception to the definition of "statutory instrument.'' It has been pointed out to the CRTC, at least as far back as 2007, that what matters is whether it is exercising a quasi-judicial or legislative function at the time, and not whether some of the body's other functions can be categorized as quasi-judicial, so as to make all of its instruments exempt. The commission has not engaged with this particular point.

Most recently, it was suggested to the CRTC that one possibility for resolving this disagreement would be to seek the advice of the Deputy Minister of Justice on whether the rules are a statutory instrument under the advisory function established under section 4 of the Statutory Instruments Act.

In its most recent letter, the CRTC rejects this suggestion on the basis that it would be inappropriate for it, as an independent regulatory body, to seek the advice of the Deputy Minister of Justice. Given this position, it is not clear that further correspondence with the commission on this point would be fruitful.

The Joint Chair (Senator Merchant): Comments?

Mr. Kmiec: I read this a few times. I disagree with the commission, obviously. They need to be reminded that independence doesn't mean the freedom to act any way they darn well please. Parliament still sets the law. Reading what this National Do Not Call List does, it is a fee for a service that's provided, so it's a user fee.

Outside of that, though, I'm satisfied with the rest of the file. It's just quibbling over the legal opinion on whether they are or are not user fees. I'm satisfied we can just close the file and move on. I don't think it will be fruitful to keep telling them that they're wrong. If they want, they can seek an opinion from some of the best lawyers in government to explain it to them and provide a legal opinion. I'm just afraid they will go out and find private legal counsel for half a million bucks to give them a legal opinion to suit their purposes. Let's just close the file and move along.

The Joint Chair (Senator Merchant): Agreed?

[Translation]

Mr. Di Iorio: I have an answer for my colleague Mr. Kmiec. When the CRTC hires staff, buys furniture for its office and books airline tickets with Air Canada for its travels, it is not exercising quasi-judicial functions. This seems to me to be quite simple. I agree with him that they are probably going to spend a fortune getting an opinion that does not move us forward at all. In those circumstances, perhaps it would be better if we used some common sense.

[English]

SOR/2013-105 — REGULATIONS AMENDING THE GREAT LAKES PILOTAGE TARIFF REGULATIONS

(For text of documents, see Appendix C, p. 7C:1. )

The Joint Chair (Senator Merchant): Item 5 is Regulations Amending the Great Lakes Pilotage Tariff Regulations.

Ms. Kirkby: The minister has confirmed that the Great Lakes Pilotage Authority did not illegally collect a surcharge in early 2015. The issue had originally arisen in early 2013, when nearly half a million dollars was collected before the regulations that authorized the pilotage authority to collect that surcharge came into force. The pilotage authority implemented procedures to ensure that the surcharge would not, in the future, be collected without authority.

In early 2015, there was another three-month gap in the regulations, during which time there was no legal authority to collect the surcharge. This raised the question of whether the authority's earlier measures had been sufficient to avoid a recurrence, so the joint chairs wrote to the Minister of Transport to express the committee's concerns.

The minister has now confirmed that no surcharge was collected in early 2015 before the regulations came into effect, because the seaway was not open.

This being the case, the only remaining issue is what further action to take with respect to the illegal surcharge collected in 2013. The committee was advised that it would be practically impossible to refund customers. The committee suggested to both the former and current ministers that legislation could be introduced to retroactively validate the illegal collection of money, but there has been no uptake of this suggestion.

[Translation]

Mr. Dusseault: After our concerns about the collection of fees, which was still not in effect, I was very surprised to see the situation being repeated. Luckily, it seems that no fees were collected this time. I was very surprised to see that, despite the correspondence that we sent to them about this, they have made the same mistake, albeit, fortunately, without negative consequences this time.

I would like to know whether it would be possible to follow up to find out how this could have happened again, despite the fact that the department should be aware that the mistake had been made. Clearly, the actions they took were not effective, because the mistake was repeated. It is a matter of asking them what corrections have been made following the first incident.

[English]

The Joint Chair (Senator Merchant): Any comments? Agreed?

[Translation]

Mr. Di Iorio: But some money has been collected with no legal basis. An authority has done it. We seem to be saying that we are going to let that authority keep the money. It is a problem when someone acts in a way that is not in conformity with the act and yet they are rewarded by being told to keep the money after all. The authority must demonstrate that the mistake was made in good faith. The facts have to be brought to light. If someone simply did not worry that they had no legal authority to act in that way and nevertheless decided to collect the money, thinking: "Who is going to notice? Who will bring it up?'' our shutting our eyes and accepting the situation is a concern, I feel.

[English]

Ms. Jordan: According to what you're saying, the money that they collected that they illegally collected they can't return. Why? Is it because they don't know who they collected it from? Is it because they don't have it anymore? I guess, when you do something illegally, you have to be held accountable for it. I actually agree with my colleague that if you've got something that you received illegally, you have to be held accountable for either paying it back or paying a fine on having it.

[Translation]

Mr. Di Iorio: I can understand that it may be difficult in the shipping world, given that there are different variables involved — weight, distance, location, stops — in figuring out how to recalculate everything. It is a little like trying to put toothpaste back in the tube. Trying to do so after having brushed one's teeth is even more complicated.

My concern is that I need to understand whether the agency could have avoided all this or whether it just did not understand what it was doing wrong. If there are aspects of the agency's behaviour that result in it not being as pure as the driven snow, it is inappropriate for us at that point to tell it that it can keep the money anyway.

[English]

The Joint Chair (Mr. Albrecht): On page 2 of the material that counsel has prepared, it gives the response of the pilotage:

The Authority has been informed by the customers that refunding these small amounts per customer would not be beneficial, therefore, a refund is not expected.

My question is that if they could contact the customers to find out that response, why could they not contact the customers to just send them a cheque for 3 cents? No, it's going to be a lot more than that. Their argument doesn't hold a lot of water, in my opinion.

Ms. Kirkby: To give you more context in terms of making sure it doesn't happen again, what they've done with the more recent regulations is to stagger the coming-into-force dates. They've attempted to address this by, instead of doing the new regulation every couple of years, having the one regulation that has "this part comes into force now'' and "this part comes into force later'' and "then this part comes into force again.'' They've attempted to avoid the same temporal gap by complicated coming-into-force procedures. In that respect, they have definitely addressed that.

The reason it happened in the first place, I think, was because of a misunderstanding of a particular provision in their act. Subsection 34(1) of the Pilotage Act says that a copy of each tariff shall be published in the Canada Gazette and no tariff shall come into force before the expiration of 30 days after that publication.

I think the interpretation of that was that as long as they had published it, it could automatically come into force. They understand now, through extensive correspondence, that that doesn't mean they don't also have to comply with the Statutory Instruments Act. In that sense, the procedures are clarified; they know what they're doing. It's unlikely to recur.

The third thing that I wanted to say is with respect to the funds. They've given their answer, and that's their answer, that they can't really refund it to customers. But there's also a statutory requirement that they're self-sustaining. My speculation is that if they refund these fees, they're going to have to recoup them down the line. It might be creating extra administrative problems that, if they refund it now, they have to take it back from the customers through another surcharge.

Mr. Kmiec: The committee has 13 principles that we go by. Principle 4 outlines the things we're supposed to look at: "imposes a charge on the public revenues or requires payment to be made to the Crown or to any other authority . . . .'' It's the concept of illegal taxation.

I'm reading what the authority said here. They contact all these customers. We've been over this. Any business can do this, reconcile easily and refund their customers, so I don't know why they can't do that. The authority stated that ". . . refunding these small amounts per customer would not be beneficial . . . .'' That seems like a value judgment on whether that's beneficial. Based on what you're saying, that makes sense to me. They're trying to look after their own bottom line if they're supposed to be self-sustaining, but they still collected money from people. They weren't supposed to do it.

To me, if these customers are willing to send a waiver saying, "You don't have to repay us; don't bother,'' that is resolved. If the customer doesn't want to be repaid, that should be good enough for the committee. They made the mistake; they've rectified the mistake. Now they actually understand what the law says they're supposed to do. I think we could just proceed from there, as long as the customers are truly comfortable with the fact that they won't see this money back and that they were charged unnecessarily for a service.

The Joint Chair (Senator Merchant): Should we go with that? Is there any objection?

Senator Moore: Just one point, Madam Chair.

Are you suggesting, counsel, that they kept the money because they needed it for their bottom line? If that's the case, is that why they've been continuing to do this? Are they going to continue to do it again because they need the money for their bottom line? I don't know how they do their budgeting.

Ms. Kirkby: To be clear, that was speculation on my part. It's a statutory requirement that they are self-sufficient. To me, that makes sense, but they haven't said that. What they've said is that they can't refund it because it's impractical and the customers have said they don't want it back.

There's no indication that they're going to do this again. They've been very firm. I had a phone call from the director general, I think, of the authority, who was insistent that he understood the process now. It would not happen again. They're not going to collect fees without the proper legal authority.

Senator Moore: Did you have that phone call?

Ms. Kirkby: Yes.

Senator Moore: Did you make note of that?

Ms. Kirkby: Yes.

Senator Moore: Good. Thank you.

Senator Omidvar: This $469,000 is not a small amount of money. There is another way out, which could be that they recognize that they made a mistake, that they should not have collected these surcharges, that it's not possible to pay it back, but that they could donate it to a local environmental agency that is responsible, let's say, for cleaning up the Great Lakes. It's an admission of error, which is important, and it helps them to take some responsibility for it. That would be an out-of-the-box suggestion from the world I come from.

Ms. Borkowski-Parent: As you will see, there is another agenda item that deals with unlawful collection of money. It seems that when you have bodies that do not operate directly within the machinery of government, there's a misunderstanding or a lack of knowledge of the requirements of the Statutory Instruments Act. There's no ill will on their part. I suspect it's not deliberate. It's mostly a lack of knowledge of what making statutory instruments at the federal level entails. I think that is one instance where they misinterpreted what their enabling act provided.

The other solution, which was pointed out by the chairs, was to validate, by legislation, that collection of money. That is the other thing.

[Translation]

Mr. Di Iorio: We have a mandate from Parliament and we are acting in conformity with that parliamentary mandate. The work that we are currently doing in this particular matter is clearly part of the mandate with which we have been entrusted.

I understand that, at the beginning of the year, the organization establishes a budget and then sets its fees, the amounts that it will require as payment under the statutory documents it has at its disposal. I concur with our legal counsel's opinion that, at the beginning of the year, they probably established a budget, then set their fees and collected them. But a part of those fees would have been collected without a legal basis.

I would also like to make my colleagues aware of the fact that we will have to look to the future when other similar situations may arise.

As our learned counsel tells us, there was another previous case. So we have to establish a certain process and have a certain logic. We could always structure a legislative or regulatory instrument retroactively, but that is quite a cumbersome mechanism. What would be more appropriate, in my view, is for us to be informed as to the reason and the conduct. We must be informed first that there is an error, second, about what was done with the money, and finally about what would happen if the money had to be reimbursed.

In this case, the authority indicates that it indeed contacted the customers. It would seem that the customers have said they do not want the money back. But what would happen if they had to be reimbursed? If, at that point, there was a deficit for the year because the authority does not make a surplus and tries to reach a balanced budget, we will have the information that would allow us to consider the matter fully and make the appropriate decisions.

If ever we decided to take the suggestion that we do not accept the solution in any event, we would have the necessary facts; this case could serve as a framework for the future if other organizations end up in the same situation. In that way, we could avoid the trap of letting them think that we are not concerned, that we are going to ignore the matter and move on.

The Joint Chair (Senator Merchant): Thank you. Mr. Dusseault, do you have a comment?

Mr. Dusseault: No.

The Joint Chair (Senator Merchant): No? Nothing at all? Madam? No.

[English]

Mr. Genuis: Generally speaking, I agree with many of the comments that have been made in terms of how to proceed. One thing I would say, though, is that I don't think we should do anything in terms of retroactively changing the legislation to try to legitimize it. It sends completely the wrong message.

And I wouldn't support a proposal that this money be given to some third party. Unless you're refunding it to the customers themselves, if you're giving the money away but not refunding it — and we recognize in order for the organization to the self-sustaining, they have to get the money from essentially the same people. It sort of doubles the negative impact on the people that were improperly charged in the first place.

That approach would seem overly punitive to me. That's all I'm going to say.

The Joint Chair (Senator Merchant): I think we've had enough discussion. Should we just leave it for now?

The Joint Chair (Mr. Albrecht): We need a decision, though, for counsel. My feeling would be that we've gone around this so many times and they've explained it. They've assured us, doubly, that it will never happen again. I'm prepared to let it move on.

The Joint Chair (Senator Merchant): Agreed? Just let it move on?

Senator Moore: Wasn't there a motion to have a letter asking how this happened again?

The Joint Chair (Mr. Albrecht): They already told us that.

The Joint Chair (Senator Merchant): It's already done.

Senator Moore: But we're happy with that? Okay.

The Joint Chair (Senator Merchant): You said that that they said that it wasn't going to happen again.

Ms. Kirkby: They did say it wasn't going to happen again.

The Joint Chair (Senator Merchant): But we haven't had a letter to them? Are you asking that we send them a letter now?

Senator Moore: It was the suggestion of my colleague.

Ms. Kirkby: There is additional correspondence beyond what was presented today. We only gave you the most recent letter. In previous letters, there was more substance to it where I think they've largely explained what happened. The entirety of the file wasn't presented today.

Senator Moore: Just close it.

The Joint Chair (Senator Merchant): Agreed?

[Translation]

Mr. Dusseault: To go back to my point, I believe that Ms. Kirkby said that she had indeed received a telephone call that addressed the concerns that I had perfectly. So, even if it was not done in writing, we at least have the assurance that they are aware and that it will not happen again.

[English]

The Joint Chair (Senator Merchant): Do you think we should close the file?

[Translation]

Mr. Dusseault: For that part, yes. But, as for what should be done with the money, I do not believe that it is permitted yet. Because we have asked them several times what they intended to do about the money and they have clearly told us several times that they do not intend to do anything about it. I do not know whether the committee wants to proceed further on the matter, but as to whether the situation will happen again, I am satisfied, and I do not feel that a letter is necessary.

[English]

Ms. Jordan: I don't know if it's the responsibility of this committee, but I'm having a really hard time with someone who collects fees illegally and gets to walk away with them. I don't know if it's up to us to make that statement. Is it setting a precedent somewhere along the line and someone says, "How come this company got to walk away with fees they collected illegally and we can't?'' I have a concern with somebody who does something that has obviously been determined to be illegal and walks away without either a fine or restitution. I just need to say that.

The Joint Chair (Senator Merchant): I understand that, but what can we do about it?

Ms. Jordan: That's my question.

Mr. Kmiec: To my colleague's point, can we send a letter to the minister indicating this? I think it's outside our committee's responsibility. But just to inform the minister, because I'm sure the minister doesn't even know.

[Translation]

The Joint Chair (Senator Merchant): Nicola, what do you think?

Mr. Di Iorio: I completely agree with what Ms. Jordan says, except that I do not believe that that is what is happening here. I go back to the facts. The authority thought that its regulations were valid and, when it sent invoices for payment, it thought that it had a right to do so and it provided the service as a result. So I want to distinguish this case from one where someone would knowingly act illegally to try to appropriate money. The context is important, and so are the facts.

The comments I made earlier were made to be proactive. I want to make sure that, if these situations happen again and we become actively involved in a file, we ask the following questions: Why did you do that? On what basis? What are the facts? What have you done with that money? From whom did the money come? Have you tried to get in touch with them? What information did you provide? That is the perspective I was talking about.

I agree with the other comments that were made concerning our counsel's recommendations, when she told us that, for the file as a whole, sufficient explanation had been given, and we could move on. However, for any other case that might arise in the future, we can, from the outset, require explanations about the entire sequence. In this case, we started halfway along. With the new additional points, as provided by our counsel, the explanations we have received confirm that nothing untoward happened and, for that reason, I feel that I would close the file.

The Joint Chair (Senator Merchant): Thank you. Agreed? Yes? Agreed.

[English]

Mr. Kmiec: I'm totally okay with proceeding with closing the file, but can we send a memo to the minister from the committee indicating that these funds were collected illegally? The file is okay. I'm totally willing to proceed.

That's been done? I must have missed it.

Ms. Borkowski-Parent: Right after the memo, there's a letter sent to the current minister.

The Joint Chair (Senator Merchant): You're satisfied with that? Thank you.

SOR/2015-195 — REGULATIONS AMENDING THE FIREARMS MARKING REGULATIONS

(For text of documents, see Appendix D, p. 7D:1.)

The Joint Chair (Mr. Albrecht): We'll move on to the Item 6 on our agenda, under "Letters To and From Ministers.''

Ms. Kirkby: These regulations delayed the coming into force of the Firearms Marking Regulations for a further 18 months until June 1, 2017. The Minister of Public Safety had again formed the opinion that the change made by these regulations was so insubstantial or immaterial that the requirement in section 118 of the act to table the proposed regulations should not apply.

In such instances, section 119(4) of the act requires the minister to have a statement of the reasons why he or she formed that opinion laid before each house. This was not done, and so the department was asked why this was the case and when the statement would be tabled. The minister himself responded, advising that as this occurred under the purview of his predecessor, he could not provide an answer as to why the statement of reasons had not been tabled.

The minister indicates that the current government is committed to implementing gun marking regulations, so it may be that the regulations will come into force on June 1, 2017. If the coming-into-force date is postponed again, however, then either the proposed regulations will be tabled under section 118 of the act, or the statement of reasons should be tabled in accordance with section 119(4). Counsel could monitor to see which of these outcomes occurs.

The Joint Chair (Mr. Albrecht): Committee, what is your wish?

Ms. Vecchio: We should continue to monitor. Is there any way we can get a clear view of the timeline, though, so we know? I recognize we're saying, "may do this,'' and things like that, but is there any way of getting more of an idea of where we'll be heading?

Ms. Kirkby: We'll have a definite answer by June 1, 2017. Usually the regulations are published one or two months in advance of that, so we can follow up towards that date.

The Joint Chair (Mr. Albrecht): And you would bring that back to the attention of our committee?

Ms. Kirkby: If there are new regulations, we'll bring those forward. Regarding the old ones, we'll bring it back just to let you know what happened.

The Joint Chair (Mr. Albrecht): We'll move on to the next section, "Reply Unsatisfactory, Wood Buffalo Park Game Regulations.

[Translation]

SOR/78-830 — WOOD BUFFALO PARK GAME REGULATIONS

(For text of documents, see Appendix E, p. 7E:1.)

Ms. Borkowski-Parent: Let us go back to the most recent events that involve Parks Canada. At the meeting on May 19, 2016, there was discussion on various Parks Canada files for which no correspondence had been received for more than 18 months.

As a result of that meeting, the joint chairs gave the agency's CEO seven days to provide reasons why the committee's correspondence had been ignored despite numerous reminders. It took a call from the committee's senior legal counsel, on the day before the June 16 meeting, for the agency to show some signs of life and commit to replying to the joint chairs' letter as soon as possible.

That reply was received in June and does not explain why the committee's correspondence had been left unanswered until that point. Nevertheless, the agency's letter did provide an update on the various files, five of which will be studied this morning under various headings on the agenda.

As for the Wood Buffalo Park Game Regulations, the questions raised in this file are about updating the terminology and the undue discretion given to park directors.

Parks Canada committed to make the required amendments, but the committee was advised in 2012 that, because of the consultations with the 11 indigenous groups identified in the regulations, making the amendments would be a long and complex process. However, in January 2015, Parks Canada announced that it wanted to make the corrections with a miscellaneous regulatory amendment to take effect for the end of 2015.

For reasons that remain unknown, communication with the agency then fizzled out and, 18 months later, the amendments have still not been made. The miscellaneous regulatory amendment is no longer on the table as a way to resolve the problems with subjectivity. The only amendment that the committee can expect in the near future is the one that replaces the term "director general'' with "superintendent'' in the English version of the regulations, or vice versa. The terminology will therefore be corrected.

[English]

The Joint Chair (Mr. Albrecht): Any comments?

I think you pointed out, Evelyne, that there are five items from the Parks department, and for all five of those we have the annex with the multiple amendments proposed and the different types of action proposed. Hopefully the committee has looked at those and has decided in their own mind as to whether they're appropriate or not.

Ms. Vecchio: Just looking at the information we've received, does this committee believe it would be beneficial to call somebody like the CEO from Parks Canada so we can discuss this further? I'm not sure if all the information we received is actually showing what we will need. Do you think the next step should be actually having a witness here to tell us why there has been this disconnect and to ensure it doesn't happen in the future as well?

Ms. Jordan: I looked at all the Parks Canada responses, and they're all pretty much the same. We'll look at it eventually. There's no timeline attached to them. I think it's our duty to say we want times when you're actually going to address these concerns. This has been going on for a long time. They totally ignored this committee for too much time, and I think they should have to be held accountable. They keep saying, "We'll consider it at our next policy review.'' I don't think that's enough.

The Joint Chair (Mr. Albrecht): We have a suggestion to have the Chief Executive Officer of Parks Canada appear as a witness. We have another one coming.

Senator Omidvar: I'm looking at the recommendations from the Subcommittee on Agenda and Procedure, and number 3 states:

Where an issue remains in dispute after two unsatisfactory replies, or where action has been promised but 12 months have passed with no progress, the Committee will consider calling witnesses from the department or agency concerned.

I suggest we go back to the template we approved and follow that process.

The Joint Chair (Mr. Albrecht): I think a few of us are trying to recollect whether we had these officials appear before our committee earlier. It was Environment Canada.

Ms. Borkowski-Parent: That's right. We had Environment Canada and the CFIA.

Ms. Vecchio: I definitely wasn't here. I would like to put on the table, then, that we request the CEO to come before the committee and justify why there has been this disconnect and why they have not come back on the letters.

The Joint Chair (Mr. Albrecht): I look to our counsel for suggestions or input on that idea.

Ms. Borkowski-Parent: It's up to the committee.

The Joint Chair (Mr. Albrecht): I realize we have to make the final decision, but I didn't want to make your job more difficult.

The Joint Chair (Senator Merchant): I think, Mr. Chair, as you proceed this morning, you'll see that several items are related to Parks Canada. It may be a good idea if you want to wait a little, because you'll see there are a lot of things that haven't been resolved. Maybe it is a good idea to call.

The Joint Chair (Mr. Albrecht): I think we can deal with the motion and agree with it now.

Is there any further discussion on the motion to ask the CEO of Parks Canada to appear before the committee as a witness? All in favour?

Hon. Members: Agreed.

SOR/2010-140 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE CANADA NATIONAL PARKS ACT (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix F, p. 7F:1.)

The Joint Chair (Mr. Albrecht): Next on our agenda is Item 8, regulations amending regulations under the National Parks Act. I think we're into the same ballpark here. We can deal with it. I look to our counsel again. Is there something we should deal with prior to his appearance?

[Translation]

Ms. Kirkby: I prepared a whole presentation. I can read it or not read it, as the committee wishes.

[English]

The Joint Chair (Mr. Albrecht): I don't want to disappoint you. All that work for nothing. As long as it's short.

[Translation]

Ms. Kirkby: In this file, three kinds of issues remain to be resolved. First, there are questions about the director's discretionary powers, some examples of which go back more than 30 years.

Second, one section dealing with the distribution of information documents is based on subjective impressions that could infringe upon the freedom of expression guaranteed by the Charter. Finally, the English version of a section dealing with the permit should, for consistency, use the word "cancel'' and not the word "revoke.''

The agency indicated that this last amendment would be included in an interdepartmental omnibus package of miscellaneous regulatory amendments currently proposed for the winter of 2016-17. As for the other amendments, although the agency promised to make the necessary amendments in 2011, it is now indicating that those amendments raise substantive policy issues and will need to be taken into consideration as the agency reviews its regulations.

Even without considering the fact that the agency failed to respond to the committee's correspondence for 18 months, this is clearly a step backwards.

[English]

The Joint Chair (Mr. Albrecht): I think that comment about raising substantive policy issues "and will need to be taken into consideration as the Agency reviews its regulations'' is repeated many times throughout the response. So we need to highlight that when our witness appears before us.

SOR/2007-262 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PARTS I AND III)

(For text of documents, see Appendix G, p. 7G:1.)

The Joint Chair (Mr. Albrecht): Next is Item No. 9 under "Part Action Promised.''

Ms. Borkowski-Parent: Let me precede my comments by saying how far the various files on the Canadian Aviation Regulations have come. Some members will remember a time in late 2013 when we could not obtain any substantive responses on nearly 20 files on these regulations. The committee then instituted semi-annual meetings with departmental officials where counsel could discuss the state of various files and clarify issues brought forward by the committee. There's still some work to do, as evidenced by this file. Sometimes the worlds of engineering and law collide, but, nevertheless, there's been more progress than not.

As to the file at hand, we're down to the last of the 20 points that were originally raised. As the note states, three more amendments have been promised since the last time the file was brought to the committee. Nevertheless, the department's response on three other points leaves something to be desired.

With regard to point 2, there seems to be a lack of understanding of the principles of legislative drafting. So when a term is defined in the interpretation portion of a regulation, that definition applies to the regulation as a whole.

If the intent is to have a secondary definition applicable to a certain part, it must be stated clearly, which the definition of "operator'' in section 300.01 does not do. In that case, the reader is left with an apparent contradiction between the two definitions that must be resolved in order to understand the regulatory scheme.

On point 8, the question put to the department was what possible distinction can be made between the terms "roles,'' "responsibilities'' and "duties'' found in section 302.203 and 302.207. In the absence of a definition, the reader is left to the ordinary meaning of these words.

In this particular instance, the words "roles,'' "responsibilities'' and "duties'' are, for all intents and purposes, equivalent. The note demonstrates this quite eloquently. Yet, by using various terms, the well-established principle that every word should be given a meaning kicks in but leaves the reader, once again, in a state of confusion.

While the department sees a clear distinction between these various attributes, that distinction is not spelled out in the regulations and should not be left to the goodwill of the administration.

Point 9 is another iteration of that same problem, this time with the words "measures'' and "procedures.'' Once again, the department sees a clear conceptual distinction between the two, one that does not have any basis in the ordinary meaning of those words.

The Joint Chair (Mr. Albrecht): Responses in the war of words?

Mr. Genuis: Good to see there's progress. I wouldn't lose much sleep over point 3 as it respects just the duplication of language, but I think the first and second items require some follow-up and insistence on that. We're moving in the right direction here, but if, after another follow-up, we don't see movement on those first two items, we should pursue other steps.

The Joint Chair (Mr. Albrecht): Just to clarify, are you referring to points 2 and 8?

Mr. Genuis: Yes, 2 and 8, which both deal with things that, it seems to me, have more substantive implications, whereas number 9, the issue of duplication in regulations, is not ideal but not as problematic.

The Joint Chair (Mr. Albrecht): Other comments from the committee? What direction do we want to go in? We need to give our counsel some direction.

Ms. Borkowski-Parent: We'll follow up on point 2 and on point 8.

The Joint Chair (Mr. Albrecht): I guess I would differ in that if we are to follow up on the first two, do the third one too but don't die on the Hill.

Ms. Borkowski-Parent: Follow up on all points?

Mr. Di Iorio: At the bottom of page 5, it says that the department has indicated that it will replace the word "measures'' with "procedures'' in the French version of section 302.205. I work with the French version, but I'm reading from the English version. But there's no timeline. We always require a timeline.

The Joint Chair (Mr. Albrecht): That dealt with the French version only.

Mr. Di Iorio: I read the French documents, but I went to the English documents because I wanted to make sure.

The Joint Chair (Mr. Albrecht): But the English document says they will change it in the French version, if I understood correctly.

Mr. Di Iorio: I'm reading page 5 of counsel's memo. At the bottom of page 5, it says that the department has indicated that it will replace the word "measures'' with'' procedures'' in the French version of 302.205.

The Joint Chair (Mr. Albrecht): Right. I think the issue is it's not in the English version.

Ms. Borkowski-Parent: Correct. If one is willing to accept the differentiation between "measures'' and "procedures,'' there's still a problem with the French version that needs to be resolved.

Mr. Di Iorio: That's what I said. I added to what Mr. Genuis said.

[Translation]

SOR/2016-7 — REGULATIONS AMENDING THE AGRICULTURAL MARKETING PROGRAMS REGULATIONS

(For text of documents, see Appendix H, p. 7H:1.)

Ms. Borkowski-Parent: The 2016-7 text contained the correction necessary to update the reference to the Canadian Wheat Board in SOR/2006-293. After an examination, the department was asked why hogs more than 10 months old and sold for purposes other than breeding would fall into the "breeding animals'' category mentioned in section 1.5 of the regulations.

According to the department, "breeding animals'' include culled animals that have come to the end of their breeding life and are being marketed for slaughter, provided that the sale takes place in the current production period. This explanation could therefore be considered satisfactory.

[English]

The Joint Chair (Mr. Albrecht): Okay. All in favour?

Hon. Members: Agreed.

SOR/2005-247 — NEW SUBSTANCES NOTIFICATION REGULATIONS (CHEMICALS AND POLYMERS)

(For text of documents, see Appendix I, p. 7I:1. )

The Joint Chair (Mr. Albrecht): Next is Item 11 under "Reply Unsatisfactory (?).''

Ms. Kirkby: With respect to the New Substances Notification Regulations (Chemicals and Polymers,) amendments to address five matters were agreed to in 2012. The department had said the amendments would be prepublished in the winter of 2014, but this was postponed until the fall of 2014, then to spring or summer 2015, then to summer 2016. It is now currently expected that the amendments will be prepublished this fall through an omnibus regulations package, but, as of early this week, prepublication had not yet occurred.

The Joint Chair (Mr. Albrecht): Are we relatively comfortable that we're making progress, or do you want us to take further action? Are we willing to wait until the end of the fall for further action?

Hon. Members: Agreed.

The Joint Chair (Mr. Albrecht): So we'll keep following up on that.

SOR/2015-67 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE NUCLEAR SAFETY AND CONTROL ACT (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix J, p. 7J:1.)

The Joint Chair (Mr. Albrecht): We'll move on to Item 12 on our agenda, under "Reply Satisfactory (?).''

Ms. Kirkby: The question raised with respect to these regulations is on what date they were made. It continues to seem that there is no date on which the commission made these regulations that could result in compliance with the requirements of the Statutory Instruments Act, but the commission is, nonetheless, of the view that they were properly made.

Given this impasse, the committee recommended a particular approach for the commission to adopt when amending regulations in the future to ensure that there is no ambiguity with respect to the date of making.

In its response, the commission has agreed to follow the recommended procedure to ensure it transparently complies with statutory requirements. The last time this file was before committee, the committee had also asked about any potential consequences for the nuclear safety regime if a court later determines that these regulations were, in fact, not properly made.

The commission advises that in that unlikely event, there is no real risk for the application of these regulations since the amendments were of a minor administrative nature. If the committee agrees that this response is satisfactory, this file could be closed.

The Joint Chair (Mr. Albrecht): Any disagreement? All in agreement?

[Translation]

Mr. Di Iorio: I will read the English version because it will be quicker.

[English]

Finally, the Commission advises that it "sees no real risk related to a Court finding that the Regulations were not made properly,'' since most of the amendments were administrative in nature, are "not central'' to the Commission's regulatory activity, or have little practical application in any event since they relate to practices that are becoming obsolete.

[Translation]

This is the comment I want to make.

[English]

This is bad business practice to start with.

[Translation]

The fact that it happened in a situation where there were fewer risks or serious consequences should not lead them to say that they will not change their behaviour because, when they were caught with their hand in the cookie jar, they were only taking small cookies, not big ones. It is still important for the committee to tell them of our recommendation that they change their behaviour, instead of saying, "I hit him with my car, but luckily, he was only slightly injured.''

[English]

Ms. Kirkby: They have agreed to follow the procedure that the committee recommended. In this instance, it was another bit of a fluke that this had occurred. They understand that it is the commission that is to make the regulations, and then they send it for examination by the Department of Justice.

There were no changes, so I think they believed that because the commission had approved that particular version, they had satisfied the requirements. The point that we made to them is that the steps of the procedure are that you first send the draft regulations for examination and then you make them. They have agreed to do that now even in instances where examination results in no changes.

Again, I think this is just an unusual circumstance and they fully understand now the procedure.

The Joint Chair (Mr. Albrecht): Agree to move on?

Hon. Members: Agreed.

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

(For text of documents, see Appendix K, p. 7K:1.)

The Joint Chair (Mr. Albrecht): Item 13 is under the heading "Progress (?).''

Ms. Borkowski-Parent: This is another file of Parks Canada where the notion of progress is debatable. At hand are issues of making the contravention of terms and conditions of a licence punishable by law, and questionable powers of inspection. After the amendments to address all these issues were prepublished in 2013, the department advised that they were in a final approval process and they were going to be brought into force by the end of 2014-15.

Nearly two years after that last update, the committee is now told that the amendments to the regulations are now part of a broader regulatory review and that they can be expected to be made in the next two years.

The Joint Chair (Mr. Albrecht): Here's another one we want to put on the agenda. The fact that he was not aware that the letter came until the very day that he was to have — it's reminiscent of the earlier comments about the mail not being delivered. I think we need to take action on that.

Are there further comments on No. 13? We will move on.

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

(For text of documents, see Appendix L, p. 7L:1.)

The Joint Chair (Mr. Albrecht): Next is Item 14 on our agenda.

Ms. Borkowski-Parent: By way of background, the marketing of agricultural products in interprovincial and international trade falls within the federal government's jurisdiction. Under the current regime, the federal government delegates its powers to provincial marketing boards so that the same body is responsible for the marketing of an agricultural product, whether that product is destined to the provincial, interprovincial or international markets. That delegation of power sometimes includes the power to fix levies. In order to collect levies for products destined to the extra-provincial markets, the board has to make a levies order. Those orders fall within the purview of the Statutory Instruments Act.

Over the years, the committee has noted that some levies orders were either ancient or absent altogether. Whatever the case may be, there was a significant risk that marketing boards were collecting levies on products destined to extra-provincial markets without proper authority.

As a result of the committee's concerns, the Farm Products Council of Canada began a project in 2008 to collect information on the various delegation orders and the levies orders with a view of taking corrective measures as needed. To date, 82 orders have been identified — and I quote the council — "as being at risk of legal exposure.'' One of the solutions considered by the council was to remove the words "by order'' from 54 delegation orders.

Based on the Department of Justice's theory of the magic words "in order to be a statutory instrument falling under Statutory Instruments Act,'' the type of text has to be expressly specified in legislation. So if you remove "by order'' from the delegation order, there's no longer an express reference, and the document is no longer submitted to the requirement of the Statutory Instruments Act. It bears noting that the committee has never accepted that way of qualifying instruments, but such is the state of matters at this point.

The committee notified the minister of potential issues of oversight and transparency of the levies orders, if such is the approach that the council is going to adopt.

Furthermore, the need for retroactive legislative validation of levies collected without authority was also brought to the attention of the minister, who responded two years ago that he was committed to evaluating at the appropriate time every option to ensure that all levies that have already been paid by Canadian producers are valid.

The last letter of the council, dated March 15, 2016, is a little perplexing. It appears that after eight years the council is still collecting information on the levies order. There's no mention made of the mechanism to ensure proper oversight of the powers delegated by the federal government, and there's no indication as to what, if anything, is to be done with respect to levies collected unlawfully.

The Joint Chair (Mr. Albrecht): Looks like this is the time we need to have a letter from the joint chairs to try to get this clarified within the next six months.

Are there any comments from committee members?

Mr. Kmiec: This has been ongoing since 2008, so I think it's time to call a witness. This is the second time I have seen this now. It says in the briefing note that it was suggested to the minister that consideration be given to introducing remedial legislation to retroactively validate this potential illegal collection of money. Back to a point my colleague made: Can we not make that suggestion ever again to a minister to pass legislation retroactively to legalize the illegal collection of money? We should never be doing that in the first place. They illegally collected it. From that moment on we should fix the problem going forward and not try to pass legislation. I would be embarrassed if I had to stand in the house and debate an issue like this retroactive taxation fee-levying.

This is at the point where we need to call someone from this organization to explain what's happened since 2008. Maybe they were busy; maybe there was something going on. I don't know. It's been about eight years, but they need to come here and explain.

The Joint Chair (Mr. Albrecht): We have options of either a letter from the joint chairs or calling a witness. How many are in favour of calling a witness? That's the general consensus.

We're so congenial this morning.

There's some question as to whether we'll be able to finish at 10:00. I want to remind committee members that the committee is scheduled to go to 10:15, so if you have other duties, it's your obligation to find coverage. I would hope we can be done by 10:00, but I don't think we're going to quite make it today.

SOR/2005-206 — REGULATIONS AMENDING THE NATIONAL PARKS OF CANADA FISHING REGULATIONS

(For full text of documents, see Appendix M, p. 7M:1.)

The Joint Chair (Mr. Albrecht): Next on our agenda is Item 15 in relation to Parks Canada.

Ms. Kirkby: This is the fourth of the files. The issue raised in 2007 was the need to identify the aggregate catch limit for salmon in Gros Morne National Park in one of the schedules to the National Parks of Canada Fishing Regulations. This amendment is expected to be included in the upcoming miscellaneous amendments package, so we can add it to the file for when the witnesses appear.

The Joint Chair (Mr. Albrecht): Moving on to No. 16.

[Translation]

SOR/2011-197 — REGULATIONS AMENDING THE GOVERNMENT CONTRACTS REGULATIONS

(For text of documents, see Appendix N, p. 7N:1.)

Ms. Kirkby: In 2013 and 2014 the Treasury Board promised to make some quite minor amendments. To start with, it anticipated pre-publishing the regulations in September 2014 and adopting the regulations themselves in March 2015. Since that time, the amendments have been delayed several times. The most recent letter indicates that, because of other competing priorities, the amendments are taking longer than expected.

The Treasury Board indicates that it will keep the committee informed as to the status of the file.

[English]

The Joint Chair (Mr. Albrecht): There is indication on the bottom of page 1 that it is expected "in the coming months.'' Earlier it talked about a number of months. I would suggest that we request a response within six months at the very latest. The phrase "in the coming months'' is pretty vague. Let's put a deadline on it. Maybe six months is too long. Suggestions?

Mr. El-Khoury: Four months.

The Joint Chair (Mr. Albrecht): All agreed?

Hon. Members: Agreed.

The Joint Chair (Mr. Albrecht): Four months.

Back to our counsel: Is that reasonable?

Ms. Kirkby: Four months to —

The Joint Chair (Mr. Albrecht): It says that they are expected to be present it to the new government "in the coming months.'' I'm going to suggest we want them to be presented within four months.

Ms. Kirkby: To be presented to the government within four months.

The Joint Chair (Mr. Albrecht): Right.

SOR/2015-134 — REGULATIONS AMENDING THE HISTORIC CANALS REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix O, p. 7O:1.)

The Joint Chair (Mr. Albrecht): Next is Item 17 under the heading "Action Promised.''

Ms. Borkowski-Parent: This is the one good news file from Parks Canada. Drafting questions that were raised with regard to this regulation are expected to be made by miscellaneous amendment regulations during the course of this fiscal year.

The Joint Chair (Mr. Albrecht): We can start off on a good note when we have our witness before us and then move into some of the more difficult discussions.

SOR/2015-243 — REGULATIONS AMENDING THE CANADIAN HATCHING EGG PRODUCERS QUOTA REGULATIONS

(For text of documents, see Appendix P, p. 7P:1.)

SOR/2015-250 — REGULATIONS AMENDING THE ROYAL CANADIAN MOUNTED POLICE SUPERANNUATION REGULATIONS

(For text of documents, see Appendix Q, p. 7Q:1.)

SOR/2016-34 — RULES AMENDING THE RULES OF PROCEDURE FOR BOARDS OF REVIEW

(For text of documents, see Appendix R, p. 7R:1.)

SOR/2016-98 — REGULATIONS AMENDING CERTAIN DEPARTMENT OF INDUSTRY REGULATIONS

(For text of documents, see Appendix S, p. 7S:1. )

The Joint Chair (Mr. Albrecht): I would suggest that for Items 18 to 21, under "Action Taken,'' that we do them collectively. Action has been taken. It looks like everything is satisfactory. Are all agreed?

Ms. Borkowski-Parent: Yes. Together they make seven amendments requested by the committee.

SI/2015-34 — ORDER FIXING JUNE 1, 2015 AS THE DAY ON WHICH SECTIONS 169 AND 170 OF THE ACT COME INTO FORCE

SI/2015-35 — ORDER DESIGNATING THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT TO BE THE MINISTER REFERRED TO IN THE ACT

SI/2015-36 — ORDER FIXING JUNE 1, 2015 AS THE DAY ON WHICH CERTAIN PROVISIONS OF THE ACT COME INTO FORCE

SI/2015-37 — ORDER FIXING MAY 15, 2015 AS THE DAY ON WHICH THE ACT COMES INTO FORCE

SI/2015-38 — ORDER FIXING THE DAY AFTER THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH CERTAIN SECTIONS OF THE ACT COME INTO FORCE

SI/2015-42 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH CERTAIN PROVISIONS OF THE ACT COME INTO FORCE

SI/2015-43 — ORDER FIXING JUNE 1, 2015 AS THE DAY ON WHICH THE EXTRACTIVE SECTOR TRANSPARENCY MEASURES ACT COMES INTO FORCE

SI/2015-47 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH CERTAIN SECTIONS OF THE ACT COME INTO FORCE

SOR/2013-212 — RULES AMENDING THE PATENT RULES

SOR/2014-130 — REGULATIONS AMENDING THE ELECTRONIC COMMERCE PROTECTION REGULATIONS (CRTC)

SOR/2014-143 — REGULATIONS AMENDING THE CANADIAN CHICKEN LICENSING REGULATIONS

SOR/2014-145 — ORDER AMENDING THE CANADIAN CHICKEN MARKETING LEVIES ORDER

SOR/2014-262 — ORDER AMENDING THE CANADIAN CHICKEN MARKETING LEVIES ORDER

SOR/2014-263 — REGULATIONS AMENDING THE CANADIAN CHICKEN LICENSING REGULATIONS

SOR/2015-73 — ORDER 2015-87-04-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2015-78 — REGULATIONS AMENDING CERTAIN REGULATIONS ADMINISTERED AND ENFORCED BY THE CANADIAN FOOD INSPECTION AGENCY

SOR/2015-79 — REGULATIONS AMENDING THE CANADA PENSION PLAN REGULATIONS

SOR/2015-80 — ARCTIC COUNCIL MINISTERIAL MEETING 2015 — PRIVILEGES AND IMMUNITIES ORDER

SOR/2015-93 — ORDER AMENDING THE BEEF CATTLE RESEARCH MARKET DEVELOPMENT AND PROMOTION LEVIES ORDER

SOR/2015-94 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS FISCAL MANAGEMENT ACT

SOR/2015-97 — EXEMPTION REGULATIONS (CONSUMER PRODUCTS)

SOR/2015-98 — REGULATIONS AMENDING SCHEDULE 1 TO THE MARINE LIABILITY ACT

SOR/2015-101 — REGULATIONS AMENDING THE PARI-MUTUEL BETTING SUPERVISION REGULATIONS

SOR/2015-102 — ORDER 2015-87-03-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2015-105 — ORDER DECLARING AN AMNESTY PERIOD (2015)

SOR/2015-106 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS

SOR/2015-110 — REGULATIONS AMENDING THE SCHEDULE TO THE WITNESS PROTECTION PROGRAM ACT

SOR/2015-112 — REGULATIONS AMENDING THE CANADIAN EGG MARKETING AGENCY QUOTA REGULATIONS, 1986

SOR/2015-146 — REGULATIONS AMENDING THE LAURENTIAN PILOTAGE AUTHORITY REGULATIONS

SOR/2015-219 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS

SOR/2015-221 — REGULATIONS AMENDING THE EXPORT PERMITS REGULATIONS (SOFTWOOD LUMBER PRODUCTS 2006)

SOR/2015-222 — REGULATIONS AMENDING THE CANADIAN EGG MARKETING AGENCY QUOTA REGULATIONS, 1986

SOR/2015-223 — ORDER AMENDING THE CANADIAN EGG MARKETING LEVIES ORDER

SOR/2015-224 — REGULATIONS AMENDING THE CANADIAN TURKEY MARKETING QUOTA REGULATIONS, 1990

SOR/2015-225 — ORDER 2015-87-11-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2015-226 — ORDER 2015-87-12-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2015-231 — REGULATIONS AMENDING THE SASKATCHEWAN SEX OFFENDER INFORMATION REGISTRATION REGULATIONS

SOR/2015-232 — REGULATIONS AMENDING THE BROADCASTING DISTRIBUTION REGULATIONS

SOR/2015-233 — ORDER AMENDING SCHEDULE I.1 TO THE FINANCIAL ADMINISTRATION ACT

SOR/2015-234 — ORDER AMENDING SCHEDULE I.1 TO THE FINANCIAL ADMINISTRATION ACT

SOR/2015-235 — ORDER AMENDING SCHEDULE I.1 TO THE FINANCIAL ADMINISTRATION ACT

SOR/2015-236 — ORDER AMENDING SCHEDULE I.1 TO THE FINANCIAL ADMINISTRATION ACT

Ms. Borkowski-Parent: Last, I would note for the record that under "Statutory Instruments without Comment'' are 42 instruments that have been reviewed and found to comply with all the committee's criteria.

The Joint Chair (Mr. Albrecht): Have we dealt with the issue regarding the ATIP?

Ms. Borkowski-Parent: Yes.

The Joint Chair (Mr. Albrecht): Are there any further business items from the committee?

Thank you to our new staff. We're very appreciative of your efforts. You'll draft the letter for my signature?

Ms. Borkowski-Parent: Yes, we will follow up.

(The committee adjourned.)