[Recorded by Electronic Apparatus]

Thursday, October 22, 1998.

• 0830

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

Gurmant Grewal (Joint Chairman) in the Chair.


Mr. Richard Dupuis (Joint Clerk of the Committee): Honourable senators and members, we have a quorum. In accordance with House of Commons Standing Order 106.(1) and (2), our first order of business is the election of a joint chair for the House of Commons. I am ready to entertain motions to that effect.


Mr. Martin: Pursuant to Standing Order 106, I wish to nominate Gurmant Grewal as Joint Chairman of the committee.

The Joint Clerk (Mr. Dupuis): It has been moved by Mr. Martin that Mr. Grewal do take the Chair of this committee as co-chair.

Is it the pleasure of the committee to adopt the motion?

Hon. Members: Agreed.

The Joint Clerk (Mr. Dupuis): I declare Mr. Grewal duly elected co-chair of the committee and invite him to take the Chair.

The Joint Chairman (Mr. Gurmant Grewal (Surrey Central, Ref.)): Ladies and gentlemen, thank you very much for your vote of confidence. Although I am new on this committee, I will try my best to keep it as it was before. I have heard that this committee is different from other committees. It is a non-partisan committee and I will try to keep it that way. I look forward to your cooperation. Thank you very much once again.

I am ready to accept nominations for a deputy chair of the committee.

Mr. Wappel: Mr. Chair, I nominate Derek Lee for deputy chair.

The Joint Chairman (Mr. Grewal): Mr. Derek Lee has been nominated by Mr. Wappel. There being no other nominations, is that acceptable to members?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Mr. Derek Lee is the Deputy Chair of the committee. We shall now proceed to the agenda items.


The Joint Chairman (Mr. Grewal): The first item on the agenda is the Royal Canadian Mounted Police Regulations, 1988. This has been before the committee for some time. Is there any discussion on it?

Mr. Wappel: It is before the committee because it is supposed to be before the committee at every meeting. Certain undertakings were given by the Solicitor General.

I should like to ask counsel if there was ever a true response to the letter of June 22, other than the perfunctory response given on July 3, 1998?


Mr. Saada: Perhaps I could address that concern. As you know, I am the parliamentary secretary to the Solicitor General. It is therefore my duty to inform you of this today. To ensure that we are all on the same wavelength, I will read it to you in English.


As the committee is aware, the Quebec Superior Court found the current provisions dealing with the political rights of RCMP members to be unconstitutional. The court, however, suspended its judgment until January 1, 1999. I wish to advise members of the committee that the amendments to the RCMP regulations on the subject of political rights of RCMP members will be in force prior to January 1, 1999.

The Joint Chairman (Mr. Grewal): Are there any comments from legal counsel?

Mr. François R. Bernier (Leading Legal Counsel of the Committee): I wish to return to Mr. Wappel's question. In their letter of June 22, the committee chairmen asked for three things. First, the committee wanted an assurance that the Department of Justice would be advised that the drafting instructions of May 5 would be superseded by new instructions. Second, the committee asked for a copy of the revised instructions to be furnished to its counsel.

These two requests are not addressed directly in the Solicitor General's reply which has just been distributed. At the time, the Solicitor General indicated he would await the outcome of the case, to which Mr. Saada just referred.

Third, the committee wanted a firm commitment from the Solicitor General that work on amendments to the RCMP Act, as opposed to revised regulations, would be initiated without delay. However, the only assurance offered by the Solicitor General is that he is prepared to consider amending the RCMP Act at some point in the future. This falls quite short of the assurance that was sought by the committee.

Mr. Saada has already referred to the court case, so I will not go into it. The court case confirms the position taken by this committee in its report No. 61. In fact, the judge in the case referred to that report of the joint committee.

The element that might affect how the committee wants to proceed has also been mentioned by Mr. Saada, namely, that the court suspended the application of its judgment until January 1, 1999, to give time to the government to draft new regulations. We now have a commitment from the Solicitor General that there will be new regulations in place before then. Of the items requested in the June 22 letter, that would leave the issue of this committee receiving a copy of the new drafting instructions and also this question of amendments to the RCMP Act.

The Joint Chairman (Mr. Grewal): Any other comments?

Mr. Wappel: I have a couple of observations. I am perturbed to see the letter from the Solicitor General is stamped August 14 yet it was not received by this committee until October 14. I find that distressing. Perhaps there is an explanation. I hope so.

Second, it would appear that the Solicitor General's letter does not respond to our letter of June 22 in any way whatsoever. I do not regard the statement I am prepared to consider amending the RCMP Act at some point in the future to be worth anything. A sieve would hold more water.

I am not prepared to make any suggestions. We have been around this ring so many times that it is not funny. We have given the Solicitor General plenty of time, and rope, and opportunity. He has fallen short again. I do not have any particular recommendation. It seems that the regulations that we are concerned with will be amended, as you said. What is the difference between the end of October and January 1? It is virtually nothing.

Notwithstanding that when the Solicitor General was here there was an assurance of full cooperation, his drafters of his letters do not seem to be responding directly to the correspondence. I do not know what to say. I am looking for guidance from other members.

Mr. Bailey: This is the first day I have sat on this committee. Could you give me the details of why you made the request of the Solicitor General in the first place?

Mr. Bernier: If I may, Mr. Chairman, the committee, in its Report No. 61, found that sections 56 and 57 of the RCMP regulations are unconstitutional in that they were contrary to the Canadian Charter of Rights.

Mr. Lee: Mr. Wappel raised one item about the time and date of receipt of the letter. My office bears some responsibility for the late date stamp of October 14. That is our committee's date stamp. This letter was received by my office over the summer, in rough proximity to the August 14 date on it. My office was actually closed for the entire month of August.

I am sorry. On reopening the office sometime in September, there were about two miles of correspondence. This took another few days to get through. At some point, the letter was made available to me, and I realized that this letter should have been directed to the committee as opposed to me. As a result, my office did not date stamp it, although we should have. Somewhere between that date and the date stamp of the committee, this letter was sent on to the committee. The August date is correct, and the delay in stamping it was because it was sent to my office. Although it is properly addressed to the Senate, it ended up in my office.

On the second item, the question of whether we should be focusing intensely on an amendment to the RCMP Act must be based on the assumption that the force is not legally capable of impairing any Charter right, unless by statute as opposed to regulation. We now know that the current regulation which we have found to be ultra vires is to be revoked. Until we see the new regulation, it will be difficult to determine whether, speaking in theory, the regulation or a proposed impairment of the Charter rights really exists.

One may take the view that if there is any impairment at all, there would have to be a statutory change to impair it. We do not yet know what the RCMP will propose as a regulation. It is not quite a chicken-and-egg scenario, but that is why I suggest that, since the focus is on amending the regulation — changing it, altering it, revoking it, replacing it, whatever you want to call it — there is less attention, on a practical basis, on the extent to which we must make a statutory change.

Counsel may well point out that no matter what you do with a regulation, it will be ultra vires if the statute does not authorize it. That may be true but that is the current process here now.

As a third item, Mr. Wappel has asked about the willingness of the drafters of the new proposed regulation to consult with us. It is worth noting that, as I understand it, the operation of drafting and vetting the new regulation is happening within the RCMP. From a practical and political point of view, I would suggest that that is an agency which operates away from the Solicitor General and that the bureaucratic or administrative mechanisms to be used will be from within the force.

Although the Solicitor General is very concerned about this process, it is not Solicitor General drafters who are doing the drafting. RCMP drafters and Department of Justice drafters are doing this work within the agency. I wanted to bring that to the attention of members in case they thought the Solicitor General was in complete command and control of the drafting process here.

The Joint Chairman (Mr. Grewal): There being no further comment, I believe the committee has requested a copy of the instructions from the Solicitor General. We will follow up. Are there any other comments, counsel?

Senator Moore: Mr. Saada, were you reading from a letter?

Mr. Saada: No, I made some notes for myself. I am brand new in the job.

Senator Moore: I know, but I was not sure if you had a letter to provide to us. We still do not have it written down. Can you get a letter to that effect for the committee?

Mr. Saada: Sure.

Senator Moore: This is an inch-by-inch process and every little bit we get makes me feel more comfortable that we will end up where the committee thinks we should be as soon as possible, rather than sometime in the distant future.

Mr. Saada: That is fine. We are proceeding step by step in this regard. This is the first step. I do not have any problem getting this in writing.

The Joint Chairman (Mr. Grewal): There being no further comment, would the committee like to close the file or to pursue it further?

Mr. Wappel: Mr. Chairman, I would ask that the file be brought back at every meeting as the first item on the agenda until this matter is resolved.

Hon. Members: Agreed.



(For text of documents, see appendix p. 13A:1)

Mr. Peter Bernhardt (Counsel to the Committee): As indicated in the note, when these regulations were replaced, an error which the department had undertaken to correct was in fact reproduced. An explanation will be sought and the issue will be pursued again in connection with the new regulations.

Mr. Lee: Mr. Chairman, this sloppiness on the part of the ministry has prevented us from closing a file. This file should have been closed. It is either stupidity or regrettable discourtesy that has allowed this to evolve this far. I want the record to show that. I leave it at that.

Senator Moore: So what happens?

Mr. Lee: So we wait another couple of years.

Senator Moore: Why not do the same thing here that we are doing with the RCMP file and get this cleaned up? Can we force that along?

Mr. Lee: It is just a drafting error. We do not usually pull out the hammer on a drafting error. Senator Moore might wish to propose using a hammer. On the Richter scale, this is not a 10 out of 10.

Senator Moore: If it is a simple thing to do, how do we get it tidied up?

Mr. Bernhardt: We propose, at this point, that counsel write to the department pointing out that they forgot to make the change, asking them why they did not do it, and requesting an assurance that they will make this connection as soon as possible.

If the committee wishes to suggest a time frame to the department, I will certainly include that in the letter. It is for members to decide the time frame they would like to put forward.

Mr. Bailey: I believe there is some upcoming legislation pertaining to this, but I do not have it with me. Will this matter not need to be cleared up before the bill itself can be introduced? There are amendments to the marine act coming up and I believe it is related to this but I may be wrong. This would have to be cleaned up before that bill could be introduced.

Mr. Bernhardt: If you are referring to the Canada Marine Act, yes, new legislation is pending. I am not sure what the status of these regulations would be. My suspicion is that these regulations are to be continued. That will not cause a problem vis-E-vis the legislation. We are dealing here with a drafting error. Basically, they have used two different terms in one version and not the other.

General counsel points out that this is also done under the Financial Administration Act so it will not be directly affected, even though it does deal with shipping.

Mr. DeVillers: On a point of clarification, the memo states that these regulations have now been repealed and replaced by a fee schedule. Is the drafting error repeated in the fee schedule? Why is it a concern if the regulations have been repealed?

Mr. Bernier: That is the point. The fee schedule did not correct it.

Mr. Wappel: We will write asking them why it happened and for an assurance that it will be corrected. We have already written and asked them why and we have already asked for an assurance that it would be corrected.

They wrote back and said that they made a translation error. They told us why the error was made. They gave us the undertaking to correct the problem in their letter of September 20, 1996, and then they promptly forgot. When you write your letter, they will respond and say that we are right, that they did promise and that they forgot, and then they will promise to do it in the next set of regulations which will be in two or three years from now. There must be a better way of operating.

Mr. Bernhardt: There is a process called the miscellaneous amendments process whereby various departments put together packages of these types of routine drafting amendments, then they do them en bloc. The purpose is to expedite this kind of thing.

We can suggest that they do it that way. The problem is that we do not know the timing that they are looking at. Presumably they are putting together a block of these amendments already, but they may not be planning to do that for 18 months.

Mr. Wappel: Exactly. Can we at least ask in our letter that the matter be dealt with at the first possible opportunity, either by the miscellaneous amendments process or by amendments to the regulations, whichever comes first, and that they let us know when they think it will happen?


Mrs. Venne: As a rule, regulations are modified or simply amended as a block. How often is this done in a year? Every six months? Does anyone have an idea?

Mr. Bernier: It depends on the department and on the number of minor changes made by each department. It can take a year or a year and a half. Occasionally, a series of amendments can be made during the same year, sometimes almost monthly. In other departments, amendments are brought in every two years.


The Joint Chairman (Mr. Grewal): There being no other comments, we will forward to the next meeting.

Mr. Bernier: I believe counsel will write to the department. When we have a reply, we will bring it back.

Senator Moore: When counsel writes to whomever, do you say that the committee will be meeting on a specific date and ask for a reply by that time? Can we put an end date on this rather than leaving the response time open?

Mr. Bernier: We can do that. There is never really a completely open response time in that our internal follow-up mechanism kicks in after three months. If we have not received a reply after three months, we send another letter.

Are you suggesting that we should say in the letter that the committee will look at this item again on a specified date?

Senator Moore: Yes, and ask for the reply in time for the committee's next deliberation on a specified date.

Mr. Bernier: The problem with that is that you would be asking us to essentially make up committee agendas months in advance. At any given time, we have roughly 900 current files. It can be done, of course, and it is done on a case-by-case basis. However, if we start doing this on a large scale basis, the problem of managing it is huge.

Senator Moore: I am not suggesting that, but from what I have heard it seems to me that some of these matters could be dealt with quite simply, so why do we not do it in a timely way? It is ridiculous to wait for three months.

The Joint Chairman (Mr. Grewal): Since they usually reply within three months, there would be no harm in mentioning when the next meeting will be and saying that if they could reply by then, that would be acceptable.

Mr. Bernier: The next meeting will be next week and there will be another one the week after. We can pick a date. Would it be satisfactory to say that the committee would like a reply by the end of November?

Senator Moore: No, let us say the middle of November.

The Joint Chairman (Mr. Grewal): We will move on to the next item.

Mr. Wappel: On a point of order. I do not know if our general counsel was being facetious. Did I understand you to say that we are scheduling meetings every week now?

Mr. Bernier: Next week we will be hearing from Mr. Wright from National Revenue in relation to the ship stores regulations. That is the sole purpose of the meeting next week, and then we will have a regular meeting the following week.


Mr. Bernhardt: Mr. Chairman, although these amendments were prepublished, as required by the Pilotage Act, this fact was not recited as it should have been when the amendments were finally made. However, this does not require any corrective action so the point was simply drawn to the attention of the responsible department. The file can now be closed.

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): We go to SOR/89-93.


(For text of documents, see appendix p. 13B:1)

Mr. Bernhardt: We have more substantive matters here. Many promised amendments have been made. A progress report will be sought on those still outstanding. One issue is still in dispute. That concerns provisions in the regulations, the effect of which is to make it an offence to violate the terms or conditions of a licence.

Regulations imposing sanctions or creating offences must be authorized either expressly or by necessary implication. In the present instance, such authority in the Fisheries Act is entirely lacking.

When confronted with this, the department has sought to argue that the provisions in question do not impose penalties or create offences themselves but merely establish prohibitions.

As the note suggests, counsel views this as splitting hairs. Even accepting that characterization, there is nothing in the act that authorizes regulations enacting a prohibition designed to make the contravention in terms of a licence punishable just as if it were a breach of the law.

A licence is an administrative instrument; not legislation. Its terms and conditions are not legislative requirements. There are administrative sanctions; typically suspension or cancellation of a licence where the conditions are violated.

The enactment of a prohibition making contravention of conditions imposed in the exercise of administrative power punishable in the same manner as if those conditions were imposed in the exercise of a legislative power would require clear enabling authority. There is no such authority in the Fisheries Act.

Therefore, I suggest the matter be pursued with a further letter to the department following along the lines of the note.

Mr. Lee: I accept the position of counsel on this matter. We have a virtual impasse. While I take note of the recent court decision, I note, as does counsel, that the judgment was clearly obiter. Second, while we are always prepared to take direction from the courts, it is Parliament's job to make its own decisions on these things.

We must cause the department to change its view and make a change here. We have our usual mechanisms available. We either report or report and disallow. We usually notify the minister before we embark on that road. I believe that we should alert the minister that we have concluded our judgment and it is up to his department to respond appropriately.

Mr. Wappel: I do not want to be picayune, but this was before the committee June 11, 1998. Did we do anything then, counsel? I would have thought we would have decided what we just decided back then. Or is that a typo?

Mr. Bernier: We are on the Ontario Fishery Regulation.

Mr. Wappel: I see. That was the Manitoba regulation. Thank you.

Mr. Bernier: The chairmen will write to the minister, then.

The Joint Chairman (Mr. Grewal): Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Next is the Manitoba Milk Marketing Levies Order. Are there any comments?


(For text of documents, see appendix, p. 13C:1)

Mr. Bernier: The issue in this case concerns the validity of levies imposed on milk produced in excess of a producer's quota. The levy that is payable on milk produced within quota is set in $3.44 per hectolitre. For each hectolitre produced outside quota, a producer must pay a levy of $40, which is nearly 12 times the amount payable for a hectolitre within quota.

In his letter, Mr. Schmidt pointed out that, while the act authorizes the imposition of levies, it does not appear to contemplate different rates of levy for milk produced within quota and milk produced outside quota. Even if the act did allow this, in this case we feel that the difference between the rates of levy is so great that one must question the true nature of the levy that is imposed on milk produced outside quota. It is difficult to avoid the conclusion that this is not a levy but a monetary penalty disguised as a levy, which penalizes a producer for producing milk in excess of his assigned quota. Those are the points Mr. Schmidt put to the department.

The reply we received, which took us nearly four years to get, starts at page 2 of Mr. Johannsen's letter. The reply is somewhat out of focus. Mr. Johannsen reviews and cites a number of statutory provisions that authorize the imposition of fees or levies. Why he does so is unclear, except that at the end of page 3 in his last paragraph — and, that may be the explanation — he seems to suggest that similar levies have been imposed under those other enabling authorities. However, no precise reference is given.

From that observation, he concludes that he is reasonably confident that the Manitoba Milk Marketing Levies Order is within the authority of the Manitoba Milk Order. Mr. Johannsen's answer to the suggestion that the $40 levy is illegal, then, boils down to saying, The same thing has been done elsewhere. That is hardly a convincing argument.

The issues remain unaddressed. The enabling provision gives authority to impose levies and to classify producers into groups for that purpose. How and on what basis can this be read as permitting different levies for the same product produced by the same producer is not explained. We also have no justification or explanation as to why a levy of $40, which is 12 times the amount of the other levy, should be considered a proper levy and should not be considered simply as a penalty that is imposed. We then come back to authority. The act does not authorize the imposition of penalties on producers.

Mr. Lee: I agree with counsel's legal position here. The analysis is accurate. Counsel may never have been a milk farmer or a chicken farmer or a turkey farmer — neither have I — but I do believe that the paradigm within which we are working in agricultural marketing boards does accept the concept of penalizing out-of-quota production. The production within the quota has a levy attached to it; the production outside of the quota is discouraged by a very high levy. If we wish to look upon that as a penalty, then that is what it is.

We have not been made aware, from a practical viewpoint, of the milk producers with their hands up in the air saying, This is highway robbery. This is wrong. The producers generally accept that paradigm, that out of quota production is discouraged and should not be produced and placed on the market.

The marketing board could have made a slight change in the way they produced the regulation and I think they would have been in compliance. Instead of creating a class of in-quota milk and out-of-quota milk, they could have created a class of producer. You had a producer who produced in-quota milk and a producer who produced out-of- quota milk. You could also have producers who produced an average of whatever. To classify producers into those categories would have been acceptable under the statute and to apply different levies to those different classes of producers — that is, in quota and out of quota — would have been acceptable within the statute.

I do not know where we go from here, but I see the technical error of the regulation. I am just not too sure how to fix it at this point.

Mr. Bailey: I do not know the background to this, but I would suggest there is a high fee because, basically, two types of milk are produced. There is commercial milk, which goes directly into packaging for the consumption of milk; and then there is industrial milk. Industrial milk is the cheese and other derivatives from milk.

It must be in the commercial milk area where the levy or the fine, or whatever they want to call it, is higher in this categorization than in the other one. I would have a tough time with this until I know the whole story behind the levy that has been placed by the marketing board. In general — not just with milk production — we accept those levies from the governing body. Do we have the background information as to why this levy is so high and which classification of milk is involved here?

The Joint Chairman (Mr. Grewal): Before I ask counsel to comment, I wish to say that I agree with counsel. The operations are quite serious in nature and, since we did not get explanation from the minister regarding the difference in the levies, we must write a letter to the minister. First, let me hear from our counsel.

Mr. Bernier: I am in the hands of the committee. I hear the argument Mr. Lee has put forward in the form of his drafting suggestion. He would have a great career in the Department of Justice. We have looked at that possibility. Had this been done — that is, instead of making a distinction based on the product base it on the producer, thereby creating one producer who is a within-quota producer and one producer who is an outside quota producer, although it is the same person — we would have called it playing games? We would have said you are seeking to do indirectly that which you cannot do directly. The law does not like drafters who try to do indirectly that which they cannot do directly.

I want to make clear here that we are in no way impugning the policy that these things implement for the Canadian milk marketing system. We are simply looking at legal authority. Parliament has said to the board, through the instrumentality of the milk order, that they can fix and impose levies but not penalties. There are statutes with levies or penalties but this statute is not one of them. They have authorization to impose levies.

The only distinction contemplated by the enabling clause is a classification of persons who produce agricultural goods in different groups for purposes of the levy. We do not find that this allows the classification of product. Even then, in this case the product is exactly the same. Milk outside quota and within quota is still milk. It is the same milk. One might even question whether you could call that a difference in the product.

I can only fall back on that approach. Personally, as the committee's counsel, I think there is an issue to pursue. If the statutory authority is insufficient, then it is the responsibility of those who administer those marketing schemes to seek the proper authority from Parliament.

Senator Moore: I would like to explore Mr. Lee's comments about possibly having different classifications of producers of milk.

By way of information, because I am not familiar with this, is the production of milk outside quotas encouraged? Is this something that contravenes the law? Are there people who produce milk outside quota and it is known and it is encouraged? If that is not so, obviously we do not want to have it in there because that would be encouraging people to break the law.

Mr. Bernier: The answer is more in this order. Clearly we want to discourage it. We will impose a hefty penalty on people who do. We are not prohibiting them. It is not a criminal offence.

Senator Moore: You do not want to advance the idea of having producers within and without quota. That is fine.

Mr. Bryden: Counsel said the levy on out-of-quota milk is 12 times higher. He interprets that as a punishment rather than a levy. Would his opinion be different if the outside-of-quota levy were only two or three times higher? Is the factor of 12 something which affects the interpretation?

Mr. Bernier: Mr. Chairman, certainly it makes the finding of a breach much easier. As I am sure Mr. Bryden will know, in the law we often deal with the grey areas and not with the black and white areas which are the extremes. In this case, fortunately for us, we have a clear-cut case.

At a factor of two, we may not have raised an issue here. We would have looked at it. We would still have questioned it. There are two separate arguments here. First, there is no authority to make a classification based on whether the product is within quota or outside quota. In the enabling clause, the only distinction allowed in regulation is one between producers. That objection would still be there.

The second objection relates to the nature of the levy. Is it really a bona fide levy or is it a penalty disguised as a levy? At two times or three times, that particular objection might well not have been raised.

Mr. Bryden: Mr. Chairman, I do not have a lot of patience with drafters of legislation who fail to anticipate the intent of the legislation by putting in suitable enabling clauses. I would regard this as a serious matter because I do not think it is appropriate to impose punishments that do not exist in the legislation. This issue should be pursued.

Mr. Lee: Mr. Chairman, we have in the past had occasion to look at the concept of a fee, a tax, and now we have a levy. I have a question to counsel. I realize I am perhaps prolonging this discussion beyond what is necessary. However, in looking at taxes, we view it in a certain way. In looking at fees, we view it in a fashion that the fee should not exceed the cost that the fee is supposed to represent.

In this case, I am asking counsel whether the levy here is intended to be a tax, in which case would one be in a position to tax whatever one felt was appropriate for the public policy purpose? Or is it in fact a fee where there must be, in our view in Parliament, a relationship between the amount of the fee and the costs that the fee is supposed to represent?

If it is the latter, do we have an additional add-on issue of a fee/levy which appears to exceed the costs lying behind it? I am talking about the penalty levy.

Mr. Bernier: That is a good point. The levy in marketing schemes is perhaps at the frontier of the traditional license-issuing fee and the tax.

The best answer I can give is to refer you to section 4 (b) of the Manitoba Milk Order which is quoted at the top of Mr. Schmidt's letter on page 2. The board is authorized to:

...use the levies or charges for the purposes of the Board, including the creation of reserves? Presumably then, some excess over actual cost might be in order, for example, for payment of expenses and losses resulting from the sale and disposal of milk, et cetera.

The milk order is not Parliament's instrument but it was authorized under the enabling legislation. We can gather an intention on the part of the legislators that those levies can raise revenues in excess of immediate costs, as it were. It allows for reserves to be created.

Mr. Bryden: I had occasion to be examining in another context the difference between tax and levy and what these words really mean. I observed that most dictionaries and Larousse have translated tax and levy to mean essentially the same thing. The issue is not the difference between tax, levy and fee but between tax and fine. It is a fine we are talking about here. That is why counsel has a very good case for taking this back to the proper authority.

The Joint Chairman (Mr. Grewal): There is a need to take this up with the department or the minister. The consensus in the committee is to write back to the minister. Is it agreed?

Mr. Lee: It may be hard to understand, after all these years, that we are still sorting it out, but we are still trying to get ourselves a crisp short list of issues on which we will take a firm stand. We should go back to the department with a fairly crisp framing of where we are at now and, depending on the reply, we may wish to go to the minister.

Mr. Bernier: That would still be useful. There are issues still to be explored with the department, provided we get a reply before four years have elapsed again.

Mr. Bryden: This is an important issue. I do not like to see people taking liberties with legislation, and there is a huge gap between a tax and a fine. I am not willing to wait for four years. I think this issue is far more important than the ones we were talking about earlier. This is a department taking liberties. I think we should demand, in polite language, a reply fairly promptly.

Mr. Wappel: I take it that your usual three-month reminder system was in place here. Are you saying that for four years you sent reminder letters every three months and you got a response four years later without them even apologizing for the delay in responding? That is how it appears. Is that correct? If so, I agree with Senator Moore that we should give them a deadline for response.

The Joint Chairman (Mr. Grewal): Is it agreed that we will write a letter stipulating a time frame of three months?

Mr. Malhi: We waited four years the last time and we may have to wait again for four years. I think we should go to the minister instead of the department. This is a serious matter. Milk producers could go bankrupt within four years.

Mr. Wappel: We have a suggestion from one member that we write to the minister. We have another suggestion that we write to the department with a three-month deadline. We must give counsel some instructions as to what to do.

Mr. Bryden: I suggest that counsel write a letter to the department as well as a letter to the minister informing the minister that we have written to the department. In that way, the minister will know that we are demanding a reply of the department and if we do not receive it, we should hit the minister twice as hard.

Mr. Wappel: Agreed.

Mr. Bernhardt: At the risk of prolonging the pain, Mr. Wappel asked about this coming before the committee on June 11. Members may recall that on April 30 we had witnesses from the Canadian Food Inspection Agency about a number of their files. This was one of the files. The issue in this particular file was the lack of a response. So the committee took some fairly firm action on that, to the point of calling in witnesses in the spring. You will note that their reply came the day before they were to appear before the committee.

Mr. Wappel: What happened? Did we chastise them?

Mr. Bernier: You will recall that Mr. Ray appeared from the Canadian Food Inspection Agency with Ms Nicholson. The meeting was held in the East Block. That was the meeting during which Mr. Quail was being sought.

Mr. Wappel: Yes, I remember.

The Joint Chairman (Mr. Grewal): The consensus is that we write to the department as well as to the minister and that we request a reply, not in four years, but within three months.

Let us move on to the next item.


(For text of documents, see appendix p. 13D:1)

The Joint Chairman (Mr. Grewal): This was before the committee in May 1995 and is coming back after three years.

Are there any comments?

Mr. Bernhardt: There is not much to add to the note, Mr. Chairman. In a nutshell, matters have been delayed for several years. A new legislative regime is being put into place. As a result, the harbour commissioners now apparently feel they have sat on the ball long enough, that the clock has run out and the game is over.

This is rather frustrating. There was some discussion yesterday in our offices as to what to suggest. I would point out to members that under the new Canada Marine Act, the latest date that this new deregulated land use regime could come into effect would be January 1, 2000. It could be earlier, but that is the absolute latest date under the legislation.

I suppose at least the commissioners should be asked to confirm that in the interim the by-law will not be applied so as to affect private property or rights with respect to lands that they do not own but simply lease.

That was the original issue here.

Mr. Bailey: Are you referring to Bill S-4?

Mr. Bernhardt: I believe it was Bill C-9, the Canada Marine Act.

Mr. Bailey: I do not have that bill with me. This leased land is at their disposal to purchase or otherwise as of 18 months from now; is that correct?

Mr. Bernhardt: The issue here was that they have made a land use by-law. The land use by-law applies to lands owned or leased by the corporation. The problem is that under the act, which is a statute which I believe goes back to 1912, they do not have the authority to extend this by-law to private land which they are simply leasing.

There were amendments agreed to. Work was done on the amendments. Then, when the new bill was introduced, the commissioners basically washed their hands of the whole thing.

Mr. Bailey: What is the recourse now, then?

Mr. Bernhardt: We can await the new regime while at the same time asking the harbour commissioners to assure the committee that they will not apply this by-law to private property.

Mr. Bailey: How would you do that with most of the harbour commissions now in place in a quasi-judicial area? Would you write to them and ask them, or would you write to the Minister of Transport informing him of the necessity of this?

Mr. Bernhardt: In this case, we would go through the federal Department of Transport. That is one of the difficulties in dealing with commissions, as it is with marketing boards. The department is not the end institution. The department is, in effect, the intermediary and there is another step.

Mr. Bailey: There is an urgency with this. We do not have much time. As the autonomy of each of the boards is being developed, they need some guidance.

Mr. Bernier: Under the new regime, the Canada Marine Act, it may well be the case that they are zoning, because this is essentially what we are talking about. Land use and zoning powers do extend to whatever property, whether owned or leased.

For years the commission has imposed zoning regulation on property over which it has no jurisdiction to impose zoning requirements. That is a done deal. The only thing we can seek at this point is a formal assurance that, until this particular by-law dies its natural death — which at most would be 2001 because that is when the new regime under the Canada Marine Act kicks in — they cease applying these zoning and land use requirements to properties to which they cannot lawfully apply.

Mr. Lee: This particular file really pulls my chain. This particular harbour commission will die a peaceful death shortly. In the meantime, they have adopted an ultra vires provision which is invalid and unenforceable. There are citizens who may have been subjected to the cloud of this invalid by-law.

Is it correct that we do not have the ability to disallow this instrument?

Mr. Bernhardt: No, we do not.

Mr. Lee: We probably will not even get a response from the Hamilton Harbour Commission.

Mr. Bernhardt: I suspect that is one of the reasons for the delay to date. The Department of Transport was having trouble getting replies from the harbour commissions.

Mr. Lee: We have a lawless situation here. Should we write directly to the Hamilton Harbour Commission? I know we have done this before. Could we not ask for an immediate reply — immediate being within 30 days? If they do not reply, then we will summon the Chairman of the Hamilton Harbour Commission here. We will order the chairman's attendance. If we do nothing, we will then be seen to have done nothing. They are relying on an invalid provision that we have indicated to them is ultra vires. If we acquiesce in this now, we are not doing our job.

I thought of the possibility of Parliament purchasing an advertisement in the Hamilton newspaper that stated for all citizens that this by-law was invalid in our view and could not be relied upon, and that any inquiries should be directed to the standing joint committee. However, that costs us more money than settling the matter at this point.

Mr. DeVillers: I have a question for counsel. In my checkered past as a municipal solicitor, I recall there is jurisprudence on this case, is there not? The Hamilton Harbour case is one of the leading cases in zoning but it has been adjudicated upon, has it not?

Mr. Bernhardt: I do not know.

Mr. DeVillers: It is one of the leading cases in zoning by-law legislation. They had no authority to zone over the commission lands. Is it the same by-law or is it just coincidence?

Mr. Bernhardt: Since this was 1990, would this have been the by-law that was put in place as a result of that decision? I do not know.

Mr. DeVillers: It may have replaced the one that was struck down.

Mr. Bernier: When was the case?

Mr. DeVillers: It would be 10 years old now.

Mr. Bernhardt: What we are seeing may be a result of that case.

Mr. Bernier: In an attempt to correct the situation, they may have corrected whatever the problem was in that case. However, the problem about the extent of the operation remains.

Mr. Bryden: I fully support Mr. Lee. We should do exactly as he says except for one additional thing. A copy of the letter that we send to the Hamilton Harbour Commission should be sent to the local city municipal authority, which is the mayor; or the municipal council. As we speak here today, there is great controversy in Hamilton about property and the future of the harbour lands. It is not inappropriate to draw the attention of the community to what this committee finds as something that is inappropriate.

Mr. Bailey: This is an ongoing thing in Hamilton. I totally agree with the suggestion. I think this is imperative and this is the way to proceed. However, with the other port authorities that are now in existence, are we aware of any similar problems? I do not mean to the extent of those being experienced in Hamilton, but perhaps we could advise them of what is happening there. Something could develop and then we would have to go through this whole procedure again. Would there be something wrong with that approach?

Mr. Bernier: I do not think we have any other by-laws at issue.

Mr. Bailey: What about Halifax?

Mr. Bernier: No; not with this issue. However, we can double-check on that.

Mr. Bailey: It might be wise to let them know the approach.

The Joint Chairman (Mr. Grewal): Is the committee in agreement that we write to the Hamilton Harbour Commissioner?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Should we send a copy to the department or write separately to the department?

Mr. Bernier: The department should be sent a copy.

The Joint Chairman (Mr. Grewal): Should we write a separate letter to the department expressing the committee's concerns?

Mr. Lee: No. They should be sent a copy.

Mr. Bryden: Yes, and a copy should be sent to the city.

Senator Moore: Not just to the mayor, but to the mayor and to councillors so that the mayor must distribute it around the table.

The Joint Chairman (Mr. Grewal): One letter will be sent to the Harbour Commissioner and copies will be sent to the department and the mayor and councillors.

Mr. Bernier: Yes, with a 30-day request for reply.

The Joint Chairman (Mr. Grewal): Is it agreed?

Hon. Members: Agreed.



(For text of documents, see appendix p. 13E:1)

The Joint Chairman (Mr. Grewal): These regulations were before the committee on May 5, 1994 and March 23, 1995, respectively. Counsel, could you comment on these regulations, please?

Mr. Bernhardt: The department sought to postpone certain promised amendments indefinitely. It also appeared to have forgotten about a promised clarification to the act itself. Upon being reminded of its earlier promises and being advised that the proposed course of inaction could not be considered satisfactory, the department has renewed its undertakings. There is no indication, however, as to when the amendment to the Great Lakes Sewage Pollution Prevention Regulations will actually be made or precisely what the nature of those amendments will be.

I suggest that the department be asked to provide this further information, in particular, a time table.

The Joint Chairman (Mr. Grewal): Any comments?

Mr. Wappel: For the record, this is a file on which I note that there was delay in response by our counsel. I note that he accepts responsibility for that. I congratulate him. I only bring it up because it is the first time in 10 years that I can recall counsel saying, I am sorry for being late in responding. We are always criticizing the departments for being late. I wish to point out that when we are late to respond, at least we acknowledge it.

The Joint Chairman (Mr. Grewal): There being no further comment, I understand that we should write to the department. Is it agreed?

Hon. Members: Agreed.


(For text of documents, see appendix, p. 13F:1)

The Joint Chairman (Mr. Grewal): Next, under Progress, we have the Army Benevolent Fund Regulations.

Mr. Bernier: In this case, the repeal of the Army Benevolent Fund Act will allow the committee to close this file. I suggest progress be monitored in the usual fashion.

The Joint Chairman (Mr. Grewal): Is it agreed?

Hon. Members: Agreed.


The Joint Chairman (Mr. Grewal): Next are the Crown Corporation General Regulations, 1995. This was before the committee on April 18, 1996, and once again on October 10, 1996.

Counsel, do you have something to say on this regulation, please?

Mr. Bernier: Perhaps a further letter of inquiry should go out at this time asking where the promised changes stand. It was supposed to be submitted to ministers in 1998.

The Joint Chairman (Mr. Grewal): It should go to the minister?

Mr. Bernier: It should go to the department. Simply asking where they are at would be sufficient.

The Joint Chairman (Mr. Grewal): Any comments? If not, we will write to the department to ask about the changes. Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Next is the Boating Restriction Regulations, Amendment.


Mr. Bernier: The point raised has been explained and the file can be closed.

The Joint Chairman (Mr. Grewal): Is it agreed?

Hon. Members: Agreed.


(For text of documents, see appendix, p. 13G:1)

Mr. Bernier: In this case, an assurance was sought that the department did not have any other orders it had failed to register and publish, as required by the Statutory Instruments Act. That assurance has been given, so the file can be considered to be satisfactory.

The Joint Chairman (Mr. Grewal): It should have been given by the department?

Mr. Bernier: Yes. The department did state that it has verified its records and this was a unique case.

The Joint Chairman (Mr. Grewal): Are there any comments? Is it agreed that we close the file?

Hon. Members: Agreed.



The Joint Chairman (Mr. Grewal): These two items are under Reply Satisfactory, and were before the committee this year, April 2.

Mr. Bernier: Mr. Chairman, in this case, the Treasury Board had earlier suggested that there was no real point in processing a few drafting amendments requested by the committee on the ground that the program implemented by these regulations ended in March of this year. However, at the same time, the Treasury Board is arguing that it cannot revoke the regulations and that it is important to keep them in place so long as allowances are paid under its authority.

One might think that if the regulations are important enough to keep in force, it is of equal importance that the regulations that are kept in force be properly drafted.

Still, with that comment, in light of the nature of the regulations, which were of limited application, and the nature of the amendments sought, which were mere drafting corrections, none of which were terribly important, we would suggest that the committee accept the reply as satisfactory.

The Joint Chairman (Mr. Grewal): Were the amendments just housekeeping types?

Mr. Bernier: Very much so. Those would not now be made even though the regulation will remain on the books for an undefined period of time.

The Joint Chairman (Mr. Grewal): Are there any comments? What action should we seek?

Mr. Lee: Counsel is satisfied with the current progress, give or take. Does he have a specific course of action?

Mr. Bernier: No.

Mr. Lee: We are going to stick handle this one into oblivion at some point. It is in counsel's bailiwick.

Mr. Bernier: It might as well be sooner than later and save everyone the agony.

Mr. Lee: Does counsel want to close the file?

Mr. Bernier: It was listed as Reply Satisfactory. There was a question mark there.

Mr. Lee: Close the file.

The Joint Chairman (Mr. Grewal): I hear consensus that we close the file.

Hon. Members: Agreed.


(For text of documents, see appendix, p. 13H:1)

The Joint Chairman (Mr. Grewal): The next item is under Part Action Promised.

Mr. Bernier: Mr. Chairman, in this case, amendments have been promised on the points raised in paragraphs 1 and 2 of Mr. Schmidt?s letter of February 1, 1996, as well as numbers 4, 7 and 8. The explanations given in relation to paragraphs 3 and 6 are satisfactory, and paragraph 9 did not require response. This leaves the objection to sections 10(1) and 10(3) dealt with in paragraph 5.

As regards section 10(1), it was suggested that the reference to conditions imposed by the board in relation to observers identify section 23(2) of the act as the source of authority for the imposition of those conditions. Essentially, we suggest changingconditions imposed by the board to conditions imposed by the board in accordance with subsection 23(2) of the act.

The board has misunderstood the suggestion completely and thinks that we are suggesting identifying each and every condition that they may possibly impose, which is not what we suggested. Obviously there would be a need to go back to the board and explain again what it is that was recommended.

As regards section 10(3), there has simply not been an answer to the objection as to the validity of that section. The section, in our view, sub-delegates to the board the power to define the rights of observers otherwise than by regulation, and this point should be pursued. By that section, in essence, the board is reserving to itself the right to decide when an observer can attend a hearing as a witness. According to the act, the rights of observers are to be defined by regulation. Here the board would be defining them on a case-by-case basis administratively. This objection needs to be pursued. We suggest another letter.

The Joint Chairman (Mr. Grewal): To the Department?

Mr. Bernier: This is the safety board, which of course has now undergone yet another transformation. Since I have been in Ottawa, this is probably the fifth incarnation of this particular creature. We will write to the successor organization.

The Joint Chairman (Mr. Grewal): We should write to the board. There are some sections which are satisfactory and others where we did not get the appropriate answer. In some, we got the wrong answer. Therefore, there is a need to write to the board. Are we in agreement?

Mr. Bailey: Writing to the board would be advisable, as well as writing to the minister involved so he knows you have written to the board.

Mr. Bernier: That can always be done.

Mr. Bailey: This will be coming up later this winter.

The Joint Chairman (Mr. Grewal): We will send a copy of the letter.

Mr. Bryden: I would suggest, when drafting this letter, congratulating them for having taken action on the previous letter but note that they overlooked this one aspect. We should try to encourage and give praise where praise is due. They did try to respond. Particularly you should do this if you copy it to the minister.

The Joint Chairman (Mr. Grewal): I do not see any problem with that. It is a good suggestion.

Mr. DeVillers: The Transportation Safety Board is under the Privy Council, is it not? Privy Council should receive a copy, or the President of the Queen's Privy Council.

The Joint Chairman (Mr. Grewal): You are suggesting we send a copy to the Privy Council. Are we in agreement?

Hon. Members: Agreed.


(For text of documents, see appendix, p. 13I:1)


(For text of documents, see appendix, p. 13J:1)


(For text of documents, see appendix, p. 13K:1)


(For text of documents, see appendix, p. 13L:1)


(For text of documents, see appendix, p. 13M:1)



(For text of documents, see appendix, p. 13N:1)


(For text of documents, see appendix, p. 13O:1)


(For text of documents, see appendix, p. 13P:1)


(For text of documents, see appendix, p. 13Q:1)

The Joint Chairman (Mr. Grewal): Next we have a block of items under Action Promised. We will deal with the bottom of page 3 and page 4 of the agenda as one block.

Mr. Bernhardt: Taking them as a group, 23 amendments were promised to the committee in relation to these. In addition, two of the instruments themselves resolved previously outstanding matters.

The only one to which I would draw members' attention is the first one, SOR/95-148. The enactment of these regulations, together with the coming into force of the new Motor Vehicle Safety Act, resolves the issue as explained in the note.

Mr. Lee: I congratulate counsel and all of the staff for dealing with what looks like approximately 200 separate statutory instruments over the last few months. That is a huge undertaking. It is a positive contribution to the committee's work.

I also thank counsel for comments which he informally made available to me on the subject of several statutes passing through the House and the Senate that related to the regulatory regime envisaged by these statutes. That, of course, took a little bit of his time as well. I thank staff for that.



(For text of documents, see appendix, p. 13R:1)


(For text of documents, see appendix, p. 13S:1)


(For text of documents, see appendix, p. 13T:1)


(For text of documents, see appendix, p. 13U:1)


(For text of documents, see appendix, p. 13V:1)


(For text of documents, see appendix, p. 13W:1)


(For text of documents, see appendix, p. 13X:1)





(For text of documents, see appendix, p. 13Y:1)

The Joint Chairman (Mr. Grewal): If there are no other comments, we will move to the next block and use the same procedure, a number of items on Page 4 under Action Taken. We will deal with them en bloc.

Mr. Bernhardt: We have 12 instruments under this heading. These represent 40 amendments made at the request of the joint committee. A number of these involve the removal of provisions the committee determined were ultra vires. There are also some old files here. All of these can now be closed.

Mr. Lee: Hear, hear!

The Joint Chairman (Mr. Grewal): If there are no comments, we will close all the files for those 12 instruments.

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): We move to the next item. As a block, we have three or four pages, or more, of Statutory Instruments without Comment. We will deal with them as a block.

Mr. Bernier: Perhaps I should explain this for the new members on the committee. These are instruments that have been reviewed by counsel against the 13 scrutiny criteria of the committee. As hard as we tried, we found absolutely nothing wrong with them.

The Joint Chairman (Mr. Grewal): All of them?

Mr. Bernier: All of them. Nevertheless, it is the committee that is entrusted by statute with the review of statutory instruments. Formally, at least, these instruments must be submitted to the committee. Up to a few years ago, a file this thick would have been printed and circulated to each member. These are the instruments without comment. In order to save a few trees, probably more than a few over time, the committee decided we would simply list the title of the instruments. I always, of course, bring a copy of the instrument. When we go to that category and pass over it, if any member sees a title on which they would like more information, we can always provide that information.

The Joint Chairman (Mr. Grewal): There are 60 or 70 items.

Mr. Bernier: At least.

The Joint Chairman (Mr. Grewal): Is there any comment from the committee members? If not, that brings us to the close of the agenda.

Mr. Lee: I move we adjourn.

The Joint Chairman (Mr. Grewal): I would inform the members that the next meeting of the committee will be on Thursday, October 29, 1998, at 8:30 a.m., with the deputy minister of the Department of Revenue.

The committee adjourned.