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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 11 - Evidence, November 25, 2010

OTTAWA, Thursday, November 25, 2010

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:34 a.m. for the review of statutory instruments.

Senator Yonah Martin and Mr. Andrew Kania (Joint Chairs) in the chair.


The Joint Chair (Mr. Kania): Good morning. We will begin now. Mr. Bernhardt, please tell members about the witnesses for next week.

Peter Bernhardt, General Counsel to the Committee: It is confirmed that, at next week's meeting, the committee will be hearing from a representative or representatives from Transport Canada on the Identity Screening Regulations. That will be the only item on the agenda, and members will receive the corresponding materials.

By way of a heads up, my understanding is that we will be meeting in a different room than usual. Please look for the room change.

The Joint Chair (Mr. Kania): Are there any questions? Very well; we will move to the first item on the agenda.


(For text of documents, see Appendix A, p. 11A:1)

Mr. Bernhardt: These regulations list bodies for purposes of the Personal Information Protection and Electronic Documents Act. Listed bodies are permitted to disclose and receive personal information without the knowledge or consent of the individual to whom the information relates.

This particular amendment included the Investment Dealers Association of Canada on the list. That organization then merged with another organization to create a new entity, the Investment Industry Regulatory Organization of Canada. That new entity is not listed.

Industry Canada indicated that the new organization had been advised that it had to obtain designation as an investigative body for purposes of the act. As yet no application has been received. Industry Canada then confirmed that the new organization was therefore not considered to be an investigative body. All that remained would be to simply remove the obsolete reference from the regulations.

In the meantime, however, Bill C-29 was introduced. If that bill passes, it would, among other things, amend the act to eliminate the need for the regulations completely. There would no longer be any need to designate individual bodies by regulation.

This being the case, I suppose the department could be asked to confirm that if the bill does not pass, then the current regulations will be amended to delete this obsolete reference.

When the file was last before the committee, some members also questioned how the Investment Industry Regulatory Organization could operate without the status of an investigative body, and whether it might not be fully aware of the consequences of the lack of such status. Counsel was asked to seek the comments of the Privacy Commissioner in this regard. Members have before them this morning that letter as well as the commissioner's reply. The commissioner advises that no complaints or information that would lead to an investigation have been received.

Concerning the activities of the IRROC, we could take it that the commissioner is not particularly worried about the situation or what the situation might be.

The Joint Chair (Mr. Kania): Are there any comments?

We will wait to see if the legislation passes.

Mr. Lee: I do not see any reason to keep our thumbprints on this file. If there is nothing broken with the regulation and it is simply a matter of compliance, we should leave it to those whose job it is to ensure compliance, amend the act or whatever is happening. However, I do not see anything.

Counsel has made the points raised by members and I think we could close the file. I do not think we have to do anything. We could say ``thank you.''

Mr. Bernhardt: The only matter that might remain is that these regulations will continue if the bill does not pass, and one of the organizations listed in the regulations does not exist anymore.

Mr. Lee: Mr. Chair, the point has been made that the organization does not exist anymore. The inclusion of that organization on the list would simply be clutter.

I suggest we wrap up the file, unless members feel differently.

The Joint Chair (Mr. Kania): Are there any other comments?

Hon. Members: Agreed.






(For text of documents, see Appendix B, p. 11B:1)

Mr. Bernhardt: At the time these instruments were made, the enabling provisions in the Customs Act and the Customs Tariff stated that the Governor-in-Council could make regulations on the recommendation of the Minister of National Revenue.

The first four of these regulations were made on the recommendation of the Solicitor General and the fifth was made on the recommendation of the Minister of Public Safety and Emergency Preparedness.

The Border Services Agency maintains that the regulations in question were made on the recommendation of the proper minister by virtue of a series of orders-in-council made under the Public Service Rearrangement and Transfer of Duties Act. These orders transferred certain portions of the Customs and Revenue Agency to the Border Services Agency.

It is claimed that this also had the effect of transferring the power to make recommendations under the Customs Act and Customs Tariff first to the Solicitor General then to the Minister of Public Safety. The argument is that this follows from the fact that the employees responsible for advising on the regulations had been transferred to the Border Services Agency.

As explained in the joint chairs' letter to the minister, the committee considers this conclusion to be debatable. Section 3 of the Public Service Rearrangement and Transfer of Duties Act provides that when control and supervision is transferred from one portion of the federal public service to another that portion and the officers and staff to whom control and supervision are transferred carry out the powers and duties that belong to the predecessors. It says nothing that could be construed as meaning this automatically results in transfer of powers duties and functions of the responsible minister.

The letter from the joint chairs illustrates this by inserting the names of the two agencies into the actual wording of section 3. When this is done, it becomes fairly evident that the orders relied on did not transfer the powers of the Minister of National Revenue under the relevant provisions of the Customs Act and Customs Tariff. All that was transferred was the duty to advise the Minister of National Revenue.

The act makes a distinction between transferring control and supervision of a portion of the public service and transferring powers duties and functions. If the one flowed from the other, there would be no need to make this distinction in the act. There have been a number of similar transfer orders over the years that have been drafted so as to transfer control, supervision and specified powers and duties. There is no question that this can be done; and that would include the power to recommend regulations to the Governor-in-Council. The difficulty is that on the face of these orders, that was not done.

The minister's September reply relies on the fact that government has long used orders under this act. We have tried to point out repeatedly that the point is that a number of those previous orders differ in both language and effect from these ones. The minister also refers to the parliamentary record and to case law. These are dealt with in some detail in the joint chairs' last letter and simply reasserting a reliance on these sources is not really a discussion or a refutation of the detailed arguments put forward.

The underlying principle is that it is very unusual that orders made by the Governor-in-Council can have the effect of modifying legislation enacted by Parliament. This being the case, it seems even more unlikely that orders-in-council can have this effect simply by implication.

The minister does not counter any of the arguments raised by the committee. The committee's arguments, if accepted, would lead to the conclusion that the regulation should be revoked and remade on the recommendation of the proper minister. I suppose at the very least, the committee should seek a commitment that if the powers and duties of a minister are to be transferred by these types of orders in the future, that will be clearly stated in the orders.

With respect to the second last instrument in this group, SOR/2004-129, there is an additional issue of retroactivity. The minister's reply agrees that there was retroactivity and takes the view that because the result was relieving, in that it lowered the applicable tariffs, and because the affected goods were dealt with some time ago, no action is required. It bears pointing out that persons who benefited from reductions in the duties to be paid that were based on an invalid regulation continue to owe a debt to the Crown. This debt could be erased through a remission order, and the same would be true of the other orders, assuming they were improperly made. A remission order would relieve people of an on-going debt arising from the fact that they may have been charged lesser rates pursuant to an invalid regulation.

As for the committee's recourse at this time, if it wishes to pursue the matter, I suggest trying a letter to the minister again.

Mr. Lee: This is a tough one. Counsel has been sharp to find the alleged problem. Going back to basics, if I read sections 2 and 3 together, the fundamental component of the transfer of power and duties occurs when there is a transfer of any powers or duties between ministers. When that happens, all the other stuff flows under the statute. It is supposed to flow. It would be illogical to think otherwise. If the prerequisites of a turnover of power were there and some aspect of those powers and duties did not transfer, the purpose of this legislation would be totally stupid, ineffective and incomplete.

Was there a transfer of power or duties between ministers? I look back, and there was in that minister of A became minister of B. I think the minister's title was changed. Inside cabinet, ministerial duties were changed. Counsel is probably wondering whether I can show him the legal step, the paper, the resolution. He wants to see the paper showing that the powers of the minister were transferred to the other minister.

We have not seen that. I do not think we have seen it. If it existed in any way, then I would accept that there was a transfer of power between two ministers. Looking back over the time period, I am convinced there was a transfer and the Governor-in-Council did it.

I do not know whether they did it on a handshake or whether the Prime Minister or the Queen wrote a letter from one minister to another or what happened. Have we exhausted the search for that manifestation of the transfer of power because if it exists, I would accept the department's position that the transfers of powers between ministers happened. We cannot look back now and say it never happened. It absolutely did happen. History shows that it happened. I do not want to make this sound like a court of law, but where is the manifestation of that transfer of power? Have we asked for it? Is the department so incapable that they could not show us something tangible that manifested the decision of the Governor-in-Council to transfer the power between ministers?

Mr. Bernhardt: According to the Border Services Agency, when you transfer supervision and control from one part of the public administration to the other it is implied that any powers held by the one minister that pertain to the transfer are automatically transferred as well. We would not dispute anything you are saying, Mr. Lee. The act provides for the transfer of those powers. It expressly talks about transferring powers, duties, functions or the control or supervision of any portion of the federal public administration. There is no question that they could have been transferred. There is no question that they should have been transferred. The problem is that these orders refer to transferring control or supervision. The act talks about transferring powers, duties or functions, or the control or supervision. It clearly makes a distinction between the two. If control or supervision always carried with it powers, functions and duties, there would be no need to refer in the act to transferring powers, duties, functions, or the control or supervision. That reference would be entirely superfluous. In fact, a number of orders have been made over the years that do both. There is no question they could have done both. Our position is they should have done both. They failed to do both, and now they are trying to back-door the second aspect of this as somehow implicit in the first. The root of the committee's objection has been: You had the power. Two powers are clearly distinguished in the act. You chose to exercise the one, but not the other. Their answer is: Oh well, the second one is implied in the first one.

Mr. Lee: I understand all of that.

Mr. Bernhardt: You are right in that someone else is running the department; that is the reality. There is legality and there is reality.

Mr. Lee: It is worse than that. There was not a public crowning of the new minister, at least that we can find. If you are right, then the minister of YXZ is only the minister of X and Y. He or she is not the minister of what he or she thinks because, based on what you are saying, we cannot see the passing of the keys — the passing of the torch, as it were. The minister is not the minister of that and, therefore, has no power. Yes, the power was transferred because the new minister is fully the minister. However, we cannot find the piece of paper, the staff party, the celebration or the welcome map. If you are right, we have a ministry and a minister that are, at least in part, dysfunctional and without proper authority. What counsel found is improper authority to pass a regulation.

Mr. Bernhardt: Exactly.

Mr. Lee: I am saying that it is more than that. There is a minister without authority. If he does not have authority to do this, then he does not have authority to do anything else because, as you are saying, the power never got transferred. I am having trouble undermining the unity of the Crown, the integrity of the government and saying, you did not brush your teeth this morning; you are not a full government; you are out of business. I will stop there.

Ms. Jennings: Mr. Lee has a good point. If he is correct, it would be clear that the government could easily correct it by clarifying that the duties and powers were also transferred or being transferred and that any decision taken in the past will be deemed to have been taken under the proper authority.

I want to address the issue of counsel's suggestion on the minister's response in respect of the regulation providing relief and that the goods would have long left the country and, therefore, not really be a problem. Counsel suggested that if the duties were waived, they were waived improperly. The government has the authority to send remission orders, which means to re-evaluate because the government made a mistake, and let them know that they owe X dollars.

What is the retroactivity period under the law for collecting tariffs? How far back can the government go? I believe this issue dates back to 2002 to 2004. We are talking about six to eight years ago.

Mr. Bernhardt: I am not sure there is a statute of limitations on debts due to the Crown. I assume they could come back and ask for those.

Ms. Jennings: There is a statute of limitations in terms of personal income. The government goes back 7 years, unless it is able to demonstrate clear fraud.

Mr. Bernhardt: That is a statutory provision under the Income Tax Act. I am not sure there is such a limitation in terms of customs tariffs. I will have to confirm that. As a practical matter, the government has recognized that it was retroactive; but because of that, they should have collected more money from people. It is unlikely at this time, having accepted that it was retroactive, that the government will come back to ask people for that money. Nevertheless, in principle those people will continue to owe a debt. Will that debt be enforced? I think not.

The question for the committee is whether it wishes to stand on the principle that people should not continue to owe a debt for no good reason versus the practicality of the situation that it would be highly unlikely for the government to collect.

Ms. Jennings: We do not know whether there is retroactivity in terms of collecting taxes that were not caused to be paid. If there is no retroactivity, could the committee suggest to the minister that he is correct and we take note of the fact that the agency will go forward to take care of this matter. If there is no retroactivity then, as counsel said, the debt is still owed to the Crown even though it was the Crown's mistake, the minister may wish to send a letter to all affected to say that they made a mistake. The minister could say that although X dollars should have been paid, the Crown is willing to waive it. In that way, no government 10 years down the road would be able to collect it retroactively.

Mr. Bernhardt: That suggestion assumes the government could identify all the people affected. I suppose that is the beauty of a blanket remission order that can say any and all affected will be relieved of the obligation.

Ms. Jennings: Perhaps the government should do that.

Mr. Bernhardt: It is one suggestion, should the committee want to pursue that principle.

Ms. Jennings: However, should billions of dollars be owing, we are facing a deficit.

Mr. Saxton: We should look at this issue in two parts: First, what has taken place in the past and second, what will take place in the future. As counsel eloquently described a few moments ago, because of what has taken place in the past, effectively we have people and entities that owe the government money; but we do not know who they are and how much they owe. To go back and try to collect the money would likely cost more than the amount to be collected. It could prove to be a waste of time and resources.

Let us focus on how to remedy this going forward. I concur with counsel's suggestion that a letter be written to the minister requesting that they undertake in future to have a proper transfer of powers; and we will move on.

Senator Moore: The second part of the last idea is a way to do it.

Cannot an amended order-in-council be issued to clean this up? What is the simplest way to do this? It is because the order-in-council did not include that phrase, so why can we not ask for a new order-in-council to be issued? Is that not a clean and easy solution?

Mr. Bernhardt: They are saying they did not need to distinguish between the supervision and the administrative functions of the minister, which are not affected. The minister has the administrative control and supervision of the minister's department.

In this instance, we are dealing with a particular exercise of a legislative power. The government's argument is that because it has transferred that administrative supervision, it is implicit to substitute one minister for the other minister when it reads a particular provision of an act of Parliament. It is the idea that there would be that implication.

The other point that bears making is that the Customs Act and Customs Tariff have since been amended. They now refer to the up-to-date ministers, if you will. We do not have a problem as far as the recommendation goes on this point. Traditionally, these orders are used as stopgap measures. The government restructures the ministry and makes that series of orders that allow those ministers to carry out different powers and duties until Parliament gets around to updating all the statutes to change the references to each minister. Here according to the committee, we had a gap because of the way in which those stopgap orders were structured. Is there a point in going back and remaking them?

Mr. Rousseau: It would go back many years.

Mr. Bernhardt: Yes.

Mr. Rousseau: I am thinking of the practical consequences.

Mr. Bernhardt: Yes, that is it. Taking Mr. Saxon's point perhaps the approach should be to seek an assurance that when these orders are used in the future, if the intention is to transfer powers and duties as well as control and supervision, they should recite what is being transferred as powers, duties, control and supervision rather simply saying ``control and supervision.'' It boils down to that for the future.

Mr. Lee: I agree with counsel that there is a paper problem on the face of it. However, I am personally unaware of any formal procedure for transferring powers between ministers, unless the statute contains the wording about filling out a form and then installing the new minister. It could be as simple as the prime minister telling a minister that he will look after another department and the minister agrees. It could be that simple.

If we are not sure, we can ask the Queen. Privy Council usually works in writing. If the Clerk of the Privy Council or the Prime Minister or the minister in question were to send a letter to Parliament to say that as of March 15, the minister of A was actually the minister of B, then I would accept that the minister was the minister and that the power and duties had been transferred. I would accept that in the absence of any other statutory requirement. Maybe we should ask the minister to please tell us with clarity that on such and such a date he or she was the minister responsible and that the powers and duties had been transferred. If he or she says that, I am good. Counsel can also make the point that in future for clarity would they please reflect these transfers of power and duties in writing in the regulations, as has been done before from time to time. We would all be happier.

Mr. Bernhardt: The difficulty that the Public Service Rearrangement and Transferring of Duties Act is intended to address is generally not a problem, if we are talking administrative functions. The Prime Minister sorts out his cabinet and names his ministers as he likes. The difficulty arises when you have a particular act of Parliament that says Minister X shall do something and then it is decided they would rather have Minister Y carry out that function. An act of Parliament gives the function to a specific person. The Public Service Rearrangement and Transfer of Duties Act authorizes by order-in-council an altering of the act of Parliament to substitute a different minister. The intent of the PSRTD act is to deal with those situations where Parliament has itself designated a particular minister to do something.

That is to be done through an order-in-council. The difficulty arises because you have an order-in-council that amends an act of Parliament. To say that different effects are done implicitly and there is no need to use the language of the act is a debatable proposition when amending a particular provision of an act of Parliament.

Mr. Lee: This is true, counsel. I am sure that when the Prime Minister does a cabinet shuffle and they go down Sussex Drive to Rideau Hall to see the Governor General, they do not use this statute to do so. The Prime Minister writes the letter and goes ahead with it.

Mr. Bernhardt: A department might be changed or reorganized. For example, in the mid-1990s when the entire federal bureaucracy was reorganized, you saw dozens of orders-in-council in the Canada Gazette. You have to deal with a plethora of acts of Parliament that give certain things to certain ministers. Obviously, the government does not want to wait to pass a bill amending all of these before it can reorganize the bureaucracy. It therefore issues a series of these orders-in-council that change the situation until such time as Parliament passes an omnibus bill amending all of the relevant statutes and substituting all the names of the new ministers for the names of the old ministers. The vehicle by which that is done in the interim is this act. I suppose for historical interest, this act dates back to World War I and was originally passed so the government could organize its war effort in an efficient and rapid fashion.

The Joint Chair (Mr. Kania): Members would agree that we should point out that there should be an undertaking to document such transfers of duties and powers going forward. We can all agree to send a letter in those terms.

In terms of the retroactivity of any amounts due and owing, we have the potential of the minister releasing a letter saying nothing will be collected from the past. That could provide some assurance.

Mr. Masse: Do we have any capability of quantifying that or the types of goods? I hate to have us waive certain things without knowing. I am conscious of the herculean effort it would require to find out, but I do not want this to be on the record about certain goods or services.

The Joint Chair (Mr. Kania): We could point out as an option for the minister to consider that one potential solution to the problem is to provide such a guarantee. We could bring to the minister's attention that we do not know what the quantity might be or how difficult it might be to determine who owes what. We could raise it in that manner.

Mr. Masse: We do not know the quantity or whether it involves merchandise or services. Therefore, I do not want to give the government the go ahead. It could be amounts owing on almost anything going on in this country. If we are doing this behind a veil, we should not own the responsibility for determining if certain things should be tapped into. The government can determine that and whether to spend good money to simply break even, do less or whatever. However, I do not think we want to give them a green light on all merchandise and all amounts of money.

The Joint Chair (Mr. Kania): What about a two-part letter — the first part seeking the undertaking for the future and the second part raising this issue with the minister for his or her consideration, with this one potential solution? Then it is for the minister to decide what to do.

Mr. Masse: Yes, because they can determine those things.

The Joint Chair (Mr. Kania): Did you have a further comment, Mr. Saxton?

Mr. Saxton: I was going to say that obviously we do not have information necessary to make a decision. For us to try to coach or advise, we do not have enough information.

The Joint Chair (Mr. Kania): It is not for us to make that decision. We are raising an issue. We can suggest a potential solution but it is still for the minister to make that decision.

Mr. Saxton: I think the potential solution is self evident.

The Joint Chair (Mr. Kania): Does everyone agree with that form of letter?

Hon. Members: Agreed.



(For text of documents, see Appendix C, p. 11C:1)

Mr. Rousseau: This file concerns the coming into force of the Agreement on Social Security between Canada and the Republic of Poland.

The Old Age Security Act provides that such an agreement is to come into force on the 30th sitting day after the tabling, in both the House and the Senate, of the order issued by the Governor-in-Council to that effect.

In this case, the agreement did not come into force as expected on October 1, 2009, because contrary to what is stated in the proclamation the committee is examining today, the order in council was tabled in the House of Commons, but not in the Senate.

Committee counsel wrote to the department in this regard on December 21, 2009. As counsel points out in the letter dated August 11, 2010, Bill C-9, introduced March 4, 2010, contained three clauses designed to correct the situation. Through these provisions, Parliament declared the agreement in force retroactively to October 9, 2009. If the committee is satisfied, this file may be closed.


The Joint Chair (Mr. Kania): Is it agreed?

Mr. Lee: We have not had a chance to read the words of the statutory amendment. I wanted to ensure they were sufficient to pre-empt the non-compliance with the earlier provisions.

The government is saying Parliament has passed a law that retroactively puts into force this treaty or agreement. The materials here do not show the wording of that statutory amendment.


Mr. Rousseau: You are correct. I could not quote verbatim the words that Parliament used in the three provisions in question, but I checked, and when I read them, I believe I felt they were sufficient.


Mr. Lee: Okay, that satisfies me.

The Joint Chair (Mr. Kania): Closed? File closed.




(For text of documents, see Appendix D, p. 11D:1)

Mr. Rousseau: Under subsection 119(4) of the Firearms Act, the Minister of Public Safety and Emergency Preparedness must have laid before both houses of Parliament a statement of the reasons why he formed the opinion that the amendments to the Firearms Fees Regulations set out in SOR/2010-102 and to the Fireams Licences Regulations in SOR/2010-103 are of so little consequence that section 118 of the act should not be applicable under the circumstances.

In this case, the required statements had still not been tabled when committee counsel wrote to the department. However a check has shown that they were subsequently. This was done on September 27 in the Senate, and on September 20 in the House of Commons. If the committee is satisfied, this file may be closed.

The Joint Chair (Mr. Kania): Is it agreed?

Hon. Members: Agreed.

The Joint Chair (Mr. Kania): This file is closed. Next point.





(For text of document, see Appendix E, p. 11E:1)

Mr. Bernhardt: Numerous matters were raised in connection with these three sets of regulations. To a large extent, the three mirror one another, so many of the concerns were common to each one.

Amendments were promised in connection with the more routine matters. On the others, the board indicated only that the committee's concerns were to be considered in the context of an overall review of the rules resulting from Bill C-11. This was all that was forthcoming despite more than one letter seeking a reply on each particular matter.

Last July, the board replied that it had begun the review and redrafting of the rules. It also stated that it expected to be able to deal with the substance of the committee's concerns by mid-October. No further communication has been received since that time.

The outstanding issues detailed in counsel's April 27, 2009, letter have not been responded to specifically, after some 18 months. The committee still does not know the board's position on each of those.

This seems not be a satisfactory situation. One approach would be to advise the board that unless a substantive reply is received within a given time, the committee would expect representatives to appear to provide it in person.

Mr. Lee: I think we should be firming up on this. I wanted to ask counsel if the discrepancies in these rules or regulations affect persons' rights? Are they substantive or do they go just to form?

Mr. Bernhardt: The ones we have yet to receive a reply on are the most substantive ones. There was an initial reply from the board on the routine drafting points; there was quickly a promise to amend. We have been unable to pry a response on the points that go more to questions of procedural rights, clarifying guarantees to people appearing before the boards and so on.

Mr. Lee: Your letter to this agency will contain a suggestion that they may have to appear. If they do not want to correspond with our counsel on these issues, they can always come here and visit us at a meeting and we will go through the same list.

The Joint Chair (Mr. Kania): Should we be more particular perhaps, given where we are in this calendar year — say, a meeting in February? Is it agreed?

Mr. Saxton: Then the conclusion is that we will write a letter requesting them to follow up. If they do not have a satisfactory reply within a satisfactory time frame, we will call witnesses, is that correct?

The Joint Chair (Mr. Kania): In February.



(For text of documents, see Appendix F, p. 11F:1)

Mr. Rousseau: When it reviewed section 801.09(3)(b) of the regulations, which require that the minister be provided on request with a copy of a person's training record, the committee concluded that the Aeronautics Act implicitly authorized its adoption.

However, according to the committee this power which is related to the enforcement of the act, should be included in the act itself, rather than in in a section in regulations whose adoption was at best implicitly authorized by Parliament.

Since the department had indicated that this suggestion would be considered when the minister reviewed the act, the committee inquired whether the department could let it know when this review would take place, and confirm that this power would be included in the act.

In its August 19, 2010 letter, the department replies that it cannot indicate when this review will take place. It does not provide the requested confirmation.

Committee counsel feel that this reply is not satisfactory. As the committee will see later in the file concerning the interim order respecting prohibited items, the department undertook the necessary steps to correct the drafting problem in section 6.41(6)* of the Aeronautics Act; that is another problem. One may wonder why it cannot take the same steps in this case, to clarify the Aeronautics Act in order to expressly include the obligation of providing a copy of a person's training record.

If the committee agrees, counsel will write to the department again to ask it to explain why we must wait for the review of the act in one case and not in the other.

The Joint Chair (Mr. Kania): Is it agreed?

Hon. Members: Agreed.

The Joint Chair (Mr. Kania): Next item.


(For text of documents, see Appendix G, p. 11G:1)

Mr. Rousseau: Before discussing the content of the correspondence, I want to point out that yesterday as we were preparing the meeting we came to the conclusion that this file should have been placed under the heading ``Part Action Promised.''

As to the content of the file, at the June 11, 2009 meeting the committee asked counsel to write to the department again concerning six points. Amendments were promised in reply to points 3, 10, first paragraph, 14 and 21 of the letter dated July 8, 2009. As members of the committee will be able to see when they examine SOR/2010-222, these changes have already been made.

In the opinion of counsel, the replies provided to points 7 and 10, second paragraph, concerning the drafting of the regulations, are satisfactory.

Finally, according to counsel, the reply to point 11, oncerning the wording of the French version of the regulations, is unsatisfactory. The regulations provide a definition of the words ``distributeur autorisé'' (licensed dealer). Counsel suggested that those words should be used in both sections of the regulations mentioned in point 11. By using another term than ``distributeur autorisé,'' a presumption is created that something else is meant.

Elsewhere in the regulations the words ``distributeur autorisé'' are used. The department feels that in the context of the two provisions in question it would be redundant to use the words ``distributeur autorisé.'' It also states that it is confident that the context and the understanding of the intent behind these two provisions negate any presumption that the dealer in question would not be the licensed dealer.

Counsel continue to think that since the regulations provide a definition of a licensed dealer, those are the words that should be used to name that dealer in the regulations. What is the point of defining terms in the regulations if other terms are used? If there is a redundancy, it is not due to the use of those terms.

In addition, by using the words ``distributeur autorisé'' (licensed dealer), the situation will be clear and it will not be necessary to depend on the interpretation that could be made of these two provisions to have the department's interpretation prevail.

The suggested amendment would also mean that the same vocabulary would be used throughout the regulations. If the committee agrees, counsel will write to the department again on this matter.

The Joint Chair (Mr. Kania): Is it agreed?

Hon. Members: Agreed.

The Joint Chair (Mr. Kania): Next item.


(For text of documents see Appendix H, p. 11H:1)

Mr. Rousseau: The examination of this instrument gave rise to comments on three of its provisions. One of the comments concerned the usefulness of section 32 of the regulations from the legal perspective, which the committee called into question.

Since the department simply replied that the Laurentian Pilotage Authority had decided to amend the regulations, the committee wanted to know whether section 32 would be amended or repealed.

As the committee will have noted at the last meeting, when it resumed its examination of SOR/87-58, the department informed us that the regulations the authority is responsible for will be the subject of a consolidation, and that in light of the scope of the task, it is difficult to say on what date the changes that will eventually be proposed will be published.

Obviously that could take a lot of time. Last week the committee expressed the wish for more specific answers on the authority's intentions, without waiting for the completion of this consolidation. Committee counsel suggest that it would also be appropriate for the authority to at least indicate whether section 32 will be amended or repealed.

If the authority clarified its intentions, this could possibly prevent an unsatisfactory outcome later.


Mr. Lee: Mr. Chair, I wanted to ask counsel, do we not have another file with the Laurentian Pilotage Authority, which we took up last week?

Mr. Rousseau: Yes.

Mr. Lee: Are we batting the ball back and forth with them on that one?


Mr. Rousseau: These are two different files, to which the authority provided the same reply. In both cases we are told that before the authority can reply as to its intentions, we must wait for the completion of this consolidation, about which we know very little.


Mr. Lee: These are the same guys we had to work with to get the fees adjusted a year or so ago.

I think we ought to be seeking timely clarity from this agency, with a fairly firm letter. It is like the oil filter commercial: You can pay us now, you can pay us later. They can either lock into a revision format that is comfortable or they can come and talk to us here.

If that could be politely reflected in the letter, that would do the job, I think.

Mr. Masse: I think we should just send a letter to have them come in at this point. It is clear they have no respect, even for what we are doing, nor may they even if they come in, but that might motivate them at least to respond appropriately. They are not even responding appropriately to us.

The Joint Chair (Mr. Kania): Are there any other comments? Do we want to follow the last suggestion, where we said provide us a satisfactory response by X or otherwise we will call witnesses for February?

Hon. Members: Agreed.



(For text of documents, see Appendix I p. 11I:1 )

Mr. Rousseau: At the June 11, 2009 meeting the committee tasked counsel with write to the department again concerning the six points. Amendments were promised in reply to points 3, 9, first paragraph, 13 and 21 of the letter dated July 8, 2009. As members will be able to see once again, when they study SOR/2010-221, these amendments have already been made. In the opinion of counsel, the replies provided to points 6 and 9, second paragraph, concerning the drafting of the regulations, are satisfactory.

Counsel feel that the reply to point 10 involving the wording of the French version of the regulation is unsatisfactory. And as in SOR/2004-238, examined previously, this concerns the use of the word ``distributeur'' rather than the words ``distributeur autorisé'' which is also defined in these regulations. The department's position is the same. It would be appropriate for the committee to agree to the solution chosen earlier, that is to say to write to the department again to insist on the amendment.


Senator Moore: Do we put an end date on this when we want to hear back from them? We are talking about a firm letter, but are we asking them to reply by a certain date. We do not want an open date.


Mr. Rousseau: In fact, in this file up till now cooperation has been quite good. Certain amendments were made and we have received satisfactory replies. There only remains the one issue that has not yet been resolved, and I think that a normal wait time would be satisfactory under the circumstances.


Senator Moore: You do not feel a need to put a date — it is working well?

Mr. Bernhardt: Health is not usually a problem. If we do not get a reply within four months, we will get back to them looking for that, but it is usually not an issue with this department.


(For text of document, see Appendix J, p. 11J:1)

Mr. Bernhardt: Two remaining points of contention were pursued in connection with this file. There is a note prepared for members in the materials this morning that goes through those two issues.

The first concerns paragraph 70(1)(a) of the Health of Animals Regulations. It requires an exporter to obtain a certificate from an inspector, indicating that the inspector has inspected the product, as well as the plant or mill where the product was prepared.

There is no indication in the regulations as to nature of the inspection or the criteria that have to be satisfied for the certificate to be issued.

In the agency's view, it goes without saying that the purpose of the inspection is to confirm whether the product, the plant and the mill comply with the act and the regulations, as well as any permit conditions. The agency has also indicated that the product is inspected to ensure it is free of disease or toxic substances.

Clearly, it would be preferable if all this was stated in the regulations. I note this is done in connection with other inspections that are referred to in the regulations elsewhere.

In its June 15 reply, the agency indicates that consideration will be given to addressing this concern as part of a future comprehensive review. Perhaps the time frame for completing this review should be sought, together with a firmer undertaking to actually make the requested amendment.

There is also a requirement that the import requirements of the destination country be complied with prior to export. It was asked how an exporter would demonstrate this compliance and to whom he has to demonstrate compliance.

The agency advises that exporters are expected to know the requirements of the importing country, and compliance is to be demonstrated to the veterinary inspector who certifies the shipment. Again, I suggest this should be clearly stated in the regulations.

The second matter relates to paragraph 160(2)(b) of the same regulations. It states that any permit or licence required under the regulations shall contain such conditions as the minister considers advisable to prevent introduction or spread of communicable disease or the introduction of communicable disease into another country.

As a general principle, regulations governing decisions by officials should be cast in objective terms. For instance, the provision in question could provide that permits or licences shall contain such conditions ``as are necessary'' to prevent the introduction or spread of communicable disease.

This is significant in that conditions that are imposed based on the opinion of an official as to what is appropriate makes the rights of citizens unduly dependent on administrative discretion. It also increases the possibility that people in identical situations will be treated differently.

The only real purpose this sort of discretion has is to limit the scope of judicial review. It transforms the nature of the decision from objective determination of fact into somebody's opinion.

Because of this, the committee has always insisted that, wherever possible, subjective language should be removed from regulations. In fact, on a number of occasions, the Food Inspection Agency has agreed to such amendments.

Here, however, the agency claims the discretion is appropriate because it could only be exercised for purposes of the act. This misses the point entirely. If the subjective wording was removed, the minister would still make the decision as to which permit or licence conditions were necessary to prevent the spread of disease. However, the minister's discretion would be couched in objective terms. To argue this would make no difference ignores some fairly basic principles of administrative law.

The agency goes on to assert that the words ``as the minister considers advisable'' have no effect on the scope of judicial review because the same standard of review would apply regardless. This ignores the fact that couching the minister's power in subjective terms means the court will defer to the minister's opinion. For all intents and purposes, the exercise of that power will not be subject to judicial review at all.

I would suggest a further letter pursuing these two matters. There are other promised amendments; we could request a progress report on those at the same time.

Senator Harb: It seems to me that the department is really digging its heels in by the way they are approaching this file. I do not see any quick resolution to it. I am not sure simply sending a letter will do it.

I do not know whether it would be possible to go to a third party with this matter. They seem to be so sure, to the point that they are not saying that they believe the court would but that the court will. That is how strongly their position seems to be entrenched.

My thought is that perhaps counsel wants to think it through in terms of an alternative to simply doing a letter, because I think it will go back and forth forever.

If the department would be interested in a third party looking at this and providing an opinion, that might overcome the impasse and bring the matter to a resolution.

Mr. Bernhardt: That is always a possibility. I suppose I have some hope in this case for a couple of reasons. First, this is a first exchange of letters; and second, the fact is that the agency has accepted to make these kinds of amendments in the past.

From our point of view, there is a certain frustration to see the push back on a file like this, which seems to be something that has been a routine matter for the committee over the years. The committee makes its point and amendments are made.

As set out in the authorities cited, it is a pretty straightforward issue. My feeling would be to ask the committee to let us, at least for now, take another kick at the cat, cross our fingers and point out to them these are the principles you have not taken into account and, in fact, you have always accepted this; why the resistance suddenly now?

Mr. Lee: To reinforce the comments of Senator Harb, the second issue is as simple as administrative law 101. They really should get it, so I agree with Senator Harb. The department should get it quickly. I, for one, would show zero tolerance at a total non-acceptance of our position on this matter. They have to get to administrative law 101, accept it and take whatever steps are appropriate. I am sure counsel can point them in the right direction.

The Joint Chair (Mr. Kania): On this file, what about if you write the letter advising that the matter will be brought back before the committee in February and asking them to provide a substantive response before that, without threatening witnesses?

Mr. Bernhardt: As an additional comment in connection with Senator Harb's reference to a third party, I have some hope that by writing back again, this might be kicked up to the people in the regulations section in Justice who are more familiar with these issues.

Senator Harb: Often you give them an out in a lot of ways, because on reflection they may say that having thought this over, that it is good.

The Joint Chair (Mr. Kania): Is it agreed?

Hon. Members: Agreed.



(For text of documents, see appendix K, p. 11K:1)

Mr. Rousseau: In this file the department recognized that there is a discrepancy between the French and English versions of the regulations. It suggested, however, that a correction be made during the five-year review of the Conflict of Interest Act, which will not be undertaken before July 9, 2012.

The committee did not deem it satisfactory to have to wait so long to know whether the discrepancies would indeed be corrected. And so it wanted the department to commit to making the necessary corrections before the review of the act. In its July 28, 2010 letter the department informs us that the corrections will be made through the miscellaneous amendments regulations process and that this should be done within six months, i.e. before the end of January 2011.

This reply appears satisfactory. Counsel will follow up on progress made in the usual way, and keep the committee apprised of developments.


Mr. Lee: It is really important here to celebrate the resort to the miscellaneous package procedure. That should be highlighted because there are other ministries who could do the same thing. It would make our job a lot easier if they would consider taking advantage of that procedure. I wanted to note that for the record.

The Joint Chair (Mr. Kania): We will follow up. You will monitor.



(For text of documents, see Appendix L, p. 11L:1)

Mr. Rousseau: The regulations in this file were adopted March 19, 2010, but were not registered in the seven days following their adoption. The agency confirms that the regulations were transmitted within the deadline set in the Statutory Instruments Act.

As for the time that elapsed between the transmission of the regulations and their registration, the agency wrote that this was due to the fact that it had asked the clerk of the Privy Council to synchronize the coming into force of this amendment to the Reportable Diseases Regulations with an amendment to the Health of Animals Regulations, since both amendments were related. The Privy Council Office considers that it is incumbent upon it to register regulations within a reasonable time frame, and that this was done, given the circumstances.

Counsel feel that this reply is satisfactory. Parliament's main concern is that the regulations not come into force before having been registered. This principle has been respected in this file. If the committee is satisfied, the file may be closed.


Senator Moore: Do situations happen often where they are not in violation but outside of the set time frames? Does the Privy Council have the kind of discretion to do that? I do not remember this happening before.

Mr. Bernhardt: It is very rare. Usually, when the seven days is not met, it is because someone has not sent it to the Privy Council. I am not sure I have ever seen another such situation. I think they are perfectly justified in doing so. Here, there was no attempt to enforce a regulation in advance, and this is what they wanted to do. Therefore, they simply asked the clerk to coordinate it.

I cannot think of another situation like this.


Mr. Rousseau: This file is unusual because the act requires that the regulations be transmitted within seven days after having been adopted. This is the requirement prescribed by law. Normally, in the vast majority of cases the regulations are registered within the seven-day period in any case, even if the law does not explicitly require it.

Here, as we were saying, Parliament's main concern is that the regulations not come into force before having been registered. This principle has been respected. There does not appear to be a problem. It is simply somewhat unusual.


Senator Moore: The Privy Council Office is the only authority, though, that would have this sort of discretion to act in this way to more efficiently bring in these two regs at the same time. Is that true? I do not know of any other office.

Mr. Bernhardt: That is where the registrar is.

Senator Moore: Okay, this is a rare one.


Mr. Rousseau: What could have been done would be simply to specify in the regulations in question that a regulation would not come into force before the other one. The regulatory authority could have done so itself. It asked the Privy Council Office to do it, and it did so.



(For text of documents, see Appendix M, p. 11M:1)

Mr. Bernhardt: Eighty-two matters were first raised in connection with these regulations in 1989. Bit by bit, amendments have been made. Now, only four are left to address matters of drafting. These four stragglers, if I can call them that, are to be part of a broader overhaul of the regulations.

The agency now advises this overhaul will be carried out in stages over the next several years. Specifically, the first outstanding amendment is in Part 1. Part 1 is to be amended by the end of this fiscal year. The second is in Part 3, which is to be amended by the end of the next fiscal year. The other two amendments are provisions in Parts 5 and 6, and those are to be amended in the year after the next fiscal year.

The question for the committee is whether this proposed time frame is acceptable. Even assuming it is, perhaps the agency should be advised that if there are further delays in this review process, the committee would like the amendments resolving its four remaining concerns to proceed independently.

Mr. Lee: Are these remaining ones miscellaneous-type amends?

Mr. Bernhardt: Yes.

Mr. Lee: Could you hint at that if there is any future correspondence? I hate to close old grandfather-type files like this. They are going for the record, obviously.

Mr. Bernhardt: Seventy-eight down, four to go.

Mr. Lee: We will have some mutual enjoyment here keeping this thing going. However, please suggest a miscellaneous amendment package.

Mr. Masse: The timelines they suggested would put it at a quarter of a century. It is amazing. I do not know what else we can do. It does not hurt us to have them linger. We might as well irritate them until they get it done.

Senator Moore: Practically speaking, what impact does the time frame they suggest have on Canadians?

Mr. Bernhardt: Part of the committee's reason for the patience over the years is that the last remaining amendments are drafting matters; editorial improvements. They have been agreed to. They do not deal with issues of legality in that they could have a significant effect on people. There are small improvements that have been promised.

Senator Moore: I raised it before and Mr. Lee has raised it twice, we should be urging this miscellaneous process. The government could clean up a lot of stuff. I do not care which government is in power, it could clean up a lot with that process and remove the paperwork. We are killing so many trees with this going on and on. I really push to do that on any of these files where that has been raised today.


(For text of documents, see Appendix N, p. 11N:1)

Mr. Bernhardt: A number of amendments were previously promised. The Military Police Complaints Commission expresses a preference to await the conclusion of a complaint currently before it, as well as the next five year review of the act, which is now overdue. An expected time frame should be sought.

There were two unresolved issues that were pursued with the commission. On the second, which is the one the commission chose to deal with first, they seem to accept to amend subsection 33(1) whenever they do revise the rules. This is far from clear, so I think confirmation should be sought in that regard.

The other issue relates to the desirability of expressly requiring that parties be notified when the commission suspends or varies the rules in a given instance. The commission has replied that it does this as a matter of practice and that, practically, it could not proceed in many instances without doing so. Nevertheless, the committee has always taken the position that where procedural rights can be clearly and concisely set out in the legislation, it is preferable to do so. Given that this would reflect the commission's practice in any event, one can ask why there would be resistance to putting it in the regulations.

As for the commission's claim that this would increase the length and complexity of the rules, this seems to us to be a stretch. We looked through the regulations. We are asking for adding the words ``and shall inform the parties of any such decision'' in five sections. I do not think that is terribly more lengthy and complex.

The commission has indicated a willingness to try to address this issue if the committee insists. My suggestion would be that insist it should.

Hon. Members: Agreed.




(For text of documents, see Appendix O, p. 11O:1)

Mr. Bernhardt: Two outstanding concerns were pursued here. The first concerned the need to recite the full enabling authority when making amendments. Citing only a general power to make regulations prescribing what is to be prescribed elsewhere is not helpful if those other provisions are not also referred to. The department has now agreed.

The second matter again concerns open incorporation by reference under the Motor Vehicle Safety Act. The latest reply is identical to those received on other files dealt with at the meeting last week. The Minister of Justice was to be asked about the status of proposed legislation addressing this issue. His reply will be placed before the committee when it is received.


(For text of documents, see Appendix P, p. 11P:1)

Mr. Bernhardt: Among other things, these regulations purport to reply to so-called deposits of effluent to off-site treatment facilities. These facilities include municipal sewer systems. If this constitutes the deposit of a substance in a place where it may enter water frequented by fish for purposes of the Fisheries Act, it would seem to follow that the act is contravened every time household waste enters a municipal sewer system. This is clearly not what Parliament intended.

Other than to concede this could arguably be the case, the department has avoided addressing the issue directly. However, the committee was recently told that the provisions in the Pulp and Paper Effluent Regulations that have been questioned will be revoked concurrently with the coming into force of new regulations governing discharges from waste water treatment facilities.

These new Waste Water Systems Effluent Regulations were pre-published in the Canada Gazette on March 20, 2010. However, no amendments to the Pulp and Paper Effluent Regulations accompanied them, nor were any such amendments mentioned in the regulatory impact analysis statement.

The committee therefore wanted an assurance that it remained the intention to remove the requirements pertaining to effluent placed into off-site treatment facilities from the pulp and paper regulations concurrently with the coming into force of the new regulations. The June 10 reply gives the requested assurance. The one caution I would offer is that my understanding is that these new regulations will be phased in over a number of years, possibly even several decades, because they will require significant upgrades to municipal sewer systems in some cases. This will be very expensive.

The question then becomes if and how the present provisions before the committee will be used in the interim. It might be worth asking the department when it plans to actually repeal the provisions in the pulp and paper regulations and whether it will continue to enforce those provisions that the committee has objected to.

Mr. Lee: Could counsel also inquire why, in the public consultations, there would not have been some reference to the revocation of the pulp and paper regs? It seems to me that if you have a plan and that is part of it, you would at least refer to it somewhere.

My gut on that one tells me that the commitment to get rid of those regs is not on the radar screen, if they did not put it into the publication of the consultation document. Perhaps you could inquire in the correspondence.

Hon. Members: Agreed.


The Joint Chair (Mr. Kania): We will now move on to the heading ``Progress'';


(For text of documents, see Appendix Q, p. 11Q:1)

Mr. Rousseau: As the committee will see when it reviews SOR/2009-292, the two drafting problems identified in the interim order have been corrected. All that remains is to correct the wording of the French version of section 6.41(6) of the Aeronautics Act. In the letter of May 21, 2010, the department confirmed that it was attempting to move this file forward, but could not give any additional details.

This reply was provided a few months ago. It would be appropriate for counsel to enquire about progress made since then.

The Joint Chair (Mr. Kania): Agreed?

Hon. Members: Agreed.

The Joint Chair (Mr. Kania): We will move on to the next item.












(For text of documents, see Appendix R, p. 11R:1)

Mr. Rousseau: On December 2, 2009, committee counsel wrote to the CRTC concerning each of the files on today's agenda. These files go from SOR/97-555 to SOR/2006-108. As the committee will have noted at the meeting of November 19, 2009, the CRTC committed to making amendments, with one exception, concerning all of the points raised. However, the CRTC did not provide any details on the changes to be made.

The committee wanted to know more, particularly as pertains to substantive issues. In its letter of January 29, 2010, the CRTC still provides no details, but indicates that the amendments will be included in draft regulations to be published before their adoption.

The amendments were drafted and were being examined by the Department of Justice. As to the point the CRTC refused, in its recent correspondence, to amend, whereas it had previously committed to repealing the provision, it repeats that it will examine the issue when the in-depth review of the Broadcasting Distribution Regulations takes place; they are to come into effect on September 1, 2011.

The last letter from the CRTC is dated June 4, 2010. It would be appropriate for committee counsel to enquire about progress made since then.


Senator Moore: What are we doing there? Are you writing a letter to the CRTC seeking clarification on those amendments?

Mr. Rousseau: Yes.


(For text of document, see Appendix S, p. 11S:1)

Mr. Bernhardt: In July, the department indicated that the promised amendments were to be pre-published towards the first quarter of next year. I would suggest we follow that up to see whether that is still the expectation.

Hon. Members: Agreed



(For text of documents, see Appendix T, p. 11T:1)

Mr. Rousseau: In its letter of September 22, 2010, the department wrote that it was undertaking an examination of the Wildlife Area Regulations. According to the department, the promised amendments, which will be adopted at the same time as the other amendments deemed necessary when this review is complete, should come into effect in spring 2011.

Counsel will follow up on progress in the usual way and keep the committee apprised of developments.



(For text of document, see Appendix U, p. 11U:1)

Mr. Bernhardt: Amendments addressing the committee's concerns were pre-published in 2008. The Tobacco Act itself was then amended which required that new amendments be prepared. In June, the department advised the drafting of those was progressing, approval to pre-publish would be sought late in 2010, and they expected the amendments would be tabled, as the act requires, next spring.

Then in September, the government announced it was abandoning its initiative to revise these regulations as it no longer wanted to change the information and warnings on tobacco products. That leaves the existing regulations. Since amendments to these have been promised to the committee, I suppose the department should be asked how it plans to proceed with the particular amendments to address the committee's concerns here.

Senator Moore: Can we put a time frame or get a response by the end of the year, so we can have it in time for our next meeting?

The Joint Chair (Mr. Kania): Okay.


(For text of documents, see Appendix V, p. 11V:1)

Mr. Bernhardt: An amendment to correct a discrepancy between the two versions of a provision in the act has been promised. It was promised to be made when the act was next amended, so perhaps we could ask when this is expected to be.























Mr. Bernhardt: Under Item No. 12, there is a list of 22 Instruments Without Comment that we have reviewed and found to comply with all the scrutiny criteria.

Mr. Clarke: I missed the beginning of the meeting, so I would like some clarification.

I am concerned about the hearing planned for next week and our schedule. I would like to make the meetings. However, if the meetings are starting to overlap, it is hard for me to make those that are being added.

What is the hearing about? Also can we get back to our regular schedule? I cannot afford substituting.

The Joint Chair (Mr. Kania): Meetings are scheduled for the next two Thursday mornings. That is it until after the Christmas break.

The witnesses are appearing regarding the Identity Screening Regulations. Counsel indicated a package of material will be provided to everyone in advance of that meeting. Would you like more information beyond that?

Mr. Clarke: I was subbing on the Transport Committee this week. I believe they are looking over that whole situation. Why are we studying that when the Transport Committee is already studying it?

The Joint Chair (Mr. Kania): I am not aware of what Transport is studying. Do you have particulars you can provide us?

We are dealing with the regulations. We had previously sent letters advising that we would call witnesses. That is what we are now doing.

If you have information you would like to table about what the Transport Committee is doing, we will take that into account. However, we have not seen anything.

Mr. Saxton: This committee is supposed to be meeting every second Thursday. You are talking about four Thursdays in a row, is that correct? We met last Thursday, this Thursday and it will be the next two Thursdays. What is the reason for this extraordinary move to make it every Thursday?

The Joint Chair (Mr. Kania): It is not uncommon to add extra meetings if required based on what counsel indicates needs to be reviewed. We discussed having these extra meetings at least a couple of meetings ago, so this is not a new matter. We make ourselves available to ensure that the work of the secretariat gets done. It is as simple as that.

It is supposed to be every other Thursday, unless we add Thursdays to ensure we are being responsible as a committee to ensure their work is getting done. Being responsible is the only reason we are adding meetings.

Mr. Anderson: I think I am hearing from some of the members, and Mr. Clarke raised it this morning, is that they take on committee responsibilities and assignments based on their ability for them to find substitutes, et cetera, for their other work. They have duty days and such.

If, by doubling the number of assignments, the committee is making it difficult for members to find substitutes or to be able to do their duties, we are not doing the members of the committee any favours. We would be jeopardizing the continuity of the committee. If members want to jump out of this committee, it is hard for them to find substitutes, schedule wise. Mr. Clarke travels from Saskatchewan every week to be here. We should be sensitive to that.

Ms. Jennings: What are the rules, if any, that this committee has adopted in terms of quorum?

Mr. Bernhardt: Quorum is three members, with each house represented. Four members are needed to pass a motion.

Ms. Jennings: Does it require that there be representation of all parties within that quorum?

Mr. Bernhardt: No. Traditionally, the committee is simply required to have each house represented.


Mr. Asselin: I agree with the chair. When there is additional work, it is better to get things done, because we are talking about regulations. Some things are urgent, even if the time frames are often long. However, I would remind the members of the committee that even if we were to hold four consecutive meetings, we would still have six weeks of rest following that period.


Mr. Saxton: One possible remedy to this situation of members with conflicts is that we extend the meeting from one and a half hours to two hours and eliminate the need for the extra meetings that are causing difficulties to members. Once you are here you are here. Therefore, if we extend it by a half hour, it would not require extra meetings. We have done that in the past. It would be more practical for people when it comes to getting substitutes and other things.

I know an extra half hour is also a challenge but I think it is less of a challenge than having to reschedule another meeting.

The Joint Chair (Mr. Kania): That is a good suggestion. When we are adding new meetings in the future, we can discuss that as an option. For the purpose of this calendar year, we have two meetings left: One is for witnesses, which is self-contained, and then there is one final meeting to wrap up the rest of the materials.

We are set for 2010 but that would be worthy of discussion for 2011.

Mr. Masse: I will attend extra meetings on a given day; whatever works is okay. However, I am not sure there is that much of a problem. I have two young children. Last week, I got a substitute and that is normally how it works. I have empathy for Mr. Clarke's situation, but I have not heard that being a problem for us in the past. If we want to add time, it is fine if that could work. However, the bottom line is that we are responsible to be here and you can either ask to be off the committee by talking to your whip, or get a substitute. That is what I do. Coming from the smallest party, it is often very difficult.

Let us add time if we want to but let us ensure we get the job done. That is the primary focus. As Ms. Jennings pointed out, you do not have to be here if you cannot be here. The work can still be done. The committee has actually worked well, so I do not see it as a reason to delay, which is my concern.

Senator Moore: With regard to the suggestion of going until 10:30, the Senate has committees that start at 10:30 in other buildings. Therefore, I would not be in favour of that. If you want to go the 10:15, that is alright. However, consideration must be given to the rest of the schedule already in place.

As Mr. Masse has said, this has worked well in the past. We have had prorogation and other interruptions. We have had a bottleneck of work to get through. Now, we are almost cleaned up here. By Christmas break, we will have pretty much caught up. Starting in 2011, we will go to a regular rhythm.

The Joint Chair (Mr. Kania): Currently, we have no extra meetings scheduled for 2011. I would suggest that we open this discussion again before scheduling extra meetings, and we can try to work out accommodation.

Mr. Saxton: I want to confirm December 16.

The Joint Chair (Mr. Kania): There is no meeting.

Does that work for everyone? Okay, we are adjourned.

(The committee adjourned.)

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