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Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue 12 - Evidence - May 10, 2012

OTTAWA, Thursday, May 10, 2012

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

Senator Bob Runciman and Ms. Chris Charlton (Joint Chairs) in the chair.


The Joint Chair (Senator Runciman): I call the meeting to order. Before we get into the agenda, I want to mention that I did make reference to a steering committee meeting last time at the outset, and we hopefully have the steering committee situation resolved. I am looking to Senator Moore for verification.

Senator Moore: I spoke with our whip as late as yesterday afternoon, and he assures me that he will be in touch with you the first of next week.

The Joint Chair (Senator Runciman): Okay.

Senator Moore: I am still doing what you ask and others have the authority, so they will be back to you.

The Joint Chair (Senator Runciman): We are still wrestling with that, but we may have suggestions later on with respect to streamlining this system.




(For text of documents, see Appendix A, p. 12A:1.)

The Joint Chair (Senator Runciman): This has been before the committee since 2007, concerning lack of authority to regulate release into the environment of a number of products.

Peter Bernhardt, General Counsel to the Committee: As you indicated, the issue for the committee was provisions in the regulations that deal with release into the environment of new feeds that are called novel feeds, and seeds that have novel traits. The committee has concluded there is no authority in the Feeds Act and Seeds Act at present for those provisions.

The minister has accepted to introduce amendments to the two acts to give the authority to regulate release into the environment under those statutes. On March 31, the minister indicated that progress has been made. He is now in a position to proceed with that bill whenever a legislative opportunity arises, and he is hopeful that will be during the present session. I suppose that is really all the committee can ask for at this be point. If members concur, I propose bringing the file forward again in the fall. If no bill has been introduced at that time, a further update could be sought.

Mr. Breitkreuz: When you talk about the present session, does that mean before the end of June or does that mean during this Parliament?

Mr. Bernhardt: I took that to mean before the next Speech from the Throne.

Mr. Breitkreuz: This session of Parliament?

Mr. Bernhardt: Yes.

Mr. Breitkreuz: I guess we can just monitor this and hopefully it will happen sooner rather than later.

The Joint Chair (Senator Runciman): Is there agreement with the recommendation? Are there any comments?

Senator Moore: To follow up my colleague's question, you are recommending, counsel, that you will bring it back in the fall of 2012.

Mr. Bernhardt: Yes, and hopefully by then the bill will be introduced.

Senator Moore: Okay.


(For text of documents, see Appendix B, p.12B:1.)

Shawn Abel, Counsel to the Committee: Given that this instrument was not registered within seven days of its making, the Public Service Commission was asked whether the instrument had in fact been transmitted to the Clerk of the Privy Council within that time period as required by the Statutory Instruments Act.

The reply explains that this requirement was not met, in part due to the fact that the presidency of the commission was changing at the time and also the coincidence of the Christmas holidays. In any event, the commission promises that the deadline will be met in the future and this will not happen again. That leaves little further action to be taken on the file. It could be closed. Of course, counsel always monitors the registration and publication deadlines required by the Statutory Instruments Act and we will be mindful if similar situations arise in the future.

The Joint Chair (Senator Runciman): All right.

Senator Braley: It is pretty clear: Close the file. That is my suggestion, given what counsel has said.

The Joint Chair (Senator Runciman): Is there concurrence with that recommendation? Agreed?

Hon. Members: Agreed.


(For text of documents, see Appendix C, p. 12C:1.)

The Joint Chair (Senator Runciman): This agenda item concerns the Canadian Chicken Marketing Quota Regulations and counsel is recommending the committee consider disallowance.

Mr. Bernhardt: There were initially five points raised in connection with this file. Four of them have been resolved so that just leaves the one that is before the committee this morning. It is a fairly straightforward point. The concern is the inclusion in the regulations of a number of definitions that are already contained in the Chicken Farmers of Canada Proclamation and are simply repeated. Under the Farm Products Agencies Act, the scheme is set up whereby the Governor-in-Council can issue a proclamation establishing a marketing agency and setting out the agency's powers including its regulation making powers. These regulations were adopted by the agency known as the Chicken Farmers of Canada pursuant to powers it was granted by the Governor-in-Council under the Chicken Farmers of Canada Proclamation. That proclamation has a number of definitions in it. Some of those definitions are simply repeated in the regulations.

This is completely unnecessary. Section 16 of the Interpretation Act already provides:

Where an enactment confers power to make regulations, expressions used in the regulations have the same respective meanings as in the enactment conferring the power.

Obviously there is no need to repeat the definitions in one place when they are already contained in the enabling proclamation.

Now the reply is that repeating the definitions gives more information to people who are reading the regulations. However, the committee has always taken the view that legislation should be just that. It sets out rules and obligations. It should not be used as an information brochure. I would suggest that unnecessary repetition also tends to cause more confusion than it solves. For example, if you are looking at a set of definitions and some are repeated elsewhere and some are not, the logical question is why were these repeated when these ones were not? What is the significance of that? You look for some purpose there.

In addition, repeating provisions in this way can actually lead to some drafting errors and complications. For example, although the intent here was to repeat the definition, they in fact introduced a discrepancy between the English and French version. Therefore, you had a situation where, at least reading the one version, you had two different definitions: one in the proclamation and one in the regulations. They actually had to make an amendment to that, as we will see later on — it is under Action Taken this morning — to correct that.

Third, I suppose it bears pointing out that there have been numerous examples in the past where regulation makers have agreed to act on the committee's suggestion to remove redundant provisions, particularly definitions. Item 10 on the agenda this morning in part involves Environment Canada agreeing to do precisely that; they are promising to take a definition out of the regulations that simply repeats a definition in the enabling act. Nevertheless, in this instance, the Farm Products Council sees no need to make the amendments and it has advised the committee that it considers the matter closed.

As the note in the materials this morning emphasizes, removing these definitions would in no way change the substance of the law, because the definitions contained in the proclamation would still apply to these regulations. The only effect would be to shorten the regulations, eliminate redundant provisions and simplify matters.

By way of recommendation, I would suggest that this is an issue that should be pursued. Obviously, if members concur in that recommendation, the question then is how it should be pursued.

One possibility, and again it is suggested in the note, is that if the committee is not inclined to rehash a point that has been dealt with already with various regulation-making authorities, one alternative might be to consider issuing a notice of disallowance that would go to the minister. Under the provision in the Statutory Instruments Act, the committee cannot adopt a disallowance report unless the minister is given 30 days notice. I suppose the hope would be, ideally, if that was a mechanism adopted, that the notice would be sufficient to spur a promise to take these provisions out of the regulations.

The Joint Chair (Senator Runciman): How often has the committee issued a disallowance notice?

Mr. Bernhardt: The disallowance procedure was initiated in 1986. Since that time, there have been 11 disallowance reports — nine under the original procedure, which was in the standing orders of the House of Commons, and two under the statutory procedure that was brought in by way of a private member's bill in 2003.

The Joint Chair (Senator Runciman): Are there any comments on this issue?

Mr. Albas: I want to thank counsel for their hard work on it. Obviously, the chicken council disagrees with us. At this particular moment in time, we should continue forward with having those definitions taken out, as counsel said. It is within the proclamation. Other departments have been following and agreeing with our committee.

Therefore, I believe we should write directly to the minister. The minister needs to be aware of these concerns, and we should urge the minister to press the chicken farmers council to deal with this forthwith.

The Joint Chair (Senator Runciman): For clarity, you are not suggesting proceeding with a disallowance but asking the minister to intervene and correct the situation.

Mr. Albas: Yes. I think we can always go down the path of disallowance. Further discussion with the chicken farmers council is not prudent. They have already said they consider the case closed, so clearly going back to them will just lead to more time and expense. Therefore, I believe seeking the minister's redress on this is the appropriate way.

Mr. Young: I am trying to understand what problem exists now with this redundancy. I recognize there was a problem between French and English that was fixed. These are a bunch of guys who already work from about five o'clock in the morning until seven o'clock at night. They get together and they are trying to run their agency. They get a document from the Government of Canada that says, "Oh, there is some redundancy in the regulations that we think we have to fix." They look at it and say, "We do not think it is a problem," and they send it back. Therefore, now we will just disallow the regulation? It seems like a "nuclear option" to me for these guys.

Why do we not send it to the minister and find out what is really going on and let the minister do the political side of it before we pull the plug?

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

Senator Moore: I think that is good advice, joint chairs, but in the letter to the minister, do we indicate that, hopefully, he can get the situation resolved so we do not have to resort to the disallowance process? He should know that. This will be a new minister who does not know about this process and he should know that it is an option that we hopefully do not have to follow. I think it would be useful to let him know that we are trying to get this resolved without going through that process.

The Joint Chair (Senator Runciman): Are we all right with that add-on to the recommendation?

Hon. Members: Agreed.


(For text of documents, see Appendix D, p. 12D:1.)

The Joint Chair (Senator Runciman): The levies order was made before the authorizing approval to make such an order had come into effect, meaning that it was of no force and effect.

Mr. Bernhardt: That is correct, Mr. Chair. The remaking of the order in 2010 put the collection of levies on a sound legal footing going forward. Of course, it remains the case that levies collected pursuant to the previous order that the committee had objected to were collected without authority. That being the case, the committee suggested to the Farm Products Council that consideration be given to seeking the passage of remedial legislation that would retroactively validate the levies collected under that predecessor order.

The council's March 28 reply takes the position that no such action is required because, in its opinion, the order that it then went to the trouble to replace was in fact validly made. I suppose one wonders why, if that was their position and they held it so firmly, that they went ahead and remade the order anyway.

Nevertheless, the first question for the committee is whether members wish to pursue that point and suggestion that was made. The committee also wanted to know the total amount of the levies that had been collected under the previous order. The reply from the council does not provide that information, so a second question is whether members want to ask again for that figure.

A third aspect here is that in previous correspondence, the committee had been told that, as a practical matter, the agency can only collect levies if there is an agreement in place with the province; that is to say, with the provincial board. Again, the committee suggested that if it was really intended that this levy is only in effect in a province once there is an agreement to collect it, then that should be set out in the regulations. Otherwise you have the rather odd situation where the order imposes an obligation on people to collect and remit levies and, practically, there is no possible way those people can comply with the order because there is no agreement with the province. Therefore, it is simply not being collected.

The council agrees that the obligation to pay, deduct and remit levies arises under the order regardless of whether there is an agreement but suggests that these agreements simply clarify how collection will be made.

As I say, practically, however, the fact of the matter is that if there is no agreement, there cannot be any collection. Again, the third issue is whether members wish to pursue the suggestion that this issue be mentioned in the regulations.

Those are the three matters before the committee this morning.

I should simply add that there was a final amendment proposed to resolve a discrepancy between the English and French versions; that is subsection 6(2) of the order. That was to be done when the order was remade. It was not. Fortunately, however, that amendment has now been made, so that aspect of the file is resolved.

Mr. Albas: I realize a lot has gone on in this file, and I want to thank counsel for their work. From my understanding, there were not agreements with the majority of provinces and now that is not the case. I believe there is only one still remaining. Therefore, I think that, first, we should write back to the Farm Products Council and outline that while we are happy that they have made sufficient progress, we would urge them to continue to get those written agreements and to consider putting that under the regulations.

Second, I think we should write to the minister, specifically outlining the committee's recommendation to deal with the retroactive validation of the previous levies that were collected.

As to seeking any further knowledge as to how much those levies were that were not collected by the time the order came into effect, whether it is one dollar or more, they were collected without validation. We should address it by speaking directly to the minister about it.

Senator Braley: I am in complete agreement. Stepping it up a notch and adding a bit more pressure is what we are talking about.

The Joint Chair (Senator Runciman): Are there additional comments? Are we to go ahead as recommended?

Hon. Members: Agreed.


(For text of documents, see Appendix E, p. 12E:1.)

The Joint Chair (Senator Runciman): Counsel raised 12 points ranging from grammatical problems to more substantive matters. Transport Canada has agreed to remedy some of the problems and has offered explanations for some of the others.

Mr. Bernhardt: That is correct, Mr. Chair. Amendments have not been agreed to for points 2, 6 and 10 in the correspondence. There are two elements in point 2. The first one is the same issue as point 6, so they could be dealt with together.

The issue is certain provisions that require an air operator to establish procedures. The question was asked when these procedures have to be established. The department's reply indicates that its intent was that the procedures would be in place immediately upon the coming into force of the regulations and that they gave 90 days notice of when that date would be.

The difficulty is that is not quite what the regulations say. Upon coming into force, the provisions require an operator to establish procedures. They do not require that the operator have established procedures; rather, they require him to start doing something. Once the regulations come into force, you have to go about the business of establishing procedures. It still leaves the question of when you have to have those in place. I suggest that could be put to the department in a further letter. It is probably not an issue for existing air operators because the regulations are in force, but when a new operator comes on the scene, he sees a provision that says he has to go about establishing procedures. If someone asks where the procedures are and the operator says that they are working on it, then that would seem to satisfy the regulations. I do not think that was the intent.

A second element in point 2 concerns the fact that one thing that must be in the procedures is identification of the ways in which unruly passenger behaviour can constitute interference with crew members. This seems to be covered already in the regulations, so we asked for clarification on that. The department's reply seems to suggest that they expect to have examples of unruly behaviour in the procedures for crew members to use to help them interpret the regulations. It is not entirely clear if that is what they are getting at. Again, we asked if the department could provide a copy of relevant portions of an operator's procedure by way of an example so that we have a better understanding of how the regulations and the procedures in the manual fit together.

The reply is that the procedures may contain personal or commercial information, so it will be necessary to obtain the prior consent of the operator before passing that information along. Given what we are dealing with, I am not really sure why that should be the case. In any event, we can follow up on that request. They have not said, yes; but they have not said, no.

Point 10 is the same issue. The regulations state that a level 1 incident involves unacceptable language or behaviour. We asked who decides what is unacceptable and on what criteria it is based. The reply is that it will be set out in the procedures. We asked for examples of the procedures and the reply is the same.

In summary, I suggest a further letter to the department pursuing these matters and asking again if they are now in a position to provide the requested documents.

Mr. Wilks: I will give you my serious answer rather than my comical one that I would suggest. I suggest that we write to them and ask when we can physically see this manual, which would be kind of nice, and see the changes to the regulations. That is significant. It will press the point that we want to see what is in writing before we determine what should be in writing; so we will push them back on it.

The Joint Chair (Senator Runciman): Are members agreed?

Hon. Members: Agreed.


(For text of document, see Appendix F, p. 12F:1.)

Mr. Abel: Five points were raised with the department concerning these regulations. The issues discussed under points 2 to 5 are moot. The application of the provisions has been suspended and replaced by the Private Operators Interim Order. The department has indicated that these provisions will be further replaced by a new set of regulations dealing with private operators. This leaves only the first point raised, which concerns section 602.09. This provision sets out a prohibition against fueling an aircraft under certain circumstances unless section 704.33(4) or 705.40(3), as applicable, is complied with. One of the requirements set out in those subsections is that fueling must be carried out in accordance with the air operators' company operations manual. Effectively, when fueling an aircraft under circumstances set out in 602.09, an air operator must comply with rules that have non-legislative origin or else be in contravention of the regulations.

Contravention of the regulations in turn is an offence under the Aeronautics Act, which carries with it a substantial monetary penalty. In other words, this provision makes it an offence to violate a company manual. As noted in counsel's letter of March 9, 2009, this amounts to the creation of a new offence by way of regulation, which is a substantive legislative power not authorized by the enabling act. The committee has often objected to the unauthorized creation of new offences through subordinate legislation by way of requiring a person to obey conditions or rules set out by non-legislative bodies. Although this issue was raised with the department in March 2009, a substantive reply has not been received yet. The latest reply from the department in March indicates some regret at not responding in full. The department assures the committee that it intends to respond in the coming months. It is worth noting that the committee recently asked the minister to ensure reply from the department on the same issue in connection with another file. Thus, I would suggest waiting for that response, at which time this file could be brought back.

Members may have noticed that counsel raised a secondary issue on Point 1 concerning whether section 602.09 could be merged with the two referenced provisions. They all seem to impose related obligations on Canadian air operators. In this case, the department explained that they prefer to keep it as it is. They have organized this portion of the regulations into part and subpart to make it easier to understand for the people that it governs. That seems like a satisfactory explanation, and this aspect of Point 1 could be dropped.

The Joint Chair (Senator Runciman): Are there comments?

Mr. Vellacott: If I understand correctly, they have indicated that these are to be dealt with in pending new regulations, so a letter to the department could affirm them in that. I do not know when this will go into effect. Do you have a response about when that pending will become operational? Do you know when that would be?

Mr. Abel: The request to the minister on the other file was made recently. I would expect a reply before the end of this session.

Mr. Vellacott: I suggest, after going over the material here, that we affirm them in dealing with those first four and asking them for an answer to the question regarding Point I. I believe that was the essence of what you suggested. Affirm them on the matter dealing with the first four points — the pending issues, and then asking for a response to point 1.

Mr. Albas: I am in complete concurrence with my colleague.

I have a quick question for counsel. You seem to be reading on a different note. Some of that information is not presented in the documents that I have. Am I missing something? Is my package out of order?

Mr. Bernhardt: It is item 6 on the agenda. A letter was inadvertently omitted admitted from the materials. I believe that it was sent under separate cover.

Mr. Albas: I must have misfiled it. I appreciate the clarification because I did not remember reading that.

The Joint Chair (Senator Runciman): Are members agreed with Mr. Vellacott's recommendations?

Senator Moore: I want to clarify. We are going to wait for the minister's reply on the other file. On this one we will send a letter to whom? Is the letter going to the department or to the minister?

Mr. Bernhardt: To the department, but referring to the other reply —

The Joint Chair (Senator Runciman): Are members okay with that?

Hon. Members: Agreed.


(For text of documents, see Appendix G, p. 12G:1.)

The Joint Chair (Ms. Charlton): These regulations deal with the retirement compensation arrangements for deputy heads. As I understand it, only two points regarding wording remain outstanding and corrections have been promised on both.

Mr. Abel: As the note for members explains in detail, the committee has considered section 12(2) of the regulations to be ultra vires. It purports to authorize the clawback of retirement benefits payable to a participant where that participant had failed to make required contributions within a required time period. There was no explicit authority in the act to do this, nor was the committee convinced by Treasury Board's suggestion that such authority could be implied.

Consequently, a commitment was sought and received not to apply that section, and to amend the act to expressly authorize such a measure. That was done by Bill C-13, the 2011 budget bill. The amended version of section 15 of the act is in the note and can be seen to directly authorize such measures. That being the case, section 12(2) will still have to be re-enacted under valid authority. In addition there are two promised amendments to correct errors that are still outstanding. Therefore, I would suggest counsel follow up concerning those remaining matters.

Senator Braley: They need to be followed up rather strongly. There is so much happening at the same time, such as a change in the budget and things that occur. However, a nail needs to be put in the coffin and close it up. My opinion is to follow up with a letter.

The Joint Chair (Ms. Charlton): Are there any other comments on this one? Is it agreed?

Hon. Members: Agreed.


(For text of documents, see Appendix H, p. 12H:1.)

Mr. Abel: There is one issue remaining following the committee's last consideration of this file. The department indicated in June 2010 that the change would be made as part of a broader reviewed of other hazardous waste regulations. The amendment was expected to be made in 2011. Updates to this timeline were sought during that year, but we received no reply.

It was not until February 2012 that the department stated that the expected completion date was now spring of 2013, and that is where we stand now. On one hand, this amendment has been promised since May of 2005, but on the other hand it is quite a minor drafting amendment. It would be open to members to decide whether the latest completion date is satisfactory. Counsel would seek updates over the intervening time period and apprise the committee of any changes in that timeline.

Mr. Anders: It sounds to me like we should just monitor a file like this.

The Joint Chair (Ms. Charlton): Is everyone okay with that?

Hon. Members: Agreed.


(For text of documents, see Appendix I, p. 12I:1.)

Mr. Bernhardt: Section 80 of the Nuclear Safety and Control Act was passed in 2000. Its intent was to permit certain fees to continue to be collected under the 1994 cost recovery regulations, where those fees would not otherwise be validly collected under the act as it was amended in 2000. The problem was that by the time section 80 was actually passed, the 1994 regulations had been revoked and replaced by 1996 regulations. Those 1996 regulations were not mentioned in section 80. Therefore, section 80 failed to have the intended effect.

Those 1996 regulations have in turn been replaced by 2003 regulations, but there still remains the need to amend section 80 of the act to validate the fees collected between the date in 2000 when the act was amended and the date in 2003 when those 1996 regulations were replaced. The most recent advice from the department is that this will be done in the next Miscellaneous Statute Law Amendment Act. However, when there will be a Miscellaneous Statute Law Amendment Act will depend on the government's legislative priorities.

There is a vague reference at the conclusion of the letter to something occurring this summer. Given that we are talking about tabling a set of proposals for a bill, I am not sure what the reference to something happening over the summer might be, unless the department knows something about an extended sitting that I do not.

The Joint Chair (Ms. Charlton): Fess up, guys.

Mr. Bernhardt: I suppose we could write back and ask exactly what they expect to happen over the summer. I found the reference rather cryptic, given we are dealing with legislation being introduced. We can write back to the department if members are curious.

Senator Moore: I am a bit curious. I do not want to put any ideas in their minds about a summer sitting. It says this summer. It sounds like this summer they will be drafting and preparing this process, does not it?

Mr. Bernhardt: It does.

Senator Moore: It is like they will do something regarding that miscellaneous statute process this summer, I think.

Mr. Bernhardt: Perhaps the idea is to have the set of proposals ready for the fall. My understanding is Justice keeps a list of those as they are submitted by various departments so the set of proposals for the bill are already there and prepared; it is a matter of bundling them up and tabling them. I do not know.

Mr. Hillyer: Maybe you are just making a joke, but can you help me understand more clearly what difference it will make if we extend our sitting?

Mr. Bernhardt: I am sorry. It was just a rather facetious reference. They are promising a set of proposals for a bill which means they will have to be introduced in Parliament. They talk about this somehow happening this summer, which confused me because one does not typically anticipate the possibility of tabling a bill in July. It led me wonder exactly what the reference was.

Mr. Hillyer: I think Senator Moore is reading it well. We should just see what happens over the summer and expect that something will happen.

Mr. Bernhardt: For the information of new members, I should add that the whole issue of when there would be a next set of proposals has been of concern to the committee, and there is correspondence with the Minister of Justice. The committee has asked from time to time, "Is there a time frame for this? Can the committee expect a bill?"

Senator Moore: The statutes you are referring to.

Mr. Bernhardt: As the general issue, because there are a number of amendments promised to the committee to be included in that set of proposals so it would wrap up a number of files.

The Joint Chair (Senator Runciman): When was the last one?

Mr. Bernhardt: The last one was 10 years ago.

The Joint Chair (Senator Runciman): It might be timely.

Mr. Bernhardt: The committee has been writing to the minister. The response is yes, he considers it a significant program, there will be another bill, and be patient.

The Joint Chair (Ms. Charlton): Let us go to some of the other questions.

Senator Braley: Was your recommendation to monitor this file until the fall, or to write?

Mr. Bernhardt: I am in the hands of the members in that regard.

Senator Braley: I heard both.

Mr. Bernhardt: My inclination would be to ask for clarification of that reference to the summer. If members are happy to wait until the fall, that is fine, too. At that point it is going to come back —

Senator Braley: I would tend to monitor it the first week or two in the fall and then proceed.

Mr. Bernhardt: We can do that.

Senator Braley: That is my recommendation.

Mr. Young: Mr. Bernhardt, fees were collected between 2002 and 2003, after the horse had run.

Mr. Bernhardt: Yes.

Mr. Young: I know we are time travellers on this committee, but this is not an urgent matter. It will be fixed in a bill that deals with such matters, so why do we not monitor it?

Mr. Bernhardt: Absolutely. There was one attempt to do exactly that. It got off the rails.

Mr. Albas: I was going to point out this is under progress and it is well in hand. I have no idea about those kinds of matters about summer extensions. Everyone looked at me.

The Joint Chair (Senator Runciman): For our next meeting, could counsel bring back a report with respect to how many matters would fall under what I call "housekeeping legislation"? If we had that, we could have a discussion about perhaps approaching the minister again with respect to the number of issues that the committee is dealing with and when they could be addressed.

Mr. Bernhardt: We are working on precisely that, and before summer we will have something for the committee that sets out all those various undertakings.

The Joint Chair (Ms. Charlton): I am reading a consensus that we monitor for now and follow up with a letter in the fall. Agreed?

Hon. Members: Agreed.


(For text of documents, see Appendix J, p. 12J:1.)

Mr. Abel: Amendments would address some eight issues noted by the committee. These were pre-published in Part I of the Canada Gazette just prior to the last time this file was before the committee, and the pre-published amendments were subsequently reviewed.

Included among those amendments is removal of redundant definitional provisions, as was noted earlier, in connection with the Canadian Chicken Marketing Quota Regulations file. Counsel in this case informed the department that the pre-published amendments to section 1 would not satisfactorily deal with the French and English equivalency concerning certain definitions; namely, storage tanks. The department has agreed to make further changes to those proposed amendments. However, they advise that doing so will push it outside of the broad amendments package that they are putting forward to resolve the other issues raised by the committee.

The department's letter of March 13 indicates that the package amendments should be published in late spring of this year and the amendment to section 1 should be completed by the end of the year. Additionally, the department confirms that a drafting amendment to section 3(4) of the Canadian Environmental Protection Act, 1999, will be sought when the act is amended.

If members are satisfied with that, counsel could continue to monitor the status of those forthcoming amendments.

Mr. Young: We should just monitor this. This one is almost done.

The Joint Chair (Ms. Charlton): Is everyone agreed with that?

Hon. Members: Agreed.


(For text of documents, see Appendix K, p. 12K:1.)

Mr. Abel: For some years now, the committee has pursued several iterations of promised amendments to a technical document called TP 127, Ships Electrical Standards, which is incorporated by reference into these regulations. Currently, the only outstanding matter is the promised deletion of references to the Board of Steamship Inspection, which no longer exists. These amendments have been included by the department in a much larger regulatory amendment initiative. As of the department's April 5 letter, the expected completion date of these amendments to the document is early 2013.

If members wish, counsel could continue to monitor progress towards closing off final matters on the file.

Incidentally, it may interest members to know that because these standards are incorporated by reference and not published in the Canada Gazette — indeed, that is one of the administrative advantages of incorporating documents by reference rather than including content in regulations — any further revisions to the standards will not come to the committee's attention once this file has been closed. This is the case with all documents incorporated by reference that are not published in the Canada Gazette, which is to say nearly all such documents.

Back in 1983, when the file was first reviewed, the committee saw that it was possible to review incorporated materials in the same manner as it reviews subordinate legislation, whenever such materials came to the committee's attention — and that would typically occur when a new provision incorporated a document or for some other reason it came up on the committee's radar, so to speak.

In this case, the committee became involved continuously in the revision process of this document because every time it was being revised, new issues arose. After these changes are made, that is not likely to occur anymore.

I mention this not to make a particular suggestion. The history of this file simply provides an opportunity, particularly for those of us who have been with the committee for a while, to note how the act of legislating has changed over the last several decades. In 1983 materials incorporated by reference were quite rare, and TP 127 was reviewed in full exactly as if it were an independent regulation. Nowadays this technique is relied upon in many regulations of varying subject matters, and documents both technical and substantive, sometimes appearing no different from a regulation itself, may be incorporated.

Due in part to the non-legislative origin of incorporated documents, the committee is sometimes only capable of playing a peripheral role of oversight of these documents. In truth, the usage of incorporation by reference has grown so much it would be impossible these days for the committee to review all incorporated documents in their entirety.

I mention this to provide a bit of history to see how regulation-making has changed over the past — not only 20 years — but 40 years since the inception of the committee.

The Joint Chair (Ms. Charlton): Are there any comments on this item?

Mr. Young: I think this is one of the oldest regulations we have dealt with. When I saw 1486, I was going to correct an error because I know that when Columbus sailed in 1492, they were not operated by steam; they still propelled by wind. However, I guess it is not that old.

The Joint Chair (Ms. Charlton): What is the record for the longest regulation in process?

Mr. Bernhardt: This must be very close. Members may remember the infamous reindeer regulations that I believe are still with us and may go back to the 1970s.

The Joint Chair (Ms. Charlton): Excellent.

Mr. Breitkreuz: I picked up on the same thing Mr. Young picked up on. I thought it must be a misprint on the date with 1486 with these steamship regulations.

I think we should monitor this file; hopefully something will come of it soon.

The Joint Chair (Ms. Charlton): On its thirtieth anniversary, is everyone in agreement with that?

Hon. Members: Agreed.

Senator Braley: Is there anything in practice to eliminate regulations that have absolutely no value whatsoever? Some of the provinces have such. B.C. has wiped out 40 per cent. Is that in our system? I am new, so I do not know.

Mr. Bernhardt: I certainly know the current government is looking at reducing regulations.

Senator Braley: Basically, "you cannot beat a horse in a certain spot" and things of that nature over the years. It would clean the legislation book up.

Mr. Bernhardt: Yes.

Senator Braley: It is being looked at is what you are saying.

Mr. Bernhardt: I understand that is a government initiative at this time and one of the priorities.

The Joint Chair (Ms. Charlton): We will monitor that item.


(For text of documents, see Appendix L, p. 12L:1.)

The Joint Chair (Ms. Charlton): Correspondence on this file goes back to 1994. It is being indicated that the Farm Products Council is still awaiting court decisions, which appear to be piling up in the interim.

Mr. Bernhardt: Yes, Madam Chair. The issue the committee raised here back in 1994 is simply that there is nothing in the order that expressly limits an obligation to deduct and remit levies to buyers located in the Province of Quebec. Back in 2002, it was accepted that the provincial federation cannot impose an obligation on persons outside the province, and the order should be amended to expressly indicate it applies only to buyers located in Quebec.

Then in 2009, the Farm Products Council reported that it still considered the amendment necessary. It would be made as part of a modernization initiative. Then in 2011, the committee was told that section 5 is the provision in question that is being challenged in court, and they preferred to await the outcome of that court case. That court case wrapped up and apparently did not prove very useful.

On March 10, the agency confirms the need to amend the provision, but now says there are 10 other court cases involving section 5. It would like to wait until all of those wrap up before moving ahead.

This gives rise to a number of questions, actually. First, one wonders whether these court cases could have been avoided if the amendment had been made back in 2002. Second, if it is accepted that the order needs to be amended and that an obligation to deduct and remit levies cannot be imposed on people outside the province, presumably that is not the cause of this litigation, so the provision could be amended in any event. One wonders why there are so many court challenges, which gives rise to the possibility that obligations are being imposed on buyers outside the province, even though the Farm Products Council concedes that there is no lawful authority to do that.

I should add that an attempt to seek further information orally from the council's legal advisers was made. That call was not returned. Perhaps these rather specific and pointed questions could be put to the Farm Products Council and the provincial agency directly.

Mr. Albas: I appreciate counsel's work on this. It is good to see that you are making phone calls to try to reach out to develop a sense that we are all in this together. However, I am disappointed that they have not chosen to return the call. We should write a pointed letter to the Farm Products Council and to the agency to let them know that we expect this to be dealt with in a timely manner.

The Joint Chair (Ms. Charlton): Is there consensus with that recommendation?

Hon. Members: Agreed.


(For text of documents, see Appendix M, p. 12M:1.)

The Joint Chair (Ms. Charlton): The response from Parks Canada uses the lovely line that they will take our recommendations "into account." Counsel, tell us what that means.

Mr. Abel: That is, in fact, quite the issue, Madam Chair. This instrument resolved several concerns of the committee in connection with the previous instrument, SOR/95-255; and two new issues were raised by this one. The first point concerns the inclusion of language in three provisions which only serves to broaden the discretion granted to the superintendent of a park in a manner that would transform the decision to be made by that person from an objective one to a subjective one. In essence, the superintendent would only need to make a decision based on his or her opinion rather than based on the relevant facts. Generally, the purpose of such wording is to shield the decision-maker from review. The committee has always objected to the use of such language in subordinate legislation.

Similarly, the second point identifies two provisions employing the use of vague and subjective terms to describe what the superintendent may approve. By requiring in this case that the conditions of an area be satisfactory to the superintendent, he or she is effectively empowered to arrive at almost any conceivable determination for any reason, whether those reasons are arbitrary or different in every case. Again, such language also serves to shield that decision- maker from any sort of review. Counsel suggested that any relevant criteria concerning what would make an area safe should be included in the provisions.

As our chair noted, the reply merely states that these concerns will be taken into account when the regulations are next amended.

Before possibly considering this file under "Action Promised," it would be helpful to clarify whether the department agrees and, if so, what alternatives they might propose. I would suggest that we write back to them seeking that information.

Mr. Wilks: I would strongly suggest that we write back to them to get clarification on what they mean by "take your recommendations into account." There needs to be much more clarification than just the use of those five pretty words.

The Joint Chair (Ms. Charlton): Is there agreement with that approach?

Hon. Members: Agreed.

Senator Moore: After we get their opinion as to what they mean by what they say, then what? That is nice. I know what they will say, but what are we going to do about it? Are we urging them to do something in addition to telling us how they are skating around? What are we doing in terms of bringing this file to a proper conclusion?

The Joint Chair (Ms. Charlton): What is your recommendation?

Senator Moore: I am just raising it. We should be saying more than "what do you mean by that?" It would be nice to know, but they said only "the next time the regulations in question are amended." Perhaps counsel could help me out: Is this a file for a miscellaneous bill or how do we get this fixed? How do we tell them to proceed to get it done?

Mr. Bernhardt: In addition to just pointing out that their reply was rather amorphous, the specific questions could be: Does Parks Canada agree with the points raised and, if they do, will they be making amendments?

Senator Moore: Okay. Thank you.

Hon. Members: Agreed.


(For text of documents, see Appendix N, p. 12N:1.)

The Joint Chair (Ms. Charlton): The CDIC uses the same terminology as OSFI, but it is now conducting a thorough review of the bylaw and is expecting to rewrite Schedule 2.

Mr. Abel: That is pretty much it, Madam Chair. Their timeline for doing the rewrite of Schedule 2 is the end of 2013. That being the case, counsel can continue monitoring progress in our regular manner.

The Joint Chair (Ms. Charlton): Is everyone okay with us monitoring this file?

Hon. Members: Agreed.


(For text of documents, see Appendix O, p. 12O:1.)

The Joint Chair (Ms. Charlton): Twenty amendments have been made to address errors in inconsistencies.

Mr. Bernhardt: That is a good result for the committee.

The Joint Chair (Ms. Charlton): We are closing that file.


(For text of documents, see Appendix P, p. 12P:1.)

The Joint Chair (Ms. Charlton): An amendment to correct the English definition of the term "marketing" has been made and published in the Canada Gazette. Is it agreed that we agreed close this file?

Hon. Members: Agreed.


(For text of documents, see Appendix Q, p. 12Q:1.)

The Joint Chair (Ms. Charlton): Counsel, are there comments?

Mr. Bernhardt: No.

The Joint Chair (Ms. Charlton): Excellent. We are closing this file as well.


(For text of documents, see Appendix R, p. 12R:1.)

The Joint Chair (Ms. Charlton): The promised amendments have been made.

Senator Braley: Close the file.

The Joint Chair (Ms. Charlton): Are members agreed?

Hon. Members: Agreed.
























Mr. Bernhardt: I note for the record that under "Statutory Instruments Without Comment," we have listed 23 files. They have been reviewed and found to comply with all of the committee's criteria. As always, we have copies of those available this morning for any members who wish to see them.

The Joint Chair (Ms. Charlton): Is there any other committee business? We are adjourned.

(The committee adjourned.)

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