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Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue 13 - Evidence - May 31, 2012

OTTAWA, Thursday, May 31, 2012

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:32 a.m. for the review of statutory instruments.

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


The Joint Chair (Ms. Charlton): Good morning. I believe that Mr. Wilks has a point of information.

Mr. Wilks: Thank you. Could we have an update on the steering committee, please?

The Joint Chair (Senator Runciman): We have been asking for over a month for the opposition party in the Senate to appoint someone to the steering committee. Senator Moore has indicated on a couple of occasions that he is approaching his leadership. That has been the only holdup with respect to moving on this matter. If we do not have any progress, I would suggest — and I will leave it up to the committee to determine what the timeline should be — that we assume that the opposition in the Senate has declined to appoint a representative and we will proceed without that representation serving the committee's needs.

Senator Moore: Chair, how many times have you asked me to pursue this? Three or four. How many times have I done it? Three or four. I will do it once more, and I will try to get back to you today. I do not know what else to say. I have been doing what you asked me to do.

The Joint Chair (Senator Runciman): If there is no interest in having an official participant, we will proceed without that representation.

The Joint Chair (Ms. Charlton): We will start today's meeting with a Special Agenda Item in response to the committee's request to get a list of statutory amendments that have been agreed to.


Peter Bernhardt, General Counsel to the Committee: This was prepared at the request of members. It is included this morning for member's information. I should start by emphasizing that this is a list of amendments that have been agreed to. There may well be other amendments that the committee is seeking that are not here because they have not been agreed to.

They are divided into three groups. The first group is 12 amendments that the committee has been told will be part of the next set of proposals for a miscellaneous statute law amendment bill. The last advice the committee received from the Minister of Justice was in December 2011. At that time, the minister said he was still hopeful that such a bill would be introduced this session.

The second group is a list of 25 other amendments that are to be included in part of various other legislative initiatives. The third group is 4 amendments that are in bills currently before Parliament. To make it a little more digestible at a glance, a chart has been prepared and attached that summarizes this information.

The Joint Chair (Ms. Charlton): Are there comments?

Mr. Albas: I would like to thank counsel for putting together a complete document outlining the request in full.

I would like to go to page 5 of the document under "Files For Which An Agreement to Amend the Act Outside of The Miscellaneous Statute Law Amendment Program Has Been Obtained." Item 1 is the Ontario Fishery Regulations. I believe that the proposed changes in Bill C-38 would address this regulation. It says that it talks about the licence without express authority in the act. I believe that the authority will be expressed in the changes; maybe we could look at that to see if that is the intent.

The Joint Chair (Ms. Charlton): Are there any other comments?

Counsel do you wish to respond?

Mr. Bernhardt: I believe that we went through Bill C-38 to look for amendments, but we will take a second look.

Mr. Albas: We want to share information.

Mr. Bernhardt: I will report back.


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

The Joint Chair (Ms. Charlton): Seeing no other discussion on that, we will move on to the next item, which deals with the Food and Drug Regulations. This has been before committee for a long time. We could probably call it the "Rum Revocation Regulation."

Mr. Bernhardt: In February, the committee made the decision to write to the Minister of Agriculture concerning its long-standing objection to the provision in question, section B.02.034 of the Food and Drugs Regulations. Members no doubt recall that this provision permits rum from Commonwealth Caribbean countries to be imported in bulk into Canada, blended with certain percentages of Canadian rum, bottled and then sold as Caribbean rum. Except for this provision, these sales would be contrary to the Food and Drugs Regulations. The idea is to promote international trade and economic development in the Caribbean.

The committee has always taken it that the purpose of the Food and Drugs Act is to prohibit the sale of products that can be harmful to the health of consumers and to prevent fraudulent or misleading advertising. The regulation-making powers granted in the act, the committee concluded, were not meant to be used for the purpose of promoting or regulating international trade and, therefore, it took the view that this provision was ultra vires.

A promise to remedy the situation was first given in 1991. In 2006, the new Spirits and Drinks Trade Act came into force and that provides the means to carry out Canada's commitment, making a provision in the Food and Drugs Regulations unnecessary. The Canadian Food Inspection Agency confirmed that section B.02.034 would be revoked. After some delays, the agency then reported that this revocation raised policy issues that required a more substantive analysis.

As the joint chair explained to the minister, the committee greeted this news with a certain skepticism. Since one provision is intended simply to supersede the other, what policy implications would that give rise to? Also, the amendment had been under consideration for some years and had actually been drafted, so it seems odd that these new issues would suddenly arise.

The committee asked for the minister's assurance that the provision would be revoked without delay. The minister was also advised that once his reply had been received, the committee would consider whether or what other courses of action might be available, including possibly recommending disallowance.

The minister's reply makes no further mention of policy issues. It simply suggests that there was a heavy regulatory agenda in 2012 and that was the reason for not revoking the provision when the time was promised. I should point out that the amendment had been included in a package that is going ahead anyway, so it is difficult to know what to make of the minister's explanation.

In any event, the committee is advised that it is now expected the amendment will be brought forward in 2013, so it falls to the committee to decide whether this latest delay and timeline is acceptable.

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

Mr. Albas: I appreciate the work that counsel has done. I know there are a number of different acts that date back quite a bit. I think the Importation of Intoxicating Liquors Act is one I have been finding out a lot about.

However, pertaining to this, obviously there is the Spirit and Drinks Trade Act in 2006. We have now a firm commitment from the minister that this will be going ahead in 2013. I would hate to see our resources being spent on a file that has already occupied so much of counsel's time for the past 30 years.

I would like for us to monitor the file. I am glad to see the minister came back with a substantive response. We all know that the CFIA and many of the other agencies under his jurisdiction are going through quite a modernization and that is quite a big effort for the amount of regulation that they have to be able to rewrite.

I think a firm commitment brings us to good standing and we should simply monitor the file.

The Joint Chair (Ms. Charlton): Are there any other comments?

Seeing none, we will monitor the file and move on.


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

Mr. Bernhardt: On the promised eight amendments to the regulations, the minister has advised that a draft has been prepared and is in the final stage of approval, so things seem to be moving forward on that front.

An amendment to the act was also sought to provide express authority to impose permit fees. The committee has accepted that the act can be interpreted as containing implicit authority to impose these fees, but the current situation does contravene the committee's scrutiny criteria in that it imposes fees without express authority having been provided in the enabling legislation.

Back in 2008, the committee was told that if there was to be a revision of the act, the department would consider adding express authority to impose fees at that time. On more than one occasion the committee has suggested an alternative approach, which would be including this amendment in the next miscellaneous statute law amendment bill. There seems to be a significant reluctance to move ahead even on that front, however, apparently for fear of raising questions from the United States in connection with the whole Softwood Lumber Agreement. The minister indicates they do not really wish to touch the act at all at this time. As for whether a revision is contemplated, the minister refers to a comprehensive review of the act that was requested by the committee. For the record, it bears noting that the committee has never requested a comprehensive review; it simply asked if there would be a comprehensive review.

In any event, having accepted that authority for permit fees is necessarily implied, I suppose after the regulations themselves are amended, which should be shortly, the file will come back and the committee will have to decide whether it wishes to pursue the amendment to the act.

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

Mr. Albas: When do we expect the changes to regulations to come back to this committee, so we can confirm it has been done?

Mr. Bernhardt: Hopefully they will be done by the fall so that when the committee is back after the summer they should be done. At that point, the file could come back. All that will remain then is the issue of the statute.

Mr. Albas: At this point we might want to consider just monitoring the file and letting it come back. I do not think that we will see any substantive play on any amendments, though, given the political realities around. Again, maybe we should check on this later after we have received confirmation that the regulatory amendments have been made.

The Joint Chair (Ms. Charlton): Thank you. Are we agreed to wait for a report back in the fall?

Hon. Members: Agreed.



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

Mr. Bernhardt: As the note explains, at present, national park fees are fixed by the minister under the Parks Canada Agency Act. There is also a fee-setting mechanism in the Canada National Parks Act, and that act provides for the making of regulations by the Governor-in-Council, establishing fees. As well, there is what is known as the dedication clause in subsection 4(1) of the Canada National Parks Act. It provides "that the national parks of Canada are dedicated to the people of Canada for their benefit, education and enjoyment, subject to this act and the regulations."

The committee takes this to mean that Parliament intended to confer on Canadians the right to use national parks and that this right could only be restricted or limited in accordance with the Canada National Parks Act. Obviously being a restriction on the right of access and use of parks, these fees must then be imposed by regulations under the Canada National Parks Act made by the Governor-in-Council. In other words, whatever fees can be imposed by the minister under the agency act, they do not include fees for the actual use of parks.

This conclusion was reported to Parliament by the committee in 2003. At that time, the government response to the report disagreed with the committee's position and subsequent exchanges of correspondence back and forth have failed to resolve that disagreement.

There is a further complication here, which is that there is a discrepancy between the French and English versions of that dedication clause in the Canada National Parks Act. In 2001, the minister agreed to amend the provision to remove the discrepancy. Parks Canada subsequently sought to back away from that, arguing there was no discrepancy. In the minister's March 14 letter, the committee is advised that the dedication clause will be amended in order to harmonize the two versions and to broaden its scope by referring to the laws of Canada. In other words, the dedication to the people of Canada is subject to the laws of Canada rather than to the Canada National Parks Act and its regulations.

Obviously, this would address the first aspect of the committee's concern. It would be clear that fees could be imposed for the use of national parks under other legislation. What remains, then, is the question of how the two fee-setting provisions, which would still be there, would work together. According to Parks Canada, it is simply the government's choice. It has two alternative mechanisms: The minister can fix the fees administratively or the Governor-in-Council can fix the fees by making a regulation. It disagrees there is any risk of duplication. To quote the minister's letter: "On a practical level, the agency would never choose to impose duplicate fees for the same service."

Of course, the agency has no power to impose fees. Fees are either imposed by the minister or the Governor-in-Council. Most importantly, in law those are two distinct entities. If you accept there is an overlap between the provisions, then I think you also have to accept that, at least in theory, those could be exercised separately with the result that there would be some sort of a conflict.

For that reason, the committee has always suggested a provision should be added to clarify whether once a fee is established under one act that it precludes the establishing of a fee under the other act for the same use.

It may seem unlikely that this would happen. You can ask why the Governor-in-Council would impose a fee and then the minister would then impose the same fee. As the note explains, these things have happened in the past. We have the Federal Court case of Bartholomew Green v. the Attorney General of Canada. It was an example in connection with postage rates where you did end up having two fees. Someone contested the higher fee and the whole thing ended up in court.

While the possibility here may be remote of such a situation, one can ask: If there is an easy solution, why not take it? This would at least remove the possibility of someone objecting to a fee and taking the matter to court as happened in the Bartholomew Green case.

I guess by way of recommendation, there would seem to be no harm in asking the minister again if when he is addressing the first aspect of the committee's concern whether he might not reconsider addressing the other aspect as well.

The Joint Chair (Ms. Charlton): Any comments on that recommendation?

Mr. Wilks: As most of you are aware, I have four national parks in my riding so I can probably explain a little bit. If someone goes into, let us say, Yoho National Park and inadvertently does not understand you are supposed to buy a park pass. When they go camp in the park, they are charged the fee for camping. Then the park ranger will come in and ask, "Have you bought the park fee as well?" People get confused and say, "Am I paying twice for the same thing?"

It needs clarification. I agree completely with what counsel and my cohort have said. It is confusing for those who are not familiar with the park system. For those of us who are, I guess it makes half sense.

Mr. Albas: I appreciate counsel putting forward a very good briefing note on this. I think we should write back to the minister and reiterate that there is still the remaining problem and strongly recommend consideration of a possible legislative change.

I should note that I believe that legislative change is outside of our mandate. We are the Standing Joint Committee on Scrutiny of Regulations; not the scrutiny of statutes. For whatever reason, Parliament saw fit to enable both of those statutes and I think we should respect the will of Parliament.

The Joint Chair (Ms. Charlton): Are there any other comments?

Senator Moore: We are going to write back to the minister asking him to do what?

Mr. Bernhardt: Write to the minister asking that when legislation is introduced to amend subsection 4(1) of the Parks Act, that it also clarifies how those provisions in that act are to work with the fee provisions in the Agency Act.

Senator Moore: Thank you.


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

Mr. Bernhardt: Under the Aeronautics Act now, the minister can make an interim order to deal with significant risk. This order can contain any provision that can be put in a regulation under the act. Unless it is approved by the Governor-in-Council, an interim order ceases to have effect after 14 days.

If the interim order is approved by the Governor-in-Council, then that interim order can continue until a regulation taking its place is made, or for one year as a maximum. An interim order has to be tabled in Parliament within 15 days and must be published in the Canada Gazette within 23 days.

This particular interim order governs private operators of Canadian aircraft. It replaces a number of sections of the Canadian Aviation Regulations. This regime was kept in place under a series of interim orders. In fact, there were nine consecutive orders and then finally on July 28, 2011, the Governor-in-Council approved the order.

This whole scenario basically gives rise to three issues. First, the reason the order was required — that is, the significant risk — was that the department was unable to meet its own self-imposed deadline. It announced in March 2010 that starting April 1, 2011 the minister would take over the issuing of private operator certificates. This would be taken away from the Canadian Business Aviation Association. The association therefore restructured its activities. It was no longer in a position to issue the certificates, but the department was unable to prepare the necessary regulations in time for its own April 1, 2011 deadline.

There being a vacuum, it made the interim order to take its place. One can question whether this is the sort of risk that was contemplated by Parliament when it gave this special emergency power to the minister.

The second issue is the interim order made on April 1, 2011, and published in the Canada Gazette on April 16, 2011. In other words, by the time formal notice of the order was given it had already lapsed. Of course, there are 23 days allowed to publish the order under the act, so it did comply with the act.

The department also advises that it posted the order on its website and relied on word of mouth. Unfortunately, when we looked at the website we found that some of the information was incorrect and the department has admitted this was the case.

It advises that no one received a fine for contravening the interim order when it had not been published. However, even accepting that it did come within the 23 days in the act, it seems rather inappropriate that an instrument that is effectively law is only formally published after it has already expired. It seems a rather odd situation.

Third, I suppose most importantly, the repeated making of the order over and over again is of questionable legality. The act establishes a procedure for extending the application of one of these orders beyond 14 days and that procedure is approval by the Governor-in-Council. Instead, every 14 days another 14 day order would be made. This went on eight times. This is not the only occasion where this happened. I think the record is 11 renewals of these orders.

The department's reply is simply that it is of the opinion that the Aeronautics Act allows consecutive interim orders to be made, however it does promise it will ensure that reasonable measures are taken to obtain the approval of the Governor-in-Council as quickly as possible in the event an interim order is necessary for more than two weeks.

I suggest that if the department had a sound legal argument, it presumably would have made it. If it truly believes the minister has the authority to make the same interim order over and over again, why would it be promising to make efforts to ensure this does not happen? That being said, the practice seems to have stopped at least for now. One wonders what will happen when the Governor-in-Council's approval of this order expires on July 14, however, if the regulations are not ready to go ahead. I guess time will tell.

If the committee is of the view that the repeated remaking of these interim orders runs counter to Parliament's intent, perhaps the department could be advised of that. The committee could also indicate it expects that these types of situations will not occur in the future.

The Joint Chair (Ms. Charlton): Comments?

Mr. Breitkreuz: I am almost in disbelief at what happens here. I cannot fathom the reason for this being dragged on like this. I think you are advising us that we contact the department and say this is really not the way to go. Perhaps we can then monitor this over the summer and see what they do. Do you think that is a viable option?

Mr. Bernhardt: As I say, the practice seems to have ceased, but it may be worth firing a shot just to say that is well and good but the committee will be watching and does not wish to see this again.

Mr. Breitkreuz: That would be my suggestion.

Mr. Albas: Given that we have already thoroughly examined the situation, have sent over correspondence regarding this and they have stopped, it might behoove us just to wait, observe the file, see if the practice has stopped and see what they are planning on doing once this order comes up over the summer.

We have spent a considerable amount of time on the file. They seem to have stopped the practice. We could simply monitor until we see the fruits of their actions and then see what other actions need to be taken.

The Joint Chair (Ms. Charlton): We have two recommendations on the floor: One is to do nothing; and the other is to send yet another letter to the department.

Mr. Albas: No, not "to do nothing" but to monitor the file.

The Joint Chair (Ms. Charlton): I am sorry — to monitor closely.

Mr. Breitkreuz: That was my conclusion as well.

Senator Moore: Will we send a letter back to confirm and say that we will monitor? I do not think we should let this drift on. We are not happy with it and we hope that they will not repeat. Will we not write back to the department to say that we acknowledge the current status, that we do not want to see that start again, and that we will see what they will do in terms of the law?

The Joint Chair (Ms. Charlton): I do not think we have consensus on that. That was suggested by Mr. Breitkreuz.

Senator Moore: Yes, I thought so, too.


Ms. Ayala: I believe a minister has to comply with the regulations, period, and we must tell him so. We cannot do the same as we would with a child and give him the flexibility to figure out if it is working or not. We are talking about a minister, regulations, an act, and he must respect Parliament's decision. Therefore, I agree with the first proposal and the proposal put forward by the committee. We have to make him understand that he must adhere to these regulations, plain and simple.


Mr. Breitkreuz: I have a question for counsel. If we do not advise them that we are watching this file, will they be aware that we are doing that? Can we simply monitor it? We have written the department over and over.

Mr. Bernhardt: Yes. This is the first time this has been before the committee. Strictly speaking, to this point the committee does not have a position. I suppose writing back would be to advise as to the committee's position. Whether the committee considers that necessary, we certainly will be waiting to see what happens with this order come July.

Mr. Breitkreuz: I am fine if the committee decides to monitor. That was my final thought.

Senator Moore: Counsel, do you think that by July we will have an indication of the long-term process? It is only another month and a half, and I am agreeable to wait if that is where you think we are.

Mr. Bernhardt: The Governor-in-Council's approval will run out on July 14. At that time, the interim order will either lapse and you will go back to the existing regulations, or the order will lapse and the new regulations will be made and come into place. I suppose there is the possibility, based on past practice, that the Governor-in-Council will seek to do another approval, and we will be back into the same situation. One way or another, come July 14 the committee will know what course of action will be taken.

Senator Moore: Okay.

The Joint Chair (Ms. Charlton): Why not wait until July, therefore until our first meeting in September, to ask for an update from counsel? We can determine then whether we want two send a letter.

Hon. Members: Agreed.



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

Evelyne Borkowski-Parent, Counsel to the Committee: It has been about 18 months since the original letter was sent on January 12, 2011, at which time, counsel raised 28 issues, ranging from drafting problems and numerous inconsistencies in the regulations to an illegal subdelegation of a Governor-in-Council power, a concern that was also raised in another file. As the note indicates, the requirement to provide the minister with information or records will be followed up on during the examination of SOR/2002-352.

Despite several reminders, the department still appears unable to respond to the substance of the letter sent on January 12, 2011. With respect to another pending file also pertaining to the Canadian Aviation Regulations, the committee decided, at its meeting on December 15, 2011, to write to the minister to request his cooperation in an effort to expedite the resolution of that matter.

If the committee is in agreement, a similar letter could be sent to the minister concerning this file.


Mr. Wilks: Having read this, it appears that the department is having difficulty. I would strongly suggest we write to the minister to ask him to look into this issue.

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

Hon. Members: Agreed.


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

The Joint Chair (Ms. Charlton): The next agenda item concerns the Oil and Gas Occupational Safety and Health Regulations. The last round brought 52 amendments. Of course, those amendments have given rise to new concerns, some of which have been batted back and forth for 23 years.

Mr. Bernhardt: That is pretty much it in a nutshell. I should also add that in some cases amendments were promised back in 1989 that the committee had been told would be in the 1994 regulations. They were, I believe the department's words were, "unintentionally missed" at that time. A chronology is set out in the material summarizing the file. It pretty much speaks for itself. Most recently, the department's report is that:

While we had anticipated that consultations with stakeholders would begin this spring, more time is required in working with our departmental counterparts in the amendment of these regulations. Please rest assured that we will inform you when consultations with stakeholders have begun.

I suppose the recommendation would have been to write to the minister. Since the materials were printed and distributed, however, I have been asked to participate in a conference call next week concerning all of the committee's outstanding files within the labour portfolio at Human Resources. That being the case, perhaps members would rather have the file brought back at the next meeting, when I can report on what transpired at that time. Maybe there will be some good news.

The Joint Chair (Ms. Charlton): Does that make sense?

Hon. Members: Agreed.


(For text of document, see Appendix G, p. 13G:1.)

Ms. Borkowski-Parent: At the October 20, 2011, meeting, the committee decided to write back to the agency to obtain clarification as well as a time frame regarding two points for which amendments had been promised. The first point dealt with the necessity of amending subsection 26.2(2) of the regulations in order to include specific criteria for the pest control program. The agency's undertaking was rather vague, and it now appears from its March 21, 2012, reply that the agreed amendment will proceed in the context of the agency-wide regulatory modernization plan. The Dairy Products Regulations should be revised in the next three years.

This modernization plan was first brought to the committee's attention at its February 16, 2012, meeting. Members were dissatisfied with the prospect of having to wait between three and five years for amendments that have been outstanding for a number of years. An assurance was therefore sought from the minister that regulatory amendments to address the committee's concerns would take place without delay and independently of their modernization initiative. Pending the minister's reply, the agency could be referred to this letter.

The second point pertains to subsections 26.5(1) and 26.6(1) of the regulations that grant a discretion to the director to suspend or not or cancel or not a licence of a cheese importer who fails to meet the requirements of the act, has been notified and subsequently still fails to meet the requirements in question.

The position of the committee has always been very clear in that subordinate legislation governing decision-making by public officials should be cast in objective terms. Leaving such determinations to the discretion of the director could lead to a situation where two individuals in similar circumstances receive different treatments with very little possible recourse.

For example, paragraph 26.5(1)(b) states that a licence may be suspended if it is reasonable to believe that public health will be endangered if the importer is allowed to continue importing. Under the current wording, the director would be free to suspend — or not — the licence.

The agency's March 21, 2012 response remained elusive, saying only that the committee's concerns will be taken into consideration next time there are amendments made to these regulations. This is far from a firm undertaking, and the agency could perhaps be asked again to clearly state its intent with regards to these provisions.

The Joint Chair (Ms. Charlton): Are there any comments on the recommendation to write another letter?


Ms. Ayala: I agree with counsel. We need to send another letter to make our position clear.


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

Mr. Vellacott: My comment would be to monitor. I am not sure what another letter would do at this point. Would you just kind of reiterate the same letter from before?

Mr. Bernhardt: I think the purpose would simply be to get a firmer undertaking than to take it into consideration when next amended. I think the purpose in writing would be to simply ask "Are they planning amendments? If so, will they make the amendment the committee is looking for" and just try to firm up the commitment a bit.

Mr. Albas: Maybe I missed this. We have already expressed it and have already had a response back. What is the timeline they have given to us?

Ms. Borkowski-Parent: As far as the first point, the timeline was that they will review it in the course of their modernization initiatives, so that is three years. We are still waiting for the minister's response with regards to the committee's previous comments that waiting for the modernization — three to five years — might not be appropriate.

As far as the second point goes, no time frame was given. It was simply "we will take it into consideration in due time."

Mr. Albas: Okay. We do have a number of files that are subject to this modernization initiative and we have asked for them to clarify when that will be, so we are still waiting for that to come in; is that correct?

Mr. Bernhardt: That is right. There was a letter sent to the minister, and it will pertain to a number of files, as you said.

Mr. Albas: We have already asked for a response. It is pending. To be asking for another response before you even give them the opportunity to write back seems to me a little bit over the top.

I would support Mr. Vellacott's suggestion that we should wait, monitor the file until we get that modernization question answered, and then deliberate on next move.

The Joint Chair (Ms. Charlton): I am in the committee's hands. Does anyone feel strongly about sending a letter? No? Then we will continue to monitor.



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

Ms. Borkowski-Parent: Two points were raised in the first letter sent by counsel on February 14, 2008, the first having been corrected through amending regulations that were published in the Canada Gazette on May 12, 2010. The only issue remaining has to do with the need to correct the inconsistency in the references to the Income Tax Act contained in the English version of the definition of "Canadian oil and gas exploration expense" in section 1206(1) of the Income Tax Regulations. The department agreed to the amendment, but a number of attempts to ascertain when the amendment would be made have proven unsuccessful. If the committee is in agreement, counsel could write to the department again to ask when the amendment is expected to be made.

Senator Verner: I suggest that we write to the department again to ask for a specific date.


The Joint Chair (Senator Runciman): Are we comfortable with that approach?


Ms. Ayala: Yes, I agree. We need to have dates because it compels the department to work on the matter and to provide us with concrete answers instead of a vague statement. I agree with counsel.


The Joint Chair (Senator Runciman): Are we agreed with that direction?

Hon. Members: Agreed.




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

The Joint Chair (Senator Runciman): Fifteen points were raised by counsel. The Chicken Farmers of Canada and the Farm Products Council of Canada responded to many of those points, but in some cases the responses have not been satisfactory.

Mr. Bernhardt: That is correct. This is the final block of regulations concerning chicken marketing that were dealt with as part of the omnibus reply from counsel to the Chicken Farmers of Canada. Members have seen that rather lengthy letter before. As the note explains, we have tried to parcel out the various regulations separately in the hope of simplifying things.

A number of amendments have been promised. There were some satisfactory responses, as well. As the note explains, what are left are unsatisfactory replies in point 1, second paragraph, 2, 5, 10, 11, 13 and 15. The suggestion in the note is that these be pursued in a further letter to the Farm Products Council of Canada. Some of these issues will be familiar to members, because the identical issues have arisen in connection with other chicken marketing regulations that the committee has seen recently.

In the second paragraph in point 1, the issue raised was a discrepancy in the wording of two provisions of the act. The chicken farmers agree there is a discrepancy but they state it does not affect the activities under their particular responsibility. Therefore, this would seem an appropriate issue to pursue with the Farm Products Council of Canada.

Point 2 yet again concerns the repetition in the order of definitions already set out in the enabling proclamation. A letter to the minister on this issue in connection with another chicken marketing instrument was sent by the joint chairs after the last meeting of the committee, so the eventual reply to that file will pertain here, as well.

Point 5 concerns another redundant provision, this time in a definition of "processor." The same problem appeared in other instruments adopted by the chicken farmers. Corrections have been promised there and, in certain circumstances, those corrections have already been made. Therefore, it seems fairly obvious that the same solution should be adopted here, as well.

Points 10 and 13 concern provisions establishing the time at which fees, levies and charges become debts payable to the agency and can be sued for and recovered in court. As explained in the note, the act requires that this be set out in the proclamation issued by the Governor-in-Council, not in an order made by the agency. It is a question of moving the provisions from the one instrument to the other.

Point 11 yet again deals with unnecessary repetition, this time of a power already set out in the act itself. Finally, point 15 deals with a simple drafting matter, namely the use of an incorrect term. There has been no response on that point, so it will have to be reiterated. As I say, it would be a matter of pursuing all of those in a further letter to the council.

Mr. Wilks: It would appear that these two groups are still discussing what came first, the chicken or the egg. Having said that, may I suggest that we write back to the Farm Product Council of Canada and CC the Chicken Farmers of Canada regarding the outstanding points? Maybe they can resolve this in due course. Writing back would be to restate our position.

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

Hon. Members: Agreed.


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

The Joint Chair (Senator Runciman): In a letter in March, Environment Canada said the amended regulations would be published in Part II of the Canada Gazette in the spring of this year. It committed in 2006 to amend the Canadian Environmental Protection Act to correct a discrepancy between the French and English versions but to date has not done so.


Ms. Borkowski-Parent: The good news is that the amending regulations were made and published last week in the Canada Gazette, Part II. That settles the regulatory aspect of this file. The only issue remaining has to do with the amendment to the Canadian Environmental Protection Act. Once again, the department has refused to firmly commit to any action, indicating in its letter of March 5, 2012 that the problem would be examined during the next five-year parliamentary review of the act, which was to have begun in 2010 but has yet to be undertaken.

If the committee is satisfied with that response, counsel could proceed with the usual follow-up. In any case, given that the amendment in question involves correcting a discrepancy between the English and French versions of a provision in the act, the correction may be possible under the miscellaneous statute law amendment program.


Mr. Young: The ministry said they will rectify the discrepancy when they have an opportunity to amend the act. Why do we not just monitor this for now?

The Joint Chair (Senator Runciman): We are agreed with that. We will monitor it.


Ms. Ayala: Would it not be possible to have a deadline? We have been waiting and waiting, after all. I am not sure what you recommend in that respect. Should we be more specific in our requests?

Ms. Borkowski-Parent: The response to that question was that we would wait for the parliamentary review of the act. That review is supposed to be undertaken every five years by the competent committee. The review should have begun in 2010, but has yet to begin. We are hopeful that the environment committee will, in the course of that review, propose amendments.

Ms. Ayala: We should also express our concern over the fact that the review was not undertaken in 2010. I think we should make it clear that we do have concerns about the matter.


Mr. Albas: I appreciate the member's frustration, but we have to remember that this particular committee is regulated, I guess, to regulations. That is our focus. It is the will of Parliament; committees set their own schedules. If you have a concern with it, you should speak with other members on this. However, we can encourage ministers and other parliamentarians to take our concerns forward but ultimately our task here is to scrutinize regulations.

Ms. Borkowski-Parent: There was also the recommendation mentioning the miscellaneous statute law amendment program. Is that something this committee would like to pursue?

The Joint Chair (Senator Runciman): I do not see any real enthusiasm. Are we comfortable with it? I think it has been outlined. There is nothing to preclude us, I suppose, from saying we look forward to seeing the review undertaken, but I am not sure that that accomplishes anything. I think we have consensus here to monitor and keep an eye on the situation. If it does not proceed in a more timely manner, perhaps at some future point we can express an interest in seeing it take place.


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

The Joint Chair (Senator Runciman): These regulations were changed in two major ways between publication in Part II of the Canada Gazette and the final version, but the department has described them as substantially the same. Counsel also sought assurance that preconditions for the making of these regulations were met, so I will ask counsel to elaborate.

Ms. Borkowski-Parent: A word on conditions precedent: In certain cases, the enabling act may make the exercise of regulation making power subject to conditions that must be fulfilled prior to the enactment of the regulations.

The fulfilment of these requirements is recited in the order-in-council portion of the regulations to demonstrate that the regulation making power is exercised validly. As the joint chair pointed out here, the problem was the use of the words "substantially in the annexed form," when in fact the regulations had been significantly amended following prepublication.

It was suggested that since the act does not require a second prepublication if the regulations have already been pre-published and consequently amended, there is no need for those words. Dropping it in the future would avoid debate as to the accuracy of the statement.

The March 27, 2012, letter from the department stated that this recommendation will be taken into consideration in the future. Given the nature of the issue, counsel could monitor future regulations to see if the suggestion has been followed and perhaps this file could be closed.

Mr. Anders: I second closing the file.

The Joint Chair (Senator Runciman): Further discussion? Agreed. We shall proceed that way.


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

Ms. Borkowski-Parent: The amendments remove the definition of serious episodic disease from the Health of Animals Regulations. Nevertheless, that expression was found — and is still found — in numerous places in the regulations.

In the absence of a definition, the agency was asked what constituted a serious episodic disease, who would make that determination and how. The agency responded the reader could rely on the commonly understood meaning of these words. Therefore, a person is left to differentiate between a serious episodic disease and a non-serious one when only the former involves regulatory restrictions and requirements. Whereas before, the definition specified that the minister designated a disease posing a threat to Canada's agricultural economy or to human health.

The agency has now accepted to reintroduce a definition of serious episodic disease and amendments are expected for the year 2012. Progress could therefore be monitored as per our usual practice.

The Joint Chair (Senator Runciman): Is it agreed?

Hon. Members: Agreed.



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

Ms. Borkowski-Parent: The problem identified in this file concerned a schedule provision providing that a child accompanied by a parent would be admitted to the Cape Tourmente wildlife area free of charge. As a result, the question arose as to the admission of a child who was accompanied by another adult.

Furthermore, the only objective of this provision seems to be the requirement that a child must be accompanied.

So be it. If indeed that is the case, that basic rule should be set out specifically in a regulatory provision and not hidden within a fee structure. After the committee raised these concerns for the first time on January 5, 2005, the department undertook a complete review of the regulations in question. However, as is often the case with Environment Canada, many deadlines have come and gone. In its most recent letter, the department indicated that it could no longer state when the work would be completed.


Mr. Anders: I suggest we write back to the department and outline the committee's recommendations.

The Joint Chair (Senator Runciman): Are there any other comments? Are we content with that?


Ms. Ayala: What I find worrisome is that, without clear regulations, children who are not accompanied by parents are being penalized. We need to see a target date. The summer is coming. We need more specific information as to the time frame. You said this has been a long-standing problem, so much so that this type of response is now common practice.


Mr. Albas: Does my colleague's suggestion of writing back with our recommendations cover your concerns?


Ms. Ayala: Yes, with dates.


Mr. Albas: Okay, I was not sure.


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

The Joint Chair (Senator Runciman): Counsel has identified certain points, including the use of subjective discretion.

Ms. Borkowski-Parent: The February 15, 2012, letter detailed three issues and asked one question. Point 1 dealt with terminology in the regulation that has been rendered obsolete in light of the enactment of the Canada National Parks Act in 2000. With regard to point 2, section 12 of the regulations deals with the issue of general hunting permits. Subsection 12(2) states that only 370 licences are available to be distributed. The questions put to the department were: Why this number? What are the criteria used for the distribution? No answer has been provided. Points 3 and 4 deal with provisions granting public officials a subjective discretion. Once again, this type of provision should be worded in an objective manner to ensure equal treatment and allow for judicial review.

In its March 27, 2012, letter, Parks Canada announced its intention to replace the regulations with a new set of regulations. It is unable at present to give a time frame for completion because developing a new scheme involves a considerable amount of consultation, including Aboriginal communities.

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

Mr. Breitkreuz: I have concern that they are not dealing with this in a timely manner. I would like to see a firmer commitment on their part. Perhaps we could write a letter to emphasize our concerns. You mentioned things like equal treatment. I do not know what they are doing in the meantime, but we need a firm commitment and should ask them for one.

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



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

Ms. Borkowski-Parent: Only one issue is still pending. As mentioned, a discrepancy exists between the English and French versions of the empowering provision in the Criminal Code. Although the regulations fall under the mandate of Agriculture and Agri-Food Canada, the Criminal Code falls under the mandate of the Department of Justice.

According to Agriculture and Agri-Food Canada, it did bring the matter to the attention of the Department of Justice. Given that the last bill containing an amendment to section 204(8)(e) of the Criminal Code died on the Order Paper, it may be appropriate to propose that the amendment be made through the miscellaneous statute law amendment program.


Mr. Vellacott: I would recommend that we do exactly that: Write to the Department of Justice and ask for a miscellaneous amendment to amend that.

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


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

Ms. Borkowski-Parent: These regulations resolved four concerns raised by the committee in a previous file. Nevertheless, they introduced an ambiguity in the English version of section 2.20. The department intends to address this issue as part of a greater set of regulatory amendments for which drafting should start in late 2012. If this is acceptable, progress could be monitored.

The Joint Chair (Senator Runciman): It seems acceptable, so we will continue to monitor.


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


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


(For text of document, see Appendix S, p. 13S:1.)


(For text of document, see Appendix T, p. 13T:1.)


(For text of document, see Appendix U, p. 13U:1.)

Mr. Bernhardt: For the record, I will deal with these as a group if it is agreed.

The Joint Chair (Senator Runciman): Yes.

Mr. Bernhardt: Thank you, Mr. Chair.

SI/2011-110 concerns a printing error in the Canada Gazette and so did not appear in the original order-in-council. Fortunately, it could be corrected by an erratum and an amendment was not required. It has been dealt with.

SI/2012-18 corrects two drafting errors identified in orders awarding service medals.

On SOR/2005-39, the issue raised by the committee has been resolved with the addition of section 1.1 to the Department of Veterans Affairs Act by Bill C-13, which provides the authority for regulations extending the eligibility for housekeeping and ground maintenance services to the primary caregiver of a veteran, who was in receipt of those services prior to his admission to a health care facility or his death.

SOR/2012-33 and SOR/2012-73 together make six requested amendments.

The Joint Chair (Senator Runciman): Thank you.


















Mr. Bernhardt: For the record, there is a list of 17 statutory instruments that have been reviewed and found to comply with all of the committee's criteria.

The Joint Chair (Senator Runciman): I thank both counsel for a job well done, as usual.

Mr. Albas: On these last files, if members have the time to look at them, they show what this committee can do. I appreciate counsel's work on that and the committee.

The Joint Chair (The Joint Chair (Senator Runciman): The meeting is adjourned.

(The committee adjourned.)

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