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Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue 13 - Evidence - February 2, 2017

OTTAWA, Thursday, February 2, 2017

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

Senator Pana Merchant (Joint Chair) and Pierre-Luc Dusseault (Vice-Chair) in the chair.


The Vice-Chair (Mr. Dusseault): This meeting of February 2 is called to order. Without further delay, I will let one of our joint clerks proceed with the first item on the agenda, the election of a vice-chair.


Jean-Marie David, Joint Clerk of the Committee: Pursuant to standing order 106(2), the first vice-chair of the committee must come from the government party. I am ready to receive motions to that effect.

Mr. Oliver: I would like to move Vance Badawey as vice-chair.


Joint Clerk (Mr. David): Mr. Oliver moves that Mr. Badawey be elected first vice-chair. Are there any other motions?

Hon. Members: No.

The Joint Clerk (Mr. David): Is it the pleasure of the committee to adopt the motion?

Hon. Members: Agreed.


The Joint Clerk (Mr. David): I declare Mr. Badawey duly elected.


The Vice-Chair (Mr. Dusseault): I would like to welcome our new vice-chair. I am very pleased that you will be one of our vice-chairs.

Without further delay, let us begin our meeting today with the items on our agenda, starting with the first item. Actually, that is what we just did, if I understand correctly.

Evelyne Borkowski-Parent, General Counsel to the Committee: That was an addition, so we can move on to the next item.

The Vice-Chair (Mr. Dusseault): After the first item, we have the working procedures of the committee's secretariat.



Ms. Borkowski-Parent: Good morning. I thought of starting the new year by taking a few minutes to go over how the committee's secretariat operates.

These procedures were endorsed by the committee some 35 years ago, shortly after it was decided that it would benefit from the services of its own legal staff. So when the Canada Gazette is published every second Wednesday, a file is opened for every regulation. Then, one of our four counsel — although at the moment we are only three — will examine the regulations on the basis of the 13 criteria adopted by the committee in its sessional order of reference.

Counsel will then write a letter to the relevant departmental official, called the designated instrument officer, who is the point of contact within a department for all matters emanating from the committee.

The letter will either seek clarification or raise deficiencies. The department is expected to provide a substantive response on each of the points raised in the initial letter, after which the file will be put on the agenda for a future committee meeting.

The materials provided contain all the correspondence between the department and counsel, although in the case of older files, only the correspondence that was exchanged since the time the file was last before the committee will be included.

The materials usually contain a briefing note summarizing the issues on a specific file. Then it's up to members to deliberate on the fate of each file, either by accepting a department's explanations or objections, or by pursuing the file when the position of the committee is at odds with that of the department, or else by asking counsel to monitor progress on the file.

When monitoring a file, counsel will send a follow-up letter every four months or according to whatever time frame dictated by the committee.

The committee is, to my knowledge, the only one with permanent dedicated staff who continue the work of reviewing regulations, even when Parliament is not in session, ensuring a certain continuity in the committee's work.

There was some confusion conveyed to the secretariat over the break as to the role of counsel corresponding with departments on behalf of the committee. To that regard, I wonder if members would consider adopting a motion reaffirming the long-standing procedures of the secretariat.

Senator Runciman: So moved.


The Vice-Chair (Mr. Dusseault): The motion is moved. Is there any discussion? Seeing that there is no discussion, the motion is adopted.


The Vice-Chair (Mr. Dusseault): Let us move on to the second agenda item, a document from Mr. Watson relating to the appearance of Parks Canada witnesses. I know there are some new documents, specifically, a letter from the minister.

Ms. Borkowski-Parent: The members will recall that Mr. Daniel Watson, the CEO of Parks Canada, appeared before the committee on November 17, 2016, to explain why the agency had not responded to the committee's letters for over a year. The committee asked Mr. Watson to provide details on the procedures that had been implemented to address the problems related to the fact that the committee's letters had gone unanswered. Since the agency's last reply was incomplete, the committee has asked Mr. Watson to provide, within 60 days of his appearance, detailed timelines for each of the files for which the agency is responsible. Two letters from Mr. Watson and a letter from the Minister of the Environment were then provided further to the committee's requests.

As to the update on the files, which was sent to you separately on January 26, 2017, I suggest that counsel do the usual follow-up regarding the changes to be recommended for review at the start of 2017.

As to the other files, the previous update provided by Parks Canada in June indicated only that the proposed changes raise important policy issues that will have to be considered when the agency reviews its regulations. The committee found these answers unsatisfactory as they did not address the essence of the files submitted and did not promise any action.

The January 2017 update, on the other hand, for the first time provides a semblance of an answer on the essence of the files, in that the agency stressed the need to preserve the undue discretion of its officials and indicated that it did not wish to take action on the committee's objections.

I suggest that I bring these files forward at a future meeting under the heading of reply unsatisfactory. Unfortunately, the letter was not received until after the documents were sent to you and the agenda was drawn up. As to the files for which the agency does not intend to respond on the committee's objections, I suggest that they be dealt with under reply unsatisfactory at a future meeting.

The Vice-Chair (Mr. Dusseault): Is that satisfactory to everyone?

Mr. Di Iorio: The only satisfactory thing is what our counsel suggested.

The Vice-Chair (Mr. Dusseault): Indeed. So this will be placed on the agenda for a future meeting. Mr. Badawey?


Mr. Badawey: Should we have a motion to receive the correspondence?


The Vice-Chair (Mr. Dusseault): A motion to receive the correspondence?


Mr. Badawey: Right.


The Vice-Chair (Mr. Dusseault): Can you be more specific about the correspondence?


Mr. Badawey: Just to formalize receipt of the correspondence, like part of our agenda. Or are we just going to give direction?


The Vice-Chair (Mr. Dusseault): All correspondence with Parks Canada and Environment Canada must be included.


Mr. Badawey: That's fine. Thank you.

Ms. Borkowski-Parent: As a matter of course, usually all correspondence is added as an appendix to the minutes of the committee. I believe it is part of the first report. It's a motion that was adopted as part of the first report.


The Vice-Chair (Mr. Dusseault): No comments?


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

The Vice-Chair (Mr. Dusseault): Moving on to Item No. 3 on our agenda, marginal notes, we will hear from our legal counsel.


Ms. Borkowski-Parent: This file was before the committee at its October 20 meeting. At issue is the fact that the Department of Justice moved marginal notes to the body of the text of the Consolidated Acts and Regulations. As marginal notes and headings have different interpretive value, the committee objected to the lawfulness of the move due to the fact this has been done administratively rather than by legislative enactment.

The Minister of Justice responded in her December 15, 2016, letter that she continues "to be of the view that the status of legislative components depends on their function in the legislative text rather than their location on the page; and that the new format was lawfully introduced . . . .''

That being said, if one were to look at the electronic version of the Consolidated Statutes and Regulations, one could not distinguish headings from marginal notes. I must emphasize the former is part of the legislative enactment but not the latter.

The minister ends her letter by stating that "to avoid doubt or confusion going forward, I intend to consider options to clarify the status of the marginal notes in question.''

I'm in the committee's hands as to how it wants to proceed at this time.


The Vice-Chair (Mr. Dusseault): Do the committee members wish to propose any action in light of the last sentence of the minister's letter?


Mr. Genuis: It strikes me that that's just not correct in terms of law, based on your analysis. At the same time, if this is the view of the minister and the Department of Justice department, we would have to think through our options. There is probably not a lot of value in sending another letter back saying, "Actually, no.''

One option would be to present a report to the house with respect to this issue. There's no case, I think, for disallowance of anything here, but if we present a report in the house, noting the committee's view, that at least puts it on the agenda of all members and gives other members the opportunity to follow up if they wish. It creates opportunities for further debate at that point.

I think we probably just have to leave it. I would say we consider that route.


The Vice-Chair (Mr. Dusseault): Will the report include our point of view? Mr. Oliver?


Mr. Oliver: Before we put this back into the house and tie things up there, I'm wondering if there isn't another route. She says that she's considering options, and we haven't heard what those options are, nor is there a timeline. Could we ask for an outline of what the options might be and when decisions will be made, before we go to a report in the house?


The Vice-Chair (Mr. Dusseault): Do you have any advice to offer regarding the options?

Ms. Borkowski-Parent: These two options are not mutually exclusive.


Another letter could be sent to the minister from the co-chairs. A report presenting the issue is another option. That is for members to decide, of course, at this point.

Mr. Genuis: I think that the suggestion Mr. Oliver has made is good as well, but what I would suggest we then do is some combination of the two, where we prepare a letter and send it to the minister re-emphasizing the view of the committee but also asking what options and what timeline we can expect in those options.

At the same time, we could begin the process of preparing and drafting a report, and that report, let's say, would be considered by the committee a month from now so that if at that point we have a further response from the Minister of Justice and we decide not to go forward with the report on the basis of the response we have, we can make that decision at that time. But it also means we're in a position to move quickly on the tabling of a report if at that point we feel that's necessary. So we leave our options open, but at the same time we prepare to action those options without further delay.


The Vice-Chair (Mr. Dusseault): So we could do both. First, we could send a letter to the minister, reiterating our position and asking for a timeline for answers to our questions. Secondly, we could prepare a draft report to be presented to the committee at a later date. Is there any discussion on this?

Mr. Di Iorio: This is a matter that covers each of the regulations that will be reviewed by the committee and by our counsel. It is a recurrent matter. Each of the files we deal with, each of the regulations that we review, will be part of this discussion.

I do not disagree with what was said, but we need to be educated on this matter. To that end, we have to read documents or receive witnesses, or both. Witnesses could bring documents.

I would like our legal counsel to recommend witnesses we could invite or documentation in this regard. If we want to produce a report, it will have to be based on something. It cannot be based on our opinions alone. It must include relevant information. We need people who can advise us. I am not talking about government officials. They could be people from outside. I like hearing different points of view and then drawing my own conclusions. This is not incompatible with what my colleagues said earlier.

The Vice-Chair (Mr. Dusseault): You are suggesting that we invite witnesses with regard to the reworking of regulations.

M. Di Iorio: If someone could, for instance, provide information on the historical context, the changes that have been made, the reasons for those changes in the law, the regulations, how they are reworked, and the organization.

Our counsel could for instance do some research or request some research and then provide us with the findings. I do not want to impose any specific terms on anyone.

Ms. Borkowski-Parent: As to the changes, the Department of Justice was asked that question. It is because of the marginal notes, because the columns where the wording of the act or regulations appears are narrow. They wanted to make the instrument easier to read by removing the marginal notes and inserting them into the actual wording of the instrument.

As to interpretation, a subheading in the act is part of the statutory instrument and can be used by the courts to help interpret the wording of the act. The marginal notes are not part of that wording. They are added by the justice department after the fact. The problem with inserting them into the actual wording is that one can no longer identify the subheading — which can be used for interpretation — of the marginal note, which is not part of the actual wording, does not carry the same weight, and cannot be used to assist in interpretation.

The changes are the result of widening the columns to make the instrument easier to read. The department decided of its own accord to widen and amend the columns through an administrative process. The Statutory Instruments Act should have been amended at the same time as this technical change.


Mr. Ehsassi: I just want to state that I agree with my colleague. It may very much be a technicality in the context of this particular regulation, but it's an ongoing issue. As we move forward with other regulations, this very same issue right arise.

That being the case, given that we are exploring what the minister intends to do, and we are genuinely confused — and that's something she agrees to — before we start doing anything on our end in terms of analysis or determining who is right and who is wrong, it would be incredibly helpful if we had access to the legal interpretation provided to the minister.

I was wondering if in that letter we could ask that she provide us not just with her determination on that issue but the legal analysis that underpins her decision.


The Vice-Chair (Mr. Dusseault): Would it be possible to request that?


Mr. Genuis: I concur with that suggestion. I will just say I don't know that I would say we're confused. I would more say that we're pretty clear about what our view is; at least I'm pretty clear that I think there's a legal problem.

In the letter that we send to the minister, I would request that she outline more specifically the options being considered and the timeline for walking out those options: to not just restate our view, but ask for those options with the timeline. I would also we ask for further support to justify the opinion that she's taken, legal opinion or other types of support.

I'm not opposed to us hearing from witnesses if that's the will of the committee. I think that we've heard a pretty strong analysis of what's going on here from our analysts, and I'm comfortable moving forward on that basis. It could be something as simple as one meeting where we invite external-to-government legal experts that can comment on this question of marginal notes versus headings and the legislative impact of changing from one to the other.

I think we should send a letter and prepare to be ready to consider a report on this within about a month. If that means hearing witnesses two weeks from now, great, but that we be prepared to move forward on this in a relatively timely fashion.


The Vice-Chair (Mr. Dusseault): There seems to be a consensus about the letter at least. It remains to be seen whether we can get a legal opinion from the justice department. I would like to hear Ms. Borkowski-Parent's thought on this.


Ms. Borkowski-Parent: On the issue of their legal analysis, the answer that's going to come back most likely will be that it's covered by solicitor-client privilege. We can try. If they waive that privilege, then we will get the answer sought.

On the issue of witnesses, I should point out that there are two more meetings this month, one in March, one in April and I think two in May. At the next two meetings we are receiving witnesses: Environment Canada regarding pulp and paper effluent and sulphur in diesel fuel next week, and Agriculture Canada to follow up on the Farm Products Council appearance in December. I'm sure everyone remembers. So the agenda for February is already spoken for.

I should point out that a considerable backlog of files needs to be dealt with by committee members. Because of the electoral period, the committee didn't sit and those files didn't go through. As I mentioned earlier, counsel will carry a file up to a certain point, and it is then presented to the committee and the committee has to decide on a course of action. So there are a number of files at this moment, and when witnesses appear and take a full meeting, no other files go through.

At this point, if the committee wants to hear witnesses, it would have to be, at the earliest, March 9. The April meeting is already spoken for regarding witnesses.

I just wanted to give you an idea of what's currently sitting in the stacks in our office, if it helps make a determination. We can definitely hear witnesses at the March meeting, but there is also a report on incorporation by reference that has not been looked at because meetings have been used to hear witnesses. It's something to be mindful of at this point.


The Vice-Chair (Mr. Dusseault): Thank you for pointing that out.


Mr. Motz: As a point of clarification, in my previous life I relied on the clarity of regulations. So if the headings and the marginal notes are not part of the legislation, not the enactment, then we are causing confusion to those who are intended to act out the regulations.

My suggestion would be that we do not acquiesce on this position of having them clearly separated and that we do whatever we need to do to ensure that, moving forward, we stay with the status quo of how I have seen them in regulations before: clearly separated as marginal notes, which we all understand not to be part of legislation or regulations.


The Vice-Chair (Mr. Dusseault): That is the position of all the members of the committee.


Mr. Genuis: I appreciate the context from our analysts on the scheduling issues. My view would be that given the importance of the work we're doing as a committee and given that we're all interested in moving this committee forward in terms of having a greater influence on the direction of the mechanics of government — not just sending letters and leaving it there — I'm open to hearing from witnesses, but we have to agree to schedule additional meetings in order to do that as well as the other work in front of us.

There's always the option of a subcommittee. If there are specific issues we want to look at and we feel it could be more effectively considered with a smaller group of people — not everybody has availability but some do — I think that's an option to consider.

I do think this issue should be considered. It could be a matter of considering it in the context of a subcommittee and sending a report to the committee, which would then review it. In typical fashion, trust the view of the subcommittee and then we can move the issue forward to the house.

There is a range of options. We could skip the witness stage, send the letter, have the report prepared based on a lot of information that we already have, and forward that report to the house. I think we should do one or the other.

Mr. Diotte: I think we are over-complicating things. Obviously it seems that we are on the right page. I think Glen mentioned quite correctly, and the analyst as well, that we're right, so why go through all this motion for nothing by getting witnesses to prove that we're right?

For sure, send a letter and say, in a nice and firm way, something to the effect of, "What's your solution? You're incorrect and you've misjudged this.'' Otherwise basically we're wasting time trying to get a resolution.

Senator Runciman: I have served on this committee for a few years. With the enthusiasm following the election and the new members on the committee, bringing witnesses to the committee can be useful, but it also does hinder our ability to deal with the matters brought before us.

I wonder if we should take a step back with respect to looking at options. The subcommittee may be one way of dealing with this. Another — and I know we have done this in the past but I think there have been changes — is that we should write to the Privy Council Office with respect to what's happening within the bureaucracy. We have one coming up, for example, where we wrote to an official in a ministry five times, and that individual — whether the bodies changed or not — simply ignored us. I think it should be coming from the top bureaucrat in the government, sending messages out clearly. If we write to the PCO, we should outline the things we're facing as a committee based on the lack of response or the disdain shown by some bureaucrats with respect to the concerns of this committee. We should let them know, in no uncertain terms, that we would like to see changes occur with respect to their approach and attitude in dealing with this committee. We should not be soft on this — a hard-nosed letter — and say that we expect changes to occur. I think that could help.

Also, we could perhaps look at reports to the house on a more frequent basis rather than simply calling people here and not necessarily resolving anything. If they know that matter is going to go before Parliament, I think that could have a shakeup impact as well.


The Vice-Chair (Mr. Dusseault): Your suggestion is duly noted. That could be part of the discussion. We could send a more general letter to the Privy Council Office, outlining our frustrations in our dealings with the various departments.

Mr. Di Iorio: I would like to clarify something. I referred to witnesses or documents or both. My only concern was that, since it is the justice department and it involves a point of law and interpretation of the law, I wanted to be sure that we were not simply saying, "That is our opinion.''

By the way, I think we are right. I wanted to be sure we had something to back us up. That is why I asked our counsel, in her research, to speak up after me in order to provide clarification. We could make our concerns known to the justice minister in a letter that indicates our sources. The letter could say the following: "You are certainly creating confusion, regardless of whether your interpretation is correct or not. There is concern about the decision that was made and our committee does not think this is the right way to proceed. A different approach is needed.''

That is all I wanted to say. We could create a subcommittee. If we do that, we could have another subcommittee to review outstanding files. Perhaps it could develop a matrix of similar files, reach a consensus and clear out a number of files. The subcommittee could make a general recommendation on a number of files, which would speed up the operation of the committee. Those are the two points that I wanted to raise. Thank you.


The Joint Chair (Senator Merchant): I'm just wondering, with regard to what Senator Runciman said also, whether we could not pose a question in QP in the Senate or in the House of Commons, and then we will hear. You want to go to the top. Senator Runciman said we should hear from a top bureaucrat. Why not pose a question in Question Period? Would that work as an alternative?

Mr. Genuis: I think a member of the government asking a question about this issue in Question Period in the House of Commons would be a great idea, and I would certainly encourage that to my colleagues.

What I think could be a consensus is that, number one, we write a letter to the minister about this particular file on the grounds that we have discussed. Number two, we ask our staff to draft a report for our consideration at a future date. Number three, we ask our analyst team to recommend background reading information to all committee members so that we have an opportunity, in a way that doesn't require committee time, for all of us to read through and analyze the details in a way that ensures all of us have an understanding of what leg we have to stand on. Then, number four, that we prepare a letter for PCO along the lines that Senator Runciman has proposed.

I think if we do all four of those things, we will move these issues forward, but we also will leave ourselves some degree of option where, after reading the background information and considering a draft report, at that point we can say, "We actually are not prepared to move this report forward; we need to hear from witnesses or receive further information.'' Or at that point we can say, "Having further educated ourselves and considered a report, we think, yes, this needs to go to the house for discussion, and we will proceed vis-à-vis the report.''

I think that probably reflects the consensus of the discussion, if people want to move forward on that basis.


The Vice-Chair (Mr. Dusseault): That was also my feeling about our discussion of the four options. Someone would like to speak. Mr. Oliver?


Mr. Oliver: I'm new to the committee. I don't know about the Privy Council issues. I don't know how extensive the problems have been with the committee receiving reports. It's a bit difficult for me to comment on that, but I just think we are over-reading this. I understand that the minister has said she's going to look at options, so I'm assuming her department is going to be producing options for her. We should just be confirming that that's happening and when the time is. She seemed to be compliant with our concern and was going to be addressing it, so unless I'm over-reading this, it seemed like the department and the minister were moving this along, just not on the schedule we had.

I think we should write a letter back confirming that options are being identified. It would be good to know what they are so that we don't run into a back and forth on this one. And what's the timetable? That's probably what we need to do in the short term.

I think everything else is just a complication, but it's my first time at the committee. So I don't know about Senator Runciman's concerns.

Mr. Badawey: Could we have the recommendations read out from our colleague down the way here? He had four recommendations.


The Vice-Chair (Mr. Dusseault): Can you repeat your four suggestions?


Mr. Genuis: That we write a letter to the minister along the lines that we have discussed, which includes requesting some of the legal opinion information, if they are willing to provide it, as well as discussion of the options being considered, as well as the timeline.

Number two, that we begin the process of drafting a report to present in the house about this issue, with our perspective. This is a matter of course; it's not a hostile action to table a report to bring attention to the issue. That seems very appropriate in this context to provoke a higher level of discussion about the issue.

Number three, that we receive a recommendation directly from our analysts about documents and background reading that committee members can do instead of going the witness route, so that we can really educate ourselves about this particular issue.

Then, fourth, following Senator Runciman's recommendation, that we prepare a letter for PCO outlining some of our broader concerns. That fourth point is less specifically related to this issue. It's broader in terms of its response to what we're dealing with.

Those were the four recommendations that I think will allow us to move this forward in a respectful but also intentional way.

Mr. Badawey: Just for clarity, we're looking at, one, asking the minister to come back with options; two, for our staff to come back with options; and, three, to send a letter off to the PCO?

Mr. Genuis: Not quite: a letter to the minister that asks for options, timelines and legal support; a draft report for us to consider; background documents; and a letter for PCO. Those are the four.

Mr. Badawey: That was three. I'm not clear on your number two.

I'm hearing we want options from the minister; I'm hearing we want options from staff to come back with a report; and I'm hearing about a letter to the PCO.

Mr. Genuis: Option number three was following Mr. Di Iorio's recommendation that we receive background information in terms of reading materials about the different legal issues that would help us to ensure that our position is well informed by experts.

Mr. Badawey: I just wanted to be clear on that. That's fine.

Mr. Genuis: And that might involve directly soliciting briefs from independent experts or relying on existing materials, either one.

Mr. Badawey: Just for clarity from staff, I'm assuming that when you do come back with options, that would also include the background?

Ms. Borkowski-Parent: Yes.

Mr. Badawey: All in one report?

Ms. Borkowski-Parent: Yes.

Mr. Badawey: So we actually have three options that we're considering.

Ms. Borkowski-Parent: I think he meant concurrent, not options.

Mr. Badawey: That's fine.

What I'm getting at is that there are three recommendations, not four. The three recommendations are that we expect options back from the minister, number one. Number two is that we expect a report back from you that will have background attached to also offer additional options. And number three is that we're going to send a letter off to PCO. That's what I'm hearing.


The Vice-Chair (Mr. Dusseault): It was also suggested that we prepare a draft report and present it to the house. You would suggest that we include a reference document as an appendix, providing the legal opinion of our analysts and legal counsel. That can be interpreted as four or three options, but the idea of the draft report and the legal opinion go together.


Mr. Badawey: That's fine.


Vice-Chair (Mr. Dusseault): Do we have a consensus? I do not sense that we have a consensus. Would you like to comment on each of the suggestions separately? If there appears to be a consensus, we can proceed with the four of them. If there is a consensus, I do not have to call a vote.

Would anyone like to call for a vote? No, I think there is a consensus. I will repeat the options in the interest of clarity. The first is to write a letter to the justice minister, asking for her opinion on the matter and for timelines for further action.

Secondly, a draft report, along with a legal opinion from our legal counsel based on existing legal documents and on the opinion of other experts. We also have to write to the Privy Council Office to state our frustrations in our dealings with the various departments.

I think we have covered the third item on the agenda.

Let us move on to Item No. 4, the Pest Control Products Regulations. I will let our counsel provide us with some information.


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

Ms. Borkowski-Parent: At its meeting on May 5, 2016, the committee decided to issue a resolution for the disallowance of subparagraph 26(1)h)(i), paragraph 26(2)g), and subitem 1(a) of the table to section 6 of Schedule 2 of the Pest Control Products Regulations.

The provisions in question required that a statement called a "guarantee'' appear on pest control products, even though the wording did not really include a guarantee. Moreover, the regulations required that the label include a notice that the product's user assumes the risk of injury to persons or damage to property if the product is used in a way that is inconsistent with the directions on the label. Even though this notice was not intended as a warning, the fact remains that it could be interpreted as drawing conclusions about civil liability, which is not authorized under the enabling legislation.

So the 30 days' notice before a report containing a notice of disallowance can be adopted was sent after the meeting of May 5. Following that meeting, the department told the committee that it had reduced its time frame for repealing the provisions whose validity was questioned in 2008. The department was targeting a prepublication in the fall of 2016 and a final enactment in the spring or summer of 2017. The amendments were finally published in Part 1 of the Canada Gazette, on December 10, 2016. With the committee's consent, counsel could monitor usage with regard to the final enactment, which is expected either in the spring or the summer.

The Vice-Chair (Mr. Dusseault): Are there any comments on this last intervention?


Mr. Genuis: I think the follow-up, as proposed by the analyst, makes sense. I would just point out that this seems to me to be a case where the threat of disallowance produced real results. I think there are lessons for us here that one doesn't have to use disallowance all the way but that simply the threat of disallowance is a good way of reminding people that this committee does have specific powers and is actually prepared to use them when our concerns aren't taken seriously. That's a success story that we can perhaps apply to other files, where appropriate.


The Vice-Chair (Mr. Dusseault): That is a very good comment. Are there any other comments? We seem to agree on a course of action. Let's move on to Item No. 5, the Wage Earner Protection Program Regulations.



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

Ms. Borkowski-Parent: At its meeting of November 3, the committee also decided to issue a notice of disallowance regarding section 19 of the Wage Earner Protection Program Regulations. As the note prepared for you this morning describes, the issue at hand is that while section 18 of the regulations purports to authorize payment of trustees' or receivers' fees related to the performance of their duties under the Wage Earner Protection Program Act, section 19 of the regulations purports to authorize the payment of trustees' or receivers' fees that are unrelated to the performance of their duties under that act.

The department initially provided by way of justification for section 19 that section 22(2) of the act is a standalone provision that authorizes the payment of any fees or expenses as long as they are prescribed by regulation.

It's hard to conceive that subsection (2) of section 22 stands alone from subsection (1) of section 22. Clearly, they must be read together. In context, it is clear that the default rule established by subsection (1) is that the trustees' or receivers' fees in relation to the duties under the act are to be paid out of the estate, but that under the circumstances prescribed by regulations, those same fees for those same duties may instead be paid by the minister as a result of subsection (2).

Further, the Wage Earner Protection Program Act relates only to the Wage Earner Protection Program. It does not relate to the payment from public funds of trustees and receivers generally. Regulations made under the act must fall within its four corners.

Following the issuance of the notice of disallowance, the Minister of Employment, Workforce Development and Labour wrote to the committee on January 20. The minister reiterates her view that subsection 22(2) of the act provides sufficient authority for the disbursement of public funds to pay for trustees' or receivers' fees unrelated to the performance of their duties under the act on the ground that without providing adequate compensation, the likelihood of trustees or receivers agreeing to take on low or no asset insolvencies would be remote.

The minister indicated in her January letter that should the committee decide to table a disallowance report, she intends to bring a motion to oppose. If you look at the chart distributed in this morning's materials, such a motion would lead to a vote the following Wednesday.

Once again, under the Statutory Instruments Act, the responsible minister has to be given 30-days' notice before a disallowance report can be adopted. That period has now run, although I would point out that simply because a notice has been issued and the period has run out does not oblige the committee to proceed with a report. In any event, the file was brought back to the committee because the 30 days has now expired.

There's a draft disallowance report there, if only so members can see what form the report would take. Once again, I'm in the committee's hands as to the next steps it would like to take on this file.


The Vice-Chair (Mr. Dusseault): Unlike in the case of the previous item, the notice of disallowance did not have the desired results. The minister instead told us that, should the committee table a disallowance report, the government would oppose it through the department. Since we have all the information concerning the next steps if we want to proceed with the disallowance, are there any proposals on how to move forward?


Mr. Genuis: We could proceed with disallowance, but I think an interim step would be to call the minister to the committee and have that frank dialogue here before we make a final decision on that next step.


The Vice-Chair (Mr. Dusseault): You are proposing interim steps. The next option would be to invite the minister and her officials. Are there any comments on that proposal? I assume that it suits everyone. We will invite the minister.

Are there any further comments on the letter? Are we opening up our Thursday morning time slot? Do our counsel have any comments on the options available to us when it comes to hearing from the minister and her officials? I see that someone would like to comment. Mr. Oliver?


Mr. Oliver: In my review of the notes for this, and again I'm new to the committee, I noticed it was very rare that a minister was called before the committee. I'm wondering if there is somebody else in the department we could call so we could hear their perspective, rather than calling the minister on this one? I gather it would be quite an exception to do that. Is there another position within the department that could come to represent this? There has been a change in ministers on this file. There may be a differing ministerial take on our first letter.


The Vice-Chair (Mr. Dusseault): There are certainly individuals other than the minister who can be invited to share their comments with us. The minister is not necessarily contravening —


Inviting the ministers and officials could be an option, too, but certainly officials are more aware of this issue at this stage.

Mr. Genuis: To clarify the rules of invitations at committee, we have the power of subpoena but we don't have the power over ministers, and I'm not suggesting we would try to compel anybody in this case.

I think it's more respectful of the minister, given that the correspondence came from the minister, to at least give the minister the option of attending. It would seem strange to not invite the minister. I would suggest inviting the minister and officials. Obviously it's up to the minister how to respond to that. If the minister feels it's more appropriate to send officials, at least we'll hear from the officials.

I think the invitation should be extended at that level and give them the opportunity in terms of how they respond.

Ms. Borkowski-Parent: I wanted some clarity as far as the level of officials that the committee is expecting. We had a few witnesses in the fall. Some of the meetings have gone better than others.

Behind the scenes, we have also had some difficulty scheduling witnesses. If you would be amenable to specify the level — either DM, ADM — of officials the committee expects to appear as witnesses, it would help on our end.

Mr. Genuis: To clarify, though, if we invite the minister, it would be up to the minister to determine which officials to send, if that was the choice they were going to make. Is that right? It's more a question of who is in a position to speak on behalf of these things.

Some of the challenges we had with witnesses in the past are if we feel that somebody perhaps isn't authorized to give an answer. Obviously we need to talk to someone senior enough that they are authorized to engage us in real conversation instead of feeling that they are hemmed in by the limitations of their position in terms of how frank they can or can't be. That's the advantage of starting at the top but then seeing where it goes from there.


The Vice-Chair (Mr. Dusseault): We will ask the minister to appear. Of course, she is free to send the officials she feels are best able to answer our questions. I want to point out that the letter of January 20 came from the minister and that she did sign it. So it would be logical to invite her to appear in person. I believe we have reached a consensus. We will set aside our disallowance procedures so that we can first hear from the department on the issue. Let's now move on to Item No. 6.


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

Cynthia Kirkby, Counsel to the Committee: The definitions of "prohibited device'' and "prohibited firearm'' in the Criminal Code exclude certain handguns and barrels that are prescribed by regulation for use in international sporting competitions governed by the rules of the International Shooting Union.

In 2012, it was pointed out to the department that the name of the organization was changed and that those definitions should be updated. It was also noted that the regulatory list of exclusions had not been amended since 2000 and that it would seem that amendments to the regulations are required to reflect the firearms currently in use in sport shooting competitions.

Five follow-up letters were sent to the department, and no response was received. The joint chairs wrote to the minister in 2014 and again in 2015. We are still waiting for a response. A third letter was sent to the current Minister of Justice, in March 2016, and a response from the deputy minister was received in November. The deputy minister agrees that the definitions of the Criminal Code should be updated to reflect the name change to the International Shooting Sport Federation. He also advises that he has asked his officials to work together with the Department of Public Safety to examine possible changes to modernize the regulations, but no indication is given of when those amendments might be expected.

The Vice-Chair (Mr. Dusseault): Are there any comments on this file? Senator Runciman?


Senator Runciman: On what the counsel just said about "no indication,'' I think we should write back to the deputy with respect to asking him for some indication of when we might be likely to see changes occur.

Beyond that, this is what I referenced earlier in my comment about bureaucratic disdain for the concerns of the committee. I think we should also be incorporating in that letter some indication of our concerns about the way this issue was treated or not treated by officials within the ministry.

We should express that pretty clearly to the deputy, and at the same time we should say that we would appreciate receiving assurances that this approach will not be repeated in the future. I think just asking for a date is not sufficient, in my view, given the five letters and completely ignoring them. We just can't be silent on that.


The Vice-Chair (Mr. Dusseault): Thank you for your comments. My understanding earlier was that your proposed letter to the Privy Council Office had to do with frustrations over this item. So I plan to send a letter to the deputy minister to inquire about when they will respond to our concerns and also to inform him of our frustrations over our interactions with his department.


Senator Runciman: I've been using this as an example, obviously. I can use language like showing complete disdain for the committee, simply ignoring our letters, not even acknowledging receipt.


The Vice-Chair (Mr. Dusseault): I think we can use that in our letter to the Privy Council Office as an example of the frustrations we feel in other files, but especially in this one.

Are there any comments on this proposal? I think we can move on to the next item, as we have all the information we need to move forward.



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

Ms. Kirkby: When this file was last before committee, there were two main issues of concern, namely when the amendments promised in 2013 would be made and whether the definition of "risk area'' in the regulations would indeed be repealed.

Given the lack of progress that had resulted from communicating with the department, members instructed the joint chairs to write directly to the minister to seek his assistance. The joint chairs conveyed to the minister the committee's wishes that the promised amendments would be made within a reasonable time, such as by the end of the fiscal year, and that these amendments would include the repeal of the definition of "risk area'' since it is used in the parent act without definition. The joint chairs also conveyed the committee's position that a response would be appreciated within two weeks.

The joint chairs' letter was dated October 27 and the minister's response arrived two weeks later on November 10. The minister advises that most of the promised amendments are expected to be made by the end of the fiscal year and that this will indeed include the repeal of the definition of "risk area.''

The materials go into greater detail where it is not clear if the forthcoming amendments will address the full substance of some of the issues raised, so one option would be to write again to ask about those points, but another option is to wait until the amendments are published. Counsel could then review them and report back to the committee about whether any issues are, indeed, still outstanding.


The Vice-Chair (Mr. Dusseault): What are the committee's intentions? Do you want to wait for an update or write immediately? Mr. Badawey?


Mr. Badawey: Wait for the update.


The Vice-Chair (Mr. Dusseault): So it is being proposed to wait and see whether the department will meet its commitments and update the regulations by the end of the fiscal year, which is approaching very quickly. We hope that will be the case.


Mr. Badawey: If I may, to add a timeline, when I say "wait for the update,'' it's not waiting three years. Maybe we could wait for a few weeks and give them time, as they said, until the fiscal year. We are just upon the fiscal year, so give them some breathing space, possibly the end of February. If we haven't received an update by then, we can follow up with them to find out when we can actually expect that update.


The Vice-Chair (Mr. Dusseault): Exactly. We will make note of that. We will follow the development of this file.



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

Ms. Kirkby: The outstanding issue with respect to these regulations is the Department of Environment and Climate Change Canada's repeated failure to meet the 90-day timeline required by the act. When a change is made to an appendix to the Convention on International Trade in Endangered Species of wild fauna and flora, also known as CITES, the law requires the regulations to be amended within 90 days to reflect that change.

Recently, to avoid non-compliance with the statutory requirement, the department has been entering temporary reservations when an appendix to the convention is changed and then lifting the reservation once the necessary changes are made to the regulations.

The joint chairs wrote to the minister in May expressing the committee's view that routine reliance on reservations cannot be viewed as a permanent solution to the inability to comply with the time period that Parliament specified in the act.

The minister's reply advised that in fact most parties to CITES do not meet the 90-day timeline now that regulatory processes have become more rigorous than they were when the convention was first drafted in the 1970s. Nonetheless, the minister says the department is exploring solutions with the Department of Justice and that resolving the issue remains a priority.

Members had also discussed this matter with departmental witnesses during their appearance on June 2 of last year. At that time, the witnesses advised that the potential solution under consideration was to amend the act to automatically incorporate by reference all changes to the CITES list. Since this seemed to represent an unusual approach, witnesses were asked for examples of other acts that incorporate by reference international instruments as they are subsequently amended from time to time. The examples provided by the department are included in both languages at page 6 of the materials.

Departmental witnesses stated by email after that meeting that in fact the approach would likely be to amend the regulations to automatically incorporate changes to the convention rather than the act. The department seems to be of the view, however, that amendments to the act are required first in order to create the authority to incorporate by reference in the regulations.

It is not clear what amendments would be needed to the act since recent amendments to the Statutory Instruments Act authorized open incorporation by reference wherever there is a power to make regulations. The department could be asked for its position on this point since this would appear to provide a relatively straightforward solution to the ongoing issue of its failure to comply with the 90-day timeline established in the act.


The Vice-Chair (Mr. Dusseault): Any comments on this file? Mr. Genuis?


Mr. Genuis: I have two quick points. First, this speaks to larger issues of incorporation by reference that we have dealt with many times before. On its face, the idea that you would have incorporation by reference of an international standard that changes from time to time, I don't think that's acceptable.

However, with respect to the particulars of this issue, it seems like work is being done on a solution. I think we should write back, get a clearer timeline and perhaps suggest a timeline for when we're going to see a resolution.


The Vice-Chair (Mr. Dusseault): Any other comments? Is that a feasible solution?


Ms. Borkowski-Parent: To your point, in this instance it's an international convention and it would be free of access, available in both languages. So matters the committee raised traditionally or in the past about incorporation by reference, now that the Statutory Instruments Act permits that technique, is a matter of accessibility. As I said, there's no language issue or cost in this instance, so that could be the perfect way to use incorporation by reference in a way that is accessible. The only question is why the department sees that they need to amend their act in order to do so, and that's something that could be clarified.

The Vice-Chair (Mr. Dusseault): So, the clarification would be requested.


Mr. Genuis: Fair enough. I appreciate the clarification. However, on the issue of "as amended from time to time,'' if I heard you right in terms of the convention — and that doesn't raise the accessibility issue — there isn't a problem, from your perspective, with having incorporation by reference of something that is amended from time to time?

Ms. Borkowski-Parent: When the committee first raised those issues prior to amendment of the Statutory Instruments Act, the open incorporation by reference, which is another phrase for incorporated with amendments from time to time, created an issue of subdelegation. It's someone else that makes the regulation.

Mr. Genuis: Right.

Ms. Borkowski-Parent: Now that problem has been taken care of with the amendments to the Statutory Instruments Act that authorize the amendments from time to time.

There could still be a problem with the temporal application of regulations if it's not easy to identify, for example, on a certain date what was the version of the convention or the standard that was applicable to a citizen. That could still be an issue as far as this instance, because it's an international convention, and there's no cost or language issue. Those were the other two components of accessibility that were mentioned in the fall.

Mr. Genuis: Sounds good. Thank you.


The Vice-Chair (Mr. Dusseault): Do we agree to follow up and ask for clarifications?

Hon. Members: Agreed.



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

Ms. Borkowski-Parent: SOR/2014-34 resolved an inconsistency in a French version noted on file SOR/96-484. At the same time, it introduced a discretionary power that is unbounded.

The previous subsection 52(1) imposed on the minister a duty to order the operation of radio apparatus to be ceased or modified if it is found that there are harmful interference or adverse effects of electromagnetic energy.

The new subsection 52(1) makes it a discretionary power of the minister to order that the operation of radio apparatus to be ceased or modified in cases of a harmful interference or adverse effects of electromagnetic energy.

When the amendments were prepublished in June 2013, the department was asked why the duty of the minister was transformed into a discretionary power and most importantly why the minister would not make an order if it is found that equipment causes or suffers from harmful interference or adverse effects of electromagnetic energy.

The department responded to this concern by adding a statement that the purpose of the provision is to ensure the orderly development and efficient operation of radio communication in Canada. While this explains the reason for an order, it does not help in circumscribing the circumstances under which the order will or, more importantly, will not be made.

Subsection 52(2) does not resolve the issue either because it states the factors to be considered to determine if there is a harmful interference or adverse effects of electromagnetic energy.

Put simply, first, there must be a determination as to whether there is harmful interference or adverse effects of electromagnetic energy, and the minister uses the criteria spelled out in subsection 52(2) to make that determination. Then the minister still has the discretion to issue an order or not. If the order is issued, it has to be for the orderly development and efficient operation of radio communication in Canada.

The problem is the minister's discretion in determining whether an order will be issued even if all the prescribed circumstances are met. The committee's long-standing position has always been that if discretion is bestowed, there must be criteria to frame it.

There seems to be a lack of understanding on the department's end as to what the objection of the committee entails. Of course, the department relies on the argument that unrestrained discretion is necessary for enforcement and that it would be impossible to set out all the circumstances under which an order should be issued, which was not the concern of the committee in any event.

As there seems to be some level of confusion surrounding this issue, which a number of letters does not seem to have clarified, I suggest at this point that counsel meet with the department's officials in order to get to the bottom of this and report to the committee subsequently.

Mr. Badawey: So moved.


The Vice-Chair (Mr. Dusseault): There seems to be no debate on this issue; so that is what will be done.




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

Ms. Kirkby: This is the first time this file has been before the committee, and it is suggested that the response from the Chair of the Canada Industrial Relations Board is unsatisfactory in at least two respects. First, while it appears that there is agreement to address some of the minor drafting issues raised, the board indicated that the amendments would only be considered during the next review of the regulations. The board also indicated that there are no immediate plans to undertake such a review.

It was therefore put to the board that perhaps these amendments could be made on an independent basis so as to avoid any unnecessary delay caused by broader consultations, but the board repeated in its 2016 letter that it did not intend to conduct an immediate review of the regulations, as this has not been identified as a high priority at this time.

Second, the board's response on some of the more substantive issues has not addressed the issue raised. A follow-up letter was sent to the board to attempt to clarify these issues, which include, as detailed in the note, the question of whether the regulations were improperly corrected by an entity other than the board, and a provision that seems to authorize the board to grant a representative other than legal counsel access to confidential documents while denying access to counsel and to the participants themselves.

The board's subsequent response, dated July 25, 2016, simply refers to the "detailed response'' previously provided and reiterates that the issues raised will be borne in mind when the board next undertakes a review of the regulations, whenever that may be.

Given that this is still relatively early in this file, a subsequent letter could be sent to the board pointing out that substantive responses are required in order for the joint committee to fulfill its statutory mandate.

I will point out by way of context that the board indicated in December 2015 that it had received no new applications under the act since assuming responsibility for it in 2013, which may explain to some degree why this is not considered a high priority file.

As well, responsibility for the regulatory regime originally belonged to the Canadian Artists and Producers Professional Relations Tribunal but was then transferred to the Canada Industrial Relations Board when the earlier regulations were repealed. They were transferred again, to some extent, to the Administrative Tribunal Support Service of Canada when that entity was created.

As noted in the board's letter from December 2014, the board no longer has a staff of its own, and the governance structure between the tribunal's support service and the board was still being established. This may also help explain why the board has not been as responsive as hoped.

All this being the case, an additional letter to the board may be warranted in this instance to attempt to obtain a substantive response on all points.

The Joint Chair (Senator Merchant): Thank you. That's the suggestion.

Senator Runciman: They did provide a very detailed response in the past, and I have some sympathy for them in terms of the staffing and resources issue. I don't know that writing back to them will result in any different response.

I wonder if it would be more appropriate to write to the minister responsible for the agency, outline our concerns and ask he or she, through their officials, to address it. It's obviously not creating problems, but there is an issue where you call into question whether the regulations have been properly made, which I think is fairly significant on its own.

Bringing this to the attention of the minister and asking him or her to follow up may be the better approach than writing back to the board.

The Joint Chair (Senator Merchant): Is that agreeable?

Mr. Di Iorio: The difficulty I have is that a tribunal was charged to ensure compliance with the law. It is being told they're not complying with the law and they say they have other priorities. I have a big problem with that. It's not simple. It's a whole attitude. When you're being told you're not complying with the law, and that's what you do on a daily basis, that is the last thing you should provide as an answer. Before you jump off the planet, you should be saying that, but otherwise you have to find something else to say.

This tribunal, like any other tribunal, would not accept from any citizen that is in front of it the reply, "Sorry, tribunal, I did not comply with the law because I have other priorities.'' Parliament is telling them they're not complying with law. My example is wrong, because my example would be in reference to a citizen. It's not even a citizen. Parliament is telling them they're not complying with the law, and they answer that they have other priorities.

Something is dysfunctional here, and I humbly say that they should get much more than a letter. I don't want to send them to a re-education camp; I'm not saying that. But something has to be addressed because there's a whole culture behind it. It's not staffing. Even if you don't have staff, you still control the words that come out of your mouth.

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

Mr. Badawey: We have heard both solutions. We can combine them: a letter to the minister expressing those concerns, articulated by my colleague down the way here, and attach a timeline to that with respect to an expected response.

The Joint Chair (Senator Merchant): Are you happier?

Mr. Di Iorio: No.

The Joint Chair (Senator Merchant): He's not happy.

Mr. Di Iorio: Are you surprised?

The Joint Chair (Senator Merchant): Colleagues? Should we go ahead with a letter and be very specific?

Mr. Badawey: I want to reiterate that we want to express our concerns, as was stated by Mr. Di Iorio, and really ensure that the minister understands exactly what's being said here and what the concern is.

Mr. Genuis: Going back to Mr. Di Iorio, did you have specific other suggestions in terms of ways that we can respond? I agree with the sentiment.

Mr. Di Iorio: Call the president. It's Parliament. There's something that doesn't work there. The basic notion of addressing legislation this way is very worrisome. This is what we see. I just wonder about all that we don't see. This is a very small tip of a huge iceberg; we see only a small tip of it.

Mr. Badawey: Call the question.

The Joint Chair (Senator Merchant): What do you think?

Mr. Genuis: Sorry, did you say we should contact the speaker? You said the president.

Mr. Di Iorio: I'm saying the person responsible for that letter is the president of the board, no?

The Joint Chair (Senator Merchant): The chairperson? Is that the person you are referring to? I'm looking at the letter here.

Mr. Di Iorio: Who signed the letter?

The Joint Chair (Senator Merchant): Ginette Brazeau, and it says "Chairperson, Canada Industrial Relations Board.''

Mr. Di Iorio: She signed the letter.

The Joint Chair (Senator Merchant): She signed several letters.

Mr. Di Iorio: I'm at a loss here.

The Joint Chair (Senator Merchant): Chair is Présidente in French.

Mr. Di Iorio: Exactly.

The Joint Chair (Senator Merchant): Should we write the letter to her as well? Is that what you're saying? We have written several letters.

Mr. Di Iorio: We need very forceful language to remind her that this is Canada; it's a real country. We have laws here. We have Parliament. It's not a fake world that we have here. It's not a fake society. It's real. They like to be real, and I assume that when they issue orders, they like people to comply with them.

The Joint Chair (Senator Merchant): Then let's be very specific, because there are several letters that she has signed. It's not just a letter, so maybe this time we have to be a little more forceful.

Mr. Di Iorio: She might have "alternative facts'' or "alternative law,'' and we should know about it.

Mr. Genuis: If Mr. Di Iorio is suggesting that we invite the chair to the committee, I would concur with that recommendation.

Mr. Badawey: Madam Chair, with all due respect, we have a recommendation on the floor, from Senator Runciman and added to by Mr. Di Iorio. I would concede to the fact that we can send two letters out — one to the minister. Ultimately, the responsibility falls on the minister. I'm sure the minister would then follow up with the board president.

But if the wish is to also send a letter off to the board chair or president, then we can send a second letter off expressing our concern. Ultimately, the recommendation would be appropriate that we send a letter off to the minister expressing our concerns in no uncertain terms, which has been obviously articulated at the meeting here today. Again, the second letter can go to them.

That would be the recommendation we can entertain now if we can now move on with comments, debate and call that question.

Senator Runciman: We talked earlier about calling witnesses all the time. It's sort of a knee-jerk reaction.

I don't see anything wrong with using the language described here earlier, with a letter to the minister and a copy to the individual in question. That may have more impact. They could know we are engaging the minister, and that may provide a catalyst for them to respond more positively.

The Joint Chair (Senator Merchant): Okay, is everybody in agreement? We'll go with that then, thank you.


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

Ms. Kirkby: The only issue on this file is also one of the issues raised in relation to the last file for which no satisfactory response has been received. The specific question is what purpose a particular provision serves beyond what is already provided for by the Privacy Act.

Essentially, the Privacy Act prohibits government institutions, including the Administrative Tribunal Support Service of Canada, from disclosing personal information, including the personal opinions or views of an identifiable individual, unless one of the exceptions for disclosure exists, such as that the disclosure is in the public interest or in the interests of the person to whom the information relates. Section 35 of the regulations prohibits the board and the tribunal support service from disclosing personal information unless it would further the objectives of the Canada Labour Code. So the question was the independent legal effect of section 35 of the regulations.

It may be that the reference to the board in section 35 is necessary since the board is no longer covered by the Privacy Act, but the tribunal support service is now a government institution within the meaning of the act, and so the reference to the service in section 35 of the regulations appears to serve no independent legal function.

There are some really interesting legal arguments in the correspondence, including most recently the suggestion that section 35 of the regulations is somehow necessitated by the open court principle. The confidentiality of documents in adjudicative proceedings before the board is governed by section 22 of the regulations, however, so the question of redundancy between section 35 and the Privacy Act remains.

Indeed, the 2015 letter from the chair of the board states that the question of the impact of the Privacy Act is an issue that has been raised by the chairs of all the administrative tribunals affected by the implementation of the tribunal support service, and it continues to be an item of discussion. One option would be to ask whether any progress has been made in that discussion to see if that resolves the issue of the legal purpose of the reference in section 35 of the regulations.

The Joint Chair (Senator Merchant): Discussion? No?

What was your suggestion?

Mr. Badawey: Move forward with the recommendation.

Ms. Kirkby: To ask if there's been any progress in the broader discussion.

The Joint Chair (Senator Merchant): Because this has been going on for a long time.

Mr. Di Iorio: Add strict time limits.

The Joint Chair (Senator Merchant): Yes, because this has been going on for a very long time. So with strict time limits.

All in agreement?

Hon. Members: Agreed.



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

Ms. Borkowski-Parent: Several amendments were promised after the appearance of National Capital Commission officials at the April 22, 2004, meeting of the committee. Unfortunately, the committee is still awaiting those amendments some 13 years later. While the NCC has given relative signs of progress over the years, as is detailed in the background portion of the note prepared for members, one cannot help but notice that the last letter from the NCC is far from encouraging. It appears this file would be a candidate for a letter to the minister.

Mr. Badawey: So moved.

The Joint Chair (Senator Merchant): All in agreement?

Hon. Members: Agreed.

Mr. Di Iorio: Addressing all 15 items?

Ms. Borkowski-Parent: Yes.


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

Ms. Kirkby: This instrument amends the Wild Animal and Plant Trade Regulations to reflect changes that were made in 2013 to the CITES convention. Thirty-one issues were raised, most of which relate to drafting matters or other inconsistencies. On about half of the issues raised, the department indicates that more consultation is required, either with the CITES Secretariat or the Department of Justice. On the other half, the department advises that the issues will be addressed at the same time that amendments are made to the regulations to reflect any changes to the convention that occur as a result of the conference of the parties that was held this past fall.

But no timeline has been provided for these amendments. According to the departmental forward regulatory plan available on the website, the target date for publication is 2017.

The Joint Chair (Senator Merchant): And is that all 31 issues?

Ms. Kirkby: Just the half of them that they agreed to.

The Joint Chair (Senator Merchant): Any discussion? No? We'll just go with your recommendation.

Ms. Kirkby: We could certainly follow up and see if the publication is still projected for 2017 and also whether any progress has been made in the consultations.

The Joint Chair (Senator Merchant): Agreed?

Hon. Members: Yes.



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

Ms. Kirkby: There is a discrepancy between the English and French versions of Item No. 10 in the schedule to the regulations. The English version provides more details than the French version when referring to an individual's father.


In 2014, the department indicated that the oversight would be corrected in the context of a larger omnibus project that was already in progress. More recently, the department indicated that this omnibus project might be delayed, in which case they would just correct the oversight in Item 10 the next time the regulation was either modified to add or remove some names.

According to the Freezing Assets of Corrupt Foreign Officials Act, the order will cease to have effect five years after it comes into force, unless it's extended. So given that this one will automatically cease to have effect in March 2019, the committee might be satisfied that we just continue to monitor it to see whether any amendments are made, in which case the correction would be made, or it will cease to have effect.

The Joint Chair (Senator Merchant): Is the committee satisfied?

Mr. Genuis: We can't go on the warpath over everything.

Mr. Di Iorio: In case this comes back again, it ceases to have effect on March 1, 2019, but could it be extended?

Ms. Kirkby: If it's extended, we'll make sure that it's corrected.

Mr. Di Iorio: Thank you.



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

Ms. Kirkby: Issues were raised regarding these regulations, including discrepancies between the French and English versions and redundant provisions. On May 14, 2016, the department published draft regulations that would address all the issues. The department plans to make the regulations in winter 2017, but it says that other priorities may force it to revise that target.


Mr. Di Iorio: Do a follow-up?

The Joint Chair (Senator Merchant): Should we do a follow-up?

Mr. Badawey: I would just monitor it. If it takes longer than we expect, you can bring it back and then we can follow up.

The Joint Chair (Senator Merchant): Okay, monitor and then follow up, maybe. Thank you.


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

Ms. Kirkby: Since the note in the materials was written, the promised amendments have been made.

Mr. Badawey: Good.

Ms. Kirkby: I think it goes into a bit of detail in the note. I will just say the only remaining issue is the definition of "person'' in the regulations, which defines the term in a broader fashion than it's used in the parent act. The department has advised that the intent is to add a definition of "person'' to the Defence Production Act, following which the following regulatory definition will be repealed. But there's no indication of when the statutory amendment will be made, except that it will be at the "next available opportunity.''

The Joint Chair (Senator Merchant): Okay? Just let it go for now.



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

Ms. Borkowski-Parent: Twenty-six points were raised in the initial letter. The committee found the department's explanations on four points satisfactory, and amendments were promised mostly in 2008 to address the other twenty- two points.

The amendments expected by the committee were integrated into a regulatory renewal initiative titled A Framework for Consumer Health Products intended for consumers. The framework aims to set apart from the prescription drug regulatory system lower-risk health products, such as non-prescription drugs, disinfectants, cosmetics and natural health products, which are the focus of the regulations under review.

Public consultations were carried out from November 2014 to February 2015 on this new regulatory framework. Afterwards, the department said that it wanted to hold additional consultations owing to the low consumer participation during the previous consultations. The latest letter from the department states that public opinion research should begin in April 2016, but the forward regulatory plan available on the department's website now indicates that the research should be carried out by the end of 2016.

Now that the deadline has passed, it is clear that additional delays are to be expected. How many steps remain before draft regulations are completed, and what is the department's timeline on that?


Mr. Badawey: Follow up.

The Joint Chair (Senator Merchant): Do you have any concerns about when this is going to be addressed at all?

Mr. Di Iorio: We should ask for a timeline. They said they would do it, but they should provide a timeline.

The Joint Chair (Senator Merchant): So follow up, asking for a timeline?

Mr. Badawey: If I can add something, we have been talking about timelines for the better part of the meeting. I think that should be standard procedure; namely, that we attach the expectation of time on every piece of correspondence that we send out. Otherwise, we see what happens — 2006, 2007, 2008, 2009. That's just not acceptable. As we send correspondence out, we should get into the habit of asking for a timeline or giving them an expected timeline.

The Joint Chair (Senator Merchant): Okay. Yes, I think we should have a timeline.

Hon. Members: Agreed.


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

Ms. Borkowski-Parent: The instrument found under the heading "Action Taken'' replaces regulations for which the committee was awaiting the correction of a discrepancy. As such, this file can be closed.

























SOR/2016-93 — WEED SEEDS ORDER, 2016














Ms. Borkowski-Parent: Under the heading "Statutory Instruments Without Comment'' are listed 37 statutory instruments that have been considered by counsel and were found to comply with the committee's scrutiny criteria. Although the text of those regulations is not included in the distributed documents, counsel always have copies when they are presented in a meeting if a member would like to consult them.


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

Mr. Di Iorio: Victory! One victory and 17 upcoming victories.

The Joint Chair (Senator Merchant): Thank you.

(The committee adjourned.)

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