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[Recorded by Electronic Apparatus]

Thursday, March 19, 1998

• 0835

The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:35 a.m. for the review of statutory instruments.

Mr. Derek Lee (Joint Chairman) in the Chair.


The Joint Chairman (Mr. Derek Lee (Scarborough—Rouge River, Lib.)): We will begin with the agenda that has been circulated. The first item is Direction to the CRTC.


(For text of documents, see appendix p. 7A:1)

Mr. François-R. Bernier (General Counsel to the Committee): The issue in this case had to do with the proper legal characterization of the direction to the CRTC. The department has taken the view that this is a legislative instrument. Our view initially was that it was not. However, on the basis of the Federal Court decision in the New Brunswick Broadcasting reference, we propose that the committee accept the commission's position and consider this file closed.

The Joint Chairman (Mr. Lee): Is there any comment?

Counsel, can I presume that we are accepting this decision on a quasi-without-prejudice basis given that a judge — and I assume it was not by obiter dictum, that it was part of the judgment — has found that certain instruments of this nature are not legislative?

Mr. Bernier: On the basis of the Federal Court decision, we propose that the commission's position be accepted, rather than on the basis of other arguments that were made.

The Joint Chairman (Mr. Lee): Are we saying that the committee will then walk away from this issue forever as a matter of parliamentary law, or will we continue to interpret these instruments the way we have in the past and simply regard this particular instance as an aberration, based on the court decision?

Mr. Bernier: The court decision will be a precedent only with regard to directions issued under the same section of the Broadcasting Act, I would think, not with regard to any other instruments that may be made and raise similar issues. The court did not even have the benefit of a complete reading of the statute.


Mr. Lebel: The ruling was not appealed. Is it a recent ruling?

Mr. Bernier: Yes, it is a recent ruling and no, it has not been appealed. Therefore, it stands for now.


The Joint Chairman (Mr. Lee): The next item on the agenda under the rubric "New Instruments" is Egg and Processed Egg Fees Order.


Ms Margaret Jodoin-Rasmussen (Counsel to the Committee): An inquiry was made as to the legal authority for the collection of fees between the revocation of one order and the coming into force of this particular order. The agency has replied, and we consider the reply to be satisfactory. The recommendation is that the file be closed.

The Joint Chairman (Mr. Lee): In this case, the agency collected fees that technically it was not legally able to do. I do not recall us walking away from a scenario like that before. Does the department acknowledge they were offside?

Ms Jodoin-Rasmussen: The position is that the relationship between the parties can be characterized as contractual in this instance. An offer was made in the interim in that week. The particular processed egg stations accepted the offer. The normal consideration was passed, so service was provided and a fee was paid. As an alternative, we think that would be acceptable.

Mr. Wappel: The way I read the first paragraph of the letter of August 6 is that there was an acknowledgement that this was at least improper, that it was not their intention to do this, and that it just got away from them. I interpret that as an understanding that what they did was clearly wrong.

I do not have any further comment, unless we want to write a letter saying, "We bring this to your attention and you should not be doing it."

Mr. Bernier: Members should turn to the second paragraph of the same letter. The situation is this: The inspections for which fees are paid — or so we are told — are not mandated by legislation. In other words, this is not a case of the government making a law or a regulation stating these things must be inspected and then charging a fee for these mandated inspections. These are, in a sense, voluntary inspections. This is a case of the industry approaching the government and saying, "Would you please provide us with these inspection services," and the agency agreed.

As part of that arrangement, the agency enacted certain fees by legislation. However, even in the absence of a fee order, those fees could be charged and could have been recovered as a matter of contract. For example, I approach the government and say, "You have inspectors. Could we have an agreement that your inspectors will come in and provide these services for me?" The government then accepts and tells me how much that will cost. That is purely a matter of contract. Therefore, although we do have a fee order, we could equally not have one. That is the reason for the lapse here and the fact that, for a period of time, there was no fee order in place. It does not have the same consequences that it might have in another file.

The Joint Chairman (Mr. Lee): There is a foundation of contract or quasi contract that sets this apart from other situations.


Mr. Lebel: I understand Mr. Bernier's answer very clearly, except this brings to mind another question. Are these contractual relations based on consensus legally authorized? In other words, say that I want to benefit from the services of some government agency. Must I be authorized to receive the service for which I am prepared to pay? Does the enabling legislation provide for this?

Mr. Bernier: This has nothing to do with the enabling legislation. We are talking about the contractual powers of the Crown. As you know, in common law, the Crown has the same contractual powers as any individual. The Crown is free to enter into a contract with whomever it chooses.





(For text of documents, see appendix, p. 7B:1)

The Joint Chairman (Mr. Lee): We will move on to the Seaway Regulations rubric, under "Reply Unsatisfactory". I should say for the benefit of Senator Moore that, yes, this is a file that looks like it is 14 years old in some respects.

Ms Jodoin-Rasmussen: The reply from the DIO is satisfactory concerning the issues raised in points one, four, and five of our letter of October 1997, but the responses to the remaining points two, three, and six are not satisfactory.

With respect to point number two, we found it unsatisfactory. In 1985, when we requested that the regulations be amended to include a reference to the seaway notices which contained speed limits, the authority agreed that such a change would bring greater clarity to the regulations. As you see in the letter, we are now informed that the authority's American counterpart is resisting such an amendment. We suggest this is not a valid reason for refusing to amend the regulations.

Concerning point three, there is a discrepancy between the French and English versions of section 33. This was pointed out to the DIO. In his letter, counsel for the authority states that the two versions convey the same meaning and have not caused any practical difficulties. The fact is that the discrepancy continues to exist and the two versions do not have the same meaning. We suggest that the authority reconsider this point.

Finally, in point six, the enabling act permits the seaway authority to make regulations with the approval of the Governor in Council. It is required that the regulations, in their complete and final form, be adopted prior to their being presented to Governor in Council for his approval.

It seems that in the case of the two instruments that we are discussing, the authority submitted draft regulations to the government for the Governor in Council's approval. Consequently, as stated in my letter, the resulting documents lack the force of law. When we pointed out the problem and the concomitant solution to the DIO, counsel did not address either in his response. Either he did not understand the problem or he chose to ignore it.

We suggest that we write again to the authority, spelling out the issue as simply and as completely as possible.

The Joint Chairman (Mr. Lee): Are there any comments?


Mr. Lebel: Admittedly, we have been patient. Thirteen years have passed since this matter was first brought to our attention. Indeed, tempus fugit. Given this obvious unwillingness to resolve this matter, I think we should summon these officials from the St. Lawrence Seaway Authority to explain themselves. Otherwise, the matter will still be unresolved in the year 2010. That is my opinion. That is what I am suggesting we do.


The Joint Chairman (Mr. Lee): Counsel, there are certainly some unsatisfactory aspects to this. At a minimum, we should write back and narrow the number of significant unsatisfactory items with specific reference to item number six.

Will you comment on the implications of the new statute referred to as Bill C-9 in the reply from the Seaway Authority? That statute is not through the mill yet, but when it is, can I assume there will be a redrafting of the regulations?

Mr. Bernier: Possibly. I would assume that the existing regulations will continue in force by virtue of the rule set out in the Interpretation Act, which allows regulations made under one enactment to be continued under the successor enactment.

I cannot speak to how quickly the new corporation will want to revise the rules. The issue in paragraph six, as you pointed out, is not one of revision. In fact, the rules set out in SOR/91-334 and SOR/97-13, which cover a number of sections, are not in force as we speak. They cannot be enforced.

Mr. Lunn: If we are not intending to ask them to come before this committee, when we write to them, can we ask them for a time line of three or six months to expedite this process? I appreciate that these matters seem to carry on for a long time. We should ensure that we do not write an open-ended letter and will take years to receive a reply. We should give some sort of deadline.

The Joint Chairman (Mr. Lee): Yes.


Mr. Lebel: In my view, if we want things to move more quickly, all we have to do is summon them to appear before the committee sometime in the next month and a half. You will then see that many issues will resolve themselves in the next month because they will be scared into action. I wager that merely by summoning them to appear before the committee in a month at a half, everything will be resolved within a month's time because they will not want to testify.


The Joint Chairman (Mr. Lee): Perhaps we could combine the suggestions of Mr. Lunn and Mr. Lebel. We might offer a request in writing to them that they provide a satisfactory response to item number 6, and any others that we wish to include, failing which, within, let us say three months, we would then consider calling them. Is that a reasonable approach? Do members agree with that approach?

Hon. Members: Agreed.


Mr. Lebel: No, on dissent. I wish to register my objection, because I am sick and tired of being made a laughing stock. People are laughing at us. This matter has been dragging on since 1985 and this is 1998, Mr. Chairman, if you have not already noticed.

Senator Grimard: In two months, perhaps this could be — 


The Joint Chairman (Mr. Lee): We will note Mr. Lebel's penchant for discipline. Thank you, Mr. Lebel.

Mr. Bernier: One of the issues is left over from 1985. The other issues concerning SOR/91-334 and SOR/97-13 were first raised with the authority in October 1997. There has not been undue delay on those issues. Where there is a problem, however, is that two previously promised amendments were overlooked. Those, it is agreed, go back to 1985. The other issues are fairly recent issues.

The Joint Chairman (Mr. Lee): I understand.

Mr. DeVillers: In other words, we have other candidates that are more deserving than that one, perhaps.

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

Hon. Members: Agreed.



(For text of documents, see appendix p. 7C:1)

Mr. Bernier: Beginning in 1994, the government removed from these regulations the fees payable by Canadians for the use of national parks. From that time on, those fees were fixed administratively. It is our position that, so long as section 4 of the National Parks Act is in force, the government can only impose fees by means of a regulation made under section 7(1)(ff) of the act. The responsible department does not agree and feels that section 4 is not "a substantive legislative pronouncement" and, therefore, that the federal Crown retains the right to act "by way of common law contract in exacting fees".

The note accompanying the correspondence explains why counsel feels this reply is inadequate. First, the department appears to confuse the Crown prerogative and its common law rights. Second, the department's proposal that section 4 should simply be ignored because it is not a substantive provision is entirely wrong. A statutory provision cannot be set aside simply because the government feels it is inconvenient, and there is no such thing as a non-substantive statutory provision. A statutory provision is a statutory provision; it is given effect according to its terms.

Finally, it is also pointed out that if the sole legal basis for these fees is to be the Crown's contractual capacity at common law, a number of the fees would still be illegal. Fees that must be paid for a permit, for example, where obtention of that permit is a legislative requirement, cannot be looked at as involving a contract. It is an obligation.

What is particularly frustrating here is that this is not a case in which the Crown does not have the power to impose fees. Parliament has provided those powers in the statute. However, for reasons of deregulation, the government insists that it will not use the approach that Parliament provided for in the act.

If the matter is to be pursued in this file, I suggest that the next step should be correspondence with the responsible minister.

The Joint Chairman (Mr. Lee): Are colleagues agreed that we have significant/profound disagreement with the position of the department in this file and that we should let the Joint Chairmen convey that to the minister?

Hon. Members: Agreed.

The Joint Chairman (Mr. Lee): Before we leave this matter, I note that there has been introduced in the House a statute dealing with national parks which would set up a parks agency to manage all the national parks.

Is this an iceberg that at some point will pre-empt this exercise from a practical point of view?

Mr. Bernier: Yes, definitely. As noted in the footnote under the proposed legislation, fees may be imposed not by means of a statutory instrument, although the proposed legislation does require publication of those fees. Right now, by not proceeding under the act, the government is under no obligation to publish those fees.

Another point that might be drawn to members' attention is in footnote 1. It is very interesting that Bill C-29, the proposed legislation, would simply do away with the existing section 4 of the National Parks Act, which is the section that dedicates the parks to the people of Canada for their benefit, education and enjoyment, subject to this act and the regulations. That seems to me to be an odd clause to delete from a statute dealing with our national parks.

The Joint Chairman (Mr. Lee): Thank you for your comments. Again, the members of the House of Commons have not yet adopted this proposed legislation, so we are speculating.

Mr. Wappel: Mr. Chairman, I am not entirely clear on what counsel has said. Even if there is a new statute, even if there is a new way of collecting fees, as I understand it, all fees collected since 1994 have been collected illegally and, therefore, in theory, should be returned to the people who paid them. That will not go away just because a new statute is enacted, unless the new statute deals with it.

Perhaps this would be an appropriate time to mention that to the minister so that the minister can deal with it by way of a government amendment to the statute, and so that we do not have to calculate things like we did with the social insurance regulations many years ago. My point is that that should also be stated in a letter, and perhaps in discussions with the minister we can mention that these things have come up.

The Joint Chairman (Mr. Lee): Is that agreed?

Hon. Members: Agreed.


Ms Jodoin-Rasmussen: With respect to this instrument, the remaining issues of concern to the committee are to be rectified in the new regulations made under the act establishing the Canadian Nuclear Safety Commission. Insofar as there has been progress, I suggest that we write to the DIO to inquire into the current status of the regulations.

The Joint Chairman (Mr. Lee): Thank you.


Ms Jodoin-Rasmussen: With respect to this instrument, the file was originally before the committee on October 5, 1995 under the heading "Action Promised". It was with regard to a minor drafting problem. Action has still not been taken and rather elaborate reasons have been given for the orders not being revoked. Apparently at this time it cannot be revoked until certain consultations are concluded.

We suggest that we inquire into the progress of the consultations as they relate to the orders being revoked, keeping in mind that it is a minor drafting problem.

The Joint Chairman (Mr. Lee): Is that agreed?

Hon. Members: Agreed.



Mr. Bernier: Mr. Chairman, there is some discrepancy here between the English and French versions of the regulations. This was brought to the attention of the Canada Ports Corporation and in its response of November 14, Mr. Callagher suggested that no corrective action be taken since new legislation was in the works. If new legislation is adopted, then the current regulations will become obsolete.


If the committee agrees not to pursue the amendment to this by-law, we will keep the file under review until such time as we know whether the proposed Canada Marine Act is adopted.

The Joint Chairman (Mr. Lee): Is that agreed?

Hon. Members: Agreed.



(For text of documents, see appendix p. 7D:1)

Mr. Bernier: Members will be glad to know that this instrument resolves around an issue that goes back some 14 years, as noted in paragraph 1 of the comment sheet.

As to the issues raised in relation to the amendment itself, amendments are promised on the points dealt with in paragraphs 1, 2, 3 and 8 of Mr. Bernhardt's letter of July 23.

As for the issue raised in paragraph 6 of that letter, the responsible department has yet to decide on a position and there will have to be a follow-up on this.

I suggest that the replies on the matters raised in paragraphs 4, 5 and 7 are not satisfactory. In relation to section 10, it was noted that the revocation of this provision effectively removed a provision which gave unsuccessful applicants and licensees a right to appeal to the minister.

To reply, as the department does, that even in the absence of section 10 an applicant or licensee can always appeal to the minister informally misses the point entirely. Surely it is not too much to expect that the department will understand the difference between someone having a legal right to appeal guaranteed by law and a person having some informal possibility of asking a minister to review a decision made in respect of their licence application or the terms and conditions of their licence.

We believe the committee should insist on the reinstatement of section 10 in these regulations.

The matters raised in paragraphs 5 and 7 concern various aspects of the fees which are imposed by four sections of the regulations, including the possible illegality of some of them. The "non-answer" received was that the fees will soon be removed from the regulations in the same way fees were removed from the National Parks Camping Regulations. Not only does the reply fail to address the concerns raised concerning the fees now in place, but, as we just discussed in relation to the camping regulation, there is every reason to doubt that the government is authorized to impose fees otherwise than under the authority given in the National Parks Act.

I would suggest the department be reminded of this and that the committee also insist on getting a full reply to the issues that were raised.

The Joint Chairman (Mr. Lee): I do not know how this managed to find its way into "Part Action Promised."

Mr. Bernier: There is part action promised.

The Joint Chairman (Mr. Lee): Is the glass half full or half empty? I think this one is half empty. Are there any comments on this? Are we prepared to go with the recommendations of counsel?

Hon. Members: Agreed.

The Joint Chairman (Mr. Lee): It is agreed. We will move to "Action Promised", Atomic Energy Control Board.

Mr. Bernier: If you wish, we can deal with all the items listed under heading "Action Promised".

The Joint Chairman (Mr. Lee): All right.



(For text of documents, see appendix, p. 7E:1)




(For text of documents, see appendix, p. 7F:1)


(For text of documents, see appendix, p. 7G:1)


(For text of documents, see appendix, p. 7H:1)

Mr. Bernier: There are undertakings to amend nine provisions as well as a promise to enact a new remission order in one case.

The Joint Chairman (Mr. Lee): Action Taken.





(For text of documents, see appendix, p. 7I:1)


(For text of documents, see appendix, p. 7J:1 )



(For text of documents, see appendix, p. 7K:1)


(For text of documents, see appendix, p. 7L:1 )

Mr. Bernier: Under the heading of "Action Taken", a total of some seven amendments requested by the committee have been made. New legislation has provided the required authority to impose fees in one case and two instruments which were not registered when they were made have now been registered.

Senator Lewis: We have some progress.

The Joint Chairman (Mr. Lee): We also have "Statutory Instruments without Comment." There are many in that category. For the edification of members, there is a list of five pages, about an inch and a half of regulatory material, each of which has been dealt with satisfactorily. We acknowledge the fine work of staff in doing this.

We got through this meeting in half an hour. I do not think it breaks a record, but it is rather good.

In line with Mr. Lebel's comments a few meetings ago, I reiterate on the record that I regard my chairmanship here as interim. As soon as the official opposition is prepared to assume the Chair, I would step down and we would elect a person. Mr. Lunn, you can take note of that and ensure it is conveyed to your House leader and your colleagues.

Mr. Lunn: Mr. Chairman, I mentioned that to the whip and the House leader two weeks ago, and they are considering someone who would be willing to fulfil the position. I will convey that to you in the coming weeks and bring it up at the appropriate meeting.

The Joint Chairman (Mr. Lee): Thank you. I await the phone call.

Last and not least, on the subject of amendments to the RCMP regulations, the matter on which we reported to the House a few weeks ago, I have been informally advised of significant progress on that issue. That progress should be conveyed to us by letter very shortly. The matter is in members' hands. We had set the date of April 2 for taking a serious look at it. I will let members decide whether the progress is appropriate, but it is significant and may resolve our difficulties. That should be available to us for our next meeting.

Counsel advises that the Agricultural Food Inspection Agency witnesses which we have requested will be here on April 30.

Mr. Wappel: Mr. Chairman, on that last point, is our next meeting not April 2?

The Joint Chairman (Mr. Lee): Yes, it is.

Mr. Wappel: What had we decided with respect to the RCMP regulations regarding that date?

The Joint Chairman (Mr. Lee): Subject to being corrected by the clerk or counsel, I recall that we had determined that if we do not have a revocation of the regulations by April 2, we will consider the disallowance matter on April 2. It is in members' hands as to what they wish to do on April 2. I am hopeful that there will be such substantial progress that members will be of the view that it might not be necessary to proceed to disallowance. However, that is in members' hands, and we will cross that bridge when we get to it.

Senator Lewis: I take it the next meeting will be April 2, and then we have Easter. You mentioned April 30. Will there be a meeting between April 2 and April 30?

The Joint Clerk of the Committee (Mr. Tõnu Onu): The reason for the April 30 date with the officials was that we tried to find an earlier day and it was not possible. That is the earliest date available. Given that there is an Easter break, would you want to meet on April 23 and 30, given that there is a two-week break?

Mr. Bernier: We have meetings on April 2 and April 30, instead of April 2 and April 23. We still have two meetings in April, but we can add a meeting on April 23.

The Joint Chairman (Mr. Lee): I do not think that members will feel too lonely because they do not get to a meeting in the middle of April. The pattern and the volume of work that we are able to conduct will be status quo if we have an April 30 meeting as planned. The only question is whether we need a make-up meeting at some point, given the volume of existing work. If that is the case, the clerks will indicate that to us, and we will schedule one as needed.

The committee adjourned.