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[Recorded by Electronic Apparatus]

Thursday, April 30, 1998

• 0830

The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:30 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 are ready to begin with our agenda.

Mr. Wappel: Mr. Chairman, before we get into that, at the last meeting, I thought it was clear that the RCMP regulations should be brought forward as an item of business at each meeting until we have finished dealing with that item, so that we know what is happening there. I do not see it on our agenda. I spoke to counsel before the meeting, but I would like an update on the record, please.

The Joint Chairman (Mr. Lee): Counsel, and presumably the clerk, acknowledge that you are correct, Mr. Wappel. We did agree to track the RCMP regulations issue meeting by meeting. As I understand it now, the Solicitor General has locked into a meeting with the committee on May 14. In addition, the Department of the Solicitor General has forwarded to counsel for this committee a draft which they believed was a final draft of the newly proposed regulations. That particular draft is now being discussed. There is some hope that some changes can be made to the draft before the Solicitor General meets with us on May 14. In any event, May 14 is our date.

Mr. Wappel: In view of the fact that the Solicitor General will be here on May 14, I can assume that the matter will be on the agenda.

The Joint Chairman (Mr. Lee): You can be assured of that.

We will now proceed with today's agenda items. We have a number of individuals here from the Canadian Food Inspection Agency who have appeared on invitation. Welcome, Mr. Ray and colleagues.

Mr. Robert Ray (Vice-President, Public and Regulatory Affairs, Canadian Food Inspection Agency): Mr. Chairman, this is our first appearance before the committee as the Canadian Food and Inspection Agency. As you are aware, we were established last April 1, so we have been in business for one year. This is our first opportunity to discuss with your committee issues of common concern and interest.

We are delighted to be here. I have brought a number of colleagues with me, both legal and policy. We will endeavour to answer any and all of the question you have, and it is to be hoped that we can cover all of the issues that you wish to raise.

The Joint Chairman (Mr. Lee): Before you continue, Mr. Ray, we do have one agenda item which counsel has recommended to members. We will deal with that item before getting into the bundle of issues involving the inspection agency. This is the first item on the prepared agenda.


Mr. François-R. Bernier (General Counsel to the Committee): In March of 1994, counsel pointed out to the Department of Public Works that the definition of corporationT in sections 5 and 14 of the regulations of the Crown Corporation Grants Regulations is ultra vires.

If it is relevant, I note this view was confirmed by the Department of Justice in November of the same year. Some four years after this issue was first brought to the attention of Public Works, it is still not corrected, even though amendments to the regulations were made in 1997.

In light of this, in February of this year — and members have this letter in their material — I requested an assurance from the designated instruments officer that the required amendment would be made without any further delay. I informed him that I intended to present this file to the committee in April and sought a reply before then.

On March 31, a Ms Stensholt replied on behalf of Mr. Quail, stating that Mr. Quail would be sending a response to my letter before the next meeting of the committee. No reply has been received as of today.

The Joint Chairman (Mr. Lee): Do members have any suggetions?

Mr. Wappel: Why do we not shoot some quailT?

The Joint Chairman (Mr. Lee): Conceptually, that sounds like fun. Do we have some concrete suggestions?

Mr. Wappel: My concrete suggestion is, why can we not have Mr. Quail come here and explain why he cannot answer a letter, never mind why he has not revoked an ultra vires regulation after four years.

The Joint Chairman (Mr. Lee): Do members have any expectation of a imminent satisfactory reply from the department, other than the arguably dilatory letter of March 31, 1998?

Senator Moore: Can the clerk not make a telephone call to this gentleman and ask him to come here now?

The Joint Chairman (Mr. Lee): I guess that is why the telephone was invented. It would certainly help the committee if we knew the intentions of the department. If their objective was to delay us and not respond on a timely basis, we would perhaps take more umbrage than if it were simply a matter of transition for them.

Is it possible, then, that the clerk could make a phone call and determine their true intentions verbally? We will ask the clerk to do that.

Mr. Wappel: I would second that. It is a good idea.

The Joint Chairman (Mr. Lee): Mr. Clerk, would you communicate verbally with Mr. Quail and extend the invitation of this committee to attend immediately, and bring back a response to us?


Mr. Lebel: I would tend to agree with my colleague, but nevertheless, we must give him a reasonable amount of time to get here. We could get fooled, though. If he arrives at any moment, fine then, but we could end up waiting until 10:30 a.m. for him to arrive. A number of people here are going to leave because they have other committee meetings scheduled. Call him, if you like, but perhaps it would be better if he came to the next meeting. I cannot wait for him.


The Joint Chairman (Mr. Lee): I am sure all committee members would want to be reasonable. Let us ask the clerk to communicate and come back to us in a few minutes and we will be able to make a decision at that time. Agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Lee): On the first item, counsel has carefully prepared an agenda which will deal with both conceptual and systemic problems which we believe we have encountered with the agency, and then with the individual items. It is to be hoped that we can accomplish progress here this morning on both. Before counsel introduces the first agenda item, Mr. Ray has an opening comment.

Mr. Ray: Mr. Chairman, as I mentioned, the Canadian Food Inspection Agency has been created from four previous departments. We have brought together a total of 13 acts under our purview in the last year. Our priorities in the first year were to clearly establish the corporate body, to establish the corporation, to make sure that we had the requisite authority, both legislative and regulatory, to carry out our work in food safety and, obviously, health and safety matters related to both animals and plants.

I will not go through the 13 acts. We can review those if you want. Before us today are seven issues which are on the books. We can go through them one by one, if you wish, or perhaps we can first address those on which we find ourselves in agreement with the committee, and then focus on the two or three where we have some substantive debate.

The Joint Chairman (Mr. Lee): Mr. Ray, does your listing of these issues follow our agenda?

Mr. Ray: Yes, it does.

The Joint Chairman (Mr. Lee): I suggest, then, that we walk through the agenda.


Mr. Bernier: This first item was put on the agenda perhaps more by way of example. It was thought that it was somewhat typical of the sort of difficulties we feel we have been encountering in the last five or six years with, first, the Department of Agriculture, since the departure of Dr. McGowan, the designated instruments officer, and then later with the agency which, as Mr. Ray indicated, is really an offshoot of the Department of Agriculture.

At issue here is the legality of two sections: section 47.11(4) imposing a record retention requirement, and section 47.11(6) purporting to prohibit the sale or transfer of rights of ownership to seed potatoes without a valid certificate.

Beyond that, Mr. Chairman, I do not have much to add to the note. The note goes through the sort of problems that we have, for example, with shifting legal rationales where we receive one letter from the agency telling us that a section is supported by enabling authorities A, B and C. We then write back pointing out that A, B and C are either not relevant, or do not confer the authority. Then we get back a response that the basis is really E and F. That makes it extremely difficult to have a rational discussion or to arrive at a rational, reasonable conclusion on a file.

Mr. Ray: Part of the first year of operation of the Canadian Food Inspection Agency was indeed the establishment of a corporate body, including a legal services unit. We have done that. We are now fully staffed. I am confident that these talented folks will be with us for many years to come. If consistency was missing in the past, I expect that that problem will be addressed by the people here at the table with me.

Second, as of March 2, a detailed legal position was given to the committee on some of these matters from the CFIA perspective. There was one legal aspect on which there was some difference of opinion, and that was grades A and B of the potato tubers. We do agree with you on that, and we will be moving to take those out of the regulations.

Mr. Wappel: Who is the designated instruments officer?

Mr. Ray: In the Canadian Food Inspection Agency, that is myself.

Mr. Wappel: Did you draft the letter of March 2?

Mr. Ray: The letter of March 2 was drafted by my legal counsel.

Mr. Wappel: I take it we have a dispute as to whether the statute permits a regulation to impose record-keeping requirements. Is that the nub of it?

Mr. Bernier: That is a fair question.

Mr. Wappel: What section of the act permits a regulation to impose record-keeping? Could you cite that section of the act, please?

Ms Jane Dudley (Counsel, Canadian Food Inspection Agency): There is no specific regulation-making authority in the act for the requirement that records be kept by seed potato growers. There is, however, implicit authority. The agency has the authority to inspect seed potatoes and to require inspections. It is absolutely impossible to conduct inspections in this situation unless records are maintained, and can be examined. Therefore, we are looking at the implied authority which the agency has in the legislation.

Mr. Wappel: It may be a fact that you cannot conduct inspections without records. That does not mean there is an implied statement in the statute that people must keep records. The conclusion does not follow. The inspectors' requirement that a record be kept in order to properly do the inspection does not mean that the statute authorizes that.

Are you familiar with the Steve Dart case?

Ms Dudley: Yes, I am.

Mr. Wappel: That case states that a general purpose clause grants the additional right to make regulations to carry out the purposes and provisions of the act. That is fairly obvious. The court also stated that such purposes and provisions must be clearly expressed in, or contained within, or flow by necessary implication from, other sections of the act. Is that not one of the holdings of that case?

Ms Dudley: There is a more recent decision.

Mr. Wappel: Let us deal with the Dart case first. Is that not the holding of that case?

Ms Dudley: Yes, but it is developed further by Attorney-General of Canada v. Newfield Seed Company Limited.

Mr. Wappel: Would you like to tell us about that?

Ms Dudley: That case stands for the proposition that regulations that affect substantive law can be made under general powers which relate to matters arising out of the act. That particular action concerned the validity of regulations made under the Regional Development Incentives Act requiring repayment of incentive grants. Although the power to impose conditions on the grant of regional development incentives was not specifically authorized in the statute, the Court of Appeal of Saskatchewan found that the regulations were intra vires.

Vancise J.A., who was writing for the majority of the court, stated:

Regulations affecting substantive law as opposed to regulatory or administrative law, can be made under general powers which relate to matters arising out of the Act. Thus, whether the right is substantive or not is not determinative of the issue; legislative authority is required in either case; what is determinative of the issue is the extent of the power to make the regulations. Because the agency has the power to make regulations requiring inspection, we think that what is necessarily implied is the right to make regulations that require records to be kept so that an inspection can be conducted.

Mr. Wappel: You are relying on that case for your position?

Ms Dudley: That is correct.

The Joint Chairman (Mr. Lee): Counsel will ask a question on that case for clarification.

Mr. Bernier: Can we agree that at issue in that case was a term of repayment; a term of the incentive granted?

Ms Dudley: That is correct.

Mr. Bernier: Is it not the case that section 4 of the Regional Development Incentives Act provided that the minister could authorize the provision of an incentive upon such terms and conditions as are prescribed by the regulationsT? Is that an accurate citation of section 4 of the Regional Development Incentives Act?

Ms Dudley: I am not sure. I do not have it in front of me.

Mr. Bernier: I will tell the committee that this is what section 4 of that act provided. Section 15(h) of that act provided that the Governor in Council could then make regulations prescribing any other matter or thing that under this act is to be prescribed by the regulations.

This presumably includes the prescribed terms and conditions referred to in section 4 of the act. In light of these provisions, it is obvious, Mr. Chairman, that there was in this case clear, express authority for the term and condition that was under review by the court.

With due respect for that court and for Ms Dudley's opinion, I fail to see, in light of the text of the legislation in this case, that the remarks of the court on the scope of general enabling clauses is of much help.

Mr. Wappel: However, that is the case upon which they are relying.

If that is your position, it will be up to us to decide whether we accept it or whether we decide to proceed in some other fashion which this committee may deem fit. At least we know that we disagree on this particular issue, and that that is your position.

Mr. Ray: It might be helpful to have Richard Mungall speak to this a little further to help us bridge the gap on this issue.

Mr. Richard Mungall (Counsel, Legislative Services Branch, Regulations Branch, Department of Justice): As you know, the Seeds Act is very much a “bare bones” piece of legislation. There is no question that specific record-keeping authority is not found within the act at all. However, when viewed as a whole, it is our position that the act, at least by implication, must have contemplated some things incidental to the general regulation-making power to enable a record-keeping provision, if only by implication.

The current trend, as we know, is to interpret legislation from a purposive point of view. If the purpose of the legislation was to provide sufficient authority for the Governor in Council to make regulations on a wide variety of issues, given that there is not much of substance contained within the Seeds Act — by and large it has been delegated to the Governor in Council — we believe that, although the matter may not be entirely free from doubt, on the whole there would be sufficient authority, by implication under the general clause, to permit the effective operation of the act and regulations by permitting record keeping.

Mr. Wappel: Would it not make sense, then, to remove the ambiguity that you folks recommend to the minister to amend the act with wording similar to the wording in the case we were talking about, in order to make it crystal clear that there is this power?

Mr. Mungall: No doubt an amendment to the act would be the preferable course of action to remove any doubt that anyone may have. It is somewhat of a grey area. Certainly, a statute can be amended to clarify something for the purposes of regulation-making authority. That is the preferable course.

Absent that, we can only regulate under the authority that has been granted. We must work with what we are given, and we certainly try to do that. From the perspective of the purpose of the interpretive approach, the presumption is that Parliament intends everything that it says, and we have to work with that.

You are quite right, sir, that an amendment to the act would be the ideal solution.

Mr. Ray: We have spent a lot of time in the last six months doing what we refer to as the Task Force on Legislative Renewal. We recognized that with the creation of the CFIA, we put in place an enabling piece of legislation and made consequential amendments to not only the 13 acts that we are either directly or partially accountable for, but also to some of the other acts, such as the Financial Administration Act. We put in place what in essence was an umbrella framework authority that allowed us to go out and do our job.

We have looked at that whole situation in the last six months. We talked with everyone from the provinces to the public, to industry, to the consumer groups, exactly for that purpose — to consolidate and modernize, where possible, our legislative framework.

We do not necessarily think we need 13 acts. Perhaps there is a better way to do business. Within that would flow a much clearer, crisper and, it is hoped, a more simple regulatory framework under which to operate.

We are in the process of receiving the final report of that task force. Not surprisingly, there is not one dissenting view that say that we should not consolidate and modernize legislation. We hope to catch a number of worthwhile things in this omnibus vehicle, and we hope to do it very quickly. That point is well taken.

The Joint Chairman (Mr. Lee): We slid from the micro into the macro. I would like to return to the micro and get back to Mr. Mungall's comments.

In your words, Mr. Mungall, you have attempted to reiterate what the courts have said for the purposes of enabling regulations to be made. You referred to the phrase by implicationT. Would you agree with me that the words given to us by the courtsT are not simply by 4implicationT but the phrase by necessary implicationT? Do you agree that there is a distinction between by implicationT and by necessary implicationT?

Mr. Mungall: I would agree with that, and I would also suggest that it may have been a poor choice of words on my part. I suggest it would be incidentalT rather than by implicationT.

The Joint Chairman (Mr. Lee): In the case at hand or in all cases, the necessary implication must be from the words of the statute, not simply by inference to the circumstances surrounding us and our general life condition.

Mr. Mungall: Yes, but when the act is viewed as a whole, taking a purposive approach, and considering the object of the act, I suggest that these powers would be incidental.

The Joint Chairman (Mr. Lee): Now you have slid away into incidentalT. We are getting away from the phrase "by necessary implication". It is your position that these regulations are called for, even required, "by necessary implication"? Is that your position?

Mr. Mungall: In that they are incidental to the whole scheme of things, yes.

The Joint Chairman (Mr. Lee): Is your reference to the term incidentalT derived from a statute, a regulation or a judicial interpretation?

Mr. Mungall: Through the cases cited in the letter of March 2, which are illustrations of the application of the principle. Those particular cases, of course, were within a particular context of the facts before the court at that time. By extrapolation, if you will, we are just applying those broad principles to the facts we have at hand.

The Joint Chairman (Mr. Lee): You are using the word incidentalT. You are searching for some glue to make this thing, if I may use that analogy. The only glue available to you, in my view, are the words by necessary implicationT. You have gone and imported a Crazy Glue here called incidentalT, which I cannot buy into.

At any rate, we do have a pretty clear picture of your position. You are stating clearly that it is your view that "by necessary implication", the regulations you seek to uphold here are valid. That is the test.

Mr. Mungall: Yes, when the purpose of the act is considered, and given the broad powers that have been delegated to the Governor in Council generally.

The Joint Chairman (Mr. Lee): When you throw a lot of glue around, you are more likely to get something to stick. I hear what you are saying

Mr. Wappel: Mr. Chairman, I see the situation as this. They do not think they can properly do the job without the requirement for record keeping. Therefore, regardless of what the statute says, they will interpret it in such a way that it will give them the power to require the record keeping because they do not think they can do the job without the record keeping. Clearly, if that is true, amend the act.

Mr. Bernier: Mr. Chairman, Parliament did provide for records. It did mention records in the statute. It provided for powers of enforcement under section 6(1)(d) and authorized inspectors to require persons to produce or obtain copies of any books or records that this person would otherwise maintain. There is a significant difference between that and making a regulation that actually says to a person, You will create these records and keep them.T Clearly what is there has been found insufficient, and I think Mr. Wappel summarized that.

On the cases that are said to illustrate the necessary implication qua incidental doctrine, I dealt with one when I questioned Ms Dudley. That one expressly authorized the regulation. Two others deal with regulations that were found to be ultra vires, notwithstanding the doctrine. I hardly think they are of much help, other than for a reiteration of the general principle. However, in those cases it was found not to be applicable.

The last one, again, was not a legislative instrument. It found the actions of a municipal corporation to be ultra vires and illegal, again, notwithstanding the principles set out in the Steve Dart case.

Mr. Chairman, those are hardly highly persuasive cases. Yes, they do reiterate the general principle that the general purpose clause will authorize a regulation if a purpose or provision of the act otherwise clearly authorizes or contemplates the making of a regulation, or it is authorized by necessary implication. I would simply note that by necessary implicationT is a very strict test as set out in the Bombay case. It is well known how it applies, and it is not, in my view, equivalent to merely incidentalT.


Mr. Lebel: You are confusing me. You say that they are entitled to impose a record-keeping requirement, not pursuant to section 4.1 k) but pursuant to section 6.

Mr. Bernier: They are entitled to demand an inspection. An inspector has the right to demand an inspection if a grower keeps his own records. The inspector can show up at the person's place of business and demand to see his records or request a copy of them. In this case, we are dealing with something fundamentally different: the Governor in Council claims to be invoking his authority in imposing a record retention requirement on all growers.

Mr. Lebel: In that case, I understood you correctly. I agree with my colleague, Mr. Wappel. They have a serious responsibility to uphold. They feel that the law grants them the authority to demand that records be kept. If, in your opinion, they do not have this authority, we have no choice. We must call for the legislation to be amended or we run certain risks. If a disease of some kind strikes potato crops and growers were unaware of it because records were not kept, even if we question them until the cows come home — in my opinion, we must ask the minister to act as quickly as possible and to amend the legislation. I seem to recall that you made a similar proposal earlier, Mr. Wappel. Therefore, we could make a motion to this effect immediately.


The Joint Chairman (Mr. Lee): Thank you. Members have not had an opportunity to review all of these issues, but the discussion on this particular file has been very helpful. The issues, of course, remain unresolved.

The next item on our agenda is SOR92-626.


Mr. Bernhardt: The issue here is fairly well defined. It concerns the words to the satisfaction of an inspectorT. The committee has taken the view that this wording in the provisions in question is unnecessary. It is also submitted that it establishes a subjective test based on an inspector's discretion. This may, in turn, serve to narrow the scope of judicial review of inspectors' decisions. These are the bases of the committee's objections.

The legality of the provision in question has not been tested. However, in the material submitted to members there are a number of arguments based on various legal texts and precedents. These are made necessary by the agency's position that the words to the satisfaction of an inspectorT do not confer an element of subjective discretion.

The Joint Chairman (Mr. Lee): Does the department have a comment on this?

Mr. Ray: Yes. We suggest that we do not need that phrase, and that it should be removed.

The other issue deals with the mandatory labelling of ingredients where those ingredients may have an impact on the final product. On this issue, we are currently putting together a consultative document with industry which will be distributed in the near future. We have addressed the issue for the most part. We are prepared to suggest moving on the one issue. We must also talk to our colleagues at Health Canada, as this falls under the Food and Drug Act.

On the other issue, we will be putting out a consultative document on how we intend to do that sort of thing.

Mr. Wappel: When will that be done?

Mr. Ray: As quickly as possible. We are currently discussing the second part of the document with industry. With regard to removing the words, we will be putting our position to Health Canada within a matter of days.

Mr. Wappel: In less than a week?

Mr. Ray: In less than a week would be my hope, yes.

Mr. Wappel: You will keep us apprised of what is happening on this matter in order that we might help by building a fire under whoever needs that encouragement?

Mr. Ray: We will definitely keep you well informed of what we are doing. I am sure that on occasion we will have honest and legitimate differences of opinion. The simple answer is yes.

The Joint Chairman (Mr. Lee): In keeping with the real-time scrutiny objectives of this committee here, Mr. Quail is in a meeting right now. The clerk will return to the phone in another few minutes to check again for a response.

We will now move on to assessors' rules of procedure.


Mr. Bernhardt: Mr. Chairman, at this point there are no substantive issues in dispute. In the chairmen's letter of May 3, 1996, a number of precise questions were asked. The minister's reply of December 9, 1997, as members will see, answers none of those questions. When that letter was before the committee, the decision was made that witnesses would be invited to answer those questions.

The Joint Chairman (Mr. Lee): Let us go through the questions. The minister believes that the questions can be addressed.

I have seven questions which I hope will resolve the issue. First, what is the target date for the completion of the amendments to the Plant Protection Act and the Health of Animals Act to include provisions dealing with appeals?

Ms Moyra Nicholson (Senior Counsel, Canadian Food Inspection Agency): Appeals of compensation awarded under the Health of Animals Act and the Plant Protection Act, both of which were enacted in 1990, are heard by an assessor. The provisions are virtually identical in both acts. Rules of procedure are made by the assessor.

I believe that the concern expressed by the committee relating to this question is in relation to the assessors' rules, which in turn leads back to the amendment to section 14 of the Pesticide Residue Compensation Act made in 1992.

However, the CFIA does not make the assessors' rules. They are made by the assessor who is the Associate Chief Justice of the Federal Court, and the Federal Court has advised that, due to the amended legislation to which I just referred, no further examination of the present assessors' rules of procedure is warrantedT.

As the agency has no authority to require the assessor to make or amend rules, the answer to the regulation aspect of the matter is that the agency simply is not in a position to do anything about it. However, the agency has recommended to the Task Force on Legislation that the Health of Animals Act and the Plant Protection Act be amended to provide that the chairman of the tribunal under the Canada Agricultural Products Act will be the assessor for the purposes of hearing appeals of compensation awarded under those acts, and will also be responsible for making rules of procedure.

Going back to your question which relates to the appointment of assessors, that, as I say, has been a question since 1992, and we have heard from your committee. We have explained that the change from Federal Court judges to judges of the superior courts of the provinces is a lengthy and difficult matter involving consultation with all provinces. During the years 1992 to 1994, discussions were held with the Department of Justice in this respect.

In 1994, the Department of Justice announced an investigation in respect to the Tax Court and the Federal Court, and it was considered possible that as a result of that report, the Federal Court might be required to hear all matters relating to federal tribunals. The report came out in 1997, and it did not support that view at all. It was quite diametrically opposite.

At this point in time, early in 1998, the agency has recommended to the task force that the two acts be amended — rather than going through the procedure of provincial consultation — to provide that the chairman of the tribunal, under the Canada Agricultural Products Act, will be the assessor for the purpose of hearing appeals. He will also deal with appeals under the Agriculture and Agri-Food Administrative Monetary Penalties Act. That is by virtue of an amendment made in 1997. At that time, the recommendation was that he also be responsible for making the rules.

In a roundabout way, I believe that answers your question.

The Joint Chairman (Mr. Lee): Is there some element in the process bucking the change?

Ms Nicholson: There is no question of bucking the change. I think we have reported to Mr. Bernhardt continuously since the beginning of his questions.

In 1992, there was an extensive outbreak of tuberculosis. During that year, 92 appeals were filed in regard to that outbreak. At the same time, we were working with the Department of Justice with a view to doing something about this amendment, which in 1988 was objected to by the Deputy Minister of Agriculture. He objected to it for the very reasons that we continue to consider that the Federal Court is the best place for these appeals.

I am speaking here of consistency and experience. In addition to that, which may not be a consideration, but it does not cost the agency anything. With respect to all costs relating to the appeals and the registrar, there is no cost to the agency. That was another factor that arose in 1992.

With very little direction in the legislation with respect to issues such as how many provincial court judges, what provincial court judges and what registries, it took some time. It could not be done immediately. When we determined that this review carried out by the Auditor General might well come up with a continuation of the Federal Court judges as assessors, we awaited the outcome of that report. At the same time, we considered other ways of retaining the Federal Court judges by amending the CFIA or miscellaneous matters. These were not achieved.

The report came out last fall, as I understand from the Auditor General's report, and was tabled in the House. Since then, it has been determined that it would be better to have the chairman of this tribunal be the assessor. It is a recommendation only to the task force because this chairman already has a responsibility for complaints under the KAP act, for the appeals under the Agriculture and Agri-Food Administrative Monetary Penalties Act, and this will be a third matter with which he must deal.

Senator Lewis: When did you make this development?

Ms Nicholson: As far as I know, fairly recently.

Mr. Ray: This task force was basically commissioned after the agency was created. We recognize that we have 13 pieces of legislation out there. They have different bits and provisions. We made the consequential amendments to allow us to use them, but we are not as neat and tidy as we would like to be in terms of a consistent approach. As Ms Nicholson stated, part of that was the Task Force on Legislative Renewal. We created that last June. They have spent an enormous amount of time consulting with everyone from the public to industry. We require clear international considerations in terms of obligations and regulations. That task force will report to us in the very near future.

I hesitate to say this, but I believe we are coming to a happy congruence of circumstances that should allow us to take out some of the grey areas or inconsistencies that we may see in a number of things.

Senator Lewis: It now awaits the task force report, which will cover a whole series of things.

Mr. Ray: That is correct.

Senator Lewis: It may be a considerable time before there is any action on this matter.

Mr. Ray: I would not want to prejudge either my minister, cabinet or Parliament, but certainly we would hope to move it as quickly and judicially as we can if they accept the recommendation. If that is not the case, then clearly we will look at other alternatives.

In this particular case, we would like to hear the appeals on the compensation issues focus in an area so that we do not have two, three or four. We would like a consistent spot where our clients can go, and where we can go. If they disagree with us, they can appeal. We would have someone who is well-versed in hearing that sort of appeal, whether it be related to plants or animals. It is a skill set that can be brought to bear quickly in those areas.

Senator Lewis: Your hands are tied in terms of the present rules.

Mr. Ray: In terms of the actual compensation paid?

Senator Lewis: Yes, and the rules of procedure.

Mr. Ray: Yes.

Ms Nicholson: There are certain rules of procedure in effect. Section 59(2) of the Health of Animals Act:

Subject to any rules under subsection (1), all rules respecting the conduct of appeals and the procedure for bringing appeals to the Assessor made under section 18 of the Pesticide Residue Compensation Act that are in force at the time this section comes into force shall, to the extent that they are not inconsistent with sections 56 to 58 — that is, the appeal provisions — apply in respect of appeals brought under section 56. The rules of procedure for assessors were made in the seventies, I believe.

Mr. Bernier: Nineteen eighty-seven.

Ms Nicholson: The subject here arose as a result of requests for amendments made or concerns expressed by the standing committee to the Federal Court concerning those rules.

A meeting was held with one of the justices of the Federal Court with a representative of the standing committee, as well as a member from justice and legal services agriculture, to go over those concerns. They were discussed and agreed upon at that time, and the justice instructed that we prepare the amendments and send them back to him. This was done.

Comments were requested from both the justice?s representative and the standing committee. Unfortunately, we did not get a reply from the justice in a timely fashion. The standing committee requested further amendments. These were referred to the Federal Court — again, no reply.

The Joint Chairman (Mr. Lee): Unfortunately, 10 years have elapsed.

Mr. Wappel: I am having trouble understanding what is being said.

In a letter of December 17, 1987, the minister said a legislative review has commenced. Now, you are talking about a task force.

Mr. Ray: It is the same thing.

Mr. Wappel: The task force is conducting the legislative review.

Mr. Ray: That is right.

Mr. Wappel: In a letter from our then chairs in 1996, it was pointed out that four years earlier, in 1992, the Pesticide Residue Compensation Act was amended, I presume by Parliament, to provide for the replacement of the Federal Court assessor with judges of the courts of the provinces, and I understand that, as of today, that has not happened.

Ms Nicholson: No, it has not.

Mr. Wappel: And therefore the will of Parliament has not been implemented in six years.

Ms Nicholson: If you wish to put it that way, the answer is yes.

Mr. Wappel: I do wish to put it that way. Whose responsibility — and I know it was not yours because you were only convened a year ago — was it to implement the will of Parliament?

Ms Nicholson: This would go back to the Department of Justice and the consultations which I referred to earlier which were conducted over a two-year period.

Mr. Wappel: The Department of Justice is responsible for implementing the changes to the Pesticide Residue Compensation Act?

Ms Nicholson: At that time, the Department of Agriculture was responsible but it could not act on those legislative requirements without, if you wish, the assistance of the Department of Justice, in dealing with the provincial court judges or the provincial courts. The agency could not go out and consult.

Mr. Wappel: So, today, the assessor is still the Associate Chief Justice of the Federal Court?

Ms Nicholson: Yes, by virtue of the provisions of paragraph 44(a) of the Interpretation Act.

Mr. Wappel: In contravention, presumably, of the will of Parliament, as expressed in the amendments of 1992.

Ms Nicholson: I would not agree with that.

Mr. Wappel: Why?

Ms Nicholson: Because efforts have been made, and were being made, to consider how to implement the will of Parliament. Yes, it took a lot of time. That amendment was made in 1992. Here we are, six years later, if you wish, but it has been determined now that the preferable position would be through this recommendation to the task force.

Mr. Wappel: As I understand it, now the recommendation will be that there be another assessor appointed, not the Associate Chief Justice, not judges of the provincial courts, but someone else.

Ms Nicholson: Yes.

Mr. Wappel: I believe they said a particular person?

Ms Nicholson: The chairman of the tribunal under the Canada Agricultural Products Act.

Mr. Wappel: That statute was passed by Parliament, presumably on the advice of the Department of Agriculture.

Ms Nicholson: No.

Mr. Wappel: On the advice of whom?

Ms Nicholson: I am given to understand by colleagues in the Department of Justice that the amendment was made because the Canadian Bar Association wished to have provincial court judges dealing with matters in their own province. There was an objection, as I stated, by the Deputy Minister of Agriculture to this amendment, expressly stating that they are happy with the consistency and the experience over many years of the Federal Court judges, and objecting to that amendment. However, it was made, anyway.

Mr. Wappel: I take it, then, that the position of the then deputy minister has, through delay, pretty well come true. It is not going to be what the CBA wanted, according to you. It is a version of what the then deputy minister wanted, which is a particular person as opposed to judges of the provinces. The then deputy minister ultimately will get his or her way.

Ms Nicholson: If, of course, the recommendation is followed. It is simply a recommendation.

Mr. Wappel: Of course. It is wonderful how things work around here.

The Joint Chairman (Mr. Lee): The chair also wants to point out that neither was the will of Parliament acted upon. The minister did not get his or her way, and perhaps the Canadian Bar Association did or did not.

Ms Nicholson: If you wish to put that type of spin on the picture, yes. As far as I am concerned, the period of time has not been simply delay. There has been work done, but that is the way it goes.

Mr. Bernhardt: Is there a target date for getting this done, other than as soon as possible, or whenever we canT? Does someone say, Hopefully we can do it by such and such a dateT?

Mr. Ray: Clearly, our intent is to do it as quickly as we can; there is no question about that. We think we have done a very thorough review of a number of outstanding issues that we would like to address through an omnibus sort of approach. I do not think I would ever want to prejudge. Clearly, it will take the will of Parliament as well. I do not want to prejudge that. Will we be ready to go as quickly as we can? Yes. I do not think there is any question about that.

Ms Jennings: I appreciate that you are going forward in an omnibus approach. However, this omnibus approach may result in delay of several years, because you are talking about substantive amendments to the acts in order to rectify grey areas, nebulous areas, and so on. What I would like to know is whether you have a strategic plan in place, or a contingency plan in place, that addresses each one of the issues on a time line. For instance, you may expect the omnibus approach to take two years. Let us say it is two years from this date. Within a year, if this process, the omnibus approach, has not reached this stage, will you then go to your contingency plan for A, B, C considerations which we are addressing here today? Have you decided how you will deal with it in order to continue functioning and best respond to the concerns of this committee, some of which you said are your own concerns? Have you developed that kind of contingency plan? If you have, can we have a copy of it? If you have not, do you intend on developing one?

It is all well and good to say that you are using an omnibus approach, but you have just shown, through all of the work that has been done over a number of years, that, first, Parliament's will still has not been carried out; second, in at least one instance the Minister of Justice's will has not been carried out; and third, the will of this committee has also not been carried out. I do not put in doubt at all your good faith, and the hard work you have done since the inception of your agency. To me, it is clear that you have shown your goodwill, and that you are working hard to clean up and do all of that ?kitchen? work. However, good will does not necessarily take things very far when the decision-making authority is elsewhere, outside of your agency.

Do you have that contingency plan? If you do not, do you intend on making one? When you do make one — since I hope the response will be affirmative to one of the two questions — when will we get a copy?

Mr. Ray: I think I can respond affirmatively in two cases. Are we putting all our eggs in one basket? Are we hoping for the ideal world where things will unfold properly and we will be in business in November? We are not counting on that. In terms of a contingency plan, I do not have a chart that shows the 40 things that we would like to do by modifying the way we currently have our primary or secondary legislative base. However, how would we proceed, and would we have contingency plans? The simple answer is yes, and those would be very much built around the powers that we need to do our job, clearly, and those that relate to health and safety. Our priority setting, our criteria, against which we would build that chart, would be very much focused on those two areas. We must always set priorities, and within that we must deal with those two first. That is where we will put our efforts. If we find ourselves in a morass, we will move quickly in that area.

Six years is a long period of time, there is no question, but it would be somewhat fallacious to assume that that was six years of doing nothing. There have been many extenuating circumstances during that six-year period. In particular, since the budget announcement of 1995, where we speculated about doing food and related services better, up to its creation two years later, an enormous amount of effort was devoted to the creation and exploration of the legislative base of that agency. If we had not decided to do that, we would have moved far more quickly in other areas. We would have had that luxury, if I can call it that.

We now find ourselves in the circumstances that we have an agency which employs 4,500 people. There are a number of happy, congruent circumstances which will allow us to move forward more quickly in a number of areas where we would like to see some movement. We may disagree on a number of occasions, but we are all trying to get to Montreal from Ottawa. Some may want to go through Hawkesbury; some may want to go through Mirabel, but nonetheless, that is where we are heading.

Ms Jennings: I appreciate that. If you interpreted my comments to mean nothing was done in six years, that is not the case, and I do not believe that to be the case.

In regard to your contingency plan, first, it would be wise to chart it out with time lines. Second, I should like to see that chart and your contingency plan, where you say that you both want to get to Montreal, but you want to go via Hawkesbury and I want to go by another route. At least I will know which route you are planning to take so that if I want to meet up with you between Ottawa and Montreal, I know where to go.

Mr. Ray: Both excellent comments.

Senator Moore: It may be an excellent comment, but will Ms Jennings receive that information? I am interested in that, too.

Mr. Ray: I will undertake to provide you with far better documentation of what our agency is, what it does, and some of the plans that it has currently in terms of the legislative renewal as an example. We will provide that information in the near future.

Mr. Bernhardt: I want to know who the assessor is at present.

Ms Nicholson: At the present, it is the Acting Associate Chief Justice Mr. Paul Rouleau. This apparently changes from time to time, and there have been several acting associate chief justices since the resignation of Associate Chief Justice Jerome on March 4, 1998.

Mr. Bernhardt: There have been changes to the identify of the assessor since the regulations came into force?

Ms Nicholson: The original appointment of the assessor was to the person holding the position of associate chief justice of the Federal Court.

Mr. Bernhardt: In your view, is that replacement of one assessor by another authorized by section 44(a) of the Interpretation Act?

Ms Nicholson: Our view is that the assessor continues to act on appeals by virtue of the provision of 44(a).

Mr. Bernhardt: That is what I am asking. Your view is that that section authorizes the replacement of this person?

Ms Nicholson: Yes.

Senator Lewis: My vague memory is that there was trouble getting the associate chief justice of the federal court to make the rules. Is this the same issue?

The Joint Chairman (Mr. Lee): This is the one.


Mr. Bernier: Mr. Chairman, in a letter dated March 6, counsel expressly requested a reply to two inquiries and requested that it be received by March 20, 1998. This request was not complied with. As of yesterday, we have not received a reply to the two questions. Members have them in the material that was distributed to them.

Mr. Wappel: In the interests of speed, why not?

Ms Dudley: A reply was sent. It was later than we had hoped, but it was sent yesterday by courier, special hand delivery.

Mr. Bernier: It was not received.

Ms Dudley: I believe my assistant had called and asked for confirmation that it had been received.

Mr. Bernier: Yesterday was not March 20, was it?

Ms Dudley: It was not March 20, no.

Mr. Wappel: This raises a point that we encounter in this committee all the time. When you receive a letter from our committee, why does it appear to be ignored? Why, when we ask for things by a certain times, do we not get them? For example, we asked for a response by March 20, and you delivered it, apparently, yesterday. What possible justification can there be for that?

Ms Dudley: We apologize for the delay in delivery, however we were consulting with colleagues within the Department of Justice. We were trying to understand what the concern was, to discover what the basis was for the concern, and to address it clearly. That is what our letter has done. We preferred to send it yesterday than not at all.

The Joint Chairman (Mr. Lee): Ms Dudley, it might have been better to bring the letter with you today. We could have had photocopies made. As it turns out now, you may have a copy with you, but we are flying blind right now.

Mr. Bernier: The concern was fairly clear. Mr. Ray wrote in the letter a sentence that neither the Financial Administration Act nor the CFIAA provides that it is the minister who must prescribe fees. We simply asked what he meant by this. Our second inquiry concerned the reference he made to existing case law. We asked for the references. Clearly you have that case. I am not sure what there was that took a month to understand in Mr. Rousseau's letter of March 6. I would think it would be immediately understood.

Ms Dudley: This is an issue that is very important for the Department of Justice and the Government of Canada as a whole. We wanted to make sure that we had the appropriate legal input, and that what you received was the position of the Department of Justice.

Mr. Bernier: On references, which references of the case law you referred to in an earlier letter.

Ms Dudley: A book was provided with the letter that went to Mr. Rousseau yesterday.

The Joint Chairman (Mr. Lee): We certainly have administrative progress, albeit substantially later than we had hoped.

Mr. Wappel: Surely a telephone call would have been entirely appropriate to indicate to our counsel that you would not be able to meet the deadline that we suggested, and could the committee please indulge us because we are consulting with the Department of Justice. A little bit of courtesy from counsel to counsel may have been helpful.

Mr. Ray: We received the confirmed agenda late last Friday night. We did attempt to call, and we did attempt to suggest a delay in some cases to better prepare on some issues and also to focus on others. We were told that that was not acceptable, that we should show up. Our lawyers quickly worked to put together the documentation, albeit clearly somewhat late in the day. We did our best to provide it to the committee. I do have a copy, although perhaps it is too late. However, in hindsight, perhaps we should have brought copies. I do take your point, it is a good one. I would submit that we did attempt to do that.

Mr. Wappel: You only attempted to do it because you knew you were being dragged here. That is what appears to be the case.

Mr. Ray: No, we were not dragged here; we were invited here. We appreciate the opportunity to come here and have these discussions. What we did not see was the actual agenda that would be discussed at this meeting until late Friday night. We got it late Friday night, and we called Monday morning to see if we could schedule a little more time.

Mr. Wappel: Excuse me, Mr. Ray. You said that when you found out you could not get a delay of this meeting, then your counsel turned their attention to this letter which we wrote on March 6, asking that it be answered by March 20. That is just what you said.

Mr. Ray: Then let me rephrase it: Our counsel redoubled the efforts that they had under way in order to get the documentation here in that two-day period.

Mr. Wappel: That is absolutely unacceptable, Mr. Ray. You wrote a letter. We were asking for an explanation of your words. How difficult can it be?

Mr. Ray: I am not saying it is difficult, and I am not saying that it would normally take that period of time. I would submit that we do have other pieces of work. I am sure that you are aware that we are encountering the biggest food recall in history. It is a testy legal situation, and requires a fair amount of effort by our resources during that period of time. We might have hoped that we did not currently have those situations, which would have allowed us to be more propitious in meeting the March 20 date, and we would have undertaken to do that. On confirmation of the agenda item, we suggested that we could come back two weeks later, which was not acceptable. Therefore, at that point in time, very quickly we redoubled our efforts to bring forward the documentation.

Ms Jennings: I have to agree with my colleague. It is completely unacceptable for anyone to act in this manner; someone who is being paid for a job, from whom information is being requested, and who receives a letter dated March 6 saying that we will be calling witnesses from your agency to appear as early as April 2, and that we would appreciate receiving a written reply by March 20. If I received a letter like that, and if I knew that I would be unable to reply by March 20 — which was the case here, given the information that you have just given — then I would immediately contact the writer and say so. If I thought that I could reply by March 20, if there was no question in my mind that I could do so, I would calendar the item. In order for it to be received by March 20, it would have to get out of my office by this date so that that agency or that committee would receive it by March 20.

I feel like I am being put in the role of being a school teacher where I am having to rap knuckles. You are grown people. You are professional people. You are a senior manager. The staff that you have working with you are senior staff. They are supposed to be qualified staff. I cannot believe that you are unable, and that each individual employee is unable, to carry out the work necessary to be able to do that. It is not acceptable that a week before your scheduled to appear, your lawyers begin to work on an answer. It is unacceptable that that is the excuse that is coming before us.

Mr. Ray: The point is well taken. That is not the excuse, though, clearly. Our lawyers had done the work beforehand. They had been involved in this matter. They had been prepared to go.

Ms Jennings: Then why was there not a simple phone call to say, We cannot meet the March 20 deadlineT? I am not even talking about the deadline of today. Why was not a simple phone call made back in March, when this letter to you was originally received, or even March 19 or March 20 itself, saying, we understand you wish to have a written reply. We are working on it. Given the context in which we are working, we are unable to meet your request. We will attempt to do so, or we will do so by such and such a date, or we will be unable to do so until the actual date that you call us because it is not a priority. We have other things that are a priority for us, so we will come before you and answer the questions in that letter when you call usT? At least we would know what we were dealing with.

Mr. Ray: Mr. Chairman, members of the committee, we will endeavour to do a better job of getting back to you on time, or if that is not feasible because of higher priorities, or for whatever reason, we will seek to notify you in a shorter period of time.

Senator Moore: I want to concur completely in the remarks of Mr. Wappel and Ms Jennings with respect to the unacceptability of this response. I think, Ms Dudley, in your remarks, you said that you were not sure what the concerns were that were being raised in the letter that was sent out. Again, why would you not have phoned the writer of the letter? I almost feel that there is an adversarial situation arising here. You say it is important for the Government of Canada. Well, who are these people?

Ms Dudley: The intention was not to be adversarial. We were trying to be helpful by making sure that the Department of Justice, as a department, understood what the issue was and provided a clear response to Mr. Rousseau's correspondence.

Senator Moore: You could have contacted him and asked what he meant. A little give and take here goes a long way. I do not see this as a complicated thing. It should be moving faster. There should be more communication. That does not apply only to your agency. I am talking about other people who have appeared before us.

Mr. Ray: Mr. Chairman, any delay in getting back to the committee rests within my office, and not with my legal counsel. I do not want to leave the impression that the legal folks had not done their work. In fact, they had. I will take full responsibility, for whatever reason, for not getting to the documentation until late in the day yesterday.

The Joint Chairman (Mr. Lee): I take it from all of this that there is a very firm commitment to make substantial progress in this kind of an issue?

Mr. Ray: It is hoped that that will be the case on all issues, yes.



The Joint Chairman (Mr. Lee): The next file item is Prince Edward Island Milk Marketing Levies and Quebec Milk Marking Levies.

Mr. Bernier: Mr. Chairman, I will anticipate what part of the answer may be from the agency. The request for copies of the instruments revoking the P.E.I. marketing levies order and the Quebec marketing levies by-law was initially sent to the chairman of the Canadian Dairy Commission in 1994. It is the Canadian Dairy Commission itself which referred the matter to Mr. Richard King of Legal Services to the Department of Agriculture, and it is Mr. King who then sent a reply to counsel on December 13, 1994. In his letter, Mr. King was quite emphatic that the administration of the Agricultural Products Marketing Act comes under the jurisdiction of the Department of Agriculture. He failed, however, to provide the requested documents.

In accordance with Mr. King's statement, further correspondence was sent to Dr. Art Olson, who was then assistant deputy minister of the Food Production Inspection Branch and the designated instruments officer for the Department of Agriculture. As shown in the material, Dr. Olson in fact replied to Mr. Schmidt on April 11, 1995, and promised that a copy of those revocation instruments would be sent.

When Dr. Olson moved on to head up the Canadian Food Inspection Agency, we believed he had a continued responsibility for the commitment he had made, and the matter was next followed up with Mr. Ray, who is now the DIO for the agency. That is the letter of February 18, 1998, in which I informed him that the file would be submitted to the committee in April, and still, four years later, we have not received a copy of the revoking instruments.

Mr. Ray: We got your letter on February 18, and I forwarded it on March 2 to the National Farm Products Council. We spoke to them yesterday. I have as well spoken to the Department of Agriculture and Agri-Food and urged them to reply directly to you with copies of those instruments as quickly as they possibly can. They undertook yesterday to get back to you very quickly.

Mr. Wappel: Whom did you ask to do this?

Mr. Ray: We are under the portfolio of the Minister of Agriculture. There are a number of agencies and departments, as I am sure you are aware: for example, the Canadian Food Inspection Agency, a large part of which used to be part of the Department of Agriculture. A very large part of the regulations associated with that department during the last eight years have been through the Food Production Inspection Branch. Not surprisingly, they do most of the business in terms of the regulatory changes and regulatory frameworks. When we left, we offered to continue to be — I hate to us the word — the “mailbox” on behalf of all of the portfolio. Any notices or requests that came would come to us, and we would move them over to those areas.

The two groups I referred to are the National Farm Products Council, as well as the actual department itself, Agriculture and Agri-Food. We have talked to both of them, in view of the fact that it does appear to have taken some time to find the instruments.

We found it prudent to talk to both of them, in order to find the instruments as quickly possible.

Senator Moore: That was yesterday.

Mr. Wappel: What is the big deal? Why is it so difficult to provide a copy of a couple of orders? What is the problem? Where are they filed?

Mr. Ray: I believe that is what those two groups are looking at now. I do not know why it would take that length of time to find the instruments; hence the reason for yesterday's call to see if we could not expedite it.

Mr. Wappel: Mr. Olson is your president, correct?

Mr. Ray: That is correct.

Mr. Wappel: In his letter of April 11, 1995, he identified the legal advisors to the milk marketing boards. Who are they?

Mr. Ray: The legal advisors at that time were in the Department of Agriculture, as was Dr. Olson at the time.

Mr. Wappel: What is the big deal? What in heaven's name is taking so long?

Senator Moore: They may not exist.

Mr. Wappel: What?

Senator Moore: The documents that we are seeking. Is it possible that they do not exist?

Mr. Ray: I would not wish to speculate on whether they exist or not; that would not be prudent. However, I do feel that the long-standing request deserves to be answered in a judicious fashion by those who have copies. We made that request immediately after we received your updated letter in February. We moved it over to those concerned, and followed up by phone yesterday.

Senator Moore: Can you tell our team who these people are whom you contacted so that we can follow up?

Mr. Ray: Yes, absolutely.

Senator Moore: I am not about to sit back and wait to hear from these people. I would like to know the names of people whom you spoke with so that our people can talk to them.

Mr. Ray: Definitely.

The Joint Chairman (Mr. Lee): I find it remarkable that I am sitting here and even considering the need to order production of a statutory instrument. I am embarrassed to even put that on the public record, that Parliament must order production of a statutory instrument. We are certainly capable of doing that, colleagues, if we so wish but it is a little beyond embarrassment to be in a position where we would need to do that. I do not know quite what to do.

Why not allow two weeks for the delivery of copies of the statutory instruments involved? If the production is not made then the committee may wish to consider ordering production formally, and if the production is not provided in accordance with whatever order the committee would adopt, it would go to the floor of the house or the Senate for consideration and enforcement.

Senator Moore: Can we have the names from you now, Mr. Ray, on record, as to whom you spoke with yesterday?

Mr. Ray: The request that a copy of the letter be sent to us was sent to Carola McWade, who is with the National Farm Products Council.

Senator Moore: Who was the person at the Department of Agriculture?

Mr. Ray: I talked to Mike Gifford, who is the Acting Assistant Deputy Minister of the Marketing and Industry Services Branch. We will also undertake to leave with you my pledge for more astute communications. We will call them upon leaving, as well, and impress upon them your desires.

The Joint Chairman (Mr. Lee): Colleagues, do we have an agreement that there will be a two-week window for delivery, following which the committee will take up the matter of possibly ordering the production?

Ms Jennings: Two weeks? delivery would take us to May 13, which means that we should receive the documents exactly the day before our next scheduled meeting. If we have not received them by then, we will be able to reconsider this matter and make whatever decisions we deem appropriate at that time. It is important to make a specific date, and that would be then one minute before midnight, so when we come into our offices Thursday morning, May 14, those document will have been slipped under the door, or will be sitting in our fax machines, or whatever.

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

Hon. Members: Agreed.

Mr. Wappel: I wish to ask, you said that the legal advisors that Mr. Olson refers to in his letter of April 11, 1995 were at the Department of Agriculture. Is that in- house counsel, or are we talking about the Justice Department?

Mr. Ray: In-house counsel.

Mr. Wappel: Do we know their names?

Mr. Ray: At that time it was Richard King, I believe, who had actually replied. I believe Richard King was the lawyer from Agriculture and Agri-Food Canada.

Mr. Wappel: He replied to whom about what?

Mr. Ray: He replied back to this committee, stating that the orders had been revoked and that they would provide copies of the instruments.

Mr. Wappel: Does Richard King still work for that department?

Mr. Ray: I do not believe so.



Mr. Jacques Rousseau (Counsel): Regarding the Health of Animals Regulations, the committee has suggested that the wording of section 160 (1.1) of the regulations in question be amended to reflect the fact that when the minister is of the opinion that one of the activities in respect of which a request for a permit has been made pursuant to the regulations would not, to his knowledge, cause the problems identified in section 160 (1.1), then the minister would be required to issue the permit in question. In other words, the minister would have no choice but to issue the permit if, in his opinion , the activity in question would not result in any problems.

Currently, the minister may refuse to issue a permit, even if he believes that the activities in question would not cause any of the problems mentioned in this section.

Summing up, the committee found that this discretionary power served no particular purpose and it asked the department to justify its reasons for not making the requested change. The committee found that the reasons invoked by the department were dubious at best. In the note that we have before us today, again it would seem that the committee has some doubts about the reasons given by the department.

In its last letter, the department gave the following as one of the reasons why it was unwilling to make any changes: if the minister were required to issue a permit in cases where there were no problems, he could be compelled to issue a permit under circumstances contrary to the indication of the Canadian Environmental Assessment Act.

On looking at section 37(1)b) of the legislation, we note that under the circumstances mentioned by the department, it is expressly stated that the minister is not required to carry out this requirement. He can simply choose not to act.

Therefore, given the existence of section 37(1)b) of the Canadian Environmental Assessment Act, it would seem that the final argument invoked by the department is not quite accurate.

Economic arguments are being invoked as the reason for doing away with this discretionary power. Nowhere is it stated in the Health of Animals Act that one of the aims of the legislation is to save money.

Briefly, that is the status of this file today. These are the questions that we can put to the department today.

Mr. Ray: I will ask Ms. Nicholson to answer your questions.


Mr. Bernier: Is the agency aware of section 37(1)(b) of the Canadian Environmental Assessment Act?

Ms Nicholson: I do have that act in front of me, but it does refer to:

— after taking into consideration the report submitted by a mediator or a review panel or, in the case of a project referred back to the responsible authority pursuant to paragraph 23(a), the comprehensive study report. I do have difficulty understanding how that section particularly applies when we are talking about an initial review. However, we do accept the position that, under the Environmental Assessment Act, the minister is responsible to carry out an environmental assessment of project proposals for the import of animals, for, roughly speaking, non-domestic or non-Canadian animals, which is the specific wording. We know there is a responsibility. However, the Canadian Food Inspection Agency will retain the word “may” in the section.

Mr. Bernier: Ms Nicholson, before we get to that, can we get back to the Canadian Environmental Assessment Act? I believe you misdirected your attention. The provision you referred to is 37(1.1). The section I referred to is 37(1)(b) not 37(1.1)(b).

Ms Nicholson: I was reading from 37(1).

Mr. Bernier: You are reading the wrong section. You should be reading 37(1)(b), which provides that the responsible authority may take one of the following courses of action:

(b) where, taking into account the implementation of any mitigation measures that the responsible authority considers appropriate, the project —

— in this case the issue of a permitt —

— is likely to cause significant adverse environmental effects that cannot be justified in the circumstances, the responsible authority —

— in this case the minister —

— shall not exercise any power or perform any duty or function conferred on it by or under any Act of Parliament that would permit the project —

— the permit —

— to be carried out in whole or in part. We are suggesting to you that your scenario whereby putting in the word “shall” instead of “may” would force the minister to issue a permit in circumstances where the issue of that permit would bring about deleterious consequences for the environment is not a valid scenario, because clearly 37(1)(b) allows the minister to refuse to perform a statutory duty if he falls within the parameters of this paragraph.

Ms Nicholson: Then I see no reason why it cannot be reflected in a section of the regulations, which it is. There is the overriding requirement for an environmental assessment of any proposed importation, and the ability under the Health of Animals Act and the Health of Animals Regulations should reflect the authority to refuse to issue a permit if the importation would cause environmental damage that could not be mitigated.

Mr. Bernier: Then presumably, Ms Nicholson, we should never have a “shall” in any federal regulation because of 37(1)(b).

Ms Nicholson: Not at all. We consider the use of the word “may” is legally valid in section 160(1.1) of the Health of Animals Regulations. In that section, the minister's discretion is confined or limited to the purposes of the act and the criteria in the section, namely that the activity for which the permit is requested would not result in the introduction into Canada, or spread within Canada, of a vector, disease or toxic substance. I see no reason not to include in the picture the authority under the CEAA to refuse to issue a permit where environmental damage could not be mitigated. As the minister has the authority to apply his available resources in the areas he considers of most concern, if a proposal for resource-intensive importation were beyond his available resources, he must be able to refuse to issue a permit rather than reducing disease control programs.

Programs which the minister has implemented are designed to eradicate certain animal diseases in Canada, such as tuberculosis and brucellosis, both of which are transmissible to man, and to prevent the introduction of animal disease into Canada, such as anthrax, BSE, et cetera, in order to protect the health of Canadians, the environment and agriculture. Therefore we consider it necessary that the word “may” be retained in the section.

Mr. Bernier: Ms Nicholson, you said earlier that the word “may” was legally justified. I point out to you that there is not a single piece of correspondence that the agency has received from our office, from the committee, in which it has ever been suggested that section 160(1.1) as it stands is ultra vires. Those words do not appear. That is not the issue. The issue is not one of validity. The issue is one of whether or not that discretion which is imported is necessary in the context of section 160.

Having made this slight correction, you state that the word “may” must be there to reflect the Canadian Environmental Assessment Act.

Ms Nicholson: I did not say it must be there.

Mr. Bernier: Is it a purpose of the Health of Animals Act to protect the environment?

Ms Nicholson: Indirectly, yes, but I do not understand what you are asking. What is the question?

Mr. Bernier: You tell me that the word “may” is there so that the minister may take into account the full range of considerations that are relevant to the Health of Animals Act.

Ms Nicholson: Yes.

Mr. Bernier: You have also told me that the word “may” is there to reflect another statute which has to do with environmental assessment processes.

Ms Nicholson: I said there is no reason why it cannot be included to reflect that requirement.

Mr. Bernier: Even though it is not a purpose; it is not within the four corners of the Health of Animals Act to deal with the protection of the environment.

Ms Nicholson: It is an overriding requirement under other federal legislation.

Mr. Bernier: Perhaps it is addressed in other federal legislation. Can we agree that 37(1)(b) does address it?

Ms Nicholson: It addresses the question, yes.

Mr. Bernier: And we can agree that the purpose of the Health of Animals Act is to protect humans and animals against the introduction of new diseases in Canada, and against the propagation of diseases. Is that a correct characterization of the object of that act?

Ms Nicholson: Yes, I agree.

Mr. Bernier: That being the purpose — the sole purpose — and object of that act, let me suggest to you that we read 160(1.1) without the discretion your agency is so insistent upon. It would then provide that the minister shall issue a permit or licence if he is satisfied — if he is of the opinion, if he believes, if you will ? that, to the best of his knowledge and belief, the activity for which the permit is issued would not, or would not be likely to, result in the introduction into Canada, or spread within Canada, of a vector, disease or toxic substance. The section already clearly provides that the minister must first be convinced that there is no risk of disease, or the spreading of disease, or the introduction of disease.

However, if the minister is satisfied that there is no such risk, and that all requirements of the Health of Animals Act are fully complied with, why should he not be required to issue the permit?

Ms Nicholson: The minister has limited resources which he must apply to those areas that he considers of most concern, which are the programs he has implemented for the eradication of diseases such as tuberculosis and brucellosis, and to prevent the introduction of other foreign diseases such as BSE, anthrax, et cetera. As you may know, there are thousands of alpacas, ostriches, and so forth, that have come into this country in the last few years. If someone thinks of another exotic animal and decides that they want to bring in a thousand leopards, this is an intensive business.

I know you will turn to the economic factor, but the act does not relate to economics. The minister has the right to use his funds, limited as they are, in the areas of most concern. Therefore, if the importations require inspections and other activities by the agency after importation, quarantine, inspection, et cetera, a thousand elephants and a thousand leopards — 

Senator Moore: Mr. Chairman, never mind a thousand leopards and all of that. Once the minister has done all of that, and he is satisfied, then he shall issue the permit.

You are telling me that if the minister has a problem, he must go out and examine those 1,000 leopards, and you are worried about the money, the cost; that is one issue. However, having done that, if he does that, and if he is satisfied that 999 of them are all right, then he shall issue the permit.

Ms Nicholson: Nobody is suggesting that he would not. He is limited in —

Senator Moore: This says he “may”. That is not strong enough.

Ms Nicholson: He may if he has the funds.

Senator Moore: No, he may do the inspection if he has the funds, but he shall issue the permit if he is satisfied after the inspection that everything is in order. That is the point here.

Mr. Bernier: I take it from the answers that there are circumstances in which the minister will refuse to do an inspection, is that correct?

Ms Nicholson: It is not an inspection; it is the entire process of the import proposal.

Mr. Bernier: It is a matter of satisfying himself that the animals do not present a risk of disease, is that correct? Is the agency stating that there are circumstances in which the minister will refuse to satisfy himself that the proposed importation presents no risk to health of humans or of other animals?

Ms Nicholson: I am not suggesting that he will refuse. I am suggesting that consideration will be given to the proposal that is brought forward. If the programs in place require XT funds and there are no further funds, then he may refuse, yes.

Mr. Bernier: Has the agency sought advice on the legality of the minister?s refusing to use his discretion, and to satisfy himself as to the state of health, taking into account that, at common law, people have a right to import, trade and do business? The government may step in and say, When you do these legal activities, you will require a permit. I will issue the permit when I have ascertained that there is no danger to public health.T

Ms Nicholson: It can be said that this is not a right, it is a privilege.

Mr. Bernier: You have been in public service a little too long.

I would suggest, Mr. Chairman, that people have a right to trade.

Ms Jennings: I would also suggest that people have a right to trade, and I am not always necessarily in favour of a market economy.

Our government, however, has stipulated that in certain circumstances, in order to effect that right, permits may be needed. My reading of this statute is that regardless of the fiscal restraints, the minister, when he or she has been satisfied to the best of his or her knowledge and belief that the activity for the which the permit or licence is issued would not result in the introduction, et cetera, the minister may issue a permit.

We are suggesting that that should be changed to “shall”, and that does not preclude that the minister, under budgetary restraints, may not have the budget to put into place the process that would allow him or her to satisfy that, to the best of his or her knowledge, the activity would not allow such introduction.

Ms Nicholson: If it is agreed that the minister can refuse, and if it is agreed that he has environmental responsibility, then why is there a problem with the word “may” in there?

Ms Jennings: In a case where the minister has decided to affect his or her budget to do the process inspection, which then allows that minister to be satisfied that a permit or licence would not likely result in the introduction or spread within Canada of a vector, disease or toxic substance, the minister should not have the discretion as to whether or not he or she will issue that permit or licence.

Ms Nicholson: Is it the position of the committee that no matter what the proposal for importation, the minister must, in all cases, issue an import permit? Does it not matter what the animal is, provided that the there is no health risk?

Mr. Bernier: Mr. Chairman, this issue has been addressed time and again. First, the issue of whether or not the Minister of Agriculture is presently authorized to refuse to exercise the discretion conferred on him by legislation, that is, the discretion to satisfy himself as to the state of health, is a separate issue. Let us leave that aside for the moment.

What remains is the “may” or the “shall” on the issue of permits. I put it to you that even if the provision read “shall”, it is subject do that precondition that the minister must be satisfied that there is no risk of disease. If the minister does not have the resources, he cannot be satisfied. He will not be satisfied, and therefore he is under no obligation to issue the permit.

Ms Nicholson: If I am the person asking for the permit and the minister says, You cannot have one, I do not have money.T I will not accept that. Where it says you, as the minister, shall — then as a private citizen, I will proceed against the minister to issue that permit.

Mr. Bernier: The minister will reply, I am not satisfied that your proposed importation presents no risk. The reason I have not been able to satisfy myself of that is that I lack money. Therefore, I am perfectly entitled to refuse to issue the permit.T

As I said, I left aside earlier the question of the legality as to whether or not the minister can refuse to satisfy himself. I personally think not. However, that is an administrative matter; it is not a matter within the scope of this committee mandate because it does not touch on the statutory instrument. If that statutory instrument reads “shall”, the concern of the committee is at an end.

The fact that the agency and the Minister of Agriculture may then illegally, as a matter of public administration, refuse to exercise a discretion conferred on him by law, that is something that is not for this committee; that is something for an aggrieved citizen to take to a court.

I would add, however, that the aggrieved citizen may go to court whether or not the “may” or the “shall” is there.

Ms Nicholson: I do not disagree, but I maintain the word “may” should remain for the protection of the minister in those cases where his funds are not available, or where he is unable to issue a permit.

Mr. Bernier: What of the rights of citizens under the law? We have made a law where we tell people that they can import; however, in order to protect public health —

Ms Nicholson: We have not said they can import. It simply says that the Health of Animals Act will control the import. Nowhere in that act does it say that you are allowed to import. Nowhere does it say that you have free rein to do anything you like, to bring in any animal.

Mr. Bernier: What is the position at common law, pre-statute, before the Health of Animals Act was passed by Parliament?

Ms Nicholson: That is a long time ago. We are talking back in the last century, when the first act was enacted for contagious diseases.

Mr. Bernier: It is nevertheless the case that, at common law, people have a right —

Ms Nicholson: To import anything?

Mr. Bernier: — to import, to trade, to export.

Ms Nicholson: That was so until controls were put on.

Mr. Bernier: Controls were put on by the Health of Animals Act. Those are regulatory controls. They are not there to prohibit. They are there to regulate; to ensure a public purpose is served, in this case protection of public health.

Ms Nicholson: I am not convinced that you could import any animal you chose before the legislation. I certainly have not thought about it, but —

Mr. Bernier: I am not aware of any common law case that would restrict the importation of animals on the basis of common law.

Ms Nicholson: We made the position clear as to why we consider the “may” should be retained. It is not because the minister will ever refuse to issue a permit in those circumstances where there is no risk, and where his funds are available. The agency has never held that view.

The Joint Chairman (Mr. Lee): I believe committee members have had a good look at this item. Committee members may wish to consider at a later date whether the provision contravenes our scrutiny criteria. If the committee were of the view that the word “may” was ultra vires, or not in accordance with the criteria, we could require the removal or we could disallow it. Then it would be up to the government to decide what replacement it wished to make. In any event, we can take this up as a committee.


The Joint Chairman (Mr. Lee): On this item, I will reiterate counsel's question: In relation to this particular instrument, can you give us a precise indication of when the agency's discussions with industry will be complete, and when the agency will adopt the proposed revision to Part XT of the regulations?

Mr. Ray: We are back to some of our good intentions here. Honourable Member Jennings has already chastised me once.

At the risk of being chastised again, back to my happy congruence. We do agree with the committee on this. Indeed, we may go further in some of the changes in terms of the actual way that we do the fresh fruit and vegetable program. Again, I would like to see it done within the purview of the legislative renewal. It fits there. We may not only do what is here, we may actually look at going even further.

If that was not to be the case, then I would undertake to get back to you with part of my charted contingency plan, but I would hope, with all due respect, that I would never have to do that. Again, the issue will be addressed as quickly and judiciously as possible.

Mr. Bernier: Mr. Ray, what would be the worst case scenario in terms of time here?

Mr. Ray: Again, it is very dangerous to speculate about timing involved with both the government and Parliament. If I had to put a time frame on it, and it is dangerous, I would suggest that if I were back here next year talking about exactly the same things, I would personally be very disappointed. I would hope we would be discussing new things.

Mr. Bernier: I do not think anyone would hold you accountable for any delays in Parliament. When we refer to deadlines, we refer to the time until it is presented to Parliament. After that, Parliament can be responsible for its own workings.

Mr. Ray: We are on record as saying that we would hope to be in a position, should we decide to go, by as early as this fall.

Mr. Bernier: If you do not decide to go, when would the revision proceed?

Mr. Ray: That would be part of our contingency plan that we would develop. I do not see why we could not do that in a concomitant fashion. We are not being presumptuous. We are not linear people — at least, I am not.

Mr. Bernier: It will be done in two years?

Mr. Ray: Perhaps I should not say this, but I think two years would be the outside. I would hope to see it done sooner.

The Joint Chairman (Mr. Lee): We will close off there. I thank the witnesses for attending today. You have been helpful to the committee and to staff. Most of the questioning today came from government members, which is generally taken to be more lenient in tone than that which sometimes comes from opposition members.

There are some problems; the agency has acknowledged that. Certainly, the committee is convinced. At this point, we have not fully reported that to Parliament in either house, but we consider these matters as serious. We would like to see some progress. I think the agency has indicated here today that you are prepared to be cooperative and to do your best where you can to be cooperative.

On the matter of Mr. Quail, he is signing a letter to the committee for delivery today.

On the matter of the May 13 deadline for production of the statutory instrument, I reiterate that we will be meeting on the morning of May 14. The record will show our position in relation to that statutory instrument.

Counsel has requested, Mr. Ray, whether you would please agree to contact the parties responsible for providing copies of the statutory instruments and advise them of May 13 deadline.

Mr. Ray: I will do so in the most diplomatic yet stringent tone that I can possibility muster. I would clarify that we are not writing to Mr. Quail.

The Joint Chairman (Mr. Lee): No, no. Mr. Quail is on-side now.

I also confirm that the Solicitor General will attend our committee meeting on May 14 to review progress on the RCMP regulations 56 and 57.

Ms Jennings: Mr. Ray, as a member of the government I appreciate the fact that when you came here, you took the responsibility on your own shoulders for any delays which were questionable, even though, in many of the cases, those delays were prior to your taking this position, and prior even to the creation of this agency. That has not always been the experience that we have had with senior civil servants before this committee. We have had cases where the individual in question blames his predecessor. I appreciate a great deal the position you have taken today.

Mr. Ray: Thank you for those kind words. I would hope in the future to be responsible, regrettably, for only my own errors.

The committee adjourned.