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Proceedings of the Standing Joint Committee on
Scrutiny of Regulations

Issue 10 - Evidence, October 9, 2003

OTTAWA, Thursday October 9, 2003

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:37 a.m. to consider statutory instruments.

Senator Céline Hervieux-Payette and Mr. Gurmant Grewal (Joint Chairmen) presiding.


The Joint Chairman (Senator Hervieux-Payette): Good morning everyone. I want to welcome the new senators joining us and all returning members as well. Let us get right to today's agenda.


Let us go to the first item. Mr. Lee, do you want to put your item on the agenda?

Mr. Lee: Yes, please.

The Joint Chairman (Senator Hervieux-Payette): I will give you the floor, then.

Mr. Lee: We had witnesses sometime in May or June in relation to the broadcast fees regulations, Part II licence fees. The steering committee, I think, concluded that one way we could address this was to report to the House on difficulties we see in the current arrangements and encourage Treasury Board or the CRTC to take account of the difficulties that we see and conclude with that report. It would wrap up the issue. It would present it to the Houses and we could leave it to the players involved in that envelope and to the government to sort out. I would like to recommend that we do that and instruct counsel to prepare a report for the purpose.

The Joint Chairman (Senator Hervieux-Payette): To summarize, there is a discrepancy between the budget of CRTC and the fees that they are collecting. We examined whether it was possible under the actual legislation to make CRTC a collecting agent for Revenue Canada.

We studied the entire question. People appeared before us. We had people from Treasury Board. I think Mr. Bernier was part of the entire process. The idea would be to draft a report for the next meeting. Is that okay? We can determine that we are happy with the reflection that we will submit to our colleagues.

Are all in accord?

Hon. Members: Agreed.


The next item on the agenda is SOR/98-258.



(For text of documents, see Appendix, p. 10A:1)

Mr. François-R. Bernier, General Counsel to the Committee: The purpose of the statutory amendment requested by the joint committee is to provide authority for regulatory provisions that allow so-called ``deemed employers'' to recover from an actual employer the contributions paid in respect of an employee. The creation of such a right of recovery, in the committee's view, requires express statutory authority, and this is lacking in the Canada Pension Plan.

The relevant department eventually agreed to propose an amendment to section 40 of the Canada Pension Plan that would provide clear authority for the regulatory provision. The chairmen later wrote to the responsible minister to ask why the promised amendment had not been included in Bill C-58, which was a bill to amend the Canada Pension Plan, and asked whether the minister would consider amending the bill to add the amendment at the appropriate stage.

The reply was that, while Bill C-58 could have been used as an appropriate vehicle, this was no longer practical following the re-tabling of the bill as Bill C-3 in the current session. The chairmen then wrote the minister asking for clarification of her reply as to why this would not be practical in the new bill. This is the correspondence that is before the committee today.

I would add that Bill C-3, to amend the Canada Pension Plan, received Royal Assent in April. Therefore, this avenue is not available. In her reply, the minister indicates that there are currently no changes required to the Canada Pension Plan but that she will take the next legislative opportunity to amend section 40.

At this point, the committee will have to exercise some patience and simply wait for that opportunity to arise. The only practical alternative I can think of would be for the chair to inquire whether it would be possible to put the amendment in the next miscellaneous statute law amendment bill.

In theory, that program should not include substantive amendments to legislation, but in this case we have to keep in mind that the government's position is that the authority to create a right of recovery is already in the legislation, although not expressly stated. From that point of view, an amendment providing the authority is simply a clarification of the existing legislation, although that is not what it is from this committee's perspective. This might open a door to using that route. Otherwise, one has to wait for amendments to the Canada Pension Plan.

Mr. Lee: Currently, the Canada Pension Plan is recovering money from somewhere on a basis that is not legally authorized?

Mr. Bernier: The regulation queried by the committee created a civil right in favour of deemed employers against actual employers. There are circumstances in which the person who is charged with contributions to the plan is not really the employer of the contributor. That so-called ``deemed employer'' is then given a statutory right to recover the money he paid from the actual employer.

It is really between two private parties. This is why the committee has said that express legislative authority is needed in order to create a substantive legal right between private parties.

Mr. Lee: Is this civil remedy now being used by parties in the real world?

Mr. Bernier: I would not have that information. In the real world, I would presume that in most cases actual employers probably do voluntarily pay the contribution. On the other hand, that provision is clearly put in the regulations for a purpose, which is to cover the case in which an actually employer might refuse to reimburse the contributions.

Mr. Lee: The impugned regulations simply try to impose fairness between deemed and actual employers. It allows a remedy to make just and fair what technically did not happen.

Mr. Bernier: There is no question that the regulation is a sensible one. The question is whether Parliament authorized it to be made.

Mr. Lee: My question is to help us determine whether we should attack the existing regulation as not having a sound enough legal basis. If the impugned regulation can stay in place, and nobody is really harmed, then we can wait until the next legislative vehicle comes. It might be two years or five years. That is a long-standing file, but I would be prepared to wait that long if the regulation was not encountering difficulty and was simply an attempt to impose civil remedy fairness.

Mr. White: Thank you, Madam Chairman. My question follows from Mr. Lee's questions for clarification. Under the existing circumstances, is there the potential for a deemed employer to sue the government or pursue some sort of legal action against the government for not having this clarified, or will it be the case that the amounts involved are so small that nobody would go to that trouble but nevertheless there could be someone wronged?

Mr. Bernier: I do not think, Mr. White, that the government would be involved. The government has the authority to take the contributions from the deemed employer, even though it is not the actual employer. Parliament gave them that authority.

The deemed employer has no recourse against the government for having paid for someone else's employee. Any dispute would be between the deemed employer and the actual employer.

Mr. White: I understand that, but if the deemed employer is unable to do something because of an imperfection in the regulations and decides that the government is to blame for that then the government gets into the picture.

Mr. Bernier: In the absence of this, subject to further review, if the actual employer refused to pay back the contributions he paid, he would have no recourse against the government.

Mr. White: For having improper —

Mr. Bernier: For having paid the contributions.

The Joint Chairman (Senator Hervieux-Payette): There is an argument.

Mr. Lee: Just for the record, we must have these mikes responding more quickly. Who is on first here?

From speaking with Mr. Macklin, I understand that this particular regulation then puts in place what might otherwise actually be in place through the common law subrogation rights that may exist between the parties, or in an existing contract, a contractual provision that may exist between the actual employer and the deemed employer.

Is that right? My take is that is the regulation covers that same territory.

Mr. Bernier: Possibly.

Mr. Lee: I wanted to get that on the record.

The Joint Chairman (Senator Hervieux-Payette): We have to decide which avenue to take. You submit that we might wait, if, in fact, there are no rights lost in between, for the Canada Pension Plan legislation to be changed, rather than going through an omnibus bill to fine-tune the regulations to make sure they are done properly. We have two avenues. That is what Mr. Bernier suggested. We have the big avenue of going after the regulation as not being legal, but I need to hear from you which direction you want us to take.

Mr. Lee: Madam Chairman, I think we should just wait. Put the file aside. Tell the department we are waiting for them to put it into a piece of legislation. We can monitor it, as we usually do, and we will see in two or three years.

Mr. White: We may be all on Canada Pension ourselves before that happens.

Senator Moore: Are these clean-up bills that we get with all the bits of legislation from various statutes an annual happening?

Mr. Bernier: Not any more. It was planned to be, but now it is every four or five years.

Senator Moore: Is it that long?

Mr. Bernier: The initial program was set up for it be annual, but that never happened.

Senator Moore: Who has charge of that statute? Does that come out of Justice?

Mr. Bernier: It is the Department of Justice. It is called the Miscellaneous Statute Law Amendment Program.

The Joint Chairman (Senator Hervieux-Payette): We will go with the actual bill, because I do not think the other way is practical.

Mr. Bernier: As an historical footnote, the program was put in place by the current Prime Minister when he was Minister of Justice, for those who are interested.

Senator Moore: Do we write to Justice as well and say that this is something we want to see included in the next miscellaneous statute amendment bill?

Mr. Bernier: That can certainly be thrown in. A letter was sent in along the line suggested by Mr. Lee, and the suggestion could be made to the department.

Senator Moore: We can say we expect it to be in there.

The Joint Chairman (Senator Hervieux Payette): Let us go with that, then. The first one pass the post will be the one to receive the amendment.

The number item is SOR/85-686, and SOR/93-232.



(For text of documents, see Appendix, p. 10B:1)

Mr. Bernier: In this case, the enactment of the new pest control products act will resolve some of the concerns of the joint committee. In particular, sections 67(1)(t) and (u) of the new act, included in the material, will provide authority for existing record-keeping requirements. In this regard, the committee may wish to consider suggesting to the responsible agency that section 26 of the regulations, whose legality had been questioned by the committee, be re- enacted under the new authority to put its validity beyond question.

Second, the adoption of the definition of ``active ingredient,'' section 2(1) of the act, indirectly takes care of the minor problem of conformity between the two versions of that definition, which was previously included in regulations, and it has now been moved to the statute itself.

The Joint Chairman (Senator Hervieux-Payette): Is the conclusion that everything is almost perfect?

Mr. Bernier: The only thing is a suggestion that perhaps we ask that 26, which was the impugned regulation, be re- enacted under the new authority so that there is no question of its validity.

The Joint Chairman (Senator Hervieux-Payette): Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Senator Hervieux-Payette): We will now move to the next item.


Mr. Bernier: This correspondence provides an explanation for a change in the policy governing the formatting of statutory instruments. In this case, for the reasons given in Mr. Desjardins' letter, the requirement that a footnote accompany any amendment to a regulatory provision in order to identify the previous amendment to the same provision is no longer followed, inasmuch as the same information can be gained from the consolidated index of statutory instruments.

The only reservation we have about this change in approach is that it seems entirely possible that people will have access or may have access to a copy of a particular regulation or instrument published in Part II of the Canada Gazette but not have access to the consolidated index. For those people, it makes tracing the legislative history of a provision that much more difficult. There is certainly a net loss of information as far as they are concerned.

Another problem is that the consolidated index appears only four times a year, sometimes with some considerable delay.

If the committee agrees, perhaps this is an issue that we could attempt to revisit with appropriate officials of the Department of Justice, if only to verify that these concerns I have mentioned have been taken into consideration before their policy was changed.

Hon. Members: Agreed.

The Joint Chairman (Senator Hervieux-Payette): It is more on the management side than on the substance, is it? Does everyone agree?

Hon. Members: Agreed.

The Joint Chairman (Senator Hervieux-Payette): Let us move on.


(For text of documents, see Appendix, p. 10C:1)

Mr. Bernier: Madam Chairman, in 1997, the government adopted these regulations to govern the sale of hockey helmets under the Hazardous Products Act. The intent here was to preclude the sale of helmets that do not conform to the national standard for hockey helmets. Helmets that do meet that standard are considered safe.

The problem here does not have to do with the purpose but strictly the manner in which the department has sought to achieve that purpose. The simple and correct way to do what the department wants to do would have been to add hockey helmets that do not meet national standard CSA-Z262 to the schedule to the Hazardous Products Act. The effect of that would have been to preclude the importation, advertising and selling of hockey helmets that do not meet the national standard. Of course, then hockey helmets that meet the national standard are free to be sold and advertised in the usual course of trade. Instead of doing this, the department included all hockey helmets to Part II of the schedule and then made a regulation purporting to authorize the importation, advertising and sale of those helmets that meet the national standard.

The problem is that in order to validly add any product to the schedule to the Hazardous Products Act, the Governor in Council must be satisfied that the product presents a danger by reason of its design, construction or content. It is clear here, and it is accepted by the department, that the Governor in Council does not consider all hockey helmets to be potentially dangerous — only those that are not in conformity with the national standard. That being the case, the Governor in Council simply does not have the legal authority to add helmets that do conform to that standard to the schedule. He only has authority to add those that do not conform.

After quite an exchange of correspondence, that point appears to have been finally understood and accepted by the department. I refer here to the second paragraph of Ms. Weber's letter of July 23, in which she states:

We... agree that a restricted product added to Part II... must, according to the opinion of the Governor in Council, be considered dangerous or likely to be dangerous.

Unfortunately, having recognized that, the department seems to be unable to follow the logic of that position, and the proposal for amendment that is made in the next-to-last paragraph of her letter simply does not follow the structure of the act. The most obvious problem with the proposal that is made is that it proposes to define the product that will be added to the statutory schedule by reference to a regulation which itself can only be made after the product is added to the schedule.

As well, the repeated assertion of a need for a regulation allowing the sale, advertising and importation of helmets that do meet the requirements of the standard shows that, despite the encouraging second paragraph I referred to, Ms. Weber still does not understand that if these products are not considered dangerous, there is nothing for a regulation to authorize. The only regulations that are made under the Hazardous Products Act are regulations that govern the sale of dangerous products. Albeit they are dangerous, they are then authorized to be sold under certain conditions that are considered to lessen their dangerousness, if you will.

It is common ground, again, that the hockey helmets that conform to the CSA standard are not dangerous and not considered to be dangerous.

Clearly, further correspondence will be required in this case. I would think the next letter should probably include an offer to meet with appropriate officers of that department, because there is clearly a block there in terms of understanding of Hazardous Products Act that must be overcome.

The Joint Chairman (Senator Hervieux-Payette): Therefore, we agree that Mr. Bernier meets with the Department of Health.

Mr. White: At the top of page 2 of the letter from Ms. Weber, she quotes some Supreme Court judgments and says that they have to have a systematic and contextual interpretation of sections 5 and 6 of the act, and then goes on in the next paragraph as well: ``We must therefore interpret sections 5and 6 of the Act in their entire context,'' and presents an argument to justify the way they are doing things.

Mr. Bernier, you did not comment on that section of her argument at all. I wonder if you could.

Mr. Bernier: I have to formulate this kindly. It is an argument, and it is also quite beside the point. No one has questioned that 5 and 6 of the act in their entirety must be looked at when interpreting.

If one looks at the end of her second paragraph, that argument and these references to important cases decided by the Supreme Court, we find Ms. Weber stating that section 6 provides for the identification of the restricted product, which is then regulated under section 5 of the act. No one has ever said the contrary.

I ask the following: What is regulated under section 5 of the act? It is a product identified pursuant to section 6. What did she identify pursuant to section 6? She identified dangerous products. The problem is that hockey helmets that meet the construction standard are not considered dangerous. They are not restricted products under section 6. Therefore, it logically follows they are not products you regulate under section 5.

By her own admission, dangerous products are what you regulate under section 5.

Mr. White: The bottom line, then, is this whole argument is extraneous to the main point. I thank you very much for that, and I agree with your suggestion that there should be a meeting to iron this one out. Maybe we could have the Leader of the Opposition and the PCs arrange that for you.

Mr. Cummins: I may be the only one here with a problem. The product is listed as a hazardous product. It seems to me that there must be something inherent in the product itself that will cause harm. A cup of acid is a hazardous product, but I am not sure how a hockey helmet fits into that definition. It is essentially benign. How does it fit in, and how does the act allow for the definition of ``hazardous product''?

Mr. Bernier: The act specifically refers to sports equipment. The standard here is that the Governor in Council, when he adds a product to the schedule, such as a hockey helmet, a piece of equipment, must be satisfied that the product could pose a danger because of its design. That is the test. It is the ``opinion'' of the Governor in Council that, because of the design of the product, it could possibly pose a danger. I think we would all agree. A badly manufactured hockey helmet could pose a danger. In other words, if the helmet is constructed so flimsily that it does not fulfil its intended purpose, children would wear it thinking they are protected. They are not protected. They are hit, and they are injured because the helmet fails. That is the difference between a helmet constructed in accordance with the national norm and others.

They wish to have the Governor in Council say this: ``I am of the opinion that hockey helmets that are not constructed in accordance with this national norm, in my opinion, have the potential to be dangerous or pose a hazard.''

Does that answer your question?

Mr. Cummins: I find it difficult to understand. The helmet itself does not cause the danger. There is a disconnect between the term ``hazardous product'' and what are you trying to accomplish with a hockey helmet. You are telling us that the act addresses that particular disconnect, and it does discuss, in particular, the capabilities of protective devices or garments.

Mr. Bernier: I understand your point that, in a way, even a badly constructed helmet does nothing. It is an object. I think that is where I would agree with Ms. Weber's learned references to the Supreme Court decision. One must look at the whole context of the act. I think it is section 3(1)(b).

The reference here is to sports equipment, and, in that context, it is quite clear that the intent of Parliament, if you look at how the act has been used over the years, was to create this sort of two-step. You have the design, but it is sports equipment, so, in terms of its use, it is not fit for the use and, therefore, creates a hazard.

Mr. Cummins: The term ``hazardous product'' has a broader definition than one might assume from a quick reading.

Mr. Bernier: You will remember a few years ago that there was a problem with dangerous beans used in dolls. They were found to be poisonous. You could say the same thing. As long as the beans remain inside the doll and are used simply as stuffing, it does not present a danger to anyone, but, of course, those particular African beans were added to the schedule as a hazardous product based on the potential.

Mr. Cummins: They themselves inherently were a problem, whereas the helmet is a slightly different matter. It is a problem with terminology. As long as the definition covers it, there is not a problem.

Mr. Lee: Not to unduly prolong the debate on this, but I note that the department has accepted the possibility of amending the regulations, so if they are prepared to amend the regulations, surely, they must be prepared to amend the schedule to restate what class of hockey helmet is dangerous. Because we do not understand their logic here in resisting this suggestion of our counsel, I could not help but try to infer what the logic was. Perhaps someone thought that because hockey was inherently dangerous all hockey equipment must therefore be dangerous. Therefore, that is why we put all the hockey helmets under the dangerous category, or perhaps they just did not want to clutter the schedule with more than three or four words with the descriptive language that would have to accompany this. Counsel's suggestion would mean describing helmets that did not comply with the CSA standard.

The Joint Chairman (Senator Hervieux-Payette): My conclusion is the danger is the hockey players.

Mr. Lee: The danger is right around this table if we do not get on with the agenda.

The Joint Chairman (Senator Hervieux-Payette): Not only to write, but also to meet with people and continue the argument, because I think this is on the right side but there is confusion with the word ``hazardous,'' as Mr. Cummins is saying. Normally, it is explosives that we think of as hazardous, but in our minds it does not fit into a hazardous product.


Mr. Peter Bernhardt, Counsel to the Committee: There are two remaining amendments outstanding. These are now to be included in the Food Inspection Agency's next miscellaneous amendments package, so it would simply seem to be a matter of monitoring the progress of those amendments.

The Joint Chairman (Senator Hervieux-Payette): Thank you.



(For text of documents, see Appendix, p. 10D:1)

Mr. Bernhardt: The amendments proposed in the department's reply have been pre-published in Part I of the Canada Gazette. The committee was also advised that it is anticipated that these amendments will actually be made by next spring or summer. The proposed amendments will resolve most of the matters raised in counsel's letter of July 23, 2002. The points not addressed by the proposed amendments are the matters discussed in points 1, 2, 6, 11, first part of point 12, points 15 and 16. In connection with point 6 and 15, it is suggested that the department's explanations can be taken as satisfactory. If so, that will remove any need to deal with those further.

Taking the remaining points as briefly as possible, point 1 concerns what is really a defect in drafting in the English version of the definition of finished product. It appears the department has not grasped the point. If members are in agreement this would be pursued in further correspondence.

Turning to point 2, the unresolved question here is whether the placing of effluent from a mill into the municipal water treatment system constitutes deposit of a deleterious substance in waters frequented by fish or in any place where the substance may enter water frequented by fish.

If so, such deposits are subject to prohibitions set out in the act, which requires that these deposits be authorized by regulations in order not to contravene the statute.

The department replied that the language of the act is very broad and it also refers to a B.C. Court of Appeal decision in R. v. MacMillan Bloedel. This case involved an oil spill into Alberni Inlet from a dock. The defendants unsuccessfully sought to avoid conviction by claiming that as a question of fact there would not have been any fish in that part of inlet at that time of year.

I do not think an oil spill into Alberni Inlet is really comparable to flushing effluent into a city sewer system, so I am not sure what the relevance of that case is intended to be. It may well be that there is some cogent convincing argument for interpreting the act as applying the effluent placed into municipal treatment systems. If there is, I do not think the department has put it forward yet.

If the Fisheries Act is contravened when a paper mill puts effluent into a city sewer system without authority, then the same would seem to be the case when anyone puts a substance that would be hazardous to fish down their drain. It is hard to see that this is what Parliament intended. It would seem more likely that what was intended to be prohibited were releases into the environment rather than transfers from one facility to another for purposes of treatment.

Again, if members are in agreement, this is a point that could be further pursued with the department.

Mr. Lee: I agree with all of that.

Mr. Bernhardt: Moving on to point 11, Madam Chairman, this concerns provision in the regulations that provides that a report required under the act may be made — and I am quoting here: such department or ministry as may be responsible for environmental matters in the province where the deposit occurred or would occur, if the Minister has an arrangement with that department or ministry to receive the report and the Minister notifies the operator of the arrangement.

In other words, whether a particular provincial department or ministry is an authority to whom a report can be made will depend on whether the federal minister has entered into an agreement and whether the minister has given notice of that agreement to the operator.

However, the act requires that the authorities who can receive the report be prescribed in the regulations. I would suggest that this does not prescribe the authorities. The department argues that the authorities in question will be readily ascertainable. Readily ascertainable is not what is required. You should be able to know who the authorities are from reading the regulations alone. Again, I think this is another point that should be pursued.

The final two points can be dealt with fairly quickly. Point 12 deals with contents of the report of an accidental spill. The regulations seem to require the reporting of information that the operator would only have if he knew in advance that the accidental spill was going to happen. A further explanation of how this provision works in practice, and exactly how it is intended to function, should perhaps be sought.

Finally, point 16 concerns the desirability of clarifying section 3(4) of Part 1 of Schedule III. The department's proposed new wording, however, is not really an improvement over what is there now and perhaps, again, some further correspondence might prove fruitful to get some additional clarification.

In conclusion, it is our suggestion that these five points be pursued in a further letter to the department.

Mr. Lee: Agreed. Well done.

The Joint Chairman (Senator Hervieux-Payette): Are there any questions?

Hon. Members: No.

The Joint Chairman (Senator Hervieux-Payette): It is so clear.

Mr. Bernhardt: We would be preparing further correspondence dealing with points 1, 2, 11, 12 and 16.

Mr. Cummins: One question. The question of dumping pulp mill effluent into a municipal system, while at the outset may not appear problematic — and I am not sure whether this is relevant to the committee or not — it could be that a municipal system would not be designed to remove certain substances that would be present in the pulp making process. Therefore, any effluent dumped into this municipal system would simply travel through that system and then, when that municipal system released its water into the marine environment, the deleterious substance would necessarily lead to dumping into the marine environment.

That may be why this objection has been made, so it may be for a substantive reason.

Mr. Bernhardt: I am assuming as well, though, that if the municipality wished to refuse to accept the effluent from a mill it would be in a position to do so. There is no question as well that whatever the municipality would discharge into a water system would be caught by the act as well. Now, that is not going to help the municipality if it is getting things it would not have wanted in the first place. It is not really its fault.

Mr. Bernier: Mr. Cummins, the person making the deposit of the deleterious substance is really the municipal treatment plant. It is no longer the mill operator, but they are directing the regulation at the mill operator.

Mr. Bernhardt: They are trying to get both.

Mr. Cummins: The issue is one of control. The concern may be that there may be accidental or overt dumping of effluent from the mill into the municipal system and if the municipal system was not designed to monitor for that particular toxin then there could be harm to the fish. I am just trying to understand why that concern may be there. I just raise it, not as a point of contention but as a point of information.

Mr. Bernhardt: Under the regulations, the concern is with reporting requirements as well. Provided the operator complies with all the reporting requirements, they are pretty much allowed to dump what they want into the municipal sewer system. I think it is left to the municipality if it does not want to accept it. It seems that the concern federally from Environment Canada is more to ensure compliance with reporting, so then what they have done is if you do not report then your deposit is illegal but as long as you report they do not particularly much care what it is you are dumping in there. As it is a municipal system, it is up to the municipality to say, ``No, we don't want that stuff in our system.''

The Joint Chairman (Senator Hervieux-Payette): Other questions?

We will get back to them to fine-tune the rest of the points that were raised.


(For text of documents, see Appendix, p. 10E:1)

Mr. Bernhardt: These amendments address two points of drafting raised by the committee. They also gave rise to 14 new points and questions.

Amendments have been promised in connection with all of these, save for the matters discussed in points 1, 6 and 7 of the correspondence. We would suggest that the explanations provided in connection with these can be taken as satisfactory.

If members concur, it only remains to follow up on the problem of the amendments that have been promised and at last report these were expected to be made this fall.

Senator Moore: Are there three points outstanding?

Mr. Bernhardt: Our recommendation is that they be accepted as satisfactory explanations.

Mr. White: One question of counsel: When we reached the conclusion that a certain explanation be accepted as satisfactory, is a letter sent back to advise the people that we have accepted those as satisfactory, or is it left in limbo?

Mr. Bernier: Often, if a letter has to be sent for some other reason, it will be mentioned in that letter. If there is one point raised and the reply is satisfactory, no.

Mr. White: The reason I asked was, if we are trying to get additional cooperation, it is probably helpful — I am sure you have recognized this the past — to agree that certain explanations are satisfactory and now there only remain certain items outstanding.

Mr. Bernier: I can only suggest to departmental officials that they religiously read the proceedings of this committee.

Mr. Lee: There may have been no way around it. The paper burden associated with this particular agenda item is huge, but there may be no way around it.

Mr. Bernier: If we did not put the full regulation there, I am sure some members would have questioned that, Mr. Lee, because they would want to read it.

Mr. Lee: Our colleague Mr. Wappel would want to have it all there. Thank you.

The Joint Chairman (Senator Hervieux-Payette): It is good for you, the night before you can sleep very well.


(For text of documents, see Appendix, p. 10F:1)

Mr. Bernhardt: Madam Chairman, amendments have been promised in connection with all of the matters raised except for point 3. Point 3 concerns payment of fees and allowances to witnesses. The board's reply establishes that there is authority for these payments. It also seems to reveal that, strictly speaking, the rule is redundant. On the other hand, I suppose it does serve to alert witnesses of the possibility that they can ask for these payments if they so desire.

Again, if members agree, the reply on point 3 could be accepted as satisfactory. If so, we would again simply be monitoring progress of the promised amendments.

Mr. Lee: That is satisfactory.



(For text of documents, see Appendix, p. 10G:1)

Mr. Bernhardt: A number of amendments to the licensing and arbitration regulations were agreed to. A number of these have previously been made. Those remaining are to be included in an upcoming miscellaneous package.

The one unresolved matter related to section 20 of the regulations. This provision had the effect of requiring the minister to cancel the licence of a person dealing in produce where that person was in full compliance with the act and the regulations but where that person had previously employed someone whose licence had been cancelled.

The committee found this to be harsh and oppressive, to say nothing of having a tenuous connection to the purposes of the Canada Agricultural Products Act.

Having reflected further on the matter, the Food Inspection Agency has now proposed an amendment that would narrow the scope of section 20 in a manner that would seem to be acceptable. If the committee does accept the proposed amendments again, we would simply be following up progress.

The Joint Chairman (Senator Hervieux-Payette): Is that agreed?

Mr. Lee: Agreed.

The Joint Chairman (Senator Hervieux-Payette): Let us move on.




Mr. Bernhardt: There are a number of drafting defects and inconsistencies between the English and French versions identified in connection with these instruments. They are to be addressed when comprehensive specifications relating to automatic weighing devices are put in place. Essentially, this will be a consolidation into one of all the presently existing specifications.

Most recently, the committee has been advised that this initiative is ``a medium-term priority'' and that it will commence only after the international body that promulgates standards for measuring devices reviews its requirements. There is no indication given as to when this is expected to be. Perhaps the committee might respond by indicating that while it sees the logic in waiting for the international standards to develop so that they can be followed if this process bogs down the committee will wish to see the amendments that it has been promised proceeded with independently.

There is an additional suggestion. In cases like this in the past, the committee has often given two years as a reasonable time to hold matters in abeyance.

Mr. Lee: Agreed.

Mr. White: Is it likely that the inconsistencies between the French and English versions will create problems? Are they serious enough?

Mr. Bernhardt: They are relatively minor. These standards have been in place for some time. They were not registered and published. It was something that we stumbled upon in the course of reviewing something else. In some cases, these have been in place since the 1970s.

Mr. White: That is fine.

The Joint Chairman (Senator Hervieux-Payette): It is the same way in both French and English.



(For text of documents, see Appendix, p. 10H:1)

Mr. Bernier: In this instance, the committee has requested to be given a definite timetable for the completion of a comprehensive review of the migratory birds regulations.

That review was to include an amendment to section 4 to set out the types of conditions that may be imposed in a permit. It was also to include the re-enactment of section 26.1 in order to ensure its validity. Section 26.1 provided for the destruction of eggs of migratory birds and was ultra vires the act when first made.

As a result of the work of the committee, the act was amended to give the Governor in Council the power to make regulations providing for the destruction of eggs, but the validity of the regulation is to be assessed by reference to the statute as it stood at the time of enactment. This is why the regulation must be re-enacted.

In her reply, Ms. Wright gives the fairly good news that the two issues of concern to the committee have been divorced from the comprehensive review. These amendments will be proceeded with independently. She states that she expects both amendments to be pre-published in January 2004. The only question is whether that is satisfactory to the committee.

Mr. Lee: It is agreeable to me.

The Joint Chairman (Senator Hervieux-Payette): Agreed.



(For text of documents, see Appendix, p. 10I:1)



(For text of documents, see Appendix, p. 10J:1)


(For text of documents, see Appendix, p. 10K:1)




(For text of documents, see Appendix, p. 10L:1)







(For text of documents, see Appendix, p. 10M:1)


(For text of documents, see Appendix, p. 10N:1)


(For text of documents, see Appendix, p. 10O:1)


(For text of documents, see Appendix, p. 10P:1)

Mr. Bernier: With your permission, Madam Chairman, I will deal with the instruments under action promised, action taken, as a group. Under action promised, there are 16 amendments promised to correct, what are mostly minor defects of drafting.

Under action taken, two regulations in relation to which the committee had raised concerns have been revoked and the new regulations appear to be in order.

There are also eight other amendments made as a result of the work of the joint committee.

Finally, a number of orders amending the non-domestic substances list, which were discovered not to have been registered as required by the Statutory Instruments Act, have now been registered as required by the statute.

In addition, there are 41 instruments listed, and they are without comment.

The Joint Chairman (Senator Hervieux-Payette): Thank you. That is the agenda for today.

The committee adjourned.