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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 12 - Evidence, November 19, 2009

OTTAWA, Thursday, November 19, 2009

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

Senator John D. Wallace (Joint Chair) in the chair.


The Joint Chair (Senator Wallace): Good morning. Joint Chair, Andrew Kania, will not be here this morning.

Before I turn to counsel to speak to the first agenda item, members will recall that the committee received an invitation from Minister Nicholson to provide input to the development of a legislative proposal regarding incorporation by reference. The materials have been circulated to members with a draft of that proposed submission. I will ask Mr. Bernhardt to summarize.


Peter Bernhardt, General Counsel to the Committee: Committee members have the draft comments and recommendations before them this morning for their consideration. There is also a short background note on some of the issues that relate to incorporation by reference. I do not know how much background and detail members want to hear about this morning so I am able to speak generally to the issue, to the context or to the proposals, depending on members preference.

The Joint Chair (Senator Wallace): If there are no objections, counsel can speak to the proposals.

Mr. Bernhardt: In thinking about general legislation dealing with incorporation by reference, there are basically two questions. First, is such legislation desirable? Second, if it is desirable, what are the underlying principles that should be reflected in it? There is a benefit to putting in place a set of provisions that give clarity. As the recommendations indicate, however, clarity is only one consideration. The concerns that relate to the use of the technique should be taken into account both in deciding the types and sources of material that can be incorporated as amended from time to time, as well as in shaping the mechanisms to handle such material when it has been incorporated.

As concerns the types of materials that can be incorporated as amended from time to time, the draft suggests that, in general, open incorporation by reference of administrative documents generated internally by the federal government should not be permitted. When materials incorporated originate with the regulation maker, there is a danger that this incorporation can be used to make an end run around the regulatory process. Here, we are thinking about such things as departmental manuals. Parliament has decided that certain things should be set out in legislation. If one simply incorporates the departmental manual as amended from time to time, then to change those rules, one has only to change the manual. In effect, a law-making power is being turned into an administrative discretion.

If it is considered necessary in a particular case to use this approach, it can be authorized expressly in a particular statute, as it is done now. The same recommendation is made with respect to technical standards created by independent expert bodies — most commonly the Canadian Standards Association, or standards set out in international conventions and agreements. The effect is that a non-legislative body will determine the content of the law. As well, there are heightened concerns with this type of incorporation about access to the law. It might be difficult to find these standards, and one might have to pay a significant fee to obtain them.

Where other federal or provincial legislation is being incorporated, the draft suggests that these concerns are not as heightened and that there might be no objection to having a general power to incorporate other Canadian law as amended from time to time. However, the same concerns would not pertain necessarily to foreign legislation. Again, there might be access problems, and it is unlikely that this legislation would be enacted in both of Canada's official languages.

The second issue is accessibility. The draft reflects the view that if a regulation maker wishes to incorporate a document by reference, there should be no objection to a legal obligation to keep a copy of that document and make it available to the public. There should be requirements also to make the public aware that this document is available. If standards emanate from independent third bodies, there might be copyright issues. The draft suggests that there is no reason for a regulation maker not to bear the responsibility for making the necessary arrangements to obtain permission to make that standard available to the public because that regulation maker wants to use the standard. It is suggested that where an open incorporation by reference occurs, there should be an obligation to ensure that the most up-to-date version of the document is readily available, as are all previous versions of the document, so that it is easy to track changes.

Other aspects are touched on in the draft recommendations. First, it is recommended that the legislation include a defence against being convicted for contravening a provision of a regulation that incorporates material by reference, unless the material in question is readily accessible. Second, it is suggested that this defence extend not only to fines and imprisonment but also to all sanctions, including cancelation of licences and permits, which in practice might be more significant to someone running a business. A similar defence exists in the Statutory Instruments Act for contravening an unpublished regulation.

The final recommendation is that material incorporated by reference be subject to full parliamentary scrutiny. The material should not be excluded from review by the joint committee simply because it has been incorporated and not reproduced word-for-word in the regulation.

The Joint Chair (Senator Wallace): Are there questions or comments?

Mr. Lee: I want to congratulate all our counsel for collaborating on this draft. It is a good reflection of the views of the committee over the years. In particular, I congratulate them for highlighting the significant points.

The only thing I may have done a little differently is that our counsel are used to lowballing and understating things so that the written work slides through a little easier. I would have used firmer language with regard to the incorporation by reference of internally produced material as set out in item 1 on page 3 of the English version — ``material originating with the regulation maker.'' Counsel used the phrase ``to incorporate in that manner would circumvent the regulatory process.'' I would have ratcheted up the language a little because we can end up with a co- option of the process — a distortion of it, an abuse. Circumventing might even be legal. Circumventing the payment of taxes is simply tax planning. Tax evasion is a criminal or quasi-criminal offence. It is fine if counsel thinks the words there are firm enough. They have highlighted that this type of incorporation should not be permitted.

Mr. Bernhardt: If members wish to underline the point, we can refer to using it to circumvent the process as being an abuse of the technique.

Mr. Lee: I would prefer something like that. We would regard that with great umbrage. We would not regard it simply as someone who turned left instead of turning right. It would be an abuse of the regulation.

Mr. Bernhardt: Can we say this technique may be abused so as to circumvent? Replace ``used'' with ``abused.''

Mr. Lee: That is okay. The change would be in both official languages.

Mr. Bernhardt: Yes.

The Joint Chair (Senator Wallace): Are there any comments on Mr. Lee's point before we leave that item?

Mr. Szabo: I have a comment on that point. It struck me with regard to the matters of incorporation by reference and the specific reference to ``administrative documents.'' I am seeking clarity. It appears to me that if it is sufficiently important to incorporate into legislation, that ``administrative documents'' almost does not seem to suit the importance of the incorporation. ``Administrative documents'' does not resonate for me. I do not know how the term is defined. I do not know what the accessibility of the administrative documents would be to a user or a stakeholder. I do not know whether they will be dated or changed from time to time without notice and subject to notice requirements. I am also a little concerned about why there is no formalization beyond what is so-called an ``administrative document.''

It seems to be an invitation to provide less clarity to the intent of any legislative instrument.

Mr. Lee: With reference to the draft letter to the Minister of Justice, the letter is almost perfect. It is great. Can I refer to this as IBR instead of incorporation by reference? It is a good new acronym.

We ought to watch the development in IBR closely. Whatever legislation goes into place, if it is passed, will be there for a century. It will not change. It will be there for 100 years for sure.

We ought to be on the leading edge of this development in attempting to collaborate with the Department of Justice Canada as it rolls out what it wants. I think there is a good chance the department will roll out something that we might differ with. The department might look for a shortcut. There are expediters in the department who want to hasten this regulatory process. They will be asked to design something to accomplish that.

Our perspective comes from the citizens' perspective. We are the only back-stop and scrutineer of this next step that will be there for the next century. No one out on Main Street knows about this step at all. I ask counsel to ride this item as closely as possible on a collaborative basis. I ask government members to do the same thing.

Senator Harb: This issue has been ongoing for some time. Someone is trying to go through the side door in many ways.

Is it possible to ensure that every time someone goes outside the intent that they have to give an impact statement to the affected committee or to this committee? Put the onus on them every time they make a change to give a statement in terms of the impact.

The Joint Chair (Senator Wallace): To be clear on what you are saying, if someone ``goes outside of the intent,'' how do we define and express that?

Senator Harb: I would put the onus on the regulation maker. Whenever one defers to them, one gives the authority to proceed within that delegation of authority. Every time they make a change, they have to give an impact statement.

Mr. Bernhardt: That would be one of the goals of having general legislation. In addition to saying this is when someone can and cannot, there would be requirements, not only notice to Parliament. It would include notice, availability and access generally so people would know copies of these things are available, how they can access them and who to contact. In some jurisdictions, a notice of those items must be published in the Canada Gazette: We are incorporating this document; this is where it is available from the government; and this is who to contact to find out what it says.

At one extreme, they would have a register of these things where you would go to see a master list. It is not one of the recommendations we have made in the draft, but it would be the ultimate possibility. In some jurisdictions, as I say, when they publish the regulation that makes the incorporation, attached to that regulation will be a statement identifying the standard, the date and where it is available.

I think the onus should be on the regulation maker.

Senator Harb: Exactly.

Mr. Bernhardt: It should not be simply that if someone wants this document, they go to the International Organization for Standardization, ISO, or the Canadian Standards Association, CSA, pay their $200 and obtain a copy like everyone else. If the regulation maker wants that document to become part of the law, the responsibility should be on the regulation maker both to have it and publicize that they have it. If there is cost involved in obtaining copyright permission, so be it.

The Joint Chair (Senator Wallace): Mr. Lee, for the purpose of our submission and the letter, it makes sense to change the letter to reflect our desire to collaborate on a continuous basis throughout the process.

Mr. Lee: Yes, be a bit more ``friendly-pushy.'' Look over their shoulder in a friendly and helpful way.

The Joint Chair (Senator Wallace): We will do that. Are there any other comments or questions?

Before I turn to counsel, the next item in your binders is a series of Statutory Orders and Regulations, SORs, and a memo on the letter of February 4 from the Canadian Radio-television and Telecommunications Commission.



SOR/87-49 — Television Broadcasting Regulations, 1987

SOR/90-105 — Pay Television Regulations, 1990

SOR/90-106 — Specialty Services Regulations, 1990

SOR/92-609 — Radio Regulations, 1986, amendment

SOR/92-611 — Television Broadcasting Regulations, 1987, amendment

SOR/93-420 — Broadcasting Information Regulations, 1993

SOR/2003-29 — Regulations Amending the Broadcasting Distribution Regulations

SOR/2003-458 — Regulations Amending the Broadcasting Distribution Regulations

SOR/2006-107 — Regulations Amending the Specialty Services Regulations, 1990

SOR/2006-108 — Regulations Amending the Pay Television Regulations, 1990

(For text of documents, see Appendix A, p. 12A:1)

Jacques Rousseau, Counsel: All the regulations in the list, which goes from from SOR/97-555 to SOR/2006-108, were adopted by the Canadian Radio-television and Telecommunications Commission pursuant to the Broadcasting Act. The committee has already examined some of these files, but not others.

After 2002, the various points were grouped together, and correspondence continued with SOR/97-555 as the reference. The last time the committee discussed the majority of these files was in 2005. Following that meeting, counsel sent the CRTC a letter dated May 10, 2005, listing all the points for which the committee sought more information, as had been done previously.

The CRTC did not reply to that letter until April 4, 2009, further to a meeting with committee counsel in which we gave the CRTC a categorized list of all the points that were pending. The CRTC used that list of points to prepare the document appended to the letter of February 4, 2009, which constitutes a response addressing all of the pending points.

The note prepared for the committee puts that response in perspective, as mentioned in point 1 of the note, with respect to all of the regulatory provisions at issue except two. The CRTC says that it is preparing amendments, but it has not provided any details on the nature of these amendments. It stated that it will share them with the committee when the proposed amendments are published. Clearly, this response is not very satisfactory, particularly with respect to the points that deal with matters of substance, which are laid out in detail in the note. Point 3 of the note addresses provisions that contradict the Canadian Charter of Rights and Freedoms, and the committee is not satisfied with the justification provided by the CRTC under section 1 of the charter. Point 4 addresses provisions through which the committee transforms its regulatory power into an administrative power. Point 5 addresses a provision that gives the CRTC a discretionary power, and the committee is not satisfied with the response it received regarding the application of that provision.

Regarding all of those points, it is recommended that the committee write to the CRTC to request greater precision on future amendments.

Point 2 of the note addresses the two provisions that the CRTC does not plan to amend for the time being.

The CRTC incorporated by reference, in these provisions, forms whose content can change after regulations have been made. Licensees are required to submit the information specified in the forms. These provisions pose problems with respect to transforming a discretionary power into an administrative power, as well as problems such as those identified by the committee in ``Report 80 — Incorporation by Reference''.

In both cases, the information is not specified in the regulations, as set out by Parliament. The CRTC had originally committed to making amendments. The note explains why counsel is of the opinion that the justification provided by the CRTC is not satisfactory.

In short, neither of these legislative provisions clearly grants the power to require information other than by regulation. They are very broad enabling powers, which are cited in the note. The CRTC also says that it will be undertaking a far-reaching amendment of the Broadcasting Distribution Regulations for 2011 and that, in the meantime, it will once again review the necessity for these forms.

This is not satisfactory in the opinion of committee counsel. The CRTC should commit to amending these provisions to address the problems that have been identified. Once again, counsel recommends writing to the CRTC.

The committee should also ask the CRTC to provide us with a detailed time frame for all of the amendments to be made.


The Joint Chair (Senator Wallace): Thank you, Mr. Rousseau. Do members have any questions or comments?

Mr. Hoback: That sounds fair.

The Joint Chair (Senator Wallace): We will write in the manner you suggested, Mr. Rousseau.


(For text of document, see Appendix B, p. 12B:1)

Mr. Bernhardt: As the note explains, we are dealing with section 801.09(3)(b) of the Canadian Aviation Regulations. The section provides that the holder of what is called an ATS operations certificate, which is a person operating a flight service station, must provide the minister on request with a copy of the training record of any person acting as a flight service specialist at that station.

The Aeronautics Act authorizes the Governor-in-Council to make regulations with respect to keeping records and documents. However, it says nothing about providing such reports to the minister. Traditionally, the obligation to keep records and the obligation to submit them are distinct, and one does not necessarily follow from the other.

In March, the committee examined another amendment to the same regulations and, at that time, the committee accepted the department's position that the act does authorize a provision in the regulations that requires the holder of a permit or licence to notify the department of a change in that person's permanent address. To the committee, this authorization was implicit in the power to make regulations respecting the accreditation or licensing of people providing services related to aeronautics.

The question this morning is whether the same rationale now applies to the provision in question here. The note prepared for this morning suggests that it is possible to see the two provisions as different. The requirement to provide a change of address is, of course, routine information. The requirement is intended to ensure the minister can communicate with licence and permit holders to keep them apprised of developments, safety-related matters and so on.

The provision here, section 801.09(3)(b), on the other hand, pertains to records that show the place and date of the successful completion of training that is required under the legislation. The purpose, then, is to check that people have complied with the law; it can be described as an enforcement measure. Instead of an inspector going out to look at the records, certificate holders must send the records to the minister to be inspected.

In the Aeronautics Act, Parliament has given the minister certain inspection powers and, in other cases, delegated regulation-making powers to the Governor-in-Council dealing with inspection. The regulation-making power is to make regulations respecting inspection of aeronautic products, facilities and aerodromes. The act says nothing about inspections dealing with individuals, per se.

Section 8.7 of the act, however, gives broad powers of entry and inspection for the purposes of making inspections or audits relating to the enforcement of the act.

Therefore, the minister has powers to enable the minister to enforce the act, and the general rule is that, in the absence of an explicit enabling provision, regulations cannot be used to increase the minister's powers in this regard.

In a nutshell, the potential distinction the committee can make is that the power to impose an obligation to provide information or records can be implicitly delegated, if this delegation is to foster transmission of information. On the other hand, if it is a matter of giving enforcement powers, the committee can continue to require clear authorization in the enabling act. If the committee decides to accept that view, a letter to that effect should be sent to the department.

This morning, counsel is looking for guidance as to whether members view requirements imposed for enforcement purposes as significantly different than those requiring what is merely routine information.

The Joint Chair (Senator Wallace): Thank you. Do members have any questions or comments?

Ms. Cadman: What sort of precedent does this set?

Mr. Bernhardt: In the past, the committee generally has objected to any information submission requirement that was not expressly authorized by the act. In March, the committee put a gloss on that objection. In that case, it dealt with basically a change of address requirement.

The committee took the view that if they have the power to license people and run a licensing regime, it follows necessarily that they have the power to require these people to keep them up to date on where these licence holders are and how to contact them. To do that, they have to require that licence holders keep their address with the licensing regime up to date. The one seemed to follow from the other.

This provision is a little different, because here they require licence holders to submit things to prove they have complied with the act. Therefore, we thought we should come back to the committee and ask if the committee wishes that March decision to apply broadly to all information-keeping requirements or if the committee wishes to make a distinction between routine information, like change of address, and information that licence holders are asked to submit to establish that they are complying; requirements that are there so they can enforce the act.

As I say, they are perfectly within their rights to require licence holders to keep these records and then send inspectors out. Here, they are saying they do not want to bother sending inspectors out; it is easier for licence holders to send the proof and it is up to them to send that proof to the licensing regime. Does that make a difference?

Mr. Lee: I will be devil's advocate here — and I appreciate the hard work that counsel puts into these things. As counsel points out, the last time the issue on this Aeronautics Act envelope came by us, we accepted the view of the department. We found a way to rationalize it, or we accepted their view.

As I recall it, this regulation was part of the post-9/11 response. That is my recollection. There was and is a need to tighten up the information system in relation to aeronautics for reasons that are obvious. I do not want to be too hard on them.

I will make a case right now for the department. Counsel can shoot me down, as he probably will be able to do, but the act permits the government to make regulations for keeping and preserving records. They do this record-keeping.

Although counsel infers here that what this new regulation will do is allow the minister to say please send me data, in whatever manner, on this particular trainee who works at your flight service depot, I cannot interpret the regulation to say that it involves only a fax or a request over the phone. There is nothing to stop a federal employee — an agent, an authorized police officer — from going to the flight service depot and requesting the same information.

The regulation says, ``at the request of the Minister, provide the Minister with a copy.'' That information can be provided person to person. The Mountie can be at the location and say, ``I have a request from the minister; please show me the record for the last 10 people who were trained here.'' That request will not breach.

Mr. Bernhardt: No, in fact, that request is expressly authorized.

Mr. Lee: Yes, but counsel has also upped the ante here by building into it an inference that it can include a telephone call from somebody authorized by the minister saying, please send us the record, which counsel says goes beyond the keeping of the record. However, in both cases, the minister is saying: turn over the information; we have the authority; show us the record or give us a copy.

I suggest to counsel that this regulation falls within the description of keeping and preserving records in some scenarios. In other scenarios, it may stretch the point a little bit.

I go back to my earlier comments. In a post-9/11 construct, I do not want to be naive or stupid, and poke holes in what is there. Therefore, I accept the department's argument. I accept counsel's pointing out that in some factual circumstances it might be a bit of a stretch to say that in all scenarios the department has the ability to cause the forwarding of the record.

Does counsel accept that they have the right to have the record turned over to somebody who requests it in person?

Mr. Bernhardt: Yes, that is the distinction. This has not yet been an argument put to the department. When we looked at this issue in light of the previous one, we thought we should bring this issue back first to ensure that we accurately reflect the view of the committee.

The argument here is that Parliament has said, if they want these records, they can go and obtain them and that is how they obtain them. By requiring the information to be submitted, they are reversing not the onus, but the effort. The act specifically says inspectors have the power to go out, inspect and take copies of documents, they can enter and inspect to obtain that information.

Mr. Lee: Do we accept that as authorized?

Mr. Bernhardt: That authority is expressly in the act.

Mr. Lee: However, they cannot phone up and say, send us a copy. Is that what you are saying?

Mr. Bernhardt: They cannot shift the burden. Parliament has said the burden of obtaining these things falls to the regulator. If they want them, the regulator can go and obtain them.

Here the argument is that we are making the person who is regulated make the effort, when Parliament has said it is the regulator that is supposed to expend the effort. The regulation puts an additional burden on the person that Parliament has indicated should fall to the government.

Mr. Lee: If the government inspector is there in person and says over the counter: ``Make me a copy, I want to take it with me,'' you are saying he cannot ask for that information?

Mr. Bernhardt: The inspector can ask for that information, but the inspector has to go and obtain it.

Mr. Lee: The inspector has to make the copy?

Mr. Bernhardt: No, the inspector can require the copy to be made.

Mr. Lee: However, if the inspector asks by phone?

Mr. Bernhardt: That is the question. Is there a distinction there?

Mr. Lee: Colleagues, we can say that it depends on the factual scenario. I am inclined to accept that in some scenarios, the regulation is valid. I would indicate to the department that there may be some scenarios where the regulation might not be; and maybe they should consider cleaning up this bundle of regs to clearly enable the minister's authorized person or the minister — I do not know what the wording is — to provide in some fashion a copy of the records.

Mr. Bernhardt: It is language that is routinely used in statutes. Here, I think the enabling provision talks about regulations respecting the keeping of records. The statute could say, ``regulations respecting the keeping and submission of records.''

Mr. Lee: Yes, and for reasons colleagues will recall, a lot of these regulations were put into place quickly at the time. That is the approach I would take. I do not know what other members think.

The Joint Chair (Senator Wallace): Are there any other questions or comments on that point? Mr. Bernhardt, are you clear on how we respond?

Mr. Bernhardt: Basically, we give them a pass on this one but it is a case-by-case basis.

Mr. Lee: Yes, we should warn them about different-case scenarios. We have not reached a conclusion that, in all scenarios, the regulation would be valid, and the department should seriously consider clarifying it and amending it.

Mr. Masse: We may want to consider that we are reversing the onus and possibly setting a precedent that a person who takes a permit with the government, then later on, has the onus placed on them, despite the government having the records already. That is what will happen here. There will be other examples where licences, permits and so forth will be provided now with a reason for the onus to be on civilians to produce documents they have already paid for, complied with and followed the rules for.

Ms. Cadman: I am confused. Are we asking them to provide these records? We want them to provide the records; is that right?

Mr. Bernhardt: No; the minister wants the records.

Ms. Cadman: What will the minister do with the records? What does the minister want them for?

Mr. Bernhardt: The minister wants them to verify that these people have the proper training, that their accreditations are up to date and that they are complying with those requirements in the act.

Mr. Masse: However, they already have those records.

Ms. Cadman: Do they have the records or do they not have the records?

Mr. Bernhardt: The operators —

Ms. Cadman: The operators have the records.

Mr. Bernhardt: — have the records, yes.

Ms. Cadman: The minister wants to be able to have the records sent to the minister.

Mr. Bernhardt: Yes; it is to save the inspector the trouble of going to the site.

Ms. Cadman: I do not see what the problem is, though.

Mr. Bernhardt: In this case, I think the reasoning is that, because the inspector has the power to go out and require the copy, it is only an aspect of that power that the minister can ask for this information.

Ms. Cadman: Does it keep these people on their toes?

Mr. Bernhardt: Absolutely.

Ms. Cadman: They never know when they will be called upon to put these forms up.

Mr. Bernhardt: I think that is one reason for doing it this way. I suggest that the same thing is true of an inspection: If they do not know in advance when the inspector will arrive on their doorstep —

Ms. Cadman: This is true.

Mr. Hoback: It is only a certain way of conducting an audit of the facility.

Senator Ogilvie: I am having a hard time understanding the length of time we are spending on this particular aspect. The issue that counsel has been elaborating puts the onus on the individual to provide proof that they have something which, in counsel's words, they have already applied for and been awarded. It seems to be the whole point of issuing authorization. After all, anyone can masquerade as whatever.

The proof is in providing the evidence that licence holders have, in fact, been provided with the credentials and a recognition that they are authorized in a given situation.

Frankly, I think it is important that we have the right to determine that, not only do they say they have the credential, but that they can prove that they have been awarded the credential.

Mr. Bernhardt: The only question here is the means of doing so. That is all we are dealing with.

Senator Ogilvie: I understood that question to be a second part of the discussion. However, I do not see the point about whether inspectors show up at the door and ask for it and inspectors have that right, or they call and can provide sufficient identification that they have the authority to request.

Mr. Bernhardt: We are asking only for the committee's guidance on the issue. If that is the committee's guidance, then we are perfectly content to take it.

The Joint Chair (Senator Wallace): We will give a pass on this one.

Mr. Bernhardt: We will give a pass, while indicating that it is not a blanket approval of the technique for every situation and every statute?

The Joint Chair (Senator Wallace): Good; thank you.



(For text of documents, see Appendix C, p. 12C:1)

Mr. Rousseau: Before I begin explaining the file, I would just like to point out that the English translation frequently uses the word ``counsel'' instead of the word ``board'', referring to Treasury Board, which may make the note difficult to read. I apologize. That being said, I will try to summarize the file, and I hope that it will be clear enough.

Four points were originally raised in regard to this matter. Further to the meeting of March 12, 2009, committee counsel transmitted the committee's comments on the last two points to Treasury Board and asked to know when the amendments promised in relation to the two other points might be made.

As to those amendments, in its letter of June 2, 2009, Treasury Board replied that it hoped to present the regulations to Treasury Board and obtain ministerial approval in the fall. As to the two first points, committee counsel finds that the response is not satisfactory on the first point, and ambiguous on the second.

The first point addresses section 12(2) of the regulations. The committee questioned the validity of this provision, which provides for benefits paid to a person to be withheld in order to recover an amount owing following a failure to pay.

Section 15 of the Special Retirement Arrangements Act provides that every person who is subject to an arrangement is required to contribute by reservation from the person's salary or otherwise, in the manner and under the circumstances prescribed in respect of that arrangement, at the rate or rates established by the regulations. Treasury Board is of the opinion that, by providing that persons subject to an arrangement are required to contribute by reservation from their salary or otherwise, Parliament implicitly authorized the retention of benefits paid to a person.

The committee did not find that interpretation persuasive because there is a major difference between a way of paying a debt and a way of recovering a debt. In the act, Parliament deems the retention from a benefit payable as a way of recovering a debt. The committee is of the opinion that the wording ``or otherwise'' in section 15 of the act relates to payment of contributions and not to recovery of debt.

In its letter of June 2, 2009, Treasury Board explained that the regulations apply to deputy heads who have left the public service and who apply to have a period subsequent to their employment be considered as pensionable service. These individuals cannot therefore contribute by reservation from their salary. Under section 15 of the act, other means of contribution must be found. Treasury Board relies on section 21(1)(g) of the act, which provides for the making of regulations respecting elections under paragraph 11(1)(d) of the act, that is, elections made by deputy heads concerning a period subsequent to their employment. These two justifications are not convincing. Both are based on the interpretation that Parliament had implicitly granted the governor in council the power to provide for a retention of benefits payable except where it can be established that that is indeed the case. That interpretation must be rejected. Committee counsel agrees that it must be, first because there are other means of recovering these contributions, even if Treasury Board considers these inappropriate. Second, when Parliament wanted to delegate regulatory powers in this area, it expressed its intention clearly.

As for point 2, the committee questioned the necessity of section 20(7) of the regulations. If Treasury Board's response means that, in the case of death, any balance remaining unpaid shall automatically be recovered from any benefits payable, without the authorization the minister may give pursuant to section 25 of the act, it can be concluded that section 20(7) of the regulations is valid. Section 25 of the act would be the general rule, and the regulations would apply in the case of death. Counsel recommends writing to Treasury Board again regarding these two points and the promised amendments.


The Joint Chair (Senator Wallace): Thank you. Do members have any questions or comments on the suggested action we should take?

Mr. Lee: This is a tough meeting today; there is a lot of toast to chew on.

I am not in full agreement with counsel's view on point 1. I accept counsel's view of the world that government cannot do anything that it is not authorized to do under the statute and to do properly under the regulation. In that view of the universe, government cannot do anything unless it is properly authorized, in particular to take money from its citizens.

In this case, however, I am not so sure. Please correct me if I am wrong, counsel, but I do not think we have given adequate berth to the common law right of setoff. No matter what we do, that common law right exists. For example, if someone owes me money, it does not matter where I am or where that individual is or what kind of money is moving around, I have that common law right of setoff. I can take the $20 that the individual owes me from wherever I find that individual's money provided it properly comes into my hands. I simply take it. If the government has a legitimate claim to money owed to it by a person, then I do not see anything wrong with the government taking it, on an orderly basis, by way of setoff not because the government is authorized to do so in a regulation. The money must be taken in an orderly way. In this case, we are dealing with a few high-ranking officials from government who have been able to buy additional pension time or entitlement. I do not understand the pension benefits but I believe they are an extension of a privilege to them. The officials have taken the benefit and they have to pay for it. The question is: How do we obtain the money from them when they have to pay for it.

Although the regulations do not adequately cover the mechanism to take the money from them, I suggest that common law authorizes a creditor to take by right of setoff the money that is owed to the creditor. Instead of taking it all at once, the government will take an amount per paycheque toward what is owing. I ask counsel to respond to that. Is it not a solution to our problem for the government? This issue will go away anyway because the people will draw their pensions for 50 years and then go on to the next life.

Mr. Bernhardt: I am no expert on the common law right of setoff. Assuming that you are entirely correct, Mr. Lee, does that not then lead to the conclusion that, at the least, these regulations are useless in that they simply do and say what is already the case by virtue of the common law and, for that reason alone, the provisions should be taken out because legislation does not state things that do not need to be stated? It makes rules.

In this case, the legislation simply reproduces rules that exist somewhere else. It serves no legislative purpose and the regulations should be removed. Then, there is fallback on whatever rights they have under the common law, whatever the rights might be.

Mr. Lee: The state does not always want to act like the sheriff of Nottingham and grab money from the taxpayer so the state puts in place a set of rules. I put to you that in putting a set of rules in place for the taking back of money from people who owe it to the government, there remains the common law right of setoff. The putting in place of administrative rules for the taking of money from people who owe it does not displace the existing right of setoff.

Mr. Bernhardt: No, certainly not.

Mr. Lee: Resorting to the setoff is fine unless this committee were to view it as an unusual or unexpected use of power.

Mr. Bernhardt: The committee's point in raising this issue in the first place is that the government is perfectly entitled to the same rights of common law as those held by any other creditor.

Mr. Lee: I hear a ``but.''

Mr. Bernhardt: If one of those rights happens to be in a regulation, then that regulation is perfectly pointless. It does not set out the rules but it regurgitates rules that are set out elsewhere, for example, the common law.

Mr. Lee: However, the government has tried to be nice and put rules in place to govern its civil service. Likely, there are 500 civil servants collecting money from people who owe the government. The public service has a set of administrative rules to control how that is done, but a new set of rules was not written for this case of a number of people involved in a plan adjustment. The government simply said that these people owe money and that it must be paid. The government did not bother to write a special administrative rule to enable it to collect the money. Perhaps that is a deficiency. Underlying all of this issue is the fact that it is not illegal for the government to use the right of setoff and collect that money from those people on an orderly basis. That is my point.

Mr. Bernhardt: The difficulty is that the government would not be using the right of setoff and is purporting to use a rule that it set out in the regulations. We suggest that the rule is not proper but if there is another rule elsewhere, the government should feel free to use it because the government has the same rights as anyone else.

Mr. Lee: I agree. Counsel is 100 per cent right. I invite the department to use the right of setoff and send the committee a letter justifying it and confirming that it will be over in three years with everybody happy.

Mr. Bernhardt: I suspect they have myriad options but found this one to be more administratively convenient.

Mr. Lee: I agree with counsel on the technical side.

Senator Hervieux-Payette: In civil law, we cannot pay ourselves. It is written in the regulations. Counsel's comments are more in line with the Civil Code than with common law, perhaps. If someone receives a payment, they cannot pay themselves from it. It is not legal. I agree with what you are doing.

The Joint Chair (Senator Wallace): After listening to Mr. Lee's comments and after reading the reference to contribute by reservation from the person's salary or otherwise, I must ask whether there is any ambiguity in that wording? The ``otherwise'' in that wording refers to ``contribute,'' not to ``reservation.'' It seems that the only provision for reservation is from a person's salary. Yet, the example they provide talks about setting off against retirement benefits. Is the wording ambiguous? I think it is ambiguous and that they are combining two thoughts: One is how the contribution can be made and the second is the right of setoff. The only right of setoff in the act is the right of setoff against the person's salary. That is the only one mentioned. There is an ambiguity that requires clarification.


Mr. Rousseau: You are absolutely right. If we look at the context of the act, as we tried to explain in our correspondence with Treasury Board, when Parliament wants to grant regulatory powers in this area, it makes that intention clear.

That was done with respect to section 25 of the act. A clear regulatory power was granted to take regulations on retention in those circumstances. If Parliament had wanted to do so in this case as well, it would have and it would have made its intention clear, which it did not do. So the legislative context is quite clear on the limits of the governor in council's regulatory power in this matter.


Mr. Saxton: To clarify the situation, our intention is to write to the Treasury Board again. We have a new chief of human resources at Treasury Board. Maybe she will shed further light on the situation. Why do we not write back to Treasury Board? Hopefully, we will receive clarification the next time.

The Joint Chair (Senator Wallace): Are we agreed?

Hon. Members: Agreed.


(For text of document, see Appendix D, p. 12D:1)

Mr. Bernhardt: Chair, we have been promised an amendment to deal with point 2 in counsel's letter. As well, although the agency does not agree with the minor amendments proposed in connection with point 4 and point 5, I suggest that their explanations can be accepted. This leaves point 1 and point 3. As the note explains, it is suggested that the reply is not satisfactory on those points.

Point 1 concerns section 26.2(2) of the Dairy Products Regulations. The section states that a copy of the establishment's pest control program must accompany a licence application. The agency then reviews this proposed program, assesses it and decides if it is acceptable based on criteria set out in the agency's Dairy Products Inspection Manual.

There is no doubt that the agency can adopt an internal guideline to help it make case-by-case decisions. However, those guidelines should be exactly that; they should not contain provisions that every applicant must comply with in every situation. That practice goes against the idea of evaluating each program individually as well as the notion that the applicant is to determine the methods appropriate to a particular case.

The problem arises when we look at the manual. It gives the distinct impression that these criteria are, in fact, rules or standards that an applicant must meet to obtain a licence. Since every applicant must comply, it can hardly be said to be a ``guide.''

For example, the manual requires all chemical products used to be listed in the program. The concentrations that the chemical products have to be used in must be listed in the program and so on.

It appears that the agency is turning an administrative power into a power to legislate its own rules. It is suggested that if these so-called ``guidelines'' are criteria or standards that everyone must meet if they want to keep and have a licence, then it follows that these things should be set out in the regulations themselves.

Point 3 concerns provisions that give the director discretion whether to suspend or to cancel a cheese import licence if the importer does not comply with the Canada Agricultural Products Act. The agency claims that this discretion allows the director to treat individual situations on their own merits. The other side is that there is the possibility of inconsistent treatment in identical situations.

Although there has been a contravention, the director still has discretion to decide whether to suspend the licence or to allow the person to continue in business. In effect, the director decides which breaches of the act have to be complied with in each situation.

The note cites examples of other regulations made under the same enabling act that do not include this kind of discretion. The note recommends that the agency be asked to reconsider its position in light of the fact that it has not seen this discretion to be necessary elsewhere.

In short, we recommend writing back to the agency to pursue these two points.

Senator Harb: I do not know if we have statistics in terms of the number of times people are denied licences and so on. You are dead-on to challenge and go back to them.

The issue is twofold. First is the processor. If someone is processing the cheese, the agency can go right to the source where they are producing the product and check the methods. Second is when they are importing the product because the agency has zero control over the manufacturing process used in certain parts of the world. If we want to see that, it will incur extra costs. It is a little tricky.

As counsel said, it is about consistency. If a batch of products arrives in Canada, they can go and pick one. It may have a problem that may not be throughout the whole shipment.

I support that we have to give them a little leeway, but not enough to drive a truck through. It is great that you are following up on that issue. It is an important issue.

The Joint Chair (Senator Wallace): Are there any other questions or comments?

Mr. Hoback: My colleague hit my comments on the nose. I recommend that we write back to the Canadian Food Inspection Agency for clarification. Consistency is a big issue.

Mr. Bernhardt: They have examples of things they have put in their own regulations elsewhere that will satisfy the problem. It seems odd that we are meeting with resistance on this issue when they have been happy to comply elsewhere.

The Joint Chair (Senator Wallace): Are we agreed?

Hon. Members: Agreed.



(For text of documents, see Appendix E, p. 12E:1)

Mr. Rousseau: This file deals with incorporation by reference, along with their successive amendments, fines set out in provincial highway traffic acts. Since there are no enabling statutes authorizing the incorporation of amendments to provincial acts after airport traffic regulations have been made, the committee considers this aspect of the regulations illegal.

When asked what it plans to do now that the government has submitted its response to the committee's report on this matter, the department simply replied that the government is considering a legislative solution. The committee may find this response unsatisfactory because the legislative solution chosen may not address all of the issues.

If the solution does not solve the problem identified here, it will be necessary to implement a specific solution, by amending either the enabling statute under which the regulations were made or the regulations themselves.

The committee could ask the department to indicate, if applicable, which approach it will use. If the committee is in agreement, it may be advisable for the chairs to write to the minister.


The Joint Chair (Senator Wallace): Are we agreed?

Hon. Members: Agreed.



(For text of documents, see Appendix F, p. 12F:1)

Mr. Rousseau: I will try to be as brief as the note. The note indicates that the four points raised deal with the wording of the Aeronautics Act and the Interim Order Respecting Prohibited Items. If the committee is satisfied with the response, counsel will write to the department again requesting an update on the promised amendments.


The Joint Chair (Senator Wallace): Are we agreed?

Hon. Members: Agreed.


(For text of document, see Appendix G, p. 12G:1)

Mr. Bernhardt: There were some 29 matters raised in connection with these rules. Amendments have been promised to address the great majority of them. I propose to deal with the ones on which there is no promise of action.

I will start with point 1. This point concerns the failure to recite the fact that the requirement in the act for the minister to be given notice of the rules before their making was complied with. In this case, the agency has provided documents establishing that notice was given, but it does not respond to the suggestion that in the future, compliance should be recited in the recommendation portion each time the rules are amended. The committee should seek confirmation that this is the practice that will be followed in future.

On point 4, the agency advised that it was examining the question. Again, the committee should seek the result of this examination.

On point 6, amendments are promised with respect to the first and third paragraphs of counsel's letter. It is suggested that the reply is satisfactory as concerns the second paragraph.

Point 8 deals with how it will be known when a document is received by someone. This is important because the date of receipt triggers certain deadlines. There seems to be recognition in the reply that this situation is problematic. It is suggested that the committee send a letter seeking further particulars as to precisely what the solution would be.

Moving to point 12, a question was asked about the intended distinction between a decision that is ``appropriate'' and a decision that is ``just and reasonable.'' The explanation provided is not helpful, and it seems likely the word ``appropriate'' should be replaced with ``just and reasonable'' to simplify and clarify the wording.

Finally, it is suggested the reply on point 14 is satisfactory. If members concur, we can write a further letter asking for the additional information and clarification.

The Joint Chair (Senator Wallace): Are members agreed?

Hon. Members: Agreed.



(For text of documents, see Appendix H, p. 12H:1)

Mr. Rousseau: The correspondence addresses five points. Amendments were promised in relation to points 1, 3 and 4 and the second paragraph of point 5. Counsel is of the opinion that the responses to point 2 and the first paragraph of point 5 are not satisfactory. The regulations set out the rules and procedures for the Public Service Staffing Tribunal.

Point 2 deals with the provisions of the regulations that allow the tribunal to establish alternate methods, other than those set out in the regulations, of providing notices and other documents, or to extend or reduce a time specified. Committee counsel asked the tribunal about whether it had to provide oral or written notice of its intention to exercise its powers and whether the parties could object.

In its response, the tribunal indicated that written notice is always provided and that parties always have an opportunity to object. The tribunal issued a policy directive on this matter in which it sets out what it refers to as a party's right to provide a written objection.

If the content of the directive is not included in the regulations, it is because the parties concerned have not requested that. Committee counsel is of the opinion that the procedure set out in the directive, which is always followed and which addresses the rights of parties, should be included in the regulations. Clearly, that would not interfere with the tribunal's work.

Point 5 addresses the tribunal's discretionary power to authorize the complainant to amend an allegation or provide a new allegation if the amendment or new amendment results from information obtained that could not reasonably have been obtained before the complainant submitted his or her original allegations.

It may be appropriate to question whether the tribunal needs to have a discretionary power to grant such permission. The tribunal responded that without this discretion, the hearing process could be needlessly lengthened.

In all the examples provided by the tribunal, the requests could have been denied even if the regulations had not given it a discretionary power. In one of the examples referred to by the tribunal, the information was the same, except in one instance, it was handwritten and in the other, it was typed. Obviously, even without this discretion, that request could have been denied. Hence, this discretionary power does not appear to be necessary and should therefore be removed.

If the committee is in agreement, counsel will write to the tribunal regarding both of these points and will request an update on the promised amendments.

The Joint Chair (Senator Wallace): Are we agreed?

Hon. Members: Agreed.


(For text of documents, see Appendix I, p. 12I:1)

Mr. Rousseau: Twenty-seven points were raised in connection with these regulations in counsel's letter of August 19, 2008. In its letter of November 3, 2008, the department undertakes to make amendments to resolve 13 of these points.

In addition, it is suggested that the department's explanations concerning seven of the points can be considered satisfactory. These points are listed in the note, which also details the other points, where each deals with a different aspect of the wording in the regulations.

Counsel is of the opinion that we should write to the department again regarding these points. I will summarize them briefly. Point 1 deals with a clarification to the regulations by specifying when the vessel owner must make the request in question in the definition of a ``freeboard deck''.

Point 4 deals with defining an expression whose ordinary meaning is not clear and whose definition Parliament itself deemed necessary in the Oceans Act.

Point 11 addresses a clarification to the regulations by specifying that it is up to the applicant to determine what certificate to apply for, given that the regulations do not specify the criteria that the department uses to determine which certificate it will issue.

In point 15, the department justifies an inconsistency in the French terminology used in the certificates, explaining that the title of the certificate has been used for a number of decades and that stakeholders are used to the name of the certificate.

Finally, in points 17, 23 and 25, some of the terms used in schedules 1 and 2 of the regulations need to be defined but are not. The department replied that pursuant to the Interpretation Act, the definitions in an enactment apply to all the provisions of the enactment, including the provisions that contain those definitions or rules of interpretation.

However, the Interpretation Act also specifies that the rules set out in the act apply, unless a contrary intention appears. Here, it is indicated that the definitions apply only to part 2 of the regulations. That reflects a contrary intention to the general rule expressed in the Interpretation Act. Therefore, the definitions in part 2 do not apply to the schedules.

Consequently, the regulations need to be amended. If the committee is in agreement, counsel will write to the department in regard to this matter, as well as the unresolved points, and, at same time, request an update on the promised amendments.


The Joint Chair (Senator Wallace): Thank you. Are members agreed?

Hon. Members: Agreed.


(For text of document, see Appendix J, p. 12J:1)

Mr. Bernhardt: This instrument made two corrections that had been promised previously to the committee. However, it then gave rise to six new points.

We have a promise of further amendments to address points 1, 5 and 6 in the correspondence, and it would seem the reply on point 4 is satisfactory. There is then a note in the materials that discusses point 2 and point 3. Point 2 concerns provisions that incorporate by reference an International Organization for Standardization, ISO, standard, as amended from time to time. Again, we have the issue of an open incorporation by reference.

There is a bit of a twist here because, in this case, the act does authorize the incorporation by reference as amended from time to time of ``technical standards documents.'' This term is defined in section 12(1) of the Motor Vehicles Safety Act, which says:

. . . ``technical standards document'' means a document, published in the prescribed manner by authority of the Minister, that reproduces in the official languages of Canada an enactment of a foreign government. . . .

Since Parliament has expressly addressed the question of incorporation by reference as amended from time to time here, it seems to follow that, if Parliament intended things other than technical standards documents to be so incorporated, it would have said so. An ISO standard does not meet the definition of a ``technical standards document.'' The department has made an argument here that it is only necessary to deal with documents adapted by the minister in the act because those documents are the only kinds that need express authority to be incorporated by reference as amended from time to time.

As the note suggests, this view is based on a misapplication of principles applicable to constitutional language requirements. This issue was discussed at great length in the committee's Report No. 80.

In a sense this is all by the by because Parliament has expressly spoken and said some documents can be incorporated as amended from time to time. It follows, then, that other documents cannot be.

Point 3 deals with provisions that set out requirements that the webbing of seatbelt assemblies be colourfast and not stain clothes. Members will recall we had identical provisions at the last meeting in the context of seatbelt assemblies designed for disabled persons, specifically. It was questioned whether these provisions were authorized as safety standards. They appear rather to be an attempt to modify people's behaviour.

We suggest that an approach consistent with the decision made at the last meeting be followed here, which involves pursuing the issue in a further letter. That letter would deal with the incorporation by reference issue, as well.

Mr. Lee: I agree with counsel on what we should do here, but this comment relates to the conclusion that the ISO 6727 is not a ``technical standard document.'' That point blows me away. Why would we not recognize ISO technical standards as a technical standards document?

Mr. Bernhardt: The department's reply is that they do not need to; they can automatically incorporate those things as amended from time to time because they do not come from the federal government.

Mr. Lee: Oh.

Mr. Bernhardt: That point goes back to Report No. 80. It is something the committee has never agreed with; it went to great lengths to counter that argument in the 46 pages of Report No. 80.

Here, based solely on the definition, they have defined ``technical standards document'' to be something that comes from a foreign government and is adapted by the minister. This standard does not come from a foreign government and it was not adapted by the minister. If they wanted to change the definition in the act and include these things as technical standards documents —

Mr. Lee: To your knowledge, has any other department of government taken the huge step of recognizing ISO technical standards, when half of our industry already has?

Mr. Bernhardt: Departments can certainly recognize them. The reason they would be recognizing them here is so they can incorporate them as amended from time to time.

Mr. Lee: All right.

Mr. Bernhardt: That is why they would recognize them here; to ensure that they have the power to do that.

Mr. Lee: Is there any point in looking at the macro piece and saying that ISO can now be recognized as a technical standards document across government? Is that a big debate?

Mr. Masse: Yes, ISO is a self-regulatory industry. I come from the auto sector and there are many issues around ISO. Many good benefits and good work has come out of it, but —

Mr. Lee: It has almost taken over on the street in terms of technical standards, but I will stop there. I was only curious.

Mr. Bernhardt: I assume, because I am not aware of ISO standards in particular being raised in review of regulations elsewhere, that we will either object to it if there is no express authority; or if there is authority to incorporate as amended from time to time in a particular statute, the problem would not arise.

Senator Hervieux-Payette: I point out that ISO is in the forestry industry; it is in almost every sector. It is large; more than 50 per cent of companies apply these standards. To comply with these standards is a multimillion-dollar proposal because they are not the same. Companies are doing that over a number of years.

I also point out that the letter in French has been translated as December 16, 2009. I thought they were far ahead of us.

The Joint Chair (Senator Wallace): Thank you for that attention to detail. Are we agreed on the response as suggested?

Hon. Members: Agreed.


(For text of document, see Appendix K, p. 12K:1)

The Joint Chair (Senator Wallace): I do not believe there is any need to comment on this item, is there?

Hon. Members: Agreed.




(For text of document, see Appendix L, p. 12L:1)

Mr. Bernhardt: Drafting instructions for the amendments promised to the committee were sent to the Department of Justice last September. Apparently new issues then arose that required additional research and consultation. Therefore, a request for a more recent update seems to be in order.

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

Hon. Members: Agreed.



(For text of documents, see Appendix M, p. 12M:1)

Mr. Rousseau: In this file, the committee noted that the regulations sought to impose obligations on partnerships and on public and private bodies devoid of a legal personality. But it is the committee's opinion that the Marine Liability Act does not permit that. The department committed to amend the act and the regulations so as to solve the problem. Bill C-7, which the department refers to in its letter of May 7, 2009, received royal assent on June 23, 2009. That amendment will come into force when the relevant international agreements come into effect in Canada. Committee counsel has already written to the department on this issue to try to find out exactly when this will take place. When the amendment to the act comes into force, the regulations will, in turn, be amended. Counsel will therefore continue to monitor progress in the usual manner and will keep the committee abreast of any developments.


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

Hon. Members: Agreed.


(For text of document, see Appendix N, p. 12N:1)

Mr. Bernhardt: All the issues raised in connection with this instrument have been resolved except for one. Section 27(1) of the Feeds Regulations provides that ``Any information required to be shown on the label of a feed shall be . . . in English or French or both official languages.'' It has always been the position of the committee that especially where labelling requirements are imposed in the interests of health and safety, the required information should appear in both official languages to help ensure that all users have access to the information.

The Canadian Food Inspection Agency indicated it would take the committee's views into consideration, but it could not impose a requirement that information appear on labels in both English and French without first consulting all regulated parties.

In 2007, the agency reported that it had not completed its review of the issue; that it continued to explore policy options, but that a satisfactory conclusion might not be reached for some time. Then last February, the committee was advised that the agency had still not finished its review due to other priorities, but it was now actively studying all aspects of the issue.

Clearly, things are not moving forward quickly, if at all. A new update can be sought. At the same time, the expectation can be expressed that there has been some significant progress over the past nine months.

Mr. Galipeau: Do I hear that there has been progress or there has not been progress?

Mr. Bernhardt: We do not know what has happened. I suggest that a letter state that the committee expects that there has been, as opposed to asking if there has been.

Mr. Galipeau: From what I see in the correspondence, we have been nudging them along for about three years. Because I was not here before then, I need to know if we had been nudging them along before then.

Mr. Bernhardt: Yes.

Mr. Galipeau: For how long?

Mr. Bernhardt: This issue was first before the committee in 2001.

Mr. Galipeau: Presumably they were studying it before?

Mr. Bernhardt: Yes; the committee has seen this issue in agricultural regulations from time to time for a long time. The Commissioner of Official Languages has taken a position on this issue as far back, I think, as the late 1980s or early 1990s.

Mr. Galipeau: The Canadian Food Inspection Agency has been reviewing this issue of labelling for 10 years — should I say 10 long years?

Mr. Bernhardt: Very long years.

Mr. Masse: If you are working on it, yes.

Mr. Galipeau: This joint committee of the Senate and the House of Commons raised the issue of health and safety three years ago, perhaps before then. The Official Languages Act is more than 40 years old. Health and safety is not a trivial matter. Frankly, labelling should not be English or French; it should be English and French.

The CFIA correspondence to the general counsel has a whiff of ``there-there''-ing. This general counsel deserves more respect. These senators and these commoners deserve more respect. Parliament deserves more respect.


I see that the president of the Canadian Food Inspection Agency, Carole Swan, has been in her position for more than two years.


I propose that we write back and that the letter be worded more strongly. Despite the preceding comments I made about the general counsel, I recommend the letter be signed by the joint chairs and that it be sent, perhaps, either directly to the president or, if it is not part of the custom to send the letter to the president of an agency, that we send it to the minister.


Finally, in order to ensure that the point is fully understood, that the letter be prepared and sent in French.


Mr. Bernhardt: We can send it to both the president and the minister.


Mr. Galipeau: But in French, and probably with an English version at the end, but it should be indicated that the English version is the translation.


The Joint Chair (Senator Wallace): Mr. Galipeau, your suggestion is that the tone and some of the content would reflect the points that I think you have made well; is that correct?

Mr. Galipeau: Yes.

Mr. Lee: I will line up with Mr. Galipeau on the impatient side of the line. However, I wonder if counsel can recall for us what it might be in this envelope of animal feeds that requires so much consultation on something that we around the table probably look upon as something basic. Is there something we do not know about? Do the animals have a good lawyer that is slowing this item down or what? Does counsel recall?

Mr. Bernhardt: No, other than the desire to consult with both users of feeds and manufacturers of feeds.

Mr. Lee: Good luck talking to the users, or the eaters.

Mr. Bernhardt: I distinguish between users and, I suppose, consumers of the feed in this case.

Mr. Lee: Is there something we have missed here, or is the department only being obstinate?

Mr. Bernhardt: I have no real explanation. The committee used to see and routinely object to these sorts of provisions in days long passed. Most of them seem to have been changed over the years. From my completely outside, ignorant perspective, it seems like a bit of a relic. There may be reasons that I am not aware of.

Mr. Galipeau: Whatever those reasons are, they must precede 1969.

Mr. Lee: I wanted to ask counsel if he could try and elicit the obstacle because we do not understand the reason. If we understood the reason, Mr. Galipeau and I would probably be understanding. However, nothing jumps off the file that explains it to us.


Senator Hervieux-Payette: You probably guessed that I agree with Mr. Galipeau, in that I do not understand why we should consult to try to find out whether there are regulations dealing with food security, be it with respect to two- legged or four-legged animals. I think that, in both cases, people should know what they are eating or what they are giving their animals. Let us not forget that products killed a number of animals in the United States, especially pets, precisely because they contained toxic ingredients. So people who use them need to know what they are all about. Sometimes the names are similar in English and French, but sometimes the terms are completely different.

That aspect of consultation, I find totally ridiculous, and I agree that we should send a letter to the minister and the president, and that the letter should be very firm, in other words, we will not allow this sort of thing to continue. When animals are healthy, it helps ensure that the people who eat animals are healthy. There is a food chain that goes with that, and it is our duty to protect not only livestock, but also the people who eat those animals.

The letter should not have a conciliatory tone, and it should include an ultimatum, for all intents and purposes, indicating that we will not tolerate this sort of thing, which poses a threat, and that we will especially not tolerate acts of Parliament being ridiculed in relation to bilingualism. Be it a crown corporation or a department — I do not think a department would do that sort of thing — but it is not the first time that the president of a corporation thought they could rule the roost. That is my comment, and I think we need to call them back to order.


Mr. Hoback: I normally would agree with you all on this 99.9 per cent of the time. However, there are examples in the feed industry that operate on a regional basis. I will use the example in French Canada, where a French farmer delivers feed to another French farmer. If we invoke those rules on that person, we can put that feed mill out of business because the farmer is not delivering anywhere else in Canada except to four or five neighbours.

CFIA, in this case, may not be able to make an easy unilateral judgment on this issue. I think there are external factors that Mr. Lee touched upon that we have to consider. That is why the CFIA is taking a long time sorting through this issue. The implications of imposing this regulation across the board where, 99 per cent of the time I agree with the regulation, can affect a lot of our local processers at a regional level who do not sell outside their local region.

We have to weigh that effect versus where we want to see the benefit. I am only assuming that problem can be part of why CFIA is trying to figure their way through this item. There will be a lot of local pressure on them not to proceed on this regulation in certain areas.

I want to throw that information out there. Mr. Galipeau, 99.9 per cent of the time, such as with pet food where it goes to the store and the consumer wants to look at the label, you bet it should be in both languages. However, if they are dealing with chop feed products that do not have a label, they basically stay local — the farmer makes the chop or feed barley and ships it to a neighbor — how do they sort through that issue?

I am trying to present some of the issues that CFIA may be wrangling with in trying to balance economic activity in the regional areas versus the language laws that we all want and require. I will throw that view out there.

Mr. Galipeau: After listening to this information on both sides and recognizing that there seems to be a consensus that those who have spoken are 99 per cent in agreement with what I said, I propose that the letter be strongly worded but that it be short of an ultimatum. Let it ask for those clarifications. I am grateful to my colleagues for their 99 per cent support. I hope I do so well in Ottawa-Orléans.

The Joint Chair (Senator Wallace): Are we in agreement, then, that we ratchet up the pressure in the manner in which Mr. Galipeau suggests?

Mr. Saxton: Yet not serve an ultimatum.

The Joint Chair (Senator Wallace): Yes, indeed; that is understood.

Mr. Bernhardt: Once again, chair, if members are open to the suggestion, we can deal with the next three headings as groups — 9, 10 and 11.


(For text of documents, see Appendix O, p. 12O:1)


(For text of documents, see Appendix P, p. 12P:1)


(For text of documents, see Appendix Q, p. 12Q:1)


(For text of documents, see Appendix R, p. 12R:1)

Mr. Bernhardt: Under Action Promised, a total of seven amendments are promised in connection with these four instruments, and progress on these items will be followed up in the usual fashion. I also note that SOR/2005-350 and SOR/2008-72, in combination, also made 11 amendments that had been promised to the committee.


(For text of documents, see Appendix S, p. 12S:1)


(For text of documents, see Appendix T, p. 12T:1)


(For text of documents, see Appendix U, p. 12U:1)


(For text of documents, see Appendix V, p. 12V:1)


(For text of documents, see Appendix W, p. 12W:1)

Mr. Bernhardt: Under Action Taken, there are five instruments and these instruments resolve some 20 concerns. In addition, the coming into force of the amendments to the Energy Efficiency Act made by Bill S-3 provides authority for reporting requirements in the regulations that the committee had questioned.

I also draw members' attention specifically to the amendments to the Letter Mail Regulations made by SOR/2009- 286. These amendments replace the formula that the committee had considered illegal with fixed rates for the domestic basic letter rate.










































Mr. Bernhardt: Finally, under Statutory Instruments Without Comment are 41 instruments listed that have been reviewed and found to comply with all the committee's criteria.

The Joint Chair (Senator Wallace): Thank you. Do members have any questions or comments on any of those items?

Are there any other comments on any issue? Thank you very much.

(The committee adjourned.)

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