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Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue 18 - Evidence - March 12, 2015

OTTAWA, Thursday, March 12, 2015

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:33 a.m. for the review of statutory instruments; and to consider a draft budget.

Senator Denise Batters and Ms. Chris Charlton (Joint Chairs) in the chair.


The Joint Chair (Ms. Charlton): The first item before us today is the committee's budget, which I think has been circulated to all members. I need a motion to adopt the budget, and I will entertain any discussion.

Mr. Albas has moved the adoption. Are there any questions or concerns about the budget? Can we adopt the budget?

Hon. Members: Agreed.


The Joint Chair (Ms. Charlton): Item 1 on our agenda is under the heading "Special Agenda Item." Members of the committee will recall that this draft report arises out of the committee's concern that too often subordinate legislation uses qualifiers that require action within a time frame that is either vague or subjective. The Employment Insurance Regulations serve as a useful example in that regard. We had asked counsel to draft a report for us.

Peter Bernhardt, General Counsel to the Committee: That's correct. It's the draft report that members have before them. Of course, the difficulty with these vague sorts of terms is that they increase the likelihood that citizens will have to undertake the time and expense of going to court to determine the exact nature of their rights. The draft report basically ends with a conclusion that while there may be situations in which reliance on these sorts of terms could be justified, best practice would dictate that the use should be strictly limited and avoided whenever possible.

The Joint Chair (Ms. Charlton): Are there any comments on the draft?

Senator Runciman: Could counsel remind us of the history around this and what we're trying to do with the message we're to send and to whom it will be directed?

Mr. Bernhardt: Generally, it will be directed to the people who are responsible for drafting federal regulations.

In this particular instance, the jumping off point was section 79 of the Employment Insurance Regulations, which contained such a provision: that a decision on a request for reconsideration must be rendered without delay. The committee determined that "without delay" in this case, looking at the authorities and the various judicial decisions on point meant "as soon as reasonably possible within the particular circumstances," which is the common-law test in any event for requiring any public official to carry out an action. The committee was unsuccessful in this particular instance in persuading the regulation maker that the reference was unnecessary.

Given that these sorts of terms are encountered quite frequently, it was then the committee's idea to set out some general principles that perhaps could guide drafters, or that the drafters could bear in mind when preparing regulations, which might be useful and also give the committee a general statement of its position that could be used when these things come up in the future.

Senator Runciman: You have done a good job on the report. I wonder how the drafters are to be made aware of the report. What's the process?

Mr. Bernhardt: That is an interesting point. One would hope that they're monitoring the views of this committee, but if members wish to be absolutely sure, a copy could be sent to the Minister of Justice with the request that the committee's views be passed on to the legislative drafters.

Senator Runciman: I move adoption of the report and that we follow counsel's advice.

The Joint Chair (Ms. Charlton): Thank you.

Mr. Bélanger: I had a question along the same lines. Is there a reason that there is no recommendation? I have read it. There could be a recommendation to the effect that this report be circulated to all drafters in each department so that they're aware of the principles at stake here.

Mr. Bernhardt: I suppose other than the fact that we were not instructed to prepare a specific recommendation, I think there is a conclusion that effectively makes a recommendation. It is not stated as such, but as always we're in the hands of members if there's a wish to structure it in that way.

Mr. Bélanger: Can I be clear on where you are asking it to be sent and to whom?

Senator Runciman: It could be sent to the Minister of Justice with a request that it be circulated to the drafters. I certainly agree with the report's recommendation.

Mr. Bélanger: Thank you. I agree.

The Joint Chair (Ms. Charlton): Is it agreed?

Hon. Members: Agreed.


The Joint Chair (Ms. Charlton): Item 2 on our agenda is under "Letters To and From Ministers." This is a very polite acknowledgment by the Minister of Transport that our letter, which expressed our belief that the department's approach while satisfactory was unduly convoluted, has been noted.


Mr. Bernhardt: On December 5, the joint chairs wrote to the Minister of Transport regarding certain provisions that set out word for word the text of provisions of the Convention on the International Regulations for Preventing Collisions at Sea, including a statement explaining how each of the provisions should be adapted to the Canadian context.

The joint chairs indicated that the committee considers this an unusual approach to a set of particular circumstances, rather than constituting a precedent for regulations implementing international agreements and conventions more generally.

The joint chairs also noted that the amendments to SOR/2014-17 followed up on various questions which had been raised. The minister acknowledged receiving the letter. The file can now be closed.


The Joint Chair (Ms. Charlton): Is it agreed?

Hon. Members: Agreed.


(For text of documents, see Appendix A, p. 18A:1.)

The Joint Chair (Ms. Charlton): Next is Item 3 under "Reply Unsatisfactory." Despite five attempts to get an update, the committee has received no reply on a status update on the department consultations about the marine protected area.


Mr. Bélanger: Do you know if that person is still in the position in question?

Mr. Bernhardt: Yes.

Mr. Bélanger: Over the past two years, there has been no reply to our five letters, I believe?

Mr. Bernhardt: Yes, there were five letters in total.

Mr. Bélanger: I think this might be a very good opportunity to invite Ms. Caron to come to testify before the committee. I am going to move, Madam Chair, that we invite Ms. Caron to come and testify before the committee.


Senator Runciman: I'm personally not opposed to doing that at some point, but I think we should take one more step prior to considering it, that is, having the joint chairs write to the minister and express the concerns of the committee with respect to the lack of adequate response and then give this an appropriate time and then, indeed, invite the individual to appear.


Mr. Bélanger: I will make that a motion.


I move that the committee invite her. Either we vote for or against that.

The Joint Chair (Ms. Charlton): Is there any other discussion on that first motion?

Mr. Albas: We could always have a vote. Of course, the way this committee tries to work is to actually build a sense of consensus and talk about the issue and not just push on it. If the member wants to do that, I'm sure we can deal with that.

What I'm fearful of, Madam Chair, is that we invite this individual and find out that consultations are ongoing and there is nothing to report otherwise. However, I do believe what Senator Runciman has raised is very practical. Rather than filling up our time with a witness to come in and just tell us that the consultations are ongoing and have not been completed and take up about half an hour of our time, I would much rather us write to the minister and solicit a response as quickly as possible. At the end of the day, we have many files to deal with in this meeting alone and don't have a lot of time before the end of this session.

Senator Moore: Have we attempted to have a meeting with these people, with this woman, this lady?

Mr. Bernhardt: No.

Senator Moore: So there have been letters for a year. I would rather do the last one letter, but I would like the letter to say, "If there's no response in a timely way, be assured that the committee will be asking you to appear." I would like them to know that we're at that juncture.


Mr. Pilon: I agree with Mr. Bélanger. Even if she comes here to tell us that the consultations are ongoing, we want to know why, after receiving five letters, she has not replied. She has to come and tell us. Does she believe the committees serve no purpose? I support Mr. Bélanger's motion.


Mr. Albas: Just to remind the committee, we had a similar situation come up before. It has happened several times since I was elected as a member and brought to this committee. Senator Runciman has made the suggestion that we just write to the minister because ultimately a minister is responsible for the conduct of their department.

Sure, I guess we could always look at all of those other things, but I think the suggestion that the senator has put forward will probably be the fastest path to getting this resolved.


Ms. Sellah: Good morning everyone. I am replacing my colleague Ms. Ayala. I see this dates back to 2013, and we are now in 2015. In the normal course of events today, how long does it usually take to receive a reply to a request like this one?


Senator Runciman: If I interpreted Senator Moore's suggestion correctly, it might be a good compromise. I think Senator Moore is suggesting that we go back to the department and give this individual, say, 30 days to respond, or the committee will seriously consider asking the individual to appear and provide an explanation as to the lack of timely and adequate response. That may satisfy all of the concerns around the table.

Senator Moore: Whether it is this person or the minister, we could write to the minister and a staff member. He may not even know this. I'm sure the minister doesn't know this is happening. I thought the question is: Is that person still working? It is a very good question because maybe the mail is not getting through. I don't know. But I would like them to know that we're at the point that if we don't get a satisfactory reply within 30 days, they can expect to be asked to appear.

The Joint Chair (Ms. Charlton): I will go to you next, Senator Meredith.

Let me clarify. There is a motion on the floor we still have to deal with. There's a second suggestion. Your suggestion originally was that we write to the minister. Senator Moore amended that by saying he would like that letter to also indicate that we want a reply or will call the person before committee. Now I'm hearing a suggestion that we only write to the department. As we debate this, can we figure out what we're addressing?

Senator Meredith: I concur with Senator Runciman and Senator Moore in that we need to invoke a positive response from this individual, and I believe in last chances before we call that individual here. I think we should definitely proceed with a strong letter, either to the minister or to the department, requesting that there will be a response.

Senator Moore: If the agreement is to write to that person, is it appropriate to copy the minister?

Senator D. Smith: There is no downside.

Mr. Albas: It is one of those things where you either do it or you don't. Either we decide that we're through with waiting and sending more letters to this individual, or we say to the minister, "We would like a comprehensive response."

The problem with having witnesses come in is, first, we don't know what they will say. Like I said, if we reserve the time and ask questions, it could take up to 15 to 20 minutes, time we could use to get four or five other files processed. What we want is simply a response to know where they are at. If you are unhappy with that, you can always call witnesses down the road.

Why don't we just talk to the minister and say, "We're unhappy with the lack of response; please direct your official to reply to us ASAP"? That is simple and clean, and we can move on to the many other files we have. We're only on Item 3 of today's agenda.

The Joint Chair (Ms. Charlton): I would love to read a consensus. I think Mr. Belanger might have something to say about that.

Senator Moore?

Senator Moore: I can agree with sending a letter to the minister, but I would like the minister to know that if we don't get a timely, positive response, he can expect that the staff person will be asked to appear.

Mr. Albas: This committee has a right to action.

Mr. Bélanger: I would like to have a vote on whether or not we will ask this person to come and appear before the committee. This is a tool that the committee has not used in this Parliament — unfortunately, in my view. The reason I'm suggesting that this would be a good occasion to at least do it once — and it need not take a half hour — is that not having a single response demonstrates a total lack of respect for the committee and our counsel.

If the department is doing consultations, then the least they could have done is to respond that they're doing consultations. They haven't done that.

To demonstrate such lack of respect is not acceptable, and I believe it is not fair to the minister either because I'm sure she is not aware of this. She has a number of files to deal with on a daily basis and this is not one of them. To say that she is responsible for that is theoretically correct, but in reality it is not. I don't think it is fair to the minister to say she's the one responsible for this.

I would hope that we would see fit to at least call a witness once, because I believe — and I think most members would agree — that is one of the tools that would cause a reaction that we haven't had for over two years.

The Joint Chair (Ms. Charlton): There is a motion on the floor and I'm going to call for a vote.

All those in favour of the motion to call the witness before the committee?


Ms. Quach: May we have a recorded vote?


The Joint Chair (Ms. Charlton): We sure can.

All those in favour of Mr. Belanger's motion to call witnesses before the committee?

We'll have a recorded vote.


Mr. Bélanger: A registered vote? You mean a recorded vote.


Daniel Charbonneau, Acting Joint Clerk of the Committee: I will call the senators and the house clerk will call the members of Parliament. I will call in alphabetical order.

The Honourable Senator Batters?

The Joint Chair (Senator Batters): Abstain.

Mr. Charbonneau (Acting Joint Clerk): The Honourable Senator McInnis?

Senator McInnis: Nay.

Mr. Charbonneau (Acting Joint Clerk): The Honourable Senator Meredith?

Senator Meredith: Nay.

Mr. Charbonneau (Acting Joint Clerk): The Honourable Senator Moore?

Senator Moore: Nay.

Mr. Charbonneau (Acting Joint Clerk): The Honourable Senator Runciman?

Senator Runciman: Nay.

Mr. Charbonneau (Acting Joint Clerk): The Honourable Senator Smith (Cobourg)?

Senator D. Smith: Nay.

David Chandonnet, Joint Clerk of the Committee: Mr. Albas?

Mr. Albas: Nay.

Mr. Chandonnet (Joint Clerk): Mr. Anders?

Mr. Anders: Nay.

Mr. Chandonnet (Joint Clerk): Mr. Carmichael?

Mr. Carmichael: Nay.

Mr. Chandonnet (Joint Clerk): Mr. Chisu?

Mr. Chisu: Nay.

Mr. Chandonnet: Mr. Boughen?

Mr. Boughen: Nay.

Mr. Chandonnet (Joint Clerk): Mr. Vellacott?

Mr. Vellacott: Nay.

Mr. Chandonnet (Joint Clerk): Mr. Pilon?

Mr. Pilon: Yes.

Mr. Chandonnet (Joint Clerk): Ms. Minh-Thu Quach?

Ms. Minh-Thu Quach: Yes.

Mr. Chandonnet (Joint Clerk): Mr. Bélanger?

Mr. Bélanger: Yes.

The Joint Chair (Ms. Charlton): I'm sorry, did you get Ms. Sellah?

Mr. Chandonnet (Joint Clerk): We have not received a membership substitution form, so Ms. Sellah is not a member and cannot vote.

The Joint Chair (Ms. Charlton): Because Senator Batters abstained, I want it on the record that I'm abstaining as well.

Mr. Charbonneau (Acting Joint Clerk): Okay. Thank you.

Yeas, 3, nays 11, abstentions 2.

The Joint Chair (Ms. Charlton): That motion is defeated.

Going back to the proposed letter that's also on the floor, although at this point not by way of motion, there are two letters I heard talked about. The first one, as I understood from Senator Runciman, was to go to the Department of Justice, the Minister of Justice. In debate, Mr. Bélanger had suggested it was Fisheries and Oceans, so which minister were we addressing this letter to? Let's resolve that first. Fisheries and Oceans?

Senator Runciman: The minister responsible.

The Joint Chair (Ms. Charlton): I must have misunderstood and thought it was Justice, and that all departments would know we wanted clarity. The letter is to DFO.

There are suggestions on the floor. One is that we say if a response isn't received by a particular deadline — and we haven't set that deadline — we would call a witness. Thirty days? You don't want to set an actual date? Okay.

Mr. Albas: Madam Chair, I just want to see this issue dealt with. I think going to the minister asking for a response is entirely reasonable. If we want to say to the minister that if we don't get a response there are a variety of tools available to the committee to deal with, to be able to carry on its work, I think that is fine.

Remember, we try to work with ministers in a proactive and positive way, and we have done very well with this minister. My suggestion is we simply ask for the courtesy of a response. All ministers know that this committee is duly charged and has certain functions it has to carry out. I don't think we need to wave a stick at any minister, particularly not at this point where we just want a response.

We dealt with this a month or so ago where we had the same issue with an official of the Department of Justice. We wrote the minister asking for a response back. This is not out of the norm.

Senator McInnis: There are Items 8, 9 and 10 where letters have gone back and forth over a period of two years. The committee clearly has shown that it has some tolerance — I would say great tolerance — particularly with those three files. I say we have another crack at going to the minister; I think that's the proper protocol. Down the road, if there's not an adequate response, we always have the clout to bring a witness in and interrogate them. Obviously that's the only club that we have, if I can use that word, to bring a conclusion to it.

Senator Runciman: I make a formal motion that we write the minister and, following what Mr. Albas suggested and Senator Moore as well, we indicate the seriousness of the failure to respond and that the committee does have a range of tools available. We would prefer not to exercise them and hope the minister will assist the committee in achieving a response to our concerns.

Senator Moore: Agreed.

The Joint Chair (Ms. Charlton): Is that agreed?

Hon. Members: Agreed.


(For text of documents, see Appendix B, p. 18B:1.)

The Joint Chair (Ms. Charlton): Moving on to Item 4 under "Reply Unsatisfactory," here is another instance where a term is vague and subjective. This time it centres on the word "unacceptable" with respect to unacceptable language and behaviour as included in the Canadian Aviation Regulations.

Mr. Bernhardt: That's correct. We have promises to correct seven matters. These are to be included in the miscellaneous package that is expected to come forward this spring. There were another two matters to be addressed by corrections to a departmental standard that is incorporated by reference in the regulations.

There was then further correspondence on the three remaining issues. On two of those, points 2 and 6, the department has indicated that they're going to look at these issues in the context of their certification and service review project. The committee has previously been told that this review will include all aspects of the regulations relating to certification. It was to commence in January, but apparently resolution of these points can be expected to take some considerable time.

That simply leaves point 10, which as you indicated, Madam Chair, concerns what is meant by the use of "unacceptable" language and "unacceptable" behaviour. This language and behaviour constitutes a level 1 incident of interference with a crew member. Level 1 incidents are not required to be reported, but there are also level, 2, 3 and 4 incidents that are required to be reported. I would note that repeating a level 1 incident turns it into a level 2 incident.

The importance of clearly defining what constitutes interference with a crew member is significant, I would suggest, under the Aeronautics Act. Such interference is punishable by imprisonment for up to five years or a fine of up to $100,000. Given these serious consequences, it seems essential to minimize any ambiguity.

The department advises that it is the flight crew members that have the discretion to decide what constitutes a level 1 incident. I think the point is that the basis on which this evaluation is to be made by the crew members — that is, whether language or behaviour is unacceptable — is inherently arbitrary. This is underscored by the fact that a level 2 incident is defined as "belligerent, obscene or lewd behaviour . . . ."

The question arises as to what behaviour would be unacceptable that wouldn't meet the definition of the level 2 behaviour? The behaviour that will constitute these higher levels is fairly well defined in some objective and concrete terms. This doesn't mean that there will be no need for interpretation in the exercise of discretion, but simply that there is a basis established in the regulations for how to exercise that discretion, the considerations you are to take into account and the general characteristics of these various behaviours. There doesn't seem to be any reason that the behaviour constituting a level 1 incident couldn't be addressed in the same fashion.

The department suggests that these concerns will be addressed through an air operator's procedures manual, but I would suggest that obviously it is not appropriate to leave vague language in the law to be sorted out by the administrative procedure manual of the various air operators. If nothing else these policies have no legal standing, and such an approach will also increase the likelihood that the law will be applied inconsistently.

As a final note, I would leave members with the suggestion that if air operators can be expected to define this behaviour in their manuals, there seems to be no reason that the regulation maker couldn't be expected to do the same thing in the regulations directly.

The Joint Chair (Ms. Charlton): Any comments?


Ms. Quach: In fact, regarding the defined criteria, I do not know if I heard correctly. Do we have to write a letter to ask for those criteria?

Mr. Bernhardt: That is correct.


Mr. Albas: To whom will be writing the letter?

Mr. Bernhardt: I assume we will write back to the contact person in the Department of Transport, Mr. Dubé.

Mr. Albas: What will we ask for?

Mr. Bernhardt: We'll ask that they reconsider their position and suggest that some indication be given in the regulations as to what standards crew members are to use in deciding whether there is a level 1 incident. In other words: How does one interpret "unacceptable"?

The Joint Chair (Ms. Charlton): Is it agreed?

Senator Runciman: Going back to the issue that we had the vote on regarding sending the letter, I don't know if I made it clear that the letter should come from the joint chairs. It carries a little more weight.

The Joint Chair (Ms. Charlton): Yes, that's fine. We're sending a letter with respect to the aviation regulations as well.

Hon. Members: Agreed.


(For text of documents, see Appendix C, p. 18C:1.)

The Joint Chair (Ms. Charlton): The next heading on our agenda is "Reply Unsatisfactory (?)" and Item 5. It is unclear whether the Department of Citizenship and Immigration intends to codify a maximum period during which passport service can be withheld from an individual.

Shawn Abel, Counsel to the Committee: That's correct, Madam Chair. The terms of the Canadian Passport Order allow the minister to refuse to issue or revoke a passport and then to withhold passport service for a period of time following that refusal or revocation.

The order doesn't set out a time limit for the withholding of passport services. The Department of Foreign Affairs informed the committee that the administrative policy is for a maximum of five years. Foreign Affairs agreed with the committee's determination that the time limit should be set out in the order. This amendment was not included in other changes that were made to the order.

In 2012, Foreign Affairs explained that a review of the withholding period was required as there was a shift to passports now having 10-year terms. In 2013, responsibility for this file was transferred to Citizenship and Immigration. For some two years, the department has been engaged in consultations concerning this question and other matters relating to the order.

That brings us to the January 2015 letter. The department states that a review of the order is still ongoing and there's no expected completion date indicated. As you mentioned, the letter refers to a possible codification and withholding period. It is unclear, but this might indicate some movement backwards from the commitment made by Foreign Affairs.

I would suggest that the concern identified by the committee is a serious matter that could significantly impact the rights of citizens. At the same time, the promised amendment should be relatively straightforward. I would suggest that a letter be drafted seeking confirmation that the department is still committed to making that amendment and ask for a time frame to do so.

Mr. Albas: I recognize that this is quite a serious topic. Again, there have been a lot of changes over the last little while. I would suggest that we simply monitor this because many things that all of us are aware of may complicate this process. The government has made it clear that they are running a review of the program. We should let that go until they come back to us. I would suggest we monitor.

The Joint Chair (Ms. Charlton): Is it agreed?

Hon. Members: Agreed.



(For text of documents, see Appendix D, p. 18D:1.)

The Joint Chair (Ms. Charlton): Next is Item 6 under "Reply Unsatisfactory (?)". Because amendments had been made twice, it is unclear whether the rates charged by companies in the interim were the pre-existing rates or the ones set out in the first amendments, which actually never came into effect.

Mr. Abel: That's correct, Madam Chair. When this was first brought to the attention of the committee, the committee did not accept the agency's initial response, which was that the matter was inconsequential, essentially, because the charges are settled between the companies at the end of the year and the invalidity period had been resolved before the end of the year. In any case, the agency had also suggested that the amounts involved were an accounting matter.

It was put to the agency at the committee's direction that the issue is not when the charges are ultimately settled — that is, when money is exchanged — but that the charges are likely calculated based on the time that each interswitching event happens. The charges then would be based on what was set out or purported to be set out in the regulations at those various times. In other words, the agency seemed to confuse the charging of rates with the exchange of monies.

At its last consideration, the committee wanted a clarification as to which rates were actually charged for interswitching between the times that SOR/2013-28 and SOR/2013-207 were made. Also, clarification was requested as to whether all railways involved in the interswitching have been informed of the error in the rates rather than simply the major companies, which in this case are CN, CP and Burlington Northern.

The agency's letter of December 12, which is before the committee, states that it believes it effectively informed all interested parties as all interswitching in Canada takes place either between CN and CP or involves CN or CP. The agency indicates that it does not know what rates CN or CP actually applied as, in its words, "the railway companies are not obligated to provide this data to the agency."

Once it was aware of the situation, the agency informed the major railway companies. In response, none indicated that there was a desire to seek restitution.

Finally, the agency notes that this issue was not raised by any stakeholders in subsequent consultations over the impact of amendments to the regulations on short-line railway companies.

The question for members is whether this seems satisfactory. As the agency says, at least one party to every interswitching event during the relevant period was informed of the situation.

The two major railways appear unconcerned about the matter, although it is unclear whether they would be primarily the company charging the rates or paying the rates. One might think the distinction would matter since they were the sole party informed in most cases.

According to the agency, there's no indication that any other stakeholders were troubled. It is somewhat strange that the agency does not know what rates were charged and doesn't seem to be inclined to ask.

That's where I leave it for members.

Senator Meredith: Having read the file and heard counsel's comments, I recommend that we close this file as this is between the rail companies. I suggest we leave at that, and there has been a comprehensive response from the department.

The Joint Chair (Ms. Charlton): Is it agreed?

Hon. Members: Agreed.


(For text of documents, see Appendix E, p. 18E:1.)

The Joint Chair (Ms. Charlton): The first item under "Part Action Promised" is No. 7. The French-English discrepancies we had raised will be resolved. Counsel suggests that the point related to the status of a contact person may be deemed satisfactory as well. But after two years of waiting, two points remain unresolved.

Mr. Bernhardt: That's correct. The first concerned section 2, which requires that disclosure provided by an institution under the regulations must be presented in a manner that is not misleading.

The various acts under which these regulations are made all prohibit knowingly providing false or misleading information in relation to any matter under the act or the regulations. That seems to lead to two possibilities: Either section 2 is trying to do away with the requirement that in order to contravene the act, misleading information must be knowingly provided, in which case it represents an unlawful attempt to alter the scope of an offence set out in the act; or it simply repeats the prohibition already found in the act and, therefore, is completely unnecessary.

The department's reply states that the objects of section 2 of the regulations and the prohibition in the acts are different. Frankly, we're hard pressed to understand how any such distinction exists.

Paragraph 3(m), point 3 in the note, requires an institution to provide "any other information that could reasonably be expected to affect an investor's decision to purchase the note." We asked for examples of what kind of information this might refer to. The department gave us examples: the minimum or maximum amount of the note or the currency involved. This information seems rather fundamental. I can't imagine anyone purchasing a note and not wanting to know what the amount of it was or what currency it was in.

Moreover, section 3 already lists 13 other specific types of information that have to be provided in all cases. So if there is basic information that can be expected to be provided in all cases, or even in almost all cases, to people, I suggest that information could be expressly listed in the regulations.

Those are the two matters I would suggest merit pursuing on this file.

The Joint Chair (Ms. Charlton): Any comments on how we want to pursue that?

Mr. Anders: I guess just writing back, really.

On point 2, it seems to me that the preferred language would be the English translation, as opposed to the French, because the phase "if required" sounds vague to me.

In terms of point 3, I also agree with what counsel has determined to be wording that seems too vague.

As to point 4, I don't know how much time you spent explaining that. I'm assuming that "new practices" must refer to offshore phone banks. That's what it must be.

Mr. Bernhardt: I'm guessing that's exactly what they're referring to — independent call centres they might contract with.

The Joint Chair (Ms. Charlton): So you are suggesting we follow up by letter with the department?

Mr. Anders: Yes.

The Joint Chair (Ms. Charlton): Is that agreed?

Hon. Members: Agreed.


(For text of documents, see Appendix F, p. 18F:1.)

The Joint Chair (Ms. Charlton): Moving on to Item 8, we had raised a number of concerns. Two of them have been addressed, but there's a whole grab bag of other concerns outstanding with respect to credit business practices regulations.

Mr. Bernhardt: Again, as you indicated, Madam Chair, I think there are six points on which it is suggested the response is unsatisfactory. Going through those as quickly as possible, point 2 concerns subsection 3(1). Here, again, we have a requirement that a statement of account for a credit card be sent without delay after the end of a billing cycle. This is again the vague language that is dealt with in the committee's report that was adopted this morning. The department indicates that the time could vary depending on the circumstances. It is hard to see how much variation there would be. We're talking about sending out a monthly credit card statement. The question there is whether the phrase "without delay" serves any purpose.

Point 3 deals with the discrepancy between the English and French versions. From the department's explanation, we have concluded that in the French version of subsection 7(3) an employer of the debtor is included in the French version but not the English version. There's a similar discrepancy in subsection 7(7).

Point 4 again deals with a discrepancy between the English and French version, dealing with the use of threatening, profane, intimidating or coercive language. In addition to the difference in the way the two provisions are drafted, it seems to lead to a discrepancy. The department is also trying to make a distinction between communication that threatens or intimidates verbally, which it says covers direct threats to a particular person, and threatening language. It says threatening language can't apply to a particular person but is more general.

I would suggest that's a fairly idiosyncratic interpretation. If I say someone is using threatening or intimidating language as opposed to language that threatens and intimidates verbally, I don't know how you can say, just looking at those two phrases, that one, by definition, applies to something I direct to an individual and one doesn't. I'm at a loss to see how that distinction exists.

It was also noted that there doesn't seem to be anything in the French version that is equivalent to "profane" in English. The department replies that there's no specific word in French to render profane. That is simply not the case. The note cites examples from regulations under the broadcasting act, where profane is rendered as blasphématoire. That aside, I don't see how you are left with the conclusion that "profane" in English is equivalent to menace or violent in French. I'm at a loss there.

Points 5 concerns a provision that says that an institution can't communicate using "undue, excessive or unreasonable pressure." It was suggested that these words are basically all synonyms and that you are simply repeating yourself.

It is suggested that this language should be kept because it is what is used in the Harmonized List of Prohibited Collection Practices, which is a document agreed to by federal, provincial and territorial ministers. That may be. The question that still arises is: Who decides whether an institution is communicating in a manner that uses undue, excessive or unreasonable pressure, and what are the criteria? The department hasn't given an answer on that.

Point 6 relates to the whole idea of false or misleading information. Here, however, the provision says that an institution may not misrepresent the purpose of a communication or give false or misleading information. We asked how you can do the one without the other. Surely, if you misrepresent the purpose of a communication, you are giving false or misleading information. There seems to be a redundancy, and here we have another distinction from the department that we simply do not grasp.

Finally, point 7 states that for the purpose of collecting a debt, a financial institution can't use any document that unlawfully purports to originate from any court either in or outside Canada. This forces you to make two assessments: first, whether there is some other provision that makes that illegal; and, second, whether there has been a finding by someone that it is illegal.

It seems all that is intended is that a document may not falsely purport to originate from a court. If that's the case, why not simply say that? However, if you did say that, you have the question: Isn't that a false or misleading representation, such as to be prohibited by the act in any event? So why do you need the provision?

I apologize for the length and detail of that explanation, but, in conclusion, we're suggesting that we follow up on all of these matters with the department and try again.

The Joint Chair (Ms. Charlton): Is that agreed?


Mr. Bélanger: I have a question about section 5. It appears a document was approved by federal, provincial and territorial bodies with regard to the following:


Harmonized List of Prohibited Collection Practices.


Is there a French version of this document?


Mr. Bernhardt: I assume it does, simply because I can't imagine it would be approved by either the federal government or the Province of Quebec without there being a French version. I can confirm that.

Mr. Bélanger: Please.

Senator McInnis: You have shown great patience with respect to this file, but I'm wondering if the individual, when they finally did respond, actually did think through her response. I read your interpretation of various matters here, and it is pretty logical. I just think that you should go back with another letter.

I don't know the policy of the committee, and I don't know whether it would be appropriate for you to pick up the phone and have a word with this person because clearly they don't understand the words here. From some of the statements that she has made, she hasn't thought it through, I don't think.

Mr. Bernhardt: In some cases the committee encounters a situation where the people responsible for the regulations know what they're intended to mean. The difficulty is sometimes getting them to think outside of the box and saying, "Well, that's what you intend it to mean, but, look, that's not what it actually says."

Senator McInnis: There's nothing really earth-shattering here. I suppose at some point this could end up in the courts if someone claimed, for example, that they didn't get a statement in time.

I would write and clarify. As I say, I don't know if it's appropriate to pick up the phone and have a chat with them.

Mr. Albas: I would concur with the senator, particularly on the phone call, simply being as I have heard our counsel several times use the term "I'm at a loss", and I feel for his loss. A phone call with this official probably would go a long way towards sharing our perspective. I think what counsel said is that a regulator knows what they intended it to do, but an outside viewpoint by someone else obviously has raised an issue of ambiguity of what terms mean. I think that would go a long way towards building an understanding. That's exactly what the committee is supposed to do.

The Joint Chair (Ms. Charlton): Is it agreed?

Hon. Members: Agreed.


(For text of documents, see Appendix G, p. 18G:1.)


(For text of documents, see Appendix H, p. 18H:1.)

The Joint Chair (Ms. Charlton): Moving on, I would like to make a suggestion that we deal with Items 9 and 10 together. Both of these items are in the auspices of the Ministry of Finance and the department is on a roll. Twice it resolved some matters but leaves two outstanding. Not to prejudge what committee members may wish to do, but we may want to follow up by letter on all of those.

Can we deal with them together, counsel?

Mr. Bernhardt: Certainly. I would say these two instruments give rise to basically the same issues that were raised in the previous two files dealing with whether a statement of account be sent without delay is an overly vague requirement, the purpose of a provision setting out time when information sent by mail is considered to be provided, and the apparent overlap between provisions of the act and the regulations.

The Joint Chair (Ms. Charlton): Is it agreed?

Hon. Members: Agreed.


(For text of documents, see Appendix I, p. 18I:1.)

The Joint Chair (Senator Batters): No. 11 is the final item under "Part Action Promised." Counsel has done a lot of good work to get us to this point on this file. In fact, I think counsel might even think that after this much work on the issue he is now qualified to fly CRJ Air Canada aircraft.

In December 2013, our committee asked counsel to meet with Transport Canada officials to convey our dissatisfaction with delayed substantive replies, to facilitate providing outstanding replies and to ascertain projected timelines for the making of amendments agreed to. The department proposed to hold regular follow-up meetings with counsel to provide progress reports, to discuss unresolved issues and then report back to our committee.

Four such meetings have been held since that time. Here, after 28 points were initially raised in early 2011, counsel now suggests that all but 6 appear to be satisfactorily resolved.

Mr. Bernhardt: That's correct. We have 17 promises of amendments and, in addition, point 2 is addressed through a correction to an administrative form.

We would suggest that the department has given satisfactory explanations on point 9, part of point 10, and points 18 and 21. No further action on those would be required.

There's one point, No. 26, on which the department has advised that they will provide a reply in connection with SOR/2009-152, because it gave rise to an identical point.

That leaves six unresolved matters as you indicated, Madam Chair. Those are 8, 10, 12, 14, 16, and 17. These are all quite technical points. They're dealt with in some detail in the note. I would be pleased to summarize those as best I can, if that's the wish of members.

The final recommendation we would make would be to simply follow up on those six points with the department along the terms set out in the note. Whether members wish to walk through those, I'm in members' hands.

The Joint Chair (Senator Batters): Let's just see where we go first.

Senator Runciman: We talked in relation to Item 9 about picking up the phone. In this case, one has to wonder how effective picking up the phone is going to be because you met with these folks on five occasions.

Mr. Bernhardt: Those meetings are ongoing. We have another one scheduled for late May, I believe.

Senator Runciman: I was looking at use of the words "misunderstand the nature," "hasn't grasped the point." I wonder if there's a language barrier here. How do we overcome this?

Mr. Bernhardt: There may be a language barrier, senator, in the sense that the people on the other end are very well- versed in the technical aspects of these regulations and how the process of certifying an aircraft or approving a new model of an aircraft gets done and how that works. We, of course, are approaching it from the more legalistic technical drafting point of view. In that sense, there is sometimes some effort involved in getting everyone to speak the same technical languages.

I would say that there has been considerable progress made. The department is putting a lot of work into these regulations. We're starting to see some amendments come through.

I think the value of writing back at this point is that there would be a written document the department would have in advance of meeting in May. It could look at it and have some idea where the committee was coming from so that if any confusion or misunderstanding was still there, we could hopefully thresh that out in person at that point.

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

Hon. Members: Agreed.


(For text of documents, see Appendix J, p. 18J:1.)

The Joint Chair (Senator Batters): The first item under the heading "Progress" is No. 12. My co-chair pointed out to me that this matter was first before the committee in 1979. I was in Grade 4. Three issues were initially raised, and the Parks Canada agency agreed to address our committee's concerns by developing new regulations.

Given the complexity of this route, Parks Canada now advises it will be more expeditious to address our concerns by including the amendments in the package of miscellaneous amendments expected to be made in late 2015.


Mr. Abel: I have nothing to add, Madam Chair.

The Joint Chair (Senator Batters): Does anyone have any comments? Will we simply monitor the file?

Hon. Members: Agree.


(For text of documents, see Appendix K, p. 18K:1.)

The Joint Chair (Senator Batters): Next is Item 13 on our agenda. The issue is that these regulations require cigarettes to meet a prescribed standard for ignition strength to reduce the death and injury associated with fires started by cigarettes, but this is not one of the purposes of the Tobacco Act.

Our committee thought that these regulations should be repealed and reworked under an appropriate framework. The repealing regulations were prepublished in Part I of the Canada Gazette one year ago, and the health department expects repeal to occur this fall.

Is there anything further, counsel?

Mr. Abel: No.

Mr. Vellacott: I think we should monitor the file.

The Joint Chair (Senator Batters): Agreed?

Hon. Members: Agreed.


(For text of documents, see Appendix L, p. 18L:1.)

The Joint Chair (Senator Batters): Moving on to Item 14 under "Progress (?)", amendments that were to be prepublished in Part I of the Canada Gazette last winter have been postponed. Prepublication is expected to occur this spring or summer.

Mr. Abel: I would note on this file that the amendments were agreed to in 2012 and there has been quite a bit of difficulty even getting to the point of prepublication. Of course, one must be mindful of the fact that even after prepublication, it will be some time before the amendments are actually made, but it is what it is.

The Joint Chair (Senator Batters): Do we want to monitor the file?

Hon Members: Agreed.


(For text of documents, see Appendix M, p. 18M:1.)

The Joint Chair (Senator Batters): Concerning Item 15, amendments have been promised to remove a redundant requirement, to correct certain terminology and to render other terminology consistent with that found in the Canadian Environmental Protection Act, 1999. Amendments that were to have been prepublished in Part I of the Canada Gazette in fiscal year 2014-15 have again been delayed and are now anticipated to be prepublished in the 2015- 16 fiscal year.

Is there anything to add, counsel?

Mr. Abel: I'm not sure if it's important to members, but I would just note the first sentence of the backgrounder. It states the first agreement to make these amendments was in 2011, but it was actually 2012. I'm in the hands of members as to what they would like to do.

Senator Meredith: I'm in agreement with continuing to monitor the file. However, we should monitor potentially until June, and if there's no response as to when we will get it published, given that it's from 2012, then we could write a letter indicating that there should be some urgency to get this published.

Mr. Bélanger: Would counsel have any indication as to what has caused the delay? Is it just laziness?

Senator Meredith: Things that took precedence in the department caused the delay.

Mr. Bélanger: Do you know that?

The Joint Chair (Senator Batters): The last letter says, "Due to competing regulatory priorities within the Department."

Mr. Bélanger: Do you know which regulatory priorities?

Mr. Abel: No.

The Joint Chair (Senator Batters): It is Environment Canada.

Mr. Bélanger: If it's other regulatory priorities, we would know what they are. But we don't know. That's what I wanted to find out.

Mr. Bernhardt: No, we do not know.

Mr. Albas: Health Canada and Environment Canada, in particular Environment Canada, put out a number of regulatory measures on a continuing basis. Some are seen as being in the public interest of going first. Regulations quite often get sidelined from those kinds of things because they amend old regulations. Sometimes a more immediate need arises. Obviously the department has to see what is in the public's interest.

The senator has suggested that we monitor as they have committed to doing this in 2015-16. In reading the file, it seems that this is more about updating certain terminology.

I don't see that we need to burn a barn over this one. However, it is important that counsel continues to monitor. If the regulations are not addressed within the 2015-16 year, we can hold the department accountable and seek immediate resolution.

There are many good reasons why regulations are put aside so other more important regulatory initiatives can go forward. We need to acknowledge that the system overall works. However, we should never let one fall through the cracks. I would suggest that we monitor until that happens.


Ms. Sellah: In the last letter, I saw how this had been interpreted. In French, it says "En raison de priorités réglementaires concurrentielles," or something like that — "Due to competing regulatory priorities." However, in the last sentence, the department says, "En raison de priorités réglementaires divergentes au niveau du ministère." I would like to have an explanation regarding the term "divergentes" in French and in legal language.

Mr. Bernhardt: I think it is probably a translation error. Perhaps the word should be "diverses".

Ms. Sellah: "Diverses"?

So, it would not be "divergentes"?

Mr. Bernhardt: Various regulatory priorities?

Ms. Quach: That is not really the same thing.

Ms. Sellah: "Divergentes" and "diverses" are not really the same thing.

Mr. Bernhardt: No, they are not.

Ms. Sellah: It is the opposite. So what are the real reasons?


Mr. Bernhardt: My colleague points out that the English version says "competing priorities."


Perhaps divergent?

Ms. Sellah: "En conflit. . .", conflicting.

Mr. Bernhardt: "Competing" — for the priorities, perhaps?

Ms. Sellah: "En conflit de priorités," competing priorities. But in French, it is completely different. That is why I asked about legalese and how it relates to my French.

Here, the expression does not have the same meaning. If you talk about divergent regulatory priorities, this means that there are a lot of things going off in all directions.

There does seem to be a discrepancy between the French and the English, as I noted during all of the study of these priorities. It is essential that the French translation faithfully reflect the English, so that we can avoid this type of discussion in future.

Mr. Bernhardt: You are right.


The Joint Chair (Senator Batters): Thank you for that point. Just so we're clear, the issue that Ms. Sellah has raised is not a matter of French-English translation in the actual regulations but rather in the letter of explanation.

We will monitor that file?

Hon. Members: Agreed.


(For text of documents, see Appendix N, p. 18N:1.)

The Joint Chair (Senator Batters): Moving on to Item 16, amendments addressing the committee's concerns are to be made as part of an initiative to implement a new optional survivor benefit program under the Royal Canadian Mounted Police Pension Plan. The timing of these amendments is as yet uncertain. As well, counsel advises that it is unclear why certain references to "spouse" in the Royal Canadian Mounted Police Superannuation Regulations may be retained since the term no longer appears in the Royal Canadian Mounted Police Superannuation Act.


Mr. Bernhardt: I have nothing to add, Madam Chair.

Mr. Vellacott: I suggest we write back to them to get clarification on that, as expressed in counsel's memo.

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

Hon. Members: Agreed.


(For text of documents, see Appendix O, p. 18O:1.)

The Joint Chair (Senator Batters): The next heading on our agenda is "Action Promised." With regard to Item 17, the Justice Department now agrees with all points raised by counsel, which counsel has stated are relatively minor issues, although no timeline for amendments has been offered.

Mr. Abel: It has been four months since the letter was received, Madam Chair, so I would suggest that a progress report be sought as well as an expected completion date.

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

Hon. Members: Agreed.


(For text of documents, see Appendix P, p. 18P:1.)

The Joint Chair (Senator Batters): Next is Item 18. Public Safety Canada agrees to amend these regulations to ensure consistent language in the French and English versions. At issue were the terms "as soon as possible" and "as soon as practicable."

Mr. Abel: That's correct, Madam Chair. There's agreement to make amendments. I would note that some members may have noticed that the terms under discussion, "as soon as feasible" and "as soon as practicable" are the same and similar to what was discussed in the report. Counsel's focus on this file was the apparent inconsistency between the French and English versions, so we didn't raise the issue of vagueness or subjectivity in the correspondence. At this point, if members would like us to bring the department's attention to the committee's general concern on that matter as well, we could do so when we write back.

Senator D. Smith: That's appropriate.

Mr. Bélanger: Maybe we can include a copy of the report.

Mr. Albas: On that point, there's a very different issue of substance here than was raised. I agree that the language is different, but I think there is a different point of law here. Is that correct?

Mr. Bernhardt: The situation is somewhat different in the sense that at first glance they're dealing with communicating reasons as opposed to making a decision. The two requirements are kind of wrapped up together, though. I'm not sure how significant that is, but it is a factor.

There is also, I suppose, the question of whether in the corrections institution climate it is possible to be any more precise, given the way things operate. Certainly, we can send a copy of the report with the letter, if that's the wish of the committee.

Mr. Albas: If it's a case of dealing with apples and oranges, I don't see the necessity of doing that.

Counsel, what is your recommendation on that? Does it apply materially?

Mr. Bernhardt: At the risk of equivocating, it's perhaps more a question of two different kinds of apples than apples and oranges. I think a legitimate question to ask is whether it would be possible to do without this sort of language here, without condemning it unequivocally.


Mr. Bélanger: This applies, and it is true that there are two issues. The first involves the expression "as soon as practicable" as compared to the expression "as soon as feasible." Mr. Guimond referred to archaic language. I understand that. However, the first question remains the use of an expression such as "aussitôt que possible" and that is what the report addressed. If the report is included, this would help the department in its reflection on the drafting of regulations. It will have to solve the first matter, regarding the expression "practicable" as compared to the term "feasible." It seems to be leaning toward "feasible." It should understand that the expression "aussitôt que possible" or "as soon as feasible" is a very vague term. That is what is indicated in the report.

It would be a good idea if they had the report as well. In any case, the Minister of Justice will have the report and will convey it to all of the deputy ministers.


Mr. Albas: Again, there's a substantially different process than we're talking about. For example, the minister of employment argued on points very much different than the process that is going on here. This is the process of a decision that has been rendered, the reasons to be given. The report we just approved today implies a much different rationale. I believe it does.

I'm all for it if we want to pass on the report, but this issue in my mind seems to be substantially different.

The Joint Chair (Senator Batters): What do you propose we do with it?

Mr. Albas: If counsel says that it is two versions of apples, at least I know that my point is taken, but by the same token, we're going to table a report that goes to all government anyway. I just don't see that this is the same situation.

It is the committee's decision. I just raise the question of whether it is relevant or not.

Mr. Abel: Perhaps I can be of assistance by providing more background.

The later correspondence in the file touches on this. What was being talked about was the difference between "as soon as feasible" and "as soon as practicable," and what was discovered was that the term "as soon as practicable" is used throughout the regulations. "As soon as feasible" is only used once. So this phrase is used frequently. For the most part, this is to deal with process requirements between incarcerated persons and the prison institutions, the head of the institution, the commissioner, in terms of filing grievances, providing them with information.

Some provisions deal with other things such as institutions providing notification to police and the timing for that.

There are quite a lot of different provisions involving these terms; it is not just one. It is our expectation that if we write to the department and ask them whether this can be described more precisely, they would probably say that it is difficult to do so in the prison environment.

On the other hand, it is worthwhile to be mindful of the fact that no one really feels the sharp edge of procedural requirements more frequently and more extremely than incarcerated individuals. It might be worth simply putting the question to the department: Do you think these can be tightened up? Are there certain instances where you can be more precise? Simply see what they say. The committee may be inclined to take them at their word and may expect a certain response, but it may be worth asking.

The Joint Chair (Senator Batters): That seems to be a decent compromise, Mr. Bélanger.

Mr. Bélanger: I'm going to let him decide.

Mr. Albas: On that point, though, I think we're actually hitting the nub of the issue, rather than just throwing in a report that may or may not be relevant and that they may not necessarily take our point. So I think what counsel is providing here is how to address the exact concerns we have, rather than throwing in a report that may or may not be relevant.

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

Hon. Members: Agreed.


(For text of documents, see Appendix Q, p. 18Q:1.)

The Joint Chair (Senator Batters): Next is Item 19 under the heading "Action Taken." This instrument corrects a drafting error noted in the English version of one provision.

Mr. Abel: That's the same, Madam Chair. There were no new issues raised in our review.


(For text of documents, see Appendix R, p. 18R:1.)

The Joint Chair (Senator Batters): Moving on to Item 20, this instrument makes eight amendments to address concerns raised by the committee. The amendments remove discrepancies between the French-English versions, resolve inconsistent uses of terminology, clarify two provisions and delete a provision dealing with confidentiality of records for which no authority existed.

Again, on this one, good work to counsel.





















The Joint Chair (Senator Batters): Finally, we have 20 "Statutory Instruments Without Comment."

Thank you to counsel for providing that excellent progress report that we always like to see at the end of our meetings.

Everyone have a good week back in your constituencies, and we will see you after the break.

(The committee adjourned.)

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