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Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue 12 - Evidence - December 8, 2016

OTTAWA, Thursday, December 8, 2016

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

Mr. Harold Albrecht (Joint Chair) in the chair.


The Joint Chair (Mr. Albrecht): Good morning, committee members. Welcome. Good to have some guests with us this morning, new faces.

Before I turn it over to our counsel for some opening remarks, I hope all of you have looked over this flowchart that we received last week. I don't know about you, but I found this extremely helpful to simplify for me some of the processes that our counsel and our analysts follow that they are very familiar with. I hope you'll at least all take time to glance over this chart. Counsel did a good job in preparing it for us, so the least we can do is have a look at it. Hopefully, it will help us in our journey.

I want to turn it over to our counsel for some opening remarks.

Evelyne Borkowski-Parent, General Counsel to the Committee: I once again have a few housekeeping matters to address.

First, I mentioned at the last meeting, after the appearance of witnesses from the Farm Products Council of Canada, that it was the intention of the Deputy Minister of Agriculture to appear, along with the council. I was incorrect. While the deputy minister is copied on all correspondence addressed to the council, including the letter that invited council officials to appear before the committee, officials from the department came at the request of the council, and it was always the intent to have Assistant Deputy Minister Meredith sit in on that meeting. So I wanted to correct the record this morning.

Second, I received a phone call from the officials at Agriculture and Agri-food Canada after last Thursday's meeting, and I have been asked to pass along the following request:

The department and its minister would like to reiterate their support of the work of the committee and take very seriously the concerns that were raised at the December 1, 2016 meeting. As the winter recess is approaching, the department would like to inquire whether the committee would find it acceptable for the department or the minister to provide a substantive written response to the committee's concerns. Progress is being made on this file, and the department would like the opportunity to highlight the steps that have been taken to date, as well as the path forward for addressing outstanding regulatory issues with the administration of the Agricultural Marketing Products Act.''

This response could be considered at the first meeting of the committee in the new year. The department intends to take an active role in moving this file forward and will continue to proactively update the committee on the progress.

I'm in the committee's hands as to what it wishes to do with that request.

The Joint Chair (Mr. Albrecht): I think those of us who were here vividly recall our meeting last Thursday and some of the frustrations that were felt by all of us. Is a written response satisfactory as a first step, or do we want to proceed directly to witnesses, as we agreed last time?

Mr. Genuis: It would seem to me that for the committee to spend time considering a written request when we could just as easily have the dialogue directly with witnesses would just slow the process down. I think we should definitely proceed to the calling of witnesses.

I'm sorry; I had to slip out towards the end of the last meeting. I think the discussion had been about calling senior officials. I think this would be a good opportunity to invite the minister as well. The minister, of course, doesn't have to agree to come, but to present an opportunity for the minister as well as officials to come. If they are seized with this matter, that's great, and we can hear about it and ask the questions we want to ask.

The Joint Chair (Mr. Albrecht): Are there any further responses?

Is there a general agreement that we invite the witnesses as we had agreed and include the minister? Also, I would expect that we would, at the very least, have that written letter in preparation for their appearance so we don't just come cold to that meeting. We would have the written material before they come and then have them come as well.

Ms. Jordan: Right.

The Joint Chair (Mr. Albrecht): Is there general agreement?

Mr. Mendicino: Mr. Chair, before we proceed with that, was there consensus at the last meeting that we would also invite the minister in addition to the deputy, or is that a new request that's been tacked on at the suggestion of my colleague Mr. Genuis?

The Joint Chair (Mr. Albrecht): My understanding is that it's been tacked on, but I stand to be corrected.

Ms. Jordan: That's new.

Mr. Mendicino: Okay. What is the rationale for inviting the minister and not just hearing from the deputy minister? I'm making the inquiry because as a relatively new arrival to this committee, I'm not sure what past conventions are around when the committee sees fit to invite a minister to respond to concerns. Perhaps our counsel can shed light on that.

Ms. Borkowski-Parent: I think the main difference is that whereas senior officials from departments can be compelled to appear before a committee, ministers are invited and are free to decline.

At the June 16 meeting, this committee invited the Minister of Environment to appear on the pulp and paper effluent file. I can tell you now, because they are scheduled to appear next week, that the minister has declined and is sending the assistant deputy minister in her place. So it has been done.

Mr. Mendicino: So the threshold is that when the concerns are sufficiently high and protracted, we would invite the minister and not just the deputy?

The Joint Chair (Mr. Albrecht): I will ask Mr. Genuis to respond with his rationale.

Ms. Genuis: First of all, I think that the difference between invitation and compelling is important. I think the minister is ultimately responsible for the department. Really, what we're doing is extending an opportunity that wouldn't otherwise be available for the minister, as obviously responsible for but also somewhat distinct from the department, to participate in a discussion. It gives them an opportunity to put their perspective on the record here if they wish to, and I think it's a good courtesy to the ministers to extend them that opportunity.

Ms. Jordan: We had asked the deputy minister to appear before, and she sent the policy adviser who couldn't advise on policy.

Senator Moore: Right.

Ms. Jordan: So I'm just wondering, are they compelled? There's no sense in inviting senior officials if we're not going to get the senior official. I want to make sure that we have the deputy minister here.

Ms. Borkowski-Parent: As I was trying to correct, only officials from the Farm Products Council of Canada were invited by the committee. That was the request of the committee. Mr. Pellerin, as the most senior official from that council, was invited. That letter of invitation was also cc'd to the deputy minister, and it was agreed that someone from the department would sit with Mr. Pellerin.

If you want to make sure of a date and a person, I would suggest proceeding by way of summons rather than by invitation.

Senator Moore: I have been here for 20 years, and I don't think I've ever seen a minister. In this situation, if we issue the invitation and the minister asks some official to come, you don't know who you're going to get. However, we can ask specifically for the deputy, and that person must come. So I think we would be wise to do that rather than float her an invite and get whoever shows up. I'd like to have a bit more control over the witness.

The Joint Chair (Mr. Albrecht): Just for clarity, I think we could summon the deputy and invite the minister. I think we could do both so we're certain that we have at least the deputy. Is that the consensus I'm hearing around the table, that we want to be sure the deputy appears?

Senator Moore: Do that.

Hon. Members: Yes.

The Joint Chair (Mr. Albrecht): Let's proceed in that fashion. Let's ask them for the written response to be prepared as well so that when we come here, we have background material we have read. We will then be prepared to ask questions that will have meaning. All agreed?

Hon. Members: Agreed.

The Joint Chair (Mr. Albrecht): Thank you.

Are there any more housekeeping items?

Ms. Borkowski-Parent: Lastly, in light of the number of witnesses who have appeared and who are scheduled to appear in front of the committee in the new year and the number of files currently awaiting the committee's input, two meetings have been added to the 2017 schedule, which was circulated for you this morning.

As a matter of process, in order for members to have as much time as possible to get acquainted with the material, as soon as one meeting is over, the next one is prepared and sent to printing. Keeping that in mind, on the occasions where the committee will sit weekly, members might have two packages of materials in hand come Thursday morning, so I would encourage everyone to pay close attention to the date on the first page of the agenda.

The Joint Chair (Mr. Albrecht): In light of that, it's wise to remind everyone that we are scheduled to meet next Thursday. However, there are rumours swirling that indicate that we may not be here Thursday, which will mean our Thursday meeting, with its schedule and witnesses, will need to be pushed into the new year as well. So we're pushing further and further back.

Thank you very much, Ms. Borkowski-Parent.



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

The Joint Chair (Mr. Albrecht): The first item on our agenda this morning is under the heading "Progress.''

Shawn Abel, Counsel to the Committee: There are 41 outstanding amendments agreed to on this file. A number of these amendments would involve remaking provisions that were lacking the necessary statutory authority when they were made.

For several years, the delays on this file related to the difficulty in passing the statutory amendments to the parent act. Since changes to the act came into force in 2012, however, the way has been clear to make promised amendments, and yet matters seem not to have moved forward much since that time.

The deputy minister's letter of January 18, 2016, indicated that work in developing amendments was ongoing and that the amendments would be proposed in this year. Now this might be taken to mean that they will be prepublished in Part I of the Canada Gazette, but it's not entirely clear. However, that prepublication has not yet appeared.

In addition, counsel also noted that one amendment to the regulations made in 2015 seems to be intended to address an issue raised by the committee but failed to resolve the matter. The issue here is that both versions of paragraph 58(1) (c) of the regulations refer to a routine strip search. This is in reference to section 48 of the act. The French version of the act, however, does not refer to the strip search as being routine.

Without seeking an amendment to the act to remove that inconsistency, the solution would be to refer, in both versions of the regulations, to a strip search made pursuant to section 48 of the act. The regulatory amendment made in 2015 did add a reference to the act, but it also retained the reference to a routine strip search. So the problem persists.

Although counsel brought this to the department's attention in September of 2015, a response on this point has still not been received.

The Joint Chair (Mr. Albrecht): It's clear we need some action here and some timelines.

Senator Runciman: Number one, I think we should write back for a clearer explanation of when that issue is going to be resolved. They are talking about undertaking a review, but we have been discussing this with them for a significant period of time. I think we should request a clearer explanation of where they are going with this and what the likely timeline is.

We might as well in that letter ask for an update with respect to that package of amendments and confirm that it's still on track for publication.

The Joint Chair (Mr. Albrecht): Senator, do you wish to propose a timeline asking for a response?

Senator Runciman: I don't know. They have had this for a couple of years at least now. It's going back to, what, 2001?

The Joint Chair (Mr. Albrecht): Can we suggest June of 2017?

Senator Runciman: Some date in the spring, yes.

Ms. Jordan: April 1.

Senator Runciman: The end of March.

The Joint Chair (Mr. Albrecht): Are there further comments from committee members? Is it agreed that we're going to ask for action on these items and a response by March 31?

Hon. Members: Agreed.



(For text of documents, see Appendix B, p. 12B1.)

Ms. Borkowski-Parent: Of the four points raised in the initial letter, three are still pending. In both cases, the terminology must be made consistent with regard to the terms "live marine organism'' and "vessel''. Counsel met with the department's representatives last August. The awaited amendments will be part of a miscellaneous amendments package, which should come into force in spring 2017.

The last point concerns the use of internal management zones within the marine protected area. In other words, the Governor-in-Council must make regulations designating a marine protected area and prescribe measures that may include but not be limited to the zoning of marine protected areas, the prohibition of classes of activities within marine protected areas, and any other matter consistent with the purpose of the designation.

The Governor-in-Council did so by establishing section 2 of the Bowie Seamount Marine Protected Area Regulations, by prohibiting certain activities in section 3, and by creating exceptions to the prohibitions in section 4. However, the Regulatory Impact Analysis Statement published with the regulations refers to a management plan accompanying the regulations, which must include internal management zones within the marine protection area. This management plan is an administrative document under the department's responsibility. It seeks to establish, for the different internal management zones, variations of what is prescribed by the regulations, by allowing activities that are otherwise prohibited or by imposing restrictions on permitted activities.

However, the act does not allow the department to create sub-classes in the marine protection area established by the Governor-in-Council by means of administrative documents. In this case, two solutions were proposed to the department in 2012. One solution was to revise the management plan by removing the notion of internal management zones and by clearly indicating that the plan is a non-binding guidance document. Or, if keeping the internal management zones within the marine protection area is considered desirable, another solution was to deem the authorities granted to the Governor-in-Council sufficient for this to be done within the regulations.

In 2012, the department indicated that it wanted to take the first approach. The consultations in that regard have been held since then, but no timeline has been provided. In the meantime, the following question should be asked. How is the Bowie Seamount Marine Protection Area being run in the interim? Is it being run pursuant to the draft management plan or pursuant to the regulations?


The Joint Chair (Mr. Albrecht): Response, committee members?

Mr. Genuis: I think we have resolution on some items, but I think we should seek a timeline on these consultations and an update in terms of when and how they're going to unfold. I think we need more specificity. That would be my thought.

The Joint Chair (Mr. Albrecht): Do you care to set a proposed deadline for some response to the committee that indicates that action has actually been taken?

Mr. Genuis: Maybe just throw it back to counsel for the recommendation a timeline that would be appropriate in terms of when we should ask for this to be worked out.

Ms. Borkowski-Parent: At this point, considering there are consultations with First Nations and other actors in the area, I don't know what would be an appropriate timeline. We can definitely ask and see what response comes.

I'm sorry; I don't have a better answer.

Mr. Genuis: I wouldn't necessarily want to then pull a timeline out of the air if that's the situation. Why don't we respond by asking for that timeline? Even the process of making that request will give us some clarity as to what to expect and also hopefully lead to the process moving forward.

The Joint Chair (Mr. Albrecht): All agreed?

Hon. Members: Agreed.


(For text of documents, see Appendix C, p. 12C1.)

Ms. Borkowski-Parent: This is a complex file, so I will start with an overview of how the regulations operate and hope that it makes my presentation easier to understand.

The crux of the regulations can be found in section 3, which establishes maximum concentration of sulphur in the production, import or sale of various types of fuel. Those concentrations are dependent on the end use of the fuel, such as for in off-road vehicles, locomotive engines or vessel engines. The regulations then impose reporting and recordkeeping requirements on producers and importers of the diesel fuel, but not on sellers.

The committee raised a number of issues in relation to these regulations, and the analysis portion of the note prepared for members distinguishes between drafting and informational issues.

On the drafting points, most of them were prepublished in May of this year, save for two points. On paragraph 5(2) (b), there was some confusion on what was to be demonstrated by the regulatee in order to establish the equivalency of the alternate method of determining sulphur concentration. The department clarified that the regulatee had to demonstrate the equivalency of the method and of the results obtained with the alternate method. It is suggested that the committee might be satisfied with that explanation.

Regarding subsection 6(2), at present there's an error in the sulphur concentration limit for diesel fuel as it pertains to locomotive engines. Although that amendment was not included in the proposed regulations published in May, the department indicated it is consulting to see if it can be included in the final version of the omnibus regulations.

If we move on to the informational issues, under subsection 6(3), producers and importers have to keep at their place of business a record of the date of dispatch of a batch of fuel with the mention that it is not suitable for certain uses. Because the mention that a batch of fuel is not suitable for certain uses stays at the main office and does not accompany the batch of fuel, the department was asked what purpose this requirement achieved.

The department's first answer was that it helps with enforcement. This answer, albeit convenient for the department, is a non-sequitur. The department was then further asked: Once an enforcement officer inspects the record and sees the mention that it was not suitable for certain uses, what is done with that information? The department answered that it helps identify the sulphur limit and assists the enforcement officer in determining if an alleged contravener was aware that diesel fuel was being sold for a prohibited use.

It is suggested that this response is unsatisfactory in two respects. First, all that is included in the record from the producer or the importer is the date and the mention that it's not suitable for certain uses. There's nothing in that record that actually establishes the sulphur limit in a way that could be adduced into evidence.

Second, of the department's own admission, producers and importers are usually unaware of the end use of the fuel they dispatch. As a result, it remains unclear how the requirement to keep on site the statement that a batch of fuel was not suitable for certain uses could help enforcement officers up to five years after the fuel has already been dispatched for unknown end uses. It is also not clear how information that is privy only to the producer can be used to convict a seller of selling fuel with concentrations higher than those permitted.

The next issue is the various provisions that require the regulatee to submit information regarding any other use, if known, for the diesel fuel. Once again, the department was asked the purpose of these requirements since if the use is not subject to sulphur concentration limits under section 3, it would fall outside of the purview of the regulations.

The department then provided the formulaic answer of "it helps with enforcement,'' which begged the question: The enforcement of what, exactly? There are uses covered under section 3, which trigger the application of the sulphur concentration limits, and then there are other uses, which are not subject to any limits. So if you fall in the "other use'' category, there's nothing to be enforced.

Furthermore, as was mentioned by the department, the end use is often unknown by the producer, hence the "if known'' in the report.

Finally, the schedules to the regulations require producers to distinguish between different types of diesel fuel, including biomass-based diesel fuel and a blend of biomass-based diesel fuel and diesel fuel. Nothing in the regulations turns on whether the diesel fuel is biomass-based or biomass-based mixed with something else, so the department has repeatedly been asked what use is made of that information.

The department indicated that it helps make producers and importers of such fuels aware that they are subject to the regulations. This appears to mean that the schedules are being used for educational rather than legal purposes. The committee has consistently taken the position that administrative means are the appropriate vehicles for alerting the public about such matters. On further attempt, the department indicated that it helps in gathering intelligence and that it enables linkages across different regulations.

First, it seems to indicate that the department is gathering under these regulations information it failed to gather under other regulations. Furthermore, it may be that the information is useful, but that is entirely different than whether it is authorized. The authority to collect information is limited to that which is necessary for the regulations it is made under. It does not justify a general fishing expedition.

Senator Moore: This is a mess.

The Joint Chair (Mr. Albrecht): Thank you for the summary. The last response from the department of July 29, 2016 — a lengthy response — doesn't seem to address some of the issues that counsel raised. What's the committee's desire?

Mr. Di Iorio: That was a very good summary. It was very technical.

Ms. Borkowski-Parent: Thank you.

Mr. Di Iorio: And not easy to summarize.

The Joint Chair (Mr. Albrecht): Do we have the authority to simply get back to them and ask them to change these regulations in accordance with the issues we've raised and ask for a reasonable timeline? What is our job here as a committee?

Mr. Genuis: Are members interested in calling witnesses on this file? It seems like it might fit in that category of meriting that response.

The Joint Chair (Mr. Albrecht): Are we open to the idea of calling witnesses from Environment Canada to try to clarify these things? I see some agreement and some disagreement.

Mr. Di Iorio: I'm hesitant to call witnesses if we don't really prepare the ground for witnesses. I have to tell you, I was very disappointed this past week. When they come, I'd rather we know exactly where we're going with our witnesses. That would be in this category.

Sometimes I know that we call them to steer something, and I don't want to lose sight of that option also.

The Joint Chair (Mr. Albrecht): Back to my earlier question, Mr. Di Iorio, do you think we're prepared to write to the department, setting out a series of expectations that we would like to follow? In the event that they're not in agreement with those expectations, then they appear as witnesses. Is that a possible way to proceed?

Senator Runciman: I'm not opposed to calling witnesses, but perhaps we could highlight again in an abbreviated way back to these folks that we would like some positive responses to the issues and concerns raised by the committee, and within a given time period. We ought to indicate clearly to them that if the committee remains dissatisfied, we will be calling witnesses.


Mr. Dusseault: Fortunately, the response is quite comprehensive. I think it's sufficient to follow up on the progress of the responses to our concerns regarding some of their interpretations and to follow up on the changes they need to make in the future. I don't think it would be appropriate to invite them to speak at this stage of the process.


The Joint Chair (Mr. Albrecht): I hear general agreement that the committee agrees with counsel's interpretation of the unsatisfactory nature of the responses, and we are going to ask her to follow up. Based on that response, we will decide whether we invite them as witnesses.

Ms. Jordan: This has been ongoing since 2013, so I think we should attach a timeline to when we would like those followed up by. I would suggest April 2017.

Senator Moore: I was going to say the same thing. We've got to have a timeline. This has been waltzed around for a while. It's almost like they are ignoring what our counsel is putting before them, and we have to reinforce our team and have them come in at the end of March. I wouldn't go any further than that, but let them know that the responses are not satisfactory, according to the requirements of our counsel. They can expect to be called with the ultimate outcome of a disallowance. Let them know about the levers that we have.

The Joint Chair (Mr. Albrecht): We have April, March.

Ms. Jordan: That's fine.

Senator Runciman: I thought you should incorporate a shot across the bow here, that if the committee doesn't receive satisfactory responses, we will look forward to seeing someone from the group here before us.

The Joint Chair (Mr. Albrecht): Or a disallowance, I think Senator Moore suggested.

Mr. Genuis: I'm agreeing with the general direction being suggested where we don't call witnesses immediately but we do indicate that's something we will consider in the near future.

In terms of the question of how we engage witnesses and respond to the unsatisfactory response we had last time, we should all do some thinking and maybe have some discussion about the format we can use to maximize what we pull out of those discussions with witnesses. They need to know before they come here that we're not just asking for them to explain why their view is right; we're asking for some degree of accounting of how they will engage the committee.

Even in terms of format, it might be worth exploring having the session with the witnesses start by a detailed cross- examination with our counsel, followed by questions from the elected members, just so we work through that progression.

Those are maybe larger ideas, but on this file, I agree with the way that we are proposing to handle it.

Mr. Di Iorio: I want to re-emphasize what the members have said.

The Joint Chair (Mr. Albrecht): We're in general agreement that we proceed with the letter from the committee.

Senator Runciman: With respect to the issue raised about being prepared, I don't know if this is appropriate or not, but I know from sitting in committees, the legislative library on the Senate side provides an assessment of the issue, which we get, but they also provide a range of potential possible questions that could be directed to the witnesses. I think it would help members to at least have that kind of a road map for them. Obviously no one is restricted to using those questions.

The Joint Chair (Mr. Albrecht): We did have that help for our meeting last time. We had a series of eight questions that our counsel had prepared in relation to the Farm Products Council of Canada.

Senator Runciman: That's the sort of thing that can help us go forward.

Ms. Borkowski-Parent: To follow up on that, there are witnesses scheduled to appear next week. Whether the meeting will happen is uncertain at this point. That being said, should the meeting proceed, what would you like ahead of time to make that a productive meeting? It's pulp and paper effluents. It's technical.

Senator Moore: It's Environment, though, isn't it? It's the same department.

Ms. Borkowski-Parent: Yes.

Ms. Jordan: It's always Environment.

Ms. Borkowski-Parent: So not only is the file technical, it's also the second round of witnesses on that file. After the first round with Mr. Moffet, committee members expressed their dissatisfaction and invited the minister, who apologizes and sends her assistant deputy minister.

I'm looking for guidance. In the materials is the usual background note explaining the technical issue and possible questions. Do you need anything else?

The Joint Chair (Mr. Albrecht): Has that material been circulated to the committee already?

Ms. Borkowski-Parent: The paper format might not have arrived, but it should arrive —

The Joint Chair (Mr. Albrecht): We received the electronic yesterday and think it's 150 pages. I said, "Please don't print it. We will probably get it in print form.''

If it's based on the information similar to what we had last week with the Farm Products Council, I thought that was very good and satisfactory, with good questions that were prepared for us.

Senator Moore: It's the same department?

Ms. Borkowski-Parent: Yes.

Senator Moore: Could we not ask questions with regard to the file that's before us?

The Joint Chair (Mr. Albrecht): I guess we can, but my feeling is —

Senator Moore: Or will take longer to prep? Whatever counsel suggests.

Ms. Borkowski-Parent: On our end, no. I'm not sure how the department is going to receive it, though.

Senator Moore: I was just wondering. It's an opportunity.

Ms. Borkowski-Parent: I can suggest, though, that should the meeting not proceed next week, we can forewarn the department that when they are rescheduled to appear after the holidays that —

Senator Moore: We will include this file as well?

Ms. Borkowski-Parent: That could be an option.

Senator Moore: Okay.

The Joint Chair (Mr. Albrecht): If we know ahead of time that we have that big of an agenda, we won't schedule other regular files for that particular day. Based on last week, we know we're going to eat up most of the time with witnesses, especially if we have two big items to deal with.

The general agreement is that we'll proceed with the letter and ask for the potential of witnesses. Our counsel will follow up on that.

Mr. Di Iorio: I certainly agree.

The one point I want to make is that we agree on the finality of why we bring witnesses here: We want the matter resolved, first. Second, we also want to try to understand if there's some dysfunction in the mechanism that created this difficulty and how that dysfunction will be addressed. We agree on that, I think.

If we prepare well together before the witness comes and we all know where we're going with those witnesses, we could probably achieve much more when they come here.

The work that you provide us, Ms. Borkowski-Parent, is very useful. If the same department is coming back, maybe we could have a bit of timeline so that we know exactly who came when and said what.

Ms. Borkowski-Parent: Yes.

Mr. Di Iorio: Sometimes the witnesses refer to the timeline, and then we go back to our material. But when we prepared it, it wasn't considering the timeline; we considered the subject matter and the substance. The timeline helps. If the witness came in and said, "No, no, we answered your letters,'' I remember going through my notes and they were all, "Yes, we'll answer.'' It was an answer to say that they would answer, but that wasn't an answer.

The Joint Chair (Mr. Albrecht): Yes, 10 years ago.

Mr. Di Iorio: Yes, exactly.

The Joint Chair (Mr. Albrecht): Counsel, are you comfortable with the direction?

Ms. Borkowski-Parent: We will write a letter expressing the committee's dissatisfaction and expecting action.

The Joint Chair (Mr. Albrecht): Right, along with the committee's agreement, with your analysis as counsel, of the unsatisfactory responses to this point that need to be addressed.

Ms. Borkowski-Parent: All right.

What should I do if next week's meeting does not proceed?

The Joint Chair (Mr. Albrecht): I think there's general agreement that if next week's meeting is cancelled because the house rises early, it should be postponed immediately to February, for the first or second meeting back. We'll let counsel work on the best schedule for them.

Ms. Borkowski-Parent: All right.

Senator Moore: Agreed.

The Joint Chair (Mr. Albrecht): Thank you, committee members.


(For text of documents, see Appendix D, p. 12D1.)

Mr. Abel: On this file, amendments were promised in 2014 to correct one discrepancy between the two versions of the regulations and to remove two unnecessary provisions. The amendments were initially projected for spring 2016, but that having passed, the department now expects the amendments to be made in spring 2017. Consultations are now completed, the department reports, which seems to be a step forward. A progress report could be sought at this time if committee members wish.

The Joint Chair (Mr. Albrecht): When would you like a progress report? Let's put a date there.

Mr. Brassard: They were talking about the spring, so, April 30?

Ms. Jordan: Well, if they are going to say they will have it in place by April 30, maybe we should ask for it sooner to make sure that it will be in place by April 30. I would suggest we say February 1.

The Joint Chair (Mr. Albrecht): A progress report in February, with completion by April.

Ms. Jordan: Yes, completion by April.

The Joint Chair (Mr. Albrecht): Are we good with that?

Mr. Brassard: I'm good with that, as long as Wiarton Willie says spring is going to end early.

The Joint Chair (Mr. Albrecht): Spring is still spring.

Mr. Brassard: We don't know anymore.

The Joint Chair (Mr. Albrecht): I guess June 20 is technically the end of spring, right?

Mr. Brassard: Yes.



(For text of documents, see Appendix E, p. 12E1. )

Mr. Abel: As members can see from the lengthy background set out in the note prepared for today's meeting, amendments addressing the committee's concerns were agreed to in 1997. The promised amendments would address inconsistencies in terms used in the regulations.

In 2000, delays resulted from concerns relating to the Charter of Rights and Freedoms and its relation to the enabling act, and this matter wasn't resolved until 2007. In 2008 delays arose again regarding the age barrier of 60 years for a normal survivor pension. By 2011, what were called high-priority issues by the department were still outstanding, and it was proposed to roll the promised amendments into a series of packages already being developed. This did not seem to speed matters up. More delays accumulated, and eventually it was indicated that the promised amendments were to be part of a package made in 2016. That package was made, but the amendments promised in connection with this file were not included.

The department's letter of June 6 now states in its annex that those amendments will be part of a separate package. No explanation for these events is given, nor an indication as to when that package might be made. Members may wish to consider a letter to the minister to ensure the amendments are made without further delay.

The Joint Chair (Mr. Albrecht): I think the new committee members are beginning to get an idea as to why there's a certain degree of frustration around the table concerning these files from 2000 until 2016.

Mr. Brassard: Give them 30 days to respond and we'll go from there.

Mr. El-Khoury: I agree. We have to stand firm on this file because it doesn't make any sense.

The Joint Chair (Mr. Albrecht): You're comfortable with 30 days, Mr. Dusseault?


Mr. Dusseault: I tend to agree. I was even going to propose that we go further, but we'll wait for their response to see what they promise for the future. The regulations date back to 1994. We were promised something in 2016, and the promise wasn't fulfilled. Therefore, I agree with the 30-day deadline. However, once that deadline is reached, if it's still not satisfactory, even if they promise to do it in the next months or years, we can't rely on that. A promise was made to us, and we're still waiting. I agree with the 30-day deadline, but after the deadline, we should take stronger measures.


Mr. Di Iorio: We should mention that one member of the committee was not on board with that.

The Joint Chair (Mr. Albrecht): Mr. Dusseault agrees with 30 days, and if there's not that response, we won't know that until we come back in February. We can deal with it in our first meeting back if there's no response.

Senator Moore: I think you should also put in the letter that if we don't have a satisfactory response by that 30-day period, they can expect to be called as witnesses. We have to put some kind of a hammer down here, because they are ignoring whatever else we have been trying to get from them in a courteous way. It's not happening.

The Joint Chair (Mr. Albrecht): Okay. I think we are agreed on that point.





(For text of documents, see Appendix F, p. 12F1.)

Ms. Borkowski-Parent: In total, 113 amendments to the act and regulations have been promised since the initial letter from counsel was sent in March 2011. The Department of Natural Resources planned to make amendments at the end of 2014, then postponed the deadline to winter 2015 and finally to winter 2016.

In its letter dated April 25, 2016, the department indicated that the prepublication in Part I of the Canada Gazette would take place in fall 2016, but that the amendments awaited by the committee for the past five years may be incorporated into the frontier and offshore regulatory renewal initiative. The initiative seeks to establish a single framework regulation that includes hundreds of pages. The delays in this initiative are already beginning to accumulate.

In connection with other files, the department informed the committee that the public consultations regarding this initiative will not start until late 2016. It will take another five years to complete the project. In short, the department had indicated that the prepublication of the amendments awaited by the committee would take place this fall, and this was not done. Moreover, the amendments may now have been incorporated into a regulatory renewal initiative that will not be completed until 2021.


The Joint Chair (Mr. Albrecht): I don't know how many options we have here with all the consultation that still needs to occur. It's unfortunate that it has been pushed back. Does anyone wish to speak to this item?

Mr. Maguire: I would ask the advice of counsel with regard to this. It seems this all began five years ago. I understand that even though it was supposed to have been done in 2012, the first consultation and the whole project just got under way this spring — this past March. I would ask counsel for advice as to how to proceed with this. I think we could obviously contact them with regard to speeding the process up.

Ms. Borkowski-Parent: The additional delays are caused by the fact that they bundled those amendments into their renewal initiative. It's a problem the committee encounters with some frequency: Instead of proceeding with the amendments that the committee required, departments just bundle them into their initiatives for later on.

At this point, the committee could either wait for the Frontier and Offshore Regulatory Renewal Initiative to take place with a tentative date of 2021, or ask that the amendments be made separately from that initiative in the interim.

The Joint Chair (Mr. Albrecht): I think if we have that authority, I see some general agreement that we should go in that direction.

Senator Moore: It sounds like last week all over again. The ploy is to bundle and bundle, but it never gets done. I think we should ask them to do what they have ready, get that done, and if afterwards they want to roll that in some with others, then blah, blah, blah, but this is just a ploy to avoid counsel's direction.

The Joint Chair (Mr. Albrecht): I see general agreement that we request that these earlier amendments be done as soon as possible, or even sooner than that, and that the other amendments will have to follow through the normal consultation process.

Do we want to put a timeline on that? They made a rather empty promise in the fall of 2016, but it could be later than forecasted.

Mr. Maguire: With due respect, I think just a reply back at least by the end of April would suffice. Is there a point to putting a date of June in here?

The Joint Chair (Mr. Albrecht): A reply by the end of April and completion by June?

Senator Moore: Okay.

The Joint Chair (Mr. Albrecht): All agreed?

Hon. Members: Agreed.


(For text of documents, see Appendix G, p. 12G1 )

Mr. Abel: In its reply of October 7, 2016, Treasury Board agreed to make amendments addressing all five issues raised with respect to these regulations. These issues concerned questions of drafting and consistency between the two linguistic versions. If members are satisfied with that, a letter could be drafted seeking a time frame for the making of the amendments.

The Joint Chair (Mr. Albrecht): Any input? Mr. Maguire?

Mr. Maguire: I think it's just a matter of finding out when they are going to make the changes, if that's the process.

The Joint Chair (Mr. Albrecht): Asking when, or asking that they be made by a certain date?

Mr. Maguire: Well, I would say by the end of March.

The Joint Chair (Mr. Albrecht): Requesting that the amendments be made by the end of March?

In this one especially, relating to the amount payable, I couldn't believe that it could be that open-ended within a regulation. Basically there's no amount payable. It's unfortunate that this kind of wording slipped through in the first place.

I think we have general agreement that we will proceed with a letter asking for a response by the end of March.

Hon. Members: Agreed.


(For text of documents, see Appendix H, p. 12H1 )

Mr. Abel: Seven concerns were raised in connection with this instrument, dealing with drafting matters and inconsistency between the two versions. The Department of Transport indicates that the Great Lakes Pilotage Authority will be proposing amendments in fall 2017 that would, among other things, address these concerns. If members are satisfied, counsel could monitor and follow up on this file in the usual fashion, including seeking a time frame.

Senator Runciman: In looking at the brief response, they reviewed our comments and agreed to amend the regulations in light of our concerns. Is counsel content with that in terms of the seven? They are not being specific here. Is there any concern with respect to the general nature of that response?

Mr. Abel: In past practice with the committee, particularly dealing with technical amendments where the solution is fairly straightforward, the committee has generally accepted a blanket agreement to address concerns. But if members have some sort of concern, we can always write back seeking more specificity.

Senator Runciman: Well, if they said all seven concerns, it might have been okay, but if you're comfortable with it — they made a commitment to move on it but haven't given us any real indication, other than the fall of 2017. Just monitor it then, I guess.

The Joint Chair (Mr. Albrecht): By the fall of 2017: It does specify, "in light of your concerns,'' so they are not excluding any, but you're right, they're definitely not including them. I think we should proceed with counsel's recommendation that we expect the regulations to be done by fall of 2017.

Senator Runciman: And maybe counsel can give us an update sometime early next year, say, in May or June. Is that possible?

Senator Moore: I agree with Senator Runciman. I think you should follow up in May or June and say, "Look, this is an indication and we just want to confirm you're on track and that it's going to happen as you indicated.

The Joint Chair (Mr. Albrecht): Sure. Good point.

Senator Runciman: And ensure that all seven are being addressed.


(For text of documents, see Appendix I, p. 12I1 )

Mr. Abel: An inconsistency in the wording of the English version of this order was noted and the department has agreed to make an amendment. The department states that this will be done in a timely and efficient manner. If members are satisfied, counsel could seek a precise time frame and follow progress in the usual fashion.

The Joint Chair (Mr. Albrecht): I think Ms. Jordan has a suggestion as to what "timely and efficient'' is.

Ms. Jordan: We have never seen anything timely and efficient with this department, so I suggest we put on a deadline on it of March 31, 2017.

The Joint Chair (Mr. Albrecht): All agreed?

Hon. Members: Agreed.


(For text of documents, see Appendix J, p. 12J1 )

Mr. Abel: A discrepancy was identified between the two versions of an amendment to the French version of schedule 15 to these regulations. The Department of Justice acknowledges the error and agrees to make an amendment in due course.

The Joint Chair (Mr. Albrecht): Ms. Jordan?

Ms. Jordan: I would suggest the same timeline: March 31, 2017.

The Joint Chair (Mr. Albrecht): Agreed?

Hon. Members: Agreed.


(For text of documents, see Appendix K, p. 12K1 )

Ms. Borkowski-Parent: On item 11, the instrument was missing from the Department of Justice's consolidation. The instrument has now been posted on the DOJ's website and the file can be closed.

The Joint Chair (Mr. Albrecht): Great. We're getting somewhere, members.





(For text of documents, see Appendix L, p. 12L1.)

Ms. Borkowski-Parent: Under this item, you will find three regulations that were ultra vires of their enabling legislation. The regulations in question concerned the ignition propensity of tobacco products, and they were originally made under the Tobacco Act.

However, the purpose of the act is to reduce the incidence of tobacco use, educate the public and prevent diseases associated with smoking. A regulation that aimed to make tobacco products safer clearly fell outside the general scope of the act. The three regulations in question were repealed and remade under the Canada Consumer Products Safety Act. As a result, these files can be closed.


The Joint Chair (Mr. Albrecht): Mr. Di Iorio, do you want to make a closing statement?

Mr. Di Iorio: Celebration.

The Joint Chair (Mr. Albrecht): All right, I think that concludes our —

Ms. Borkowski-Parent: There's one more, sorry.

The Joint Chair (Mr. Albrecht): Oh, right, 13. How could I forget 13? My apologies.


(For text of documents, see Appendix M, p. 12M1 )

Ms. Borkowski-Parent: Under Item 13, these regulations were registered by mistake under "instrument other than a regulation.'' Because of the penalty associated with the contravention of the order, it falls within the definition of regulations under the Statutory Instruments Act. An erratum was published to correct this, and the order was remade a few days after the erratum was published, so no action is necessary and the file can be closed.

The Joint Chair (Mr. Albrecht): Again, celebration.

On that note, thank you, committee members, for your participation this past year. I'm going to assume we're not meeting Thursday, although that may be wrong. In case we aren't, I wish you all a Merry Christmas.

Mr. Brassard?

Mr. Brassard: As has been tradition, since Mr. Maguire is here for one day, perhaps I would suggest that he handle the media scrum this morning?

The Joint Chair (Mr. Albrecht): With that great tie, I'm sure.

Mr. Di Iorio: I second.

The Joint Chair (Mr. Albrecht): I think we have taken some decisive action on a number of files this past term, so thank you very much for your participation and thanks to our counsel, analysts and clerks. Merry Christmas.

(The committee adjourned.)

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