Guide to the Federal Regulatory Development Process

About this Guide

Regulation is a key instrument used by the Government of Canada to achieve various policy objectives and improve the quality of life of Canadians. It is an important tool for protecting the health and safety of Canadians, the environment, and for securing the conditions for an innovative and prosperous economy.

Given the impact that regulations can have on Canadians and our economy, the federal regulatory process is highly structured. It is defined both by specific legal requirements set out in the Statutory Instruments Act and by policy requirements that are articulated in the Cabinet Directive on Streamlining Regulation (CDSR). Recognizing that the regulatory process can be complex, the Treasury Board of Canada Secretariat has developed a series of frameworks and documents to assist regulatory organizations.

This Guide to the Federal Regulatory Development Process is one of these tools. It is intended for use by public service employees who are working in Canadian federal departments, agencies, and Crown corporations and who are involved in developing regulations or otherwise implementing the CDSR.

Additional information and guidance documents on the federal regulatory process can be found at http:/www.regulation.gc.ca. The following address, email, and telephone numbers may also be useful:

Email: info@tbs-sct.gc.ca
Telephone: 613-957-2400
Toll-free: 1-877-636-0656
TTY: 613-957-9090
Fax: 613-943-5071

Postal Address
Regulatory Affairs Sector
Treasury Board of Canada Secretariat
155 Queen Street, Suite 1100
Ottawa ON K1A 0R5

Part 1: Regulations as a Policy Instrument

In Canada, regulations are made by persons or bodies, such as the Governor in Council (GIC), a minister, or an administrative agency, to whom Parliament has delegated its authority in an act. Regulations are a form of law–they have binding legal effect and usually set out general rules rather than specific ones that are directed toward persons or situations.

The process described herein assumes that officials have evaluated the range of instruments available to them for achieving a given policy objective and have determined that regulation is a necessary part of the instrument mix. Departments and agencies are responsible for assessing the effectiveness and appropriateness of regulatory and non-regulatory instruments for achieving policy objectives. The Treasury Board of Canada Secretariat's Regulatory Affairs Sector (TBS-RAS) has produced a guide, Assessing, Selecting, and Implementing Instruments for Government Action, which provides guidance on instrument choice before proceeding with a regulatory proposal.

Cabinet Directive on Streamlining Regulation

The CDSR came into effect on April 1, 2007, replacing the previous Government of Canada Regulatory Policy. The CDSR sets out guidance on the federal regulatory process (the legal requirements of the process are described in the Statutory Instruments Act). It applies to all departments and agencies involved in the federal regulatory process. Government officials are responsible for abiding by the CDSR at all stages of the regulatory life cycle, i.e., development, implementation, evaluation, and review.

The CDSR marks a fundamental change in approach to federal regulation. It stresses that regulations are only one of several policy instruments available to government and that they may not always be the most effective option. When a public policy issue arises and it is determined that government intervention is required, regulatory organizations must assess the effectiveness and appropriateness of both regulatory and non-regulatory instruments before proceeding. Regulations must be viewed not in isolation but rather as part of a mix of complementary instruments that work together to address a public policy issue. They should be chosen only after the full range of instruments has been analyzed.

What Is a Regulation?

A regulation is one of the many instruments that government uses to achieve policy objectives and improve the quality of life of Canadians.

A regulation, in its broadest sense, sets out principles, rules, or conditions that govern the behaviour of citizens and organizations. Governments use regulations in combination with other instruments to achieve public policy objectives. Regulations are a form of law–they have force of law and usually set out general rules and penalties rather than specific ones that are directed toward persons or situations.

Regulating is an extension of the power given to Parliament by the Constitution to make laws. It is through a delegation of authority from Parliament in an act–known as an "enabling authority"–that the Governor in Council (the Governor General, acting on the advice of the federal Cabinet), the Treasury Board, a minister, or another administrative agency is given the authority to make regulations. The regulation is thus referred to as "delegated" or "subordinate" legislation. Authority to make regulations must be expressly provided for in the enabling legislation. Regulations must be consistent with all provisions of the enabling act.

The Statutory Instruments Act provides a specific definition of the term "regulation." The Drafting and Advisory Services Group of the Department of Justice (JUS)–commonly referred to as the JUS Legislative Counsel–is responsible for ensuring that a proposed regulation is consistent with that definition. If you have questions on this matter, contact either the Headquarters Regulations Section at 613-957-0087 or one of the following departmental regulations sections of the Drafting and Advisory Services Group:

National Defence Regulations Section: 613-995-2653
Environment Canada Regulations Section: 819-994-6346
Health Canada Regulations Section: 613-952-9645
Transport Canada Regulations Section: 613-993-1956

The CDSR builds on the previous regulatory policy and identifies the following key principles:

Protect and advance the public interest in health, safety and security, the quality of the environment, and the social and economic well-being of Canadians, as expressed by Parliament in legislation;
Promote a fair and competitive market economy that encourages entrepreneurship, investment, and innovation;
Make decisions based on evidence and the best available knowledge and science in Canada and worldwide, while recognizing that the application of precaution may be necessary when there is an absence of full scientific certainty and a risk of serious or irreversible harm;
Create accessible, understandable, and responsive regulation through inclusiveness, transparency, accountability, and public scrutiny;
Advance the efficiency and effectiveness of regulation by ascertaining that the benefits of regulation justify the costs, by focussing human and financial resources where they can do the most good, and by demonstrating tangible results for Canadians; and
Require timeliness, policy coherence, and minimal duplication throughout the regulatory process by consulting, coordinating, and cooperating across the federal government, with other governments in Canada and abroad, and with businesses and Canadians.

The CDSR provides guidance on managing the implementation of regulations, evaluating their performance, and reviewing regulatory frameworks. To that end, the CDSR introduces a life-cycle approach to regulation, with specific requirements for all stages of the life cycle. This approach requires that regulations continually meet their policy objectives and be evaluated and renewed on an ongoing basis, thus ensuring a more effective, efficient, and accountable regulatory system. The success of the regulatory product depends on each stage not being seen as a separate activity, but as part of a continuous feedback loop.

Forward Planning

In support of this approach to regulation, the Treasury Board of Canada Secretariat (the Secretariat) has a reporting requirement and form entitled the "Forward Plan" (a sample page is provided in the Appendix). The purpose of this plan is to:

Identify GIC proposals (both regulatory and non-regulatory Orders in Council) that will be presented to the Treasury Board Cabinet Committee for consideration in the coming parliamentary session;
Situate these initiatives within the broader governmental agenda;
Identify linkages with other initiatives under way or planned; and
Demonstrate how these initiatives support the objectives of the CDSR.

Forward plans enable the Secretariat to anticipate proposals and work more closely with regulatory organizations to ensure that strategies are in place to address issues that might otherwise delay consideration of time-sensitive proposals (e.g., those that would require a policy discussion or funding decisions by Cabinet).

Types of Regulation

Federal regulations are often categorized in the following classes:

GIC regulations: The enabling act gives the GIC the authority to make regulations on specific matters. These are the most common type of regulations and follow the process described in Part 2 of this guide.
Ministerial regulations: The enabling act gives a minister or the head of an agency the authority to make regulations. This guide does not apply to such regulations.

Key Players in the Regulatory Development Process

The federal regulatory development process involves a number of players, each of which has distinct roles and responsibilities:

Regulatory organizations: Certain federal departments and agencies, Crown corporations, commissions, and other bodies may be authorized by an act of Parliament to develop and propose, through their ministers or agency heads, regulations in specified areas of public policy. Regulatory organizations can also be responsible for implementing regulations.
Treasury Board: The Treasury Board is a committee of Cabinet ministers that provides advice to the Governor General on the regulatory proposals of the government, among other matters. The Treasury Board is chaired by the President of the Treasury Board.
Governor in Council: GIC appointments are made by the Governor General, on the advice of the Queen's Privy Council of Canada (for regulations, represented by Treasury Board ministers). Parliament may, through legislation, delegate responsibilities and duties to the GIC, including the making of most federal regulations.
The Regulatory Affairs Sector of the Treasury Board of Canada Secretariat: TBS-RAS is responsible for ensuring that the analysis provided by departments and agencies on policy and regulatory proposals is consistent with the commitments and directions set out in the CDSR and that the analysis effectively supports ministerial and Cabinet decision making. TBS-RAS is also responsible for promoting policy coherence among new proposals, existing policies, and the government's policy agenda.
Department of Justice Canada (JUS): The JUS Legislative Counsel examines proposed regulations in accordance with the Statutory Instruments Act. The Counsel works together with jurilinguists, bijurists, and revisors to prepare regulations on behalf of regulatory organizations. JUS also explains the legislative and regulatory process; provides legal opinions on the extent of the authority under which regulations are made and determines whether documents are subject to the regulatory process; ensures that proposed regulations are consistent with government policies and international obligations; and forms a partnership with clients for all communications with the Standing Joint Committee for the Scrutiny of Regulations dealing with legal and drafting issues.
Privy Council Office: As set out in the Statutory Instruments Act, the Clerk of the Privy Council Office (PCO), through the Orders in Council Division of the Privy Council Office (PCO-OIC), is responsible for receiving GIC regulatory submissions in both official languages from regulatory organizations, examining the proposal in consultation with the deputy minister of JUS, advising the regulation-making authority (currently the Treasury Board Cabinet Committee) that the proposed regulation has been so examined, and registering regulations after they are made by the GIC or made by another regulation-making authority.
Public Works and Government Services Canada (PWGSC): PWGSC publishes the Canada Gazette, the official newspaper of the Government of Canada. Proposed regulations and supporting documentation are published in Part I of the Canada Gazette, while regulations that have been made are published in Part II. Part III of the Canada Gazette contains acts of Parliament after they have received royal assent, as well as a list of the Proclamations of Canada and Orders in Council (OIC) relating to the coming into force of federal acts. Electronic (PDF) versions of the acts and regulations are now considered legal official texts.
Standing Joint Committee for the Scrutiny of Regulations: The Committee's mandate is defined by the Statutory Instruments Act, the Legislation Revision and Consolidation Act, and the Standing Orders of the House of Commons. Pursuant to the Statutory Instruments Act, the Committee can scrutinize any statutory instrument made after December 31, 1971. The Statute Revision Act authorizes the Committee to scrutinize any regulation found in the 1978 Consolidated Regulations of Canada or revised Regulations prepared pursuant to that Act, even if that regulation were made prior to the coming into force of the Statutory Instruments Act in 1972. The Standing Orders of the House of Commons expand on the mandates found in these two acts by authorizing the Committee to examine any other matter referred to it by both houses of Parliament.

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