Global Indicators of Regulatory Governance

As per the Cabinet Directive on Regulatory Management, departments and agencies are responsible for providing advance public notice of regulatory proposals. Each year, departments and agencies publish on their websites forward regulatory plans that, at a minimum, do the following, twice a year:

1. Identify and describe expected regulatory changes;

2. Provide information on planned consultations; and

3. Provide departmental contacts for further information.

https://www.canada.ca/en/treasury-board-secretariat/services/federal-regulatory-management/government-wide-forward-regulatory-plans.html   

Departments and agencies are required to publish proposals in the Canada Gazette Part 1, allow for a public comment period, take the comments received into consideration, and indicate publicly how comments were addressed.

http://www.gazette.gc.ca/accueil-home-eng.html

Canada Gazette link is sent to major stakeholders once a proposal is published (either for comment, Canada Gazette, Part 1) or for information (Canada Gazette, Part 2).

Departments and agencies may publish the text or summary of proposed regulations before their enactment through a variety of mechanisms. The specific approach to share this information varies among departments and agencies. Also through the Government of Canada's Consulting with Canadians portal, which highlights engagement opportunities with the public that can contain regulatory consultations. http://www1.canada.ca/consultingcanadians/

The Statutory Instruments Act, an act of parliament that is legally binding legislation, prescribes that in order for a regulatory submission to be considered a statutory order (SOR) or instrument (SI) (i.e. have legal standing) it must be published in the Canada Gazette for comment.

Although the current Cabinet Directive on Regulatory Management is not a law and does not contain statutory requirements, it expresses the clear direction of Cabinet and the Prime Minister. Regulators are required to adhere to the principles established therein, which requires departments and agencies to publish proposals in the Canada Gazette, Part 1 (except when exempted under certain conditions like emergencies).

Statutory Instruments Act and Cabinet Directive in Regulatory Management.

International agreements to which Canada is a party (e.g. the WTO Agreement on Technical Barriers to Trade, the WTO Agreement on the Application of Sanitary and Phytosanitary Measures, and the North American Free Trade Agreement) require a specific consultation period for draft regulations. Departments and agencies are to publish proposals for new or changed technical regulations, conformity assessment procedures, and sanitary and phytosanitary measures that may affect international trade for a comment period of at least 75 days and consider the comments received.

The standard 30-day comment period for regulations that are pre-published in the Canada Gazette Part 1 is not set by law, but it is a requirement of the Cabinet Directive on Regulatory Management.

For primary laws, see section 4.1.2 of a Drafter's Guide to Cabinet Documents (http://www.pco-bcp.gc.ca/index.asp?lang=eng&page=information&sub=publications&doc=mc/guide-eng.htm#IV.1.2).

For regulations, see section 6(A) of the Cabinet Directive on Regulatory Management (CDRM), which reads:

15. Departments and agencies are responsible for identifying interested and affected parties, and for providing them with opportunities to take part in open, meaningful, and balanced consultations at all stages of the regulatory process. When undertaking consultations, departments and agencies are to:

i. Inform and engage Canadians on the nature and implications of the public policy issue based on available evidence, science, or knowledge;

ii. Include Canadians in developing policy objectives;

iii. Set out the process and timelines clearly so that affected parties can organize and provide input; and

iv. Provide timely feedback to Canadians and affected parties on the outcome of the consultations and on the priorities considered in decision making.

16. Departments and agencies are also to work with First Nations, Inuit, and Métis communities and peoples; with national, regional, and local Aboriginal organizations; and with Aboriginal governments and ensure that all obligations in relation to rights protected by section 35 of the Constitution Act, 1982, are met.

17. Departments and agencies are to publish proposals in the Canada Gazette, Part I, to allow for a public comment period, and to then take the comments received into consideration. The standard comment period is 30 days, but it can vary based on legislative requirements, international obligations, and other considerations.

https://www1.canada.ca/consultingcanadians/

Websites for federal departments and agencies. https://www.canada.ca/en/health-canada.html

As per the Cabinet Directive, departments/agencies are required to identify interested and affected parties and provide them with opportunities to take part in the consultations at all stages of the regulatory process. Departments/Agencies are to inform and engage Canadians on the nature and implications of the public policy issue; include Canadians in developing policy objectives; set out the process and timelines clearly and provide input; and provide timely feedback to Canadian and affected parties on the outcome of the consultations.

Departments and agencies have a range of consultation approaches available to them and may choose to employ the ones that work best for them and their stakeholders. This includes targeted outreach, working groups, advisory councils and others.

Although all comments are generally not accessible to the general public, a high-level summary response to consultations, and the department or agency’s efforts to address them, must be included as part of the Regulatory Impact Analysis Statement that is published with the final regulation in the Canada Gazette Part 2. It is important to note that commercially sensitive information is not published, and posted information must conform to privacy requirements established under the Privacy Act. In addition to the results of consultations that are published in the Canada Gazette Part 2, individual departments may choose to share the results of consultations more widely.

The Statutory Instruments Act, an act of Parliament that is legally binding legislation, prescribes that in order for a regulatory submission to be considered a statutory order (SOR) or instrument (SI) (i.e have legal standing) it must be published in the Canada Gazette for comment.

Per Section 35 of the Constitution Act, 1982, departments and agencies have a duty to consult with Aboriginal communities.

Regarding secondary regulations, although the Cabinet Directive is not a law and does not contain statutory requirements, it expresses the clear direction of Cabinet and the Prime Minister. Regulators must adhere to the policies and guidance established therein.
Section 6(A) of the CDRM reads:

15. Departments and agencies are responsible for identifying interested and affected parties, and for providing them with opportunities to take part in open, meaningful, and balanced consultations at all stages of the regulatory process. When undertaking consultations, departments and agencies are to:

i. Inform and engage Canadians on the nature and implications of the public policy issue based on available evidence, science, or knowledge;

ii. Include Canadians in developing policy objectives;

iii. Set out the process and timelines clearly so that affected parties can organize and provide input; and

iv. Provide timely feedback to Canadians and affected parties on the outcome of the consultations and on the priorities considered in decision making.

16. Departments and agencies are also to work with First Nations, Inuit, and Métis communities and peoples; with national, regional, and local Aboriginal organizations; and with Aboriginal governments and ensure that all obligations in relation to rights protected by section 35 of the Constitution Act, 1982, are met.

17. Departments and agencies are to publish proposals in the Canada Gazette, Part I, to allow for a public comment period, and to then take the comments received into consideration. The standard comment period is 30 days, but it can vary based on legislative requirements, international obligations, and other considerations.

18. A minimum comment period of 75 days is required for proposals for new and changed technical regulations that may affect international trade.

19. Publishing proposed regulations in the Canada Gazette is not a substitute for meaningful consultations on the development of regulatory proposals.

20. Cabinet may exempt proposals from publication in Part I of the Canada Gazette. An exemption may not be possible in cases where prepublication is required by statute.

http://www.tbs-sct.gc.ca/rtrap-parfa/cdrm-dcgr/cdrm-dcgrtb-eng.asp.

A high-level summary response to consultations must be included as part of the Regulatory Impact Analysis Statement that is published, with the final draft of the regulation, in the Canada Gazette, Part 2. It is important to note that commercially sensitive information is not published, and posted information must conform to privacy requirements established under Privacy Act.

Following the publication of the draft regulation in Canada Gazette Part 1, the responsible department or agency must provide a summary of comments received and their responses when the final regulation is published in Canada Gazette Part 2 (http://www.gazette.gc.ca/accueil-home-eng.html). In addition, the website Consulting With Canadians (http://www.consultingcanadians.gc.ca/cpcPubHome.jsp?lang=en) provides links to a wide range of Government of Canada consultations, which may include those focused on regulations. Interested individuals may access the responsible departments' web pages through the Consulting With Canadians site and provide comments. Once the consultation period is closed, departments or agencies often make available, upon request, the comments they received and how they have been addressed.

http://www.gazette.gc.ca/accueil-home-eng.html

The website Consulting with Canadians (http://www.consultingcanadians.gc.ca/cpcPubHome.jsp?lang=en) provides links to many consultations. Stakeholders can use these links to contact the relevant departments to request the results of the consultations. Each Ministry is different in its approach. Not all Ministries publish the results of their consultations on their websites (e.g. Environment and Climate Change Canada's Canadian Environmental Protection Act Registry https://www.canada.ca/en/environment-climate-change/services/canadian-environmental-protection-act-registry.html)

A high-level summary response to consultations must be included as part of the Regulatory Impact Analysis Statement that is published, with the final draft of the regulation, in the Canada Gazette, Part 2. It is important to note that commercially sensitive information is not published, and posted information must conform to privacy requirements established under Privacy Act.

Departments and agencies can report to stakeholders on the results of consultations directly in numerous ways, such as by mail or e-mail.

Although regulatory bodies are not required by law to report on the results of consultations, the Cabinet Directive on Regulatory Management (CDRM) does require that they provide timely feedback to Canadians and affected parties on the outcome of the consultations and on the priorities considered in decision making. The CDRM is the expression of Cabinet's direction (including the Prime Minister's) to all Ministers and it can be accessed here: http://www.tbs-sct.gc.ca/rtrap-parfa/cdrm-dcgr/cdrm-dcgrtb-eng.asp.

For primary laws:

The Cabinet Handbook: The Cabinet Directive on Law-Making (2003) (http://www.pco-bcp.gc.ca/index.asp?lang=eng&page=information&sub=publications&doc=legislation/cabdir-dircab_e.htm) provides general and specific requirements when developing legislation. This includes, per section 2, assessing the impact of the proposed solution and the resources needed to implement or enforce it. Although the Cabinet Directive is not law and does not contain statutory requirements it is stronger than a 'handbook' as it establishes "fundamentals" of the Government's law-making activity, and law-making initiatives must be planned and managed "in accordance with the Directive" (section 1) (i.e., it is mandatory). The Directive also expresses the clear direction of Cabinet and the Prime Minister with respect to the making of laws (i.e., mandatory requirements). It covers both Acts (primary laws) and regulations (subordinate regulation). (http://www.pco-bcp.gc.ca/index.asp?lang=eng&page=information&sub=publications&doc=legislation/table-eng.htm) and (http://www.tbs-sct.gc.ca/rtrap-parfa/cdrm-dcgr/cdrm-dcgrtb-eng.asp). Some statutes also have specific requirements for consultation (e.g. Canadian Environmental Protection Act, 1999).

Mandatory guidelines: The Cabinet Directive on Law-Making, the Guide to Making Federal Acts and Regulations and the Drafter's Guide to Cabinet Documents (internet links above) set out mandatory requirements and provide guidelines on developing laws and policy proposals (e.g., Memorandum to Cabinet (MC)) seeking approval to develop laws that must be followed by all federal departments. Included in these documents are instructions and guidance as to impact assessment, risk assessment, consultation, etc.

• See the Cabinet Directive on Law Making (http://www.pco-bcp.gc.ca/index.asp?lang=eng&page=information&sub=publications&doc=legislation/cabdir-dircab-eng.htm),

• the Guide to Making Federal Acts and Regulations (http://www.pco-bcp.gc.ca/index.asp?lang=eng&page=information&sub=publications&doc=legislation/table-eng.htm),

• the Drafter's Guide to Cabinet Documents (http://www.pco-bcp.gc.ca/index.asp?lang=eng&page=information&sub=publications&doc=mc/guide-eng.htm)

• and the Memoranda to Cabinet: A Drafter's Guide (http://www.pco-bcp.gc.ca/index.asp?lang=eng&page=information&sub=publications&doc=mc/mc-eng.htm).
For secondary regulations:

This requirement is outlined in the CDRM in Section 6, Regulatory Impact Analysis, which requires departments and agencies to assess the impact of regulatory proposals at an early stage to determine where approval processes can be streamlined and where resources should be focused. The following factors will be considered in this assessment:

i. Potential impact of the regulation on health and safety, security, the environment, and the social and economic well-being of Canadians;

ii. Cost or savings to government, business, or Canadians, and the potential impact on the Canadian economy and its international competitiveness;

iii. Potential impact on other federal departments or agencies, on other governments in Canada, and on Canada's foreign affairs;

iv. Degree of interest, contention, and support among affected parties and among Canadians; and

v. Overall expected impact: Recognizing that regulatory impact analysis can be resource intensive, the Directive emphasizes the principle of proportionality—analysis should be focused where it is most needed. Therefore, at the earliest stages of regulatory design, departments and agencies must assess the regulatory proposal, in consultation with the Regulatory Affairs Sector of the Treasury Board Secretariat, to determine its overall expected impact (i.e., low, medium or high) and the particular analytical and other requirements to be met.

The Triage Statement is a preliminary assessment of the expected impacts of regulatory proposals and helps determine where approval processes can be streamlined and where analytical resources should be focused. It is completed by departments and agencies at the earliest stages of regulatory design and a draft Statement is shared with the Treasury Board Secretariat.

The Triage System underscores the Cabinet Directive on Regulatory Management’s principle of proportionally aimed at focusing the analysis where it is most needed. The development of a Triage Statement early in the development of the regulatory proposal determines whether the proposal will require a full or expedited RIA, based on costs and other factors:

- Low impact: Costs less than CAD 10 million present value over a 10-year period or less than CAD 1 million annually;

- Medium impact: Costs CAD 10 million to CAD 100 million present value or CAD 1 million to CAD 10 million annually;

- High impact: Costs greater than CAD 100 million present value or greater than CAD 10 million annually.

Also, when there is an immediate and serious risk to the health and safety of Canadians, their security, the environment, or the economy, the Triage Statement may be omitted and an expedited RIA process may be allowed. In these cases, departments and agencies work with the Treasury Board Secretariat to proceed in a manner that most effectively protects the public interest. Departments and agencies are still required to complete a RIAS, but it moves through the internal government review and approval process more quickly and on accelerated timelines.

Several guides are available, including the RIAS Writer's Guide (http://www.tbs-sct.gc.ca/rtrap-parfa/riaswg-grrier/riaswg-grrier00-eng.asp), the RIAS Low-Impact Template (http://www.tbs-sct.gc.ca/rtrap-parfa/temp-gabar/litrias-gpifreir-eng.asp) and the RIAS Medium- and High-Impact Template (http://www.tbs-sct.gc.ca/rtrap-parfa/temp-gabar/mhitrias-gimereir-eng.asp). Also, the Cabinet Directive on Regulatory Management provides overall guidance for proportionality. https://www.canada.ca/en/treasury-board-secretariat/services/federal-regulatory-management/guidelines-tools/triage-statement-form.html

Although the impact assessment is not required by law, it is a requirement in the Cabinet Directive on Regulatory Management. As noted, the CDRM is the expression of the Cabinet's direction (including the Prime Minister's) to all Ministers and it can be accessed here: http://www.tbs-sct.gc.ca/rtrap-parfa/cdrm-dcgr/cdrm-dcgrtb-eng.asp.

http://www.gazette.gc.ca/accueil-home-eng.html

Departments and agencies can distribute draft Regulatory Impact Analysis Statements to the public through various mechanisms, including those mentioned here.

According to the Cabinet Directive on Regulatory Management, departments and agencies are responsible for assessing the effectiveness and appropriateness of regulatory and non-regulatory instruments for achieving policy objectives. Regulators are to consider potential alternatives to regulation, including voluntary standards, information disclosure and guidelines, and whether outcome or performance based approaches would be suitable. The Regulatory Impact Analysis Statement requires regulators to consider and explain the choice of instruments. This includes a description of regulatory and non-regulatory options, any other regulatory actions considered, and the key differences between the options. Regulators must explain why regulation was chosen as the instrument to address the issue.

http://laws.justice.gc.ca/eng/

All laws relevant to a department or agency are available on that entity’s departmental acts and regulations web page. For example, Health Canada's acts and regulations web page is at: http://www.hc-sc.gc.ca/ahc-asc/legislation/acts-reg-lois/index-eng.php.

For Canada, the threshold for an ex post evaluation varies from organization to organization and can be quantitative or qualitative.

Red Tape Reduction Act. http://laws-lois.justice.gc.ca/eng/acts/R-4.5/index.html

Red Tape Reduction Regulations. http://laws-lois.justice.gc.ca/eng/regulations/SOR-2015-202/index.html 

Departments have their own processes through which the public can express their concerns on a regulation. This can include administrative and judicial review, as well as ombudsmen, judicial challenges and petitions for reconsideration. However, the Canadian system is focused on a high level of stakeholder and public engagement through all stages of regulatory development. This helps to ensure clear communication and helps to reduce the risk of disputes.

As per the Cabinet Directive on Regulatory Management, departments and agencies have to regularly assess the results of performance measurement and evaluation to identify regulatory frameworks in need of review. Once identified, departments and agencies are to examine the regulation with a focus on:

1. The effectiveness of the current regulation in meeting the policy objective;

2. The current instrument selection, level of intervention, and degree of prescriptiveness;

3. The clarity and accessibility of the regulation to users; and

4. The overall impact on competitiveness, including trade, investment, and innovation.

As per the Cabinet Directive on Regulatory Management, departments and agencies are to evaluate their regulatory programs according to the time frames and cycle established in the Treasury Board Policy on Evaluation to demonstrate results for Canadians. Subject to the impacts and complexity of the regulatory programs, departments and agencies are to assess the following areas, when appropriate:

1. Inputs (e.g., resources, mandate, and enabling authorities), activities, effectiveness, ultimate outcomes of the regulatory program, and the extent to which the program contributed to the achievement of reported results;

2. Value for money (e.g., relevance, efficiency, and cost-effectiveness); and

3. Governance, decision-making and accountability processes, service standards, and service delivery mechanisms.