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PART 2
THE REGULATORY PROCESS

This part was partially revised in 2003 and 2011.

1. INTRODUCTION

Delegated legislation, commonly referred to as "regulations", is the manifestation of a legislative power conferred by Parliament on the executive branch. The most common forms of delegated legislation are regulations per se, orders in council and ministerial orders; other forms include rules, lists, tariffs, directions and guidelines.

As is pointed out by Professor Garant, there is nothing sacred about the word "regulations";[1] the identifying label of the enactment may vary. Quoting from a decision by Justice MacGuigan of the Federal Court of Appeal, Garant adds

if there is one thing which is crystal clear in the confused microcosm of delegated legislation, it is that no conclusion should be drawn from terminology alone, since it has been remarkable for its inconsistency.[2]

Because delegated legislation is an extension of Acts, a special regime has been set up at the federal level to ensure that the delegated legislation is authorized, that the public has access to it, and that standards respecting its drafting and presentation are respected. That special regime is set out in the Statutory Instruments Act[3] (referred to in this Part as "the SIA").

The SIA generally governs the examination, registration and publication of regulations,[4] and includes provisions for

  • (a) the forwarding of three copies of a proposed regulation, in both official languages, by a regulation-making authority to the Clerk of the Privy Council [s. 3(1)];
  • (b) the examination of proposed regulations by the Clerk of the Privy Council in consultation with the Deputy Minister of Justice [s. 3(2)];
  • (c) the transmission of regulations to the Clerk of the Privy Council (s. 5);
  • (d) the registration of regulations by the Clerk (s. 6);
  • (e) the coming into force of regulations (s. 9);
  • (f) the publication of regulations (s. 11); and
  • (g) the scrutiny of regulations by the Standing Joint Committee for the Scrutiny of Regulations[5] (s. 19).

The SIA and the Statutory Instruments Regulations, made under the authority of the SIA, exempt certain regulations from the requirements of examination, registration and publication. They also provide that certain instruments that are not regulations are subject to those requirements.

2. SCOPE OF THE STATUTORY INSTRUMENTS ACT

The SIA establishes three categories of instruments: regulations, statutory instruments and other documents. The distinction made between these categories is important because, although the Act is chiefly concerned with regulations, the procedural requirements also apply to certain statutory instruments that are not regulations and to certain other documents.

2.1 Definition "statutory instrument"

To determine whether the regulatory process established in the SIA applies to an instrument, it must be determined whether that instrument is subject to the SIA.

The first key provision in the SIA used to make that determination is the definition "statutory instrument" in subsection 2(1). The essential words of that definition are

"statutory instrument"

  • (a) means any rule, order, regulation, ordinance, direction, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by-law, resolution or other instrument issued, made or established

    • (i) in the execution of a power conferred by or under an Act of Parliament, by or under which that instrument is expressly authorized to be issued, made or established … .

Because the definition uses the words "expressly authorized", the nature of the instrument must be specified in the enabling legislation.

Example:

  10.The Governor in Council may, by order, fix the fees to be charged … .

In this example, an instrument, i.e. the "order", has been expressly authorized to be made and is therefore a statutory instrument.[6]

Also, in an example such as "The Minister shall establish a list of toxic substances …", the list would be considered a statutory instrument because it is expressly authorized to be established.

In another example, if an Act provides that "the Governor in Council may fix [or regulate] the quantities of lead permitted to be released in the atmosphere …", no instrument has been expressly authorized to be made. Although the Governor in Council in fixing such quantities would act by order in council,[7] the order in council made in this case would not be a statutory instrument because there is no express mention of the instrument by which such quantities are to be prescribed. This is so despite the fact that the Governor in Council is clearly exercising a legislative power.

Note that subparagraph (a)(ii) of the definition incorporates certain instruments established under the royal prerogative.[8]

2.2 Instruments excluded from the definition "statutory instrument"

There are four exceptions to the definition "statutory instrument", which are set out in subparagraphs (b)(i) to (iv) of that definition.

2.2.1 Subparagraph (b)(i)

This provision states that, with two exceptions, a statutory instrument does not include an instrument issued, made or established by a corporation incorporated by or under an Act of Parliament.

The first of these exceptions, set out in clause (b)(i)(A), is an instrument that "is a regulation and the corporation by which it is made is one that is ultimately accountable, through a Minister, to Parliament for the conduct of its affairs".[9] The second exception, set out in clause (b)(i)(B), is an instrument "for the contravention of which a penalty, fine or imprisonment is prescribed by or under an Act of Parliament".[10] These instruments would therefore qualify as "statutory instruments", provided, of course, that they meet the description set out in paragraph (a) of the definition.

2.2.2 Subparagraph (b)(ii)

This provision excludes instruments referred to in paragraph (a) that are issued, made or established by a judicial or quasi-judicial body, with one exception, namely, any instrument that is a rule, order or regulation governing the practice or procedure in proceedings before a judicial or quasi-judicial body established by or under an Act of Parliament.[11] These instruments are statutory instruments.[12]

A literal interpretation of this subparagraph suggests that any instrument issued, made or established by a judicial or quasi-judicial body is not included in the definition "statutory instrument". However, some hybrid bodies (for example, the Canadian Transportation Agency) perform both judicial or quasi-judicial functions and legislative functions. It would seem that the intention of Parliament was to exclude only instruments issued, made or established by these bodies in carrying out their judicial or quasi-judicial functions, and not all instruments.[13]

2.2.3 Subparagraph (b)(iii)

This provision excludes from the definition "statutory instrument" any instrument referred to in paragraph (a) and "in respect of which, or in respect of the production or other disclosure of which, any privilege exists by law or whose contents are limited to advice or information intended only for use or assistance in the making of a decision or the determination of policy, or in the ascertainment of any matter necessarily incidental thereto".

2.2.4 Subparagraph (b)(iv)

Under this provision, any ordinance of the Yukon Territory or the Northwest Territories and any instrument issued, made or established thereunder is excluded from the definition "statutory instrument". This exclusion is justified, because in a way these instruments are equivalent to provincial laws and regulations.

2.3 Definition "regulation"

Once it is determined whether an instrument is a statutory instrument, the next step is to determine whether it is a regulation within the meaning of subsection 2(1) of the SIA.

To be a regulation, an instrument must be

  • (a) a statutory instrument that is made in the exercise of a legislative power conferred by or under an Act of Parliament;

  • (b) a statutory instrument for the contravention of which a penalty, fine or imprisonment is prescribed by or under an Act of Parliament;

  • (c) a rule, order or regulation governing the practice or procedure in any proceedings before a judicial or quasi‑judicial body established by or under an Act of Parliament; or

  • (d) an instrument described as a regulation in any Act of Parliament.

It is important to note that only the first two categories require that the instrument first be a statutory instrument.

By far the most difficult task is determining whether a statutory instrument is made in the exercise of a legislative power, which is the criterion for the first category of regulations. An instrument that creates rules of conduct of general application and that has the force of law is considered to be made in the exercise of a legislative power.[14] Other instruments, which may not meet these criteria, are also considered to be made in the exercise of a legislative power; they include

  • (a) instruments that amend a schedule to an Act or any other provision of an Act;
  • (b) instruments that exempt a person from, or vary, the requirements of a legislative provision; and
  • (c) lists of substances or goods established to complete the Act (e.g., a list of toxic substances the importation of which is prohibited by the Act).

In contrast, an example of an instrument made in the exercise of a non‑legislative power would be

  15. The Governor in Council may, by order, fix the salary of the Governor of the Bank of Canada.

Any order made pursuant to this section would be considered a statutory instrument because it is expressly authorized to be issued, made or established. However, it would be administrative in nature, not legislative, because it does not prescribe any rule of conduct of general application. For that reason, it would not be a regulation for the purposes of the SIA. These types of orders fall within the same category as contracts, licences, leases, appointments, certificates and other documents that are issued by the government and its agencies pursuant to an Act of Parliament but do not arise from the exercise of a legislative power.[15]

When there is doubt as to whether a proposed statutory instrument is a regulation, the regulation-making authority may forward a copy of the instrument to the Deputy Minister of Justice, who has the power, pursuant to section 4 of the SIA, to make that determination. In practice, the determination is referred to counsel in the Regulations Section, who make the determination on the Deputy Minister's behalf.

When an instrument is registered by the Clerk of the Privy Council, it receives an "SOR" designation if it is identified as a regulation, and an "SI" designation if it is identified as any other statutory instrument or document.[16]

3. FORWARDING OF PROPOSED REGULATIONS FOR EXAMINATION

Subsection 3(1) of the SIA provides that a regulation-making authority must forward to the Clerk of the Privy Council three copies of a proposed regulation in both official languages, to be examined by the Clerk of the Privy Council in consultation with the Deputy Minister of Justice.

In practice, the proposed regulations are forwarded to the Deputy Chief Legislative Counsel (Regulations), Regulations Section, Legislative Services Branch, Department of Justice.

The following documents must be sent to the Regulations Section with a request for examination of the proposed regulations:

  • (a) three copies, in each official language, of the proposed regulations;

  • (b) three copies, in each official language, of the order in council or other executive order,[17] as the case may be, and, if the enabling legislation requires prepublication in the Canada Gazette, Part I, three copies of the notice of prepublication;[18]

  • (c) two copies of the Regulatory Impact Analysis Statement (RIAS), if the regulations are subject to the Government's policy on prepublication, or two copies of an explanatory note, if the regulations are not subject to that policy; and [19]

  • (d) two copies of any relevant correspondence with the Standing Joint Committee for the Scrutiny of Regulations and any other documents necessary for examination of the regulations.

As well, when submitting regulatory proposals to the Regulations Section for examination, legal counsel to the regulation-making authority should

  • (a) point out any legal problem in connection with the proposed regulations, citing the relevant case law;

  • (b) mention any legal opinion regarding the file, provided either by the Regulations Section or by another section of the Department of Justice;

  • (c) make sure that the French and English versions of the Regulations are equivalent; and

  • (d) follow the procedures outlined under Publication — Canada Gazette, Part II, item 6.2 in this Part, if the draft regulations have already been prepublished in the Canada Gazette, Part I.

4. EXAMINATION

4.1 Instruments that are regulations

Pursuant to subsection 3(2) of the SIA, a proposed regulation is required to be examined by the Clerk of the Privy Council, in consultation with the Deputy Minister of Justice, to ensure that

  • (a) it is authorized by the statute pursuant to which it is to be made;

  • (b) it does not constitute an unusual or unexpected use of the authority pursuant to which it is to be made;

  • (c) it does not trespass unduly on existing rights and freedoms and is not, in any case, inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights; and

  • (d) the form and draftsman‑ship of the proposed regulation are in accordance with es‑tablished standards.[20]

In practice, this examination function is carried out by the legal counsel of the Regulations Section. In some cases, however, this function is performed by the legal counsel of the legal services of the regulatory department or agency, if it has been delegated to them.[21]

It should be noted that, under subsection 3(4) of the SIA, paragraph 3(2)(d) of that Act, which addresses the form and draftsmanship of regulations, does not apply to any proposed rule, order or regulation governing the practice or procedure in any proceedings before the Supreme Court of Canada, the Federal Court of Canada, the Tax Court of Canada or the Court Martial Appeal Court of Canada.

If, after examination of the proposed regulation, the Regulations Section is of the opinion that a provision does not satisfy the requirements of paragraphs 3(2)(a) to (d) of the SIA, it so advises the Clerk of the Privy Council. If the Clerk is of the same opinion, the Clerk is required, under subsection 3(3) of the SIA, to advise the regulation‑making authority accordingly. In practice, this rarely occurs.

Certain regulations are exempted from examination. These are regulations

  • (a) that are exempted from registration because registration is not reasonably practicable due to the number of regulations of that class required to be made (section 7 of the Statutory Instruments Regulations); or

  • (b) that are exempted from publication because they affect or are likely to affect only a limited number of persons, and reasonable steps have been or will be taken to bring their purport to the notice of those persons (subsection 15(2), with the exception of paragraph (2)(d), of the Statutory Instruments Regulations).

Exemptions from registration and publication are set out in sections 3, 7 and 15 of the Statutory Instruments Regulations. Note that the regulations listed in section 7 are exempted from both registration (section 7) and publication [subsection 15(1)]. The regulations set out in subsection 15(2), with the exception of paragraph (2)(d), are exempted from publication. The regulations referred to in paragraph 15(2)(d) and in subsection 15(3), while exempted from publication, are subject to examination and registration.

At the end of the examination process, the Regulations Section issues two copies of the proposed regulation to the regulation-making authority; the Regulations Section stamp appears on each page of those copies.[22]

4.2 Statutory instruments and other documents that are not regulations

The Regulations Section plays only a limited role in examining statutory instruments and other documents that are not regulations. Only those that are to be published in the Canada Gazette, Part II, are examined by the Regulations Section, in its capacity as legal adviser to the Privy Council Office. They are the following:

  • (a) those listed in subsection 11(3) of the Statutory Instruments Regulations; and

  • (b) those that have been directed or authorized by the Clerk of the Privy Council, pursuant to section 14 of the Statutory Instruments Regulations, to be published in the Canada Gazette, Part II, because the Clerk considers it is in the public interest to do so.[23]

These statutory instruments and other documents are not required to be examined under the SIA because they are not regulations within the meaning of that Act. They are, however, subject to an examination by a legal adviser to the Privy Council Office. As that legal adviser, the Regulations Section examines such statutory instruments and documents using the same criteria as those set out in subsection 3(2) of the SIA.

As in the case of proposed regulations, at the end of the examination process the Regulations Section issues two copies of the proposed statutory instrument or other document to the regulation‑making authority; the Regulations Section stamp appears on each page of those copies.

4.3 Orders in council not published in the Canada Gazette, Part II

Orders in council that are not required to be published in the Canada Gazette, Part II, are reviewed by a Regulations Section lawyer, acting as legal adviser to the Privy Council Office. The examination is generally carried out at the Privy Council Office premises.

Because they are not regulations within the meaning of the SIA, those orders in council do not have to be examined pursuant to that Act. Rather, this review is done within the scope of the role of legal adviser to the Privy Council Office. The legal counsel verifies that the order is authorized under the enabling Act and makes any changes required to ensure that the form and draftmanship conform with established standards.

5. TRANSMISSION AND REGISTRATION

Under subsection 5(1) of the SIA, the regulation-making authority must, within seven days after making the regulation,[24] transmit copies of it in both official languages to the Clerk of the Privy Council for registration. However, the classes of regulations whose registration is not reasonably practicable in the opinion of the Governor in Council because of their number are exempt from this requirement. These classes of regulations are set out in section 7 of the Statutory Instruments Regulations.

Note that a regulation is "made" when it is officially established by the regulation-making authority. If the authority is the Governor in Council, the regulation is made when the Governor in Council signs the order in council. If the authority is a minister, the regulation is made when the minister signs the ministerial order. In the case of an agency or other body, a regulation is made by means of a resolution or other instrument, depending on its decision-making process.

Subsection 5(2) requires the regulation-making authority to certify that one copy of each of the English and French versions being transmitted is a true copy of the original. This ensures that the copies of the regulation transmitted for registration are exactly the same as the regulation enacted.

This requirement does not apply to regulations made or approved by the Governor in Council. Certification in this case is not necessary, because the regulation-making authority is the Governor in Council, and since the Clerk of the Privy Council, in his or her capacity as Secretary to the Cabinet,[25] manages the regulations to be signed by the Governor in Council, no transmission of such regulations takes place.

Pursuant to section 6 of the SIA, the Clerk of the Privy Council registers

  • (a) every regulation transmitted to the Clerk of the Privy Council pursuant to subsection 5(1) of the SIA;

  • (b) every statutory instrument, other than a regulation, that is required by or under any Act of Parliament to be published in the Canada Gazette and is so published;[26] and

  • (c) every statutory instrument or other document that, pursuant to section 14 of the Statutory Instruments Regulations, is directed or authorized by the Clerk of the Privy Council to be published in the Canada Gazette, Part II, because the Clerk is of the opinion that it is in the public interest to do so. [27]

Sections 5 and 6 of the Statutory Instruments Regulations provide for the manner of registration.

In the case of a regulation, the Clerk of the Privy Council registers the regulation by

  • (a) recording its name, the name of the regulation-making authority, the statutory or other authority pursuant to which it was made, the date on which it was made and the date on which it is registered; and

  • (b) assigning to it the designation "SOR" followed by a distinctive number.[28]

In the case of a statutory instrument or other document, the Clerk of the Privy Council registers it by

  • (a) recording its name or the nature of its subject matter, the name of the authority that issued, made or established it, the statutory or other authority pursuant to which it was issued, made or established and the date on which it was published; and

  • (b) assigning to it the designation "SI" followed by a distinctive number.[29]

Date Modified: 2011-12-01

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