PART 3
HOW TO GIVE DRAFTING INSTRUCTIONS

This Part has not been updated since 1998.

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1. PLANNING THE REGULATIONS

Many of the steps in preparing drafting instructions are the same as in preparing draft regulations for examination. The process cannot begin until you have developed a clear, detailed policy. From this policy, you will develop either your draft regulations or a set of drafting instructions that will make it possible for the work to begin.

Here are some guidelines:

• Start with a clear, detailed policy.
• Set out the main themes (rules) of the policy.
• Set out the ideas logically — which sometimes means in chronological order or according to the sequence of events.
• Begin with the general, then move to the particular.
• State the most important first, the least important last.
• Set out the general rule clearly before moving on to the exceptions.
• Ensure that, for each element of the policy, you have answered the following questions: WHO? WHEN? WHERE? HOW?
• Note that WHY? belongs in the Regulatory Impact Analysis Statement (RIAS), not in the regulations.

KEEP IT SIMPLE — USE SHORT, UNCOMPLICATED PHRASES.

2. DETERMINING WHICH TYPE OF SUBMISSION IS APPROPRIATE

When to consider submitting instructions for drafting

Instructions for drafting should be considered when

1. the development of the policy to be implemented is reasonably advanced and will not be subject to substantial changes;
2. all the officials of the regulatory department or agency who will eventually have to sign off the regulation have been involved in the policy development;
3. the regulations or amendments to be made are legally complex;
4. the regulations or amendments to be made require complex drafting;
5. the department or agency has a limited time frame within which to implement the policy; or
6. the department or agency requires that priority be given to its regulation or amendment.

Note that drafting from instructions promotes team building and empowers all those involved in the development of the regulations, as each person is able to concentrate on his or her area of expertise.

When to consider submitting draft regulations

Draft regulations should be considered when

1. the above criteria for submitting drafting instructions cannot be met;
2. the subject matter of the regulation or amendment is technical in nature — for example, a list of geographic locations; or
3. the department or agency has expertise in the drafting of regulations, or can follow a model.

3. OBTAINING SIGN-OFF

Whether you decide to submit drafting instructions or draft regulations, you should ensure that the instructions or the draft are signed off by the senior official responsible for determining regulatory policy in the subject matter of the regulations. This ensures that there is departmental or agency support for the initiative.

4. GIVING INSTRUCTIONS FOR DRAFTING

Workable instructions

Instructions may be given as

1. a point-by-point explanation of the policy;
2. drafted provisions;
3. requests to include or exclude certain words or concepts from already drafted provisions (either in current regulations or in discussion drafts);
4. requests to mirror certain existing provisions in the drafting of additional requirements;
5. explanations of the aim of the provision, not accompanied by a proposed draft but including suggestions of where the provision might be placed or how the desired result might be achieved; or
6. elements required in a particular regulatory provision.

Instructions should not be given as

1. discourses on policy options; or
2. a jumble of comments received by the department or agency from its regional officials or from stakeholders. The comments should be carefully sifted, and proposals to be adopted as part of the revised policy should be clearly indicated. It is preferable to submit a digest of what is accepted and where resulting changes must be made.

Language

As both drafters must work in their own language, it is essential that at least the first set of instructions be provided in both official languages.

If the instructions pertain to the terminology or structure of one version only, it is acceptable to supply the information just in that language.

However, both versions are essential to the drafting lawyers if a drafted provision is being supplied or if the terminology used is technical and specific to some industry or trade.

Cut-off date for policy changes

It is important to realize that frequent changes to drafting instructions work against efficiency. Before requesting the drafting-from-instructions service, the department or agency should have finalized the major aspects of its policy. The instructions will then be based on a fixed policy. After requesting the drafting-from-instructions service, the department or agency should not initiate any major policy changes.

Presentation of instructions

1. All instructions should be clearly identified and should always be dated.
2. Each element of the instructions should be carefully identified (for example, by a number).
3. If the policy is long and complex, it may be appropriate to set out its elements not just point by point, but under headings that will identify the categories of regulatory provisions affected by the proposed change.
4. The use of redlining will draw attention to proposed changes or to wording that is particularly important.

5. OTHER USEFUL INFORMATION TO ACCOMPANY INSTRUCTIONS OR DRAFTS

Useful information includes the following:

1. Numerical references to the relevant statutory authorities.
2. A clear indication of where terms already defined in the Act or regulations are used, if applicable.
3. Incorporated documents and source material, such as international conventions and technical standards:

   • (a) a copy of the whole document in each official language or, if the document is published in one language only (for example, an American standard), one copy and a confirmation in writing that the document exists in one language only;

   • (b) a photocopy, in both official languages, of pages from technical dictionaries containing the terminology used in the trade being regulated;

   • (c) guidelines, policy directives, interpretation notes and manuals that may provide explanations of policy and appropriate terminology, in both official languages.

4. Explanations of reasons for requesting specific wording or rejecting certain wording, for example:

   "The present wording has caused problems in the enforcement of the regulations because …"

   "The present wording must be changed as a result of the interpretation placed on it by the XYZ Court in ABC v. EFG." (If this is the case, give the citation of the decision, and, if the case is not available in one of the major law reports, please attach two copies of the decision.)

   "We need to ensure that the situation … is clearly covered."

   "This is required to carry out the request of the Standing Joint Committee for the Scrutiny of Regulations." (If this is the case, please attach copies of the relevant correspondence from the Committee and the response of the responsible authority.)

6. EXAMPLE OF DRAFTING INSTRUCTIONS

Vacation leave regulations for public servants

The following example shows the kind of point-by-point detail that is required in instructions for drafting regulations. It also demonstrates the logical, sequential thought process involved. The instructions are by no means complete or perfect. See, for example, the preliminary comments on page 8, which would probably be presented by the drafters before they even started to draft. Further issues would be raised and clarifications requested during the initial drafting and between discussion drafts.

General rules

• 1. Each employee is to have 20 paid vacation days per year.
• 2. The employee must be full-time and indeterminate.
• 3. The year is the fiscal year.
• 4. Every April 1, each employee will be credited with 20 vacation days.
• 5. The employee may take the vacation days at any time of the year.
• 6. The employee must have the manager's pre-approval to take vacation days.
• 7. The employee may not take more than 15 days consecutively.
• 8. If the employee does not use up all 20 days in a year, those remaining on March 31 will be converted into cash and paid to the employee.
• 9. Pay-out will be at the employee's salary level effective on the April 1 on which the vacation day entitlement was credited.
• 10. Pay-out will be at straight time.
• 11. With the manager's approval, the employee may carry over up to 10 days of vacation-day entitlement into the following fiscal year, instead of accepting pay-out.
• 12. Carry-over days must always be used up before the days advanced for the current fiscal year.

New employees

• 13. New employees will be credited with 1 2/3 vacation days per calendar month remaining in the year.
• 14. They will receive vacation credits for the month in which they join if they work at least 10 days in that month.

Departing employees

• 15. Employees leaving the department part way through the year will have their vacation entitlement for that year recalculated on the basis of 1 2/3 vacation days for each calendar month worked.
• 16. Departing employees will receive vacation credits for the month in which they depart if they have worked at least 10 days in that month.
• 17. Departing employees will be paid for unused vacation days at their salary level effective on April 1 of the year in which they depart.
• 18. Departing employees who have used more than their vacation entitlement for the year of departure will be required to pay back the excess at their salary level effective on April 1 of the year in which they depart.

Employees on leave

• 19. Employees who are on any type of leave with full pay will be credited with their normal vacation entitlement.
• 20. Employees who are on leave at a reduced rate of pay will be credited with vacation days on a prorated basis:

  20 days per year × (A ⁄ B)

  where A = the employee's reduced salary, and
  B = the employee's normal salary.

• 21. Employees who are on leave without pay will not earn vacation days during the period of leave.
• 22. Vacation entitlement for the year in which an employee begins or returns from leave without pay or leave at a reduced rate of pay will be recalculated at the time the leave commences or ends.

Part-time indeterminate employees

• 23. Part-time indeterminate employees will earn vacation days on a prorated basis:

  20 × (A (average number of hours worked per week) ⁄ 37.5)

• 24. Part-time indeterminate employees will be credited with vacation days on April 1 based on their anticipated normal work schedule.
• 25. If the schedule changes during the year, entitlement will be recalculated at the end of the year using the actual number of hours worked in the year; the number of vacation days will be adjusted accordingly.

Term employees

• 26. Full-time term employees will be credited with 1 2/3 vacation days for each calendar month in which they work at least 10 days.
• 27. Part-time term employees will not be entitled to paid vacation days but will be paid an additional 6% of their salary for each pay period in lieu of vacation.

General

• 28. For the purposes of determining whether an employee has worked at least 10 days in a calendar month, a day of leave with pay will be considered a day of work.

Comments on vacation leave instructions

• Item 13: Refers to a "calendar month". When this provision is actually drafted, the drafters will drop the word "calendar", as the Interpretation Act defines "month" to mean "calendar month".

• Item 15: Deals with an employee who leaves the department. Will this rule still apply if the employee goes to join another branch of the public service? Are the employee's entitlements transferable?

• Item 22:

  1. The interpretation of this instruction could be ambiguous.
  2. Note the use of "commence". In the drafting process, this will be changed to the simpler word "begin".

• Item 24: The term "anticipated normal work schedule" could be replaced in subsequent years by the average number of hours worked in the previous year.

• Item 25: The term "adjusted accordingly" is not explained and is ambiguous. There are two possibilities:

  1. The employee worked more hours than anticipated and therefore has more vacation time to his or her credit. If as many as 12 days are credited, do they count as "carry-over" vacation? Note that nothing is said about carry-over by part-time indeterminate employees. Will they get the same as the 10 days allotted to full-time employees or will their entitlement be prorated in accordance with the number of hours worked?

  2. The employee worked less time than anticipated and is therefore entitled to fewer vacation days. Does this mean that the leave normally credited at the beginning of the year will be reduced by the number of extra days that the employee was credited with? If the vacation days have already been taken, will this employee be asked to reimburse the employer?

• Items 14, 16 and 26: Set out a similar rule, that is, an employee who works 10 days in any month is entitled to vacation time for that month. When it is time to draft the vacation regulation, this rule may be expressed only once, under the heading "General".

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