ORDERS IN COUNCIL AND OTHER EXECUTIVE ORDERS

The executive order is the formal means by which the regulation-making authority expresses its decision; it serves to announce the decision to make regulations and therefore precedes the regulations. It is called an order in council if it is made by the Governor in Council on the recommendation of a minister. Executive orders include orders made by a minister.

On the subject of orders in council, Dussault and Borgeat state the following:

They are the manifestation of official government decisions; as such, they are of a decision-making nature and are not normative. Thus, when the government makes or approves a regulation … it makes a decision to act, which, in its written formulation, assumes the form of an Order-in-Council. The fact of approving or making a regulation is a decision to change the existing legal order which, by itself, has nothing normative about it … . Therefore, it is important to distinguish the Order-in-Council mandating the instrument from the instrument itself.^[1]

For that reason, the executive order of a regulation is limited to announcing the decision that is being made.

Executive orders must specify the provision of the Act that constitutes the statutory authority for the regulations being made and, if the making of the regulations is subject to conditions, fulfilment of the conditions is recited in the order (See CONDITIONS PRECEDENT).

When citing the action that the Governor in Council or the Minister is taking, make certain that it is the action set out in the enabling provision, e.g. "making", "approving" or "confirming".

Below are some examples of orders in council and other executive orders:^[2]

• 1. Made under one Act

  By the Governor in Council:

  Her Excellency the Governor General in Council, on the recommendation of the Minister of … , pursuant to section … of the ABC Act^a, hereby makes the annexed XYZ Regulations.

  By a minister:

  The Minister of … , pursuant to section … of the ABC Act^a, hereby makes the annexed XYZ Regulations.

• 2. Made under more than one Act

  By the Governor in Council:

  Her Excellency the Governor General in Council, on the recommendation of the Minister of … , hereby makes the annexed XYZ Regulations pursuant to

  • (a) section … of the ABC Act^a;
  • (b) section … of the DEF Act^b; and
  • (c) section … of the GHI Act^c.

  By a minister:

  The Minister of … hereby makes the annexed XYZ Regulations, pursuant to

  • (a) section … of the ABC Act^a;
  • (b) section … of the DEF Act^b; and
  • (c) section … of the GHI Act^c.
    
    

• 3. Approval by the Governor in Council

  Before the regulation is made:

  Her Excellency the Governor General in Council, pursuant to section … of the XYZ Act^a, hereby approves the making of the annexed XYZ Regulations by (name of regulation-making body).

  After the regulation is made:

  Her Excellency the Governor General in Council, on the recommendation of the Minister of … , pursuant to section … of the XYZ Act^a, hereby approves the annexed XYZ Regulations, made by (name of regulation-making body).

Notes:

• (1) When a regulation is made by a minister or a regulation-making body other than the Governor in Council, the order making the regulation should contain a signature block that meets the following requirements:^[3]

  • the signature block appears on the right-hand side of the page; a line is drawn for the signature, below which the incumbent's name and position title are aligned;

  • the first letter of all words in the position title are capitalized, except for articles and prepositions;

  • the name of the incumbent is written in regular type; and

  • the position title is also in regular type and not italics.

  Example:

  ---

  Robert Douglas Nicholson
  Minister of Justice

  
  
  

• (2) When a regulation must be approved by the Governor in Council, the current practice is to publish a copy of the regulation-making instrument (e.g. the resolution or ministerial order), as well as the approval order, in Part II of the Canada Gazette.

  Example:

  RESOLUTION

  The Canada Employment Insurance Commission, pursuant to sections 153 and 153.2^a of the Employment Insurance Act^b, hereby makes the annexed Regulations Amending the Employment Insurance (Fishing) Regulations.

  June 28, 2006

  P.C. 2006-805 August 29, 2006

  Her Excellency the Governor General in Council, on the recommendation of the Minister of Human Resources and Skills Development, pursuant to sections 153 and 153.2^a of the Employment Insurance Act^b, hereby approves the annexed Regulations Amending the Employment Insurance (Fishing) Regulations, made by the Canada Employment Insurance Commission.

  ---

  • ^a S.C. 2005, c. 30, s. 131
  • ^b S.C. 1996, c. 23
  
  

Part 4 – Table of contents

Footnotes

• ^[1] René Dussault and Louis Borgeat, Administrative Law: a Treatise, Vol. 1, 2nd ed. (Toronto: Carswell, 1986) at 327.

• ^[2] For the titles of amending or repealing regulations or of miscellaneous regulations, see AMENDING REGULATIONS, MISCELLANEOUS AMENDMENT REGULATIONS AND TITLES OF REGULATIONS.

• ^[3] Drafting Advisory No. 1997-1