Changes

You can use it for research or reference. Consult our Cabinet Directive on Regulations: Policies, guidance and tools web page for the policy instruments and guidance in effect.

You can use it for research or reference. Consult our Cabinet Directive on Regulations: Policies, guidance and tools web page for the policy instruments and guidance in effect.

Background

== Background ==

Canada’s federal regulatory policy has evolved over the last decade. In 2007, based on the recommendations of the External Advisory Committee on Smart Regulation, the Cabinet Directive on Streamlining Regulation (CDSR) was developed and implemented, institutionalizing good regulatory practices like cost-benefit analyses, stakeholder engagement and regulatory impact analysis (RIA) as requirements for federal departments and agencies to implement and publish as part of their regulations.

Canada’s federal regulatory policy has evolved over the last decade. In 2007, based on the recommendations of the External Advisory Committee on Smart Regulation, the Cabinet Directive on Streamlining Regulation (CDSR) was developed and implemented, institutionalizing good regulatory practices like cost-benefit analyses, stakeholder engagement and regulatory impact analysis (RIA) as requirements for federal departments and agencies to implement and publish as part of their regulations.

The draft CDR also reflects the Government’s ongoing and new priorities by emphasizing a life-cycle approach to regulating - development; management; and review of regulations. It proposes to make it mandatory that departments and agencies undertake periodic reviews of their regulatory stock to ensure that regulations continue to be appropriate, effective and relevant in achieving intended policy objectives. It also enshrines regulatory cooperation and stakeholder engagement throughout the entire regulatory life-cycle, while strengthening analytical requirements for the Government’s priorities in areas such as environmental impacts, gender-based analysis (GBA+), and engagement with Indigenous peoples.

The draft CDR also reflects the Government’s ongoing and new priorities by emphasizing a life-cycle approach to regulating - development; management; and review of regulations. It proposes to make it mandatory that departments and agencies undertake periodic reviews of their regulatory stock to ensure that regulations continue to be appropriate, effective and relevant in achieving intended policy objectives. It also enshrines regulatory cooperation and stakeholder engagement throughout the entire regulatory life-cycle, while strengthening analytical requirements for the Government’s priorities in areas such as environmental impacts, gender-based analysis (GBA+), and engagement with Indigenous peoples.

Consultation

== Consultation ==

Underpinning the draft CDR is the principle of openness and transparency throughout the regulatory life-cycle where regulators must engage stakeholders early and often. By posting the draft CDR for public comment, interested parties including Canadians can have a say in the policy that governs the regulations affecting them.

Underpinning the draft CDR is the principle of openness and transparency throughout the regulatory life-cycle where regulators must engage stakeholders early and often. By posting the draft CDR for public comment, interested parties including Canadians can have a say in the policy that governs the regulations affecting them.

The online consultation was posted on open.canada.ca initially from September 30 to October 29, 2017. An extension until November 20, 2017 was given to accommodate the requests from several organizations. Interested parties had a choice to post comments publicly online or to submit them by email. Overall we received comments from 28 interested parties. These parties include: four business owners or companies, six individuals, 18 associations or non-profit organizations and a parliamentary committee. All comments have been reviewed and summarized in this report

The online consultation was posted on open.canada.ca initially from September 30 to October 29, 2017. An extension until November 20, 2017 was given to accommodate the requests from several organizations. Interested parties had a choice to post comments publicly online or to submit them by email. Overall we received comments from 28 interested parties. These parties include: four business owners or companies, six individuals, 18 associations or non-profit organizations and a parliamentary committee. All comments have been reviewed and summarized in this report

What we heard

== What we heard ==

Theme 1: Engage early at the design and instrument choice stage for greater transparency.

 

=== Theme 1: Engage early at the design and instrument choice stage for greater transparency. ===

“To get meaningful input from stakeholders, we believe that consultations should be early at the point when government thinks there is a problem or issue that requires regulation”.

“To get meaningful input from stakeholders, we believe that consultations should be early at the point when government thinks there is a problem or issue that requires regulation”.

Some stakeholders pointed out that it should be a mandatory requirement for departments and agencies to report the results of engagement in the design and instrument selection as part of the Regulatory Impact Assessment Statement (RIAS), with one stakeholder advocating a check-list to be signed off by the sponsoring minister of the regulation. An additional suggested requirement was to publish a Notice of Intent (NOI) to regulate in the Canada Gazette for a 60-day comment period, before a draft regulation is developed. The NOI could be an early version of a RIAS with drafting instructions upon which stakeholders would be able to provide relevant input as to costs, operational and implementation issues. These factors would assist regulators in the design phase.

Some stakeholders pointed out that it should be a mandatory requirement for departments and agencies to report the results of engagement in the design and instrument selection as part of the Regulatory Impact Assessment Statement (RIAS), with one stakeholder advocating a check-list to be signed off by the sponsoring minister of the regulation. An additional suggested requirement was to publish a Notice of Intent (NOI) to regulate in the Canada Gazette for a 60-day comment period, before a draft regulation is developed. The NOI could be an early version of a RIAS with drafting instructions upon which stakeholders would be able to provide relevant input as to costs, operational and implementation issues. These factors would assist regulators in the design phase.

Theme 2: Consider regulatory cooperation and regulatory alignment at all times.

=== Theme 2: Consider regulatory cooperation and regulatory alignment at all times. ===

Several stakeholders approved of the federal government’s leadership in advancing regulatory cooperation and alignment and noted the progress being made through initiatives such as the Canada – U.S. RCC. They look forward to similar progress being made under additional trade agreements such as the CFTA and the CETA. Some stakeholders even suggested direct harmonization or alignment of regulatory activities with the U.S. should be a priority.

Several stakeholders approved of the federal government’s leadership in advancing regulatory cooperation and alignment and noted the progress being made through initiatives such as the Canada – U.S. RCC. They look forward to similar progress being made under additional trade agreements such as the CFTA and the CETA. Some stakeholders even suggested direct harmonization or alignment of regulatory activities with the U.S. should be a priority.

A few stakeholders went further, suggesting that regulatory cooperation and alignment should be made a pre-requisite when designing approaches and instruments. In new areas of regulation, they have suggested that departments and agencies should align regulatory efforts by default. When departments and agencies choose not to align by default, they should provide a detailed explanation as to why they have chosen to create a misalignment. At the same time, stakeholders cautioned that a focus on regulatory cooperation and alignment leading to economic growth should be properly balanced with strong protections for citizen and environmental health and well-being, where precaution, privacy and confidentiality, need to be underscored throughout the regulatory life-cycle.

A few stakeholders went further, suggesting that regulatory cooperation and alignment should be made a pre-requisite when designing approaches and instruments. In new areas of regulation, they have suggested that departments and agencies should align regulatory efforts by default. When departments and agencies choose not to align by default, they should provide a detailed explanation as to why they have chosen to create a misalignment. At the same time, stakeholders cautioned that a focus on regulatory cooperation and alignment leading to economic growth should be properly balanced with strong protections for citizen and environmental health and well-being, where precaution, privacy and confidentiality, need to be underscored throughout the regulatory life-cycle.

Theme 3: Incorporation by reference.

=== Theme 3: Incorporation by reference. ===

“The absence of any reference to “Incorporation by Reference” (IBR) in the draft Cabinet Directive is surprising to us given that the Incorporation by Reference in Regulations Act came into force in 2015.”

“The absence of any reference to “Incorporation by Reference” (IBR) in the draft Cabinet Directive is surprising to us given that the Incorporation by Reference in Regulations Act came into force in 2015.”

Building on the importance of coordination, cooperation and alignment, some stakeholders believe that incorporation by reference (IBR) should be more strongly reflected in the draft CDR. A few stakeholders noted that departments and agencies need to assess the cost to incorporate standards developed by accredited domestic and international bodies. They advocate that regulators should be directed to place a stronger emphasis on the use of IBR as a drafting technique, as this is an essential way for governments to regulate in this climate of rapid change. They also believe that regulations using this technique would better assist intergovernmental cooperation and harmonization.

Building on the importance of coordination, cooperation and alignment, some stakeholders believe that incorporation by reference (IBR) should be more strongly reflected in the draft CDR. A few stakeholders noted that departments and agencies need to assess the cost to incorporate standards developed by accredited domestic and international bodies. They advocate that regulators should be directed to place a stronger emphasis on the use of IBR as a drafting technique, as this is an essential way for governments to regulate in this climate of rapid change. They also believe that regulations using this technique would better assist intergovernmental cooperation and harmonization.

Theme 4: Analyze regulatory costs, benefits and impacts systematically.

=== Theme 4: Analyze regulatory costs, benefits and impacts systematically. ===

A majority of stakeholders noted that in their view, departments and agencies are not consistent in how they approach cost-benefit; nor do these stakeholders feel that departments and agencies always undertake thorough analysis of costs and benefits.

A majority of stakeholders noted that in their view, departments and agencies are not consistent in how they approach cost-benefit; nor do these stakeholders feel that departments and agencies always undertake thorough analysis of costs and benefits.

With respect to the “One-for-One” Rule, comments from stakeholders varied. A number of stakeholders noted that the drafting of the CDR made the government’s commitment to the Rule unclear. Some believe that the scope should be expanded to include costs beyond administrative. Some believe that TBS should increase enforcement efforts to ensure consistent use of the Rule across regulatory proposals. Others have suggested eliminating the Rule altogether.

With respect to the “One-for-One” Rule, comments from stakeholders varied. A number of stakeholders noted that the drafting of the CDR made the government’s commitment to the Rule unclear. Some believe that the scope should be expanded to include costs beyond administrative. Some believe that TBS should increase enforcement efforts to ensure consistent use of the Rule across regulatory proposals. Others have suggested eliminating the Rule altogether.

Theme 5: Endorse mandatory and periodic stock reviews.

=== Theme 5: Endorse mandatory and periodic stock reviews. ===

A majority of stakeholders endorsed the proposed mandatory requirement for regular reviews of regulations as proposed in the draft CDR. The same proportion of stakeholders want to be consulted or asked which regulations should be reviewed.

A majority of stakeholders endorsed the proposed mandatory requirement for regular reviews of regulations as proposed in the draft CDR. The same proportion of stakeholders want to be consulted or asked which regulations should be reviewed.

the status of alignment or harmonization of regulatory activities with trade partners to minimize burden.

the status of alignment or harmonization of regulatory activities with trade partners to minimize burden.

Theme 6: Single portal for regulatory activities and easier access for regulated parties.

=== Theme 6: Single portal for regulatory activities and easier access for regulated parties. ===

“The federal government needs a comprehensive and systematic approach to online consultation”.

“The federal government needs a comprehensive and systematic approach to online consultation”.

A few stakeholders felt that, over the years, the federal government has made some improvements with its regulatory consultations. Yet more efforts should to be made to reach out to communities and consumer groups directly. In their view, this could be facilitated by the development and use of a consultation portal for regulations, similar to what is used in the U.S. (www.regulations.gov). Such an online portal for all regulatory consultations should include functionality for all stakeholders to directly provide comments. These comments could also be published via the same portal, so that all Canadians could see suggested improvements and/or concerns generated by regulatory proposals.

A few stakeholders felt that, over the years, the federal government has made some improvements with its regulatory consultations. Yet more efforts should to be made to reach out to communities and consumer groups directly. In their view, this could be facilitated by the development and use of a consultation portal for regulations, similar to what is used in the U.S. (www.regulations.gov). Such an online portal for all regulatory consultations should include functionality for all stakeholders to directly provide comments. These comments could also be published via the same portal, so that all Canadians could see suggested improvements and/or concerns generated by regulatory proposals.

Theme 7: Enhance accountability, predictability, co-development, coordination and cooperation with other levels of government.

=== Theme 7: Enhance accountability, predictability, co-development, coordination and cooperation with other levels of government. ===

Some stakeholders noted that the draft CDR should require departments and agencies to have a “customer service” strategy to assist industry with the interpretation of guidance or technical documents in order to assist regulated parties to comply with regulations in a timely and coordinated fashion.

Some stakeholders noted that the draft CDR should require departments and agencies to have a “customer service” strategy to assist industry with the interpretation of guidance or technical documents in order to assist regulated parties to comply with regulations in a timely and coordinated fashion.

Looking ahead, a few stakeholders noted that the federal government could look for opportunities to co-develop regulations and supporting technical guidance as a way to better engage stakeholders early and often.

Looking ahead, a few stakeholders noted that the federal government could look for opportunities to co-develop regulations and supporting technical guidance as a way to better engage stakeholders early and often.

Next steps

=== Next steps ===

Stakeholder input is currently being considered in the finalization of the draft CDR as well as the development of supporting policies, guidance, tools, and templates. Once TBS has analyzed the comments, it will publish an update to this document indicating how the recommendations raised by stakeholders have been addressed.

Stakeholder input is currently being considered in the finalization of the draft CDR as well as the development of supporting policies, guidance, tools, and templates. Once TBS has analyzed the comments, it will publish an update to this document indicating how the recommendations raised by stakeholders have been addressed.

Annex A: Cabinet Directive on Regulation

== Annex A: Cabinet Directive on Regulation ==

1.0 Purpose

 

=== 1.0 Purpose ===

The (draft) Cabinet Directive on Regulation sets out the Government of Canada’s expectations and requirements in the development, management, and review of federal regulations.

The (draft) Cabinet Directive on Regulation sets out the Government of Canada’s expectations and requirements in the development, management, and review of federal regulations.

They are used by government as an instrument for mandating or enabling particular behaviours or outcomes in order to achieve public policy objectives.

They are used by government as an instrument for mandating or enabling particular behaviours or outcomes in order to achieve public policy objectives.

2.0 Scope of Application

=== 2.0 Scope of Application ===

This Directive applies to all regulations, as defined by the Statutory Instruments Act, made by or with the approval of the Governor in Council, the Treasury Board of Canada, or a minister of the Crown. Certain regulations are not made through the Cabinet or Governor-in-Council process; in these cases, the regulation-making authorities should follow the regulatory life-cycle approach set out in this Directive.

This Directive applies to all regulations, as defined by the Statutory Instruments Act, made by or with the approval of the Governor in Council, the Treasury Board of Canada, or a minister of the Crown. Certain regulations are not made through the Cabinet or Governor-in-Council process; in these cases, the regulation-making authorities should follow the regulatory life-cycle approach set out in this Directive.

3.0 Guiding Principles of Federal Regulatory Policy

=== 3.0 Guiding Principles of Federal Regulatory Policy ===

It is the duty of the Government of Canada to respect Parliament and the authorities granted by Parliament, as expressed in legislation; and to ensure that regulations result in the greatest overall net benefits to current and future generations of Canadians. In fulfilling this duty, departments and agencies will be guided by four principles:

It is the duty of the Government of Canada to respect Parliament and the authorities granted by Parliament, as expressed in legislation; and to ensure that regulations result in the greatest overall net benefits to current and future generations of Canadians. In fulfilling this duty, departments and agencies will be guided by four principles:

Regulations protect and advance the public interest and support good government: Regulations are justified by a clear rationale in terms of protecting the health, safety, security, social and economic well-being of Canadians, and the environment.

# Regulations protect and advance the public interest and support good government: Regulations are justified by a clear rationale in terms of protecting the health, safety, security, social and economic well-being of Canadians, and the environment.

 

# The regulatory process is open and transparent: Regulations, and their related activities, are accessible and understandable, and created in an open, transparent, and inclusive way that meaningfully engages the public and Aboriginal peoples early on.

The regulatory process is open and transparent: Regulations, and their related activities, are accessible and understandable, and created in an open, transparent, and inclusive way that meaningfully engages the public and Aboriginal peoples early on.

# Regulatory decision-making is evidence-based: Proposals are made, and decisions are based, on evidence, robust analysis of costs and benefits, and the assessment of risk, while being open to public scrutiny.

 

# Regulations support a fair and competitive economy: Regulations should aim to support and promote inclusive economic growth, entrepreneurship, and innovation for the benefit of Canadians and businesses. Opportunities for regulatory cooperation and the development of aligned regulations should be considered wherever possible.

Regulatory decision-making is evidence-based: Proposals are made, and decisions are based, on evidence, robust analysis of costs and benefits, and the assessment of risk, while being open to public scrutiny.

 

Regulations support a fair and competitive economy: Regulations should aim to support and promote inclusive economic growth, entrepreneurship, and innovation for the benefit of Canadians and businesses. Opportunities for regulatory cooperation and the development of aligned regulations should be considered wherever possible.

4.0 The Regulatory Lifecycle Approach

=== 4.0 The Regulatory Lifecycle Approach ===

The regulatory lifecycle approach requires departments and agencies to examine and analyze regulations through all stages of the lifecycle, including: the development of regulations (section 5.0); regulatory management (section 6.0); and, review and results (section 7.0).

The regulatory lifecycle approach requires departments and agencies to examine and analyze regulations through all stages of the lifecycle, including: the development of regulations (section 5.0); regulatory management (section 6.0); and, review and results (section 7.0).

4.1 Consultations and Engagement[2]

4.1 Consultations and Engagement[2]

4.1.1 Stakeholder Engagement

4.1.1 Stakeholder Engagement

Departments and agencies are responsible for identifying impacted stakeholders, Indigenous people and meaningfully consulting and engaging with them throughout the development, management, and review of regulations. In doing so, they should follow the Government of Canada’s policies and guidance for consultation and engagement.

Departments and agencies are responsible for identifying impacted stakeholders, Indigenous people and meaningfully consulting and engaging with them throughout the development, management, and review of regulations. In doing so, they should follow the Government of Canada’s policies and guidance for consultation and engagement.

Departments and agencies should examine ways to reduce regulatory duplication, promote efficiencies, and share relevant information to support the consideration of the cumulative impacts of regulations on stakeholders and reduce reporting and other administrative burdens where possible.

Departments and agencies should examine ways to reduce regulatory duplication, promote efficiencies, and share relevant information to support the consideration of the cumulative impacts of regulations on stakeholders and reduce reporting and other administrative burdens where possible.

5.0 Development of Regulations

=== 5.0 Development of Regulations ===

At the beginning of the regulatory lifecycle, departments and agencies determine the approach to address an issue, set objectives, undertake consultations with stakeholders, and analyse the risks, impacts, and costs and benefits of a regulatory proposal, in accordance with applicable policies, guidelines, and good regulatory practices.

At the beginning of the regulatory lifecycle, departments and agencies determine the approach to address an issue, set objectives, undertake consultations with stakeholders, and analyse the risks, impacts, and costs and benefits of a regulatory proposal, in accordance with applicable policies, guidelines, and good regulatory practices.

Departments and agencies must consult with the Regulatory Affairs Sector at TBS if they are considering seeking an exemption for an exceptional measure.

Departments and agencies must consult with the Regulatory Affairs Sector at TBS if they are considering seeking an exemption for an exceptional measure.

6.0 Regulatory Management

=== 6.0 Regulatory Management ===

Departments and agencies are responsible for the ongoing management of regulations and their associated programs and activities to improve the effectiveness of regulatory programs in setting and meeting their objectives.

Departments and agencies are responsible for the ongoing management of regulations and their associated programs and activities to improve the effectiveness of regulatory programs in setting and meeting their objectives.

Provide clear guidance on compliance with regulations, when appropriate.

Provide clear guidance on compliance with regulations, when appropriate.

7.0 Review and Results

=== 7.0 Review and Results ===

The final stage in the regulatory lifecycle is the review and assessment of results of a regulation. Regulations are one instrument within a program, and as such, a review of a regulation’s effectiveness in contributing to results cannot be viewed in isolation of the full program’s objectives and results.

The final stage in the regulatory lifecycle is the review and assessment of results of a regulation. Regulations are one instrument within a program, and as such, a review of a regulation’s effectiveness in contributing to results cannot be viewed in isolation of the full program’s objectives and results.

The President of the Treasury Board has the authority to establish policy requirements in support of this Directive. The Secretary of the Treasury Board of Canada has the authority to update references to relevant acts, regulations, policies, guides, and tools, which are incorporated into this Directive’s text and may be amended from time to time.

The President of the Treasury Board has the authority to establish policy requirements in support of this Directive. The Secretary of the Treasury Board of Canada has the authority to update references to relevant acts, regulations, policies, guides, and tools, which are incorporated into this Directive’s text and may be amended from time to time.

Annex B: Roles and Responsibilities

== Annex B: Roles and Responsibilities ==

Governor in Council

Governor in Council

Governor General in Council or Governor in Council means the Governor General of Canada acting by and with the advice of, or by and with the advice and consent of, or in conjunction with the Queen’s Privy Council for Canada.

Governor General in Council or Governor in Council means the Governor General of Canada acting by and with the advice of, or by and with the advice and consent of, or in conjunction with the Queen’s Privy Council for Canada.

The Department of Justice and Global Affairs Canada are responsible for advising on the effect of Canada’s international legal obligations, including their implementation in domestic law. The Trade Law Bureau, of the Department of Justice and Global Affairs Canada, is responsible for advising departments and agencies on Canada’s trade law obligations.

The Department of Justice and Global Affairs Canada are responsible for advising on the effect of Canada’s international legal obligations, including their implementation in domestic law. The Trade Law Bureau, of the Department of Justice and Global Affairs Canada, is responsible for advising departments and agencies on Canada’s trade law obligations.

Annex C: Guiding questions for the online and open consultation on the draft Cabinet Directive on Regulation, from September 30 to November 20, 2017

== Annex C: Guiding questions for the online and open consultation on the draft Cabinet Directive on Regulation, from September 30 to November 20, 2017 ==

Instructions

Instructions

In this consultation, there are eight sections of the draft CDR is open for comments:

In this consultation, there are eight sections of the draft CDR is open for comments: