This Policy on Regulatory Development (the policy) outlines the requirements that federal regulators must meet in order to comply with the Cabinet Directive on Regulation (the directive) as it relates to the process of developing regulations.
This policy takes effect on September 1, 2018 . It replaces the following:
This policy applies to all regulations to which the Cabinet Directive on Regulation applies.
Canada’s regulatory system is designed to protect and advance the public interest in the following areas:
Regulations are a form of law. They have binding legal effect and usually set out rules that apply generally rather than to specifically to persons or situations. Regulations are made by persons to whom, or bodies to which, Parliament has delegated an authority. Examples are:
The authority to make regulations must be expressly delegated through enabling legislation.
The Government of Canada takes a life-cycle approach to regulations that requires departments Footnote 1 to examine and analyze regulations through the three stages of their life cycle:
This policy explains the directive’s requirements for developing regulations. Its purpose is to:
The roles and responsibilities of central government agencies and regulators in the regulatory development process are described in section 9 of this policy.
Confidences of the Queen’s Privy Council for Canada are described in:
The following are covered by Cabinet confidence:
The following Cabinet items are covered by Cabinet confidence:
Because a committee of Cabinet Footnote 2 considers Governor in Council (GIC) regulatory proposals, its discussions are confidences of the Queen’s Privy Council for Canada. The confidentiality of Cabinet discussions extends to:
For greater clarity, documents that are protected by Cabinet confidence include:
Much of the analysis contained in a RIAS is not a Cabinet confidence and can be included in consultation materials. For greater clarity, consult with the Treasury Board of Canada Secretariat (TBS).
Any document that pertains to a confidence of the Queen’s Privy Council for Canada must be:
For the purpose of this policy, the following definitions apply:
This policy is grounded in the following four principles, set out in the directive, to guide departments in developing, managing and reviewing regulations:
Regulators are responsible for ensuring that any related directives and policies of Cabinet and the Treasury Board are followed, including, but not limited to:
When assessing and documenting public policy issues (see subsection 5.1.1 of the directive), regulators must:
In instances where there is a threat, risk or harm, regulators must consider measures to mitigate the risks or reduce the threat or harm, even when there is no scientific certainty regarding the nature of:
Consultation with stakeholders should begin as early as possible before the decision to proceed with a regulatory approach is taken, including when identifying a policy issue (discussed in subsection 7.1.1 of this policy). Consultation should be woven into all aspects of regulatory development. Robust early consultation with stakeholders provides an opportunity to inform analysis, including:
When undertaking consultation, regulators must:
Regulators must report in the RIAS:
Note: Regulators may choose to share draft regulatory text with stakeholders outside the Canada Gazette consultation process to help them develop specific and precise comments. Draft regulations can be released for consultation outside the process for the Canada Gazette as long as the text is approved for that purpose. Regulators must consult with the Department of Justice Canada and TBS when considering releasing consultation drafts of regulatory text.
Upon release of the draft text, Cabinet confidence no longer applies. Once the draft regulations undergo further work within the department after consultation, the Cabinet confidence is applied once again.
Consulting stakeholders on a draft regulation outside the process for Canada Gazette consultation does not satisfy the requirement to pre-publish the draft regulation in the Canada Gazette.
When analyzing a public policy problem and examining potential solutions, regulators must consider potential alternatives to regulation. In meeting the obligations set out in subsection 5.1.2 of the directive, regulators must:
Regulators should also begin to consider the following when determining whether to pursue a particular regulatory solution:
Information on the following should appear in the Triage Statement:
In accordance with subsection 5.2.6 of the directive, regulators should consider opportunities to incorporate by reference, including:
In some cases, incorporated material may be developed by the regulator but is usually developed by an external body, such as a standards development organization or another jurisdiction.
Should incorporation by reference be selected as a regulatory drafting tool, regulators must:
When a unilingual incorporation is used, departments must provide guidance in both official languages.
Regulators should explain the following in the RIAS:
Regulators must monitor and review material that is incorporated by reference to ensure that the material:
Any use, adoption or incorporation of standards in regulations must comply with Canada’s international trade obligations, including:
Regulators should consult with Global Affairs Canada to determine whether there are any trade commitments that pertain to the proposed regulation. For example, regulators must first consider adopting or incorporating an existing international standard before considering developing a unique Canadian standard.
Regulators must complete the Regulatory Analysis and Submission Triage Statement with guidance from TBS. This statement:
Regulators are responsible for providing advance public notice of regulatory proposals and plans for review of the regulatory stock coming forward. Regulators provide this notice in a Forward Regulatory Plan. Section 7 of the Policy on Regulatory Transparency and Accountability explains this requirement.
The impact of the proposal is determined by the Triage Statement. The requirements outlined in this policy inform various sections of the RIAS that:
Regulators must adhere to the requirements articulated in:
The Policy on Cost-Benefit Analysis describes the departments’ requirements when analyzing the costs and benefits of regulatory proposals.
Regulators must adhere to the requirements of:
The Policy on Limiting Regulatory Burden on Business describes departments’ requirements regarding the following when developing regulatory proposals:
To determine possible regulatory cooperation with other jurisdictions, regulators are to build on the early assessment done when the choice of instrument was analyzed (see subsection 7.1.3 of this policy and subsections 4.2 and 5.2.5 of the directive).
Regulators must demonstrate that they have thoroughly assessed regulatory approaches being used in other jurisdictions (such as international or domestic trading partners) to determine where regulatory cooperation or alignment may be possible, while meeting the desired public policy objective.
To identify potential partner jurisdictions, regulators must assess the regulatory approach that other jurisdictions have taken.
To assess whether there are opportunities for cooperation or alignment, regulators must demonstrate that they have:
If the regulator determines that regulatory cooperation or alignment with international or domestic partners is not feasible or would not achieve the desired policy objectives, regulators must justify why an approach that is specific to Canada should be taken.
If there are new opportunities for regulatory cooperation or alignment, and if the initiative is not already part of a coordinated regulatory cooperation arrangement, regulators should contact TBS to discuss whether:
If the regulation is being developed as part of a coordinated regulatory cooperation arrangement, regulators must reference:
Examples of forums are:
In accordance with subsection 5.2.2 of the directive, regulators must adhere to the mandatory requirements of the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, which sets out:
The directive also requires that an environmental analysis be fully integrated into the development of any proposal.
If a regulatory proposal identifies environmental considerations, regulators must:
If the regulatory proposal is not likely to have environmental effects, regulators must describe the following in the RIAS:
In accordance with subsection 5.2.7 of the Cabinet Directive on Regulation, regulators must conduct an Assessment of Modern Treaty Implications, as outlined in the Cabinet Directive on the Federal Approach to Modern Treaty Implementation.
The directive on modern treaties sets out the operational framework for managing the Crown’s modern treaty obligations, including how departments can fulfill their responsibilities.
Where there are implications regarding a modern treaty or self-government, regulators must consult directly with rights holders of the treaty or self-government to ensure that initiatives are developed and delivered in a way that respects and complies with:
Regulators must complete the Assessment of Modern Treaty Implications checklist and report on the outcomes of the assessment in the RIAS.
In accordance with subsection 5.2.3 of the directive and the Government of Canada’s commitment to gender-based analysis plus (GBA+), regulators must assess whether there are GBA+ considerations for the regulatory proposal.
Where a GBA+ assessment identifies potential impacts on groups, Footnote 3 departments must describe:
If no GBA+ considerations are identified, regulators must describe the following in the RIAS:
In accordance with subsection 5.2.8 of the directive, when developing regulations, regulators must ensure that Canada’s international commitments outlined in the following are met:
Regulators should consult with the internal international affairs divisions of Global Affairs Canada and with their internal departmental international affairs divisions to determine such commitments. An example is the requirement for some regulations to be written using plain language.
Examples of trade agreements are:
Regulators must submit a regulatory proposal that will be considered by the Treasury Board (Governor in Council), or other relevant regulation-making authority, for pre-publication in the Canada Gazette, Part I. Pre-publication of a regulation must include:
All regulations that are pre-published in the Canada Gazette, Part I, must permit online commenting using the online comment feature in Canada Gazette, Part I.
Exemptions from pre-publication may be granted by the Treasury Board (Governor in Council), or other relevant regulation-making authority, when there is no statutory requirement to pre-publish. Regulators must consult with TBS’s Regulatory Affairs Sector if they are considering seeking an exemption.
The standard length of the comment period following pre-publication is 30 days unless otherwise prescribed by legislative requirements and international obligations.
There is a minimum comment period of 70 days for proposals that may significantly affect international trade and concern the following:
The requirement for 70 days is longer than Canada’s obligations under the World Trade Organization on Technical Barriers to Trade Agreement, and Canada’s free trade agreements, which call for a minimum of 60 days for the comment period. The Cabinet Directive on Regulation requires 70 days in order to allow Global Affairs Canada to notify the World Trade Organization and other international trade partners that the regulatory proposal has been pre-published for consultation.
In accordance with subsection 5.2.9 of the directive, regulators must plan for the implementation of the regulatory proposal as part of their analysis. Such planning may examine the following:
In accordance with the Statutory Instruments Act, all approved regulations must be published in the Canada Gazette, Part II, after they are made and registered, except where they are exempted by one of the following:
A RIAS must be included with any published regulation.
Miscellaneous Amendment Regulations (MARs) are minor, non-substantive amendments to existing regulations. They may be determined by:
The MARs process takes a “light-touch” approach, as the nature of the regulatory amendments have no real impact.
Examples of items that may be considered as MARs amendments include, but are not limited to:
Any amendments that substantively alter regulations require consultation and may not proceed under the MARs process. Substantive amendments:
In the MARs process, regulators may use a streamlined RIAS, using a template that has standard text. MARs amendments have several exemptions, including being exempted from pre-publication in the Canada Gazette, Part I.
When considering a MARs amendment, regulators should consult with TBS early in the process to:
As a central policy and oversight body, the TBS is responsible for supporting the federal regulatory system by:
TBS works with departments to:
TBS is responsible for updating and maintaining this policy and any supporting guidance.
The Privy Council Office (PCO) assesses the following for consistency with the Cabinet Directive on Regulation, this policy and with the Cabinet Directive on Law-Making:
Under the Statutory Instruments Act, the Orders in Council Division of PCO has the following responsibilities in the regulatory process:
The Canada Gazette Directorate of Public Services and Procurement Canada is responsible for publishing the Canada Gazette. The Canada Gazette is the official newspaper of the Government of Canada for:
The Canada Gazette is published under the authority of:
The Canada Gazette serves as a tool for consultation between the Government of Canada and Canadians. It gives Canadians the opportunity to provide their comments on proposed regulations published in the Canada Gazette, Part I. Anyone who may be affected by the proposed regulations can request background information from the issuing department. The Canada Gazette Directorate is responsible for ensuring:
The Canadian Environmental Assessment Agency and Environment and Climate Change Canada are responsible for providing advice, training and tools regarding:
Global Affairs Canada, in collaboration with the Department of Justice Canada, is responsible for providing advice and guidance about obligations under international agreements to which Canada is a party.
Crown-Indigenous Relations and Northern Affairs Canada, with the Department of Justice Canada, is responsible for providing advice on Advancement of Modern Treaty Implementation.
Status of Women Canada is responsible for providing advice on gender-based analysis plus (GBA+).
Federal regulators are responsible for:
Additional information and guidance can be found in the Guide to Regulatory Development and RIAS Writing.
Enquiries and feedback on this policy and its implementation can be made by contacting TBS.
This policy was last reviewed on September 1, 2018 .
Throughout this document "departments" denotes federal organizations
Specifically, the ministers of the Treasury Board acting as a committee of the Queen's Privy Council for Canada in its role of approving regulations
Groups are based on factors such as gender, sex, age, language, education, geography, culture, ethnicity, income, ability, sexual orientation, gender identity and other factors.