7.0 Review and results

We also support the comment that this directive should apply to all regulatory instruments, not just regulations, to ensure that proper stakeholder input and cost/benefit information is taken into account to ensure that unnecessary burden is not being placed on stakeholders through alternative processes.

Removing regulations without consulting stakeholders can be problematic as well. Changes, additions or removal of regulations should allow for full consultation before the Canada Gazette process. Frequently changing regulatory requirements can also add burden to business. That said, we support regulatory review that is streamlined and aligned with Red tape Reduction initiative. We agree with FPAC that new regulatory development seems to get more resources and cleaning up wasteful regulation is not a priority - but it needs to be in order to be lean and effective as possible.

One suggestion is that the government MUST ensure that resources (staff) are dedicated to removing outdated regulations, especially if there is a submission put forward by key stakeholders. The reality is that we know of many outdated regulations that the government even agrees needs updating- but that no resources are available to do so. As such- files can languish for years waiting to be dealt with. So I would suggest that in this section, that there is some consideration of staffing needs in the agencies to implement recommendations and outdated regulations. Otherwise there is no way they will be dealt with in a timely manner, as is the desire above. We do suggest adding regularly published reports on the performance of regulatory policy and reform programmes. Such reports should also include information on how regulatory tools such as Regulatory Impact Assessment (RIA), public consultation practices and reviews of existing regulations are functioning in practice. Thank you for the opportunity to input into this important consultation.

Section 7.1 implies that regulations are subject to evaluation requirements, under the Policy on Results. However, The Policy on Results does not mention regulations, and section 4.3.15 of the Policy on Results only specifically mentions spending, programs and G&C as required to be covered in the rolling five-year plan. Likewise, the definition of a program in the policy is " Program (programme): Individual or groups of services, activities or combinations thereof ..." which does not necessarily imply that a regulation or regulatory framework is a program for the purposes of the evaluation requirements. In practice, regulatory evaluation in Canada tends to be rare. In the OECD's Government at a Glance 2015, Chapter 8 focused on regulatory management notes that ex post regulatory evaluations are rare, and only occasionally does Canada do reviews of regulation to determine if they are meeting their objectives. And most people in the policy field can cite examples of "set-it-and-forget-it" approaches to regulation. I suggest that this be more explicit, and make it clear that significant pieces regulation or related groups of regulation are required to be evaluated on a periodic basis ... either as regulatory evaluations or as evaluations that focus on program aspects (spending, activities, etc.) and regulations jointly (as noted in 7.0 these cannot be considered separately if more than one tool is being used). For section 7.1 and 7.2 - I would also suggest differentiating between "review" and "evaluation", since evaluation implies a systemic examination based on evidence and focused on outcomes, whereas a review could be considered less formal. For section 7.1. and 7.2 - You should also consider specifying that the expectation is that such reviews and evaluations will be published. This would contribute to open government and also allow the reviews to be used as an evidence base for RIA statements. For section 7.3 - The existing text is good, but consider adding a further line that "If the SJCSR makes recommendations that require a change in legislation or regulation to address, it is the responsibility of Ministers to ensure that the recommendations receive appropriate attention." I am suggesting this since I am aware of at least two cases where responses to correct issues raised by the SJCSR recommendations have lingered for lack of attention at the decision-making level. For Section 7.3, would it be appropriate to require an annual report to TBS from departments on all outstanding issues arising from the SJCRS and plans to address them?

Annual performance reports should be filed for every Act and its regulations. Each department has a duty to maximize resource allocation but they also have a responsibility to apply a standard of care for the regulations Parliament has entrusted them to administer and enforce. Consumer regulations in particular are often decimated through reallocation of policy and enforcement resources. If this happens on a sustained basis the organization loses capacity and often the proper infrastructure needed to apply even a minimum standard of care to the regulations. An example is the near abandonment of consumer protection acts (PMMA, TLA, CPLA) by the Competition Bureau resulting in, among other things, lack of sufficient attention to sustaining a viable weights and measures program to verify accurate weights and measures of consumer products. Based on the common available sources of research funding for consumer groups and the attendant application processes, it is important that consumer groups have 24-months notice of the start of any regulatory review, so that it can seek the funding necessary to fund its due diligence ahead of the process beginning. There are ways to shorten this timeline based on developing greater economic capacity within consumer groups. By doing so, 24 month’s notice might be reduced to 12 months, or less. At present, resources and timelines negatively impact consumer groups’ participation in regulatory reviews and often undermine the legitimacy of these reviews from the consumer perspective.

Q4. Section 7.3 refers to the role of the Standing Joint Committee for the Scrutiny of Regulations (SJCSR) in raising issues in connection with their review of regulations, and that departments and agencies must respond to these concerns. We note that some of these exchanges between SJCSR and departments or agencies have gone on for more than a decade without resolution. We question the effectiveness of this approach that could allow a regulation that exceeds the authorities granted by Parliament to persist for so long. It is particularly problematic that these exchanges between SJCSR and departments or agencies are not transparent to the public, including regulated parties, as they are not published until SJCSR and the department or agency reach a resolution of the issue. Part of the difficulty is that SJCSR does not appear to have the authority to impose a deadline for response on the departments or agencies to which it addresses its concerns. Further, the only remedy available to SJCSR, when it has an unresolved concern with a regulation, is to recommend its revocation. This is an extreme option, as it would require the department or agency to return to the beginning of the regulatory process and potentially create a lengthy regulatory void where this might not be in the best interest of the public. Recommendation: To address this gap in the regulatory review process, CHP Canada recommends the following: 1. All exchanges between SJCSR and departments or agencies in which concerns over active regulations are raised and addressed should be made public to ensure transparency, and allow public input to speed resolution. 2. SJCSR should be able to impose deadlines on departments or agencies for their responses to inquiries on active regulations. 3. SJCSR should have the power to suspend regulations when concerns have not been met in a timely fashion. In cases where a regulation must be modified to satisfy SJCSR’s concerns, this could be permitted following a shortened consultation through Canada Gazette Part I pre-publication.

FPAC support regulatory review and in some cases, regulations have met their objective. Treasury Board should work with departments to streamline or support repealing or removal of regulatory requirements which is also aligned with Red Tape Reduction. Currently, FPAC has done work with departments but this kind of work is not a priority and too resource intensive and departments put their resources only on new regulatory development.