Consultation on the draft Cabinet Directive on Regulation

Judging from the well-considered comments you appear to have received from current stakeholders, you have been receiving substantive feedback on the proposed directive. I'll restrict my comments to a few points. First and most important, regarding Section 3 : Guiding Principles. You really should continue to use the phrase "benefits justify the costs" in the first principle. This has been an important feature of every Government of Canada directive on regulation -- the Treasury Board Directives of 1992 and 1995 (promulgated when I was Head of Regulatory Affairs in TBS) through the later Cabinet Directives in 1999 (essentially a copy of the last TB policy), 2007 and 2012. It has also been embedded in the Recommendations of the OECD Ministerial Council on Regulatory Policy and Governance (we first introduced Ministerial Council recommendations on regulation in 1995; it was most recently re-confirmed and up-dated in 2012). In my experience, regulators need to be continuously reminded that the costs of regulations can be just as important to the well-being of Canadians (whether costs are dollars, jobs, reduced consumer choice, time wasted, increased mortality and morbidity) as the intended benefits. My second point is just that the structure of the Directive where you use Section 4 on regulatory-life cycle AND consultation/engagement does not work well. I suggest you revert to 2012 structure where Life-cycle has its own small section covering all the following sections/stages of the life cycle. This could then be followed by a separate section on consultation. Third, some of the comments you have received on consultation suggested a longer pre-publication period requirement. In my experience the earlier consultation/engagement work to ensure a thorough understanding of the issue is more critical, with pre-publication mostly acting as a "fail safe" device for Ministers to ensure that anyone or any group that wasn't fully consulted on the proposal's details would have an opportunity to comment. The suggestion that you received regarding a "NOI to regulate" might be beneficial as long as there's some real discipline shown by departments/agencies to not publish NOIs respecting a "wish list" of proposals; I note that when we used to annual regulatory plans combined with a longer pre-pub period for regulatory proposals that had not appeared in the plan led to a situation where only about a third of regulations "planned" to be promulgated actually were. That diminished the effectiveness of the plans considerably. Early consultation on issue identification and instrument choice will often be key to successfully regulating in the public interest. My last point is quite technical and regards the stated 70 day pre-publication period for proposals having an impact on trade (Section 5.4.1). If I recall correctly, the 75 day period referenced in all previous Directives was needed to reflect the time that the Standards Council of Canada (as the formal international contact point for technical regulations of both the federal and provincial governments) took to issue its formal notification to trading partners following pre-publication. Processes may have improved since my time. In any event, the time period referenced in trade agreements starts with the SCC's formal notification not the pre-publication date. If a way to speed up that process has been found since my time that's great; but if not the 70 days may need to changed back to 75.

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Hopefully we will do away with the “requirement” that for every new regulation we must eliminate and “old” regulation to reduce regulatory burden ( but often decrease safety and security for Canadians). This concept was popular with our previous government and may have even been enshrined in laws and TB Policy. It is also popular in the Trump government. However when you consider and new technology area, drones, transport of oil by trains, or internet security for examples, we need new regulations to protect Canadians, and the one for one concept makes no sense.

c I have provided the input of the Consumers Council of Canada to this consultation in the subsequent comment boxes related to specific parts of the consultation. The opportunity to contribute thoughts to this process is appreciated. Civil society organizations, in particular groups like the Council that represent around marketplace rights and responsibilities, detached from a direct pecuniary interest on behalf of a heterogeneous constituency, have a deep concern for the fairness of regulatory processes. Addressing regulatory processes is complex and expensive. Our submission addresses this through constructive ideas to make processes of regulatory review fairer and more inclusive. We would point out that this system for making online comment is crude and is not as well organized as it could or should be. Clearly the Government of Canada has a ways to go to understood the user interface and other requirements to conduct consultation online, and we would encourage further consultation, research and development about how to do this well. The Council congratulates you for 'trying', but the government will want to develop better means to do this in the future. It needs a comprehensive, systematic approach to online consultation.

b. Q1: There should be some assurances that regulatory cooperation does have impacts on timing for approvals or add regulatory burden to business. Our experience with this has been through MOU’s between government agencies/departments has not been good. An agency has taken over the preliminary review of an authorization, which has taken over 3 years with no resolution, and then we will still be required to go through the process with the department that issues the authorization with no guarantee that additional work will not be required. This has resulted in duplication of effort and unnecessary burden. Q2: It would be good to look at having a regulatory ombudsman where issues can be raised. Typically regulations and regulatory instruments are designed by the implementing agency or department. When comments are addressed through public comment periods, the agency or department can disposition away comments that may be of great concern to business, industry or the public with no recourse, in fact, the regulation typically comes into effect before stakeholders get to see how their comments were dispostioned. Q3: Experience has shown that not all departments or agencies are looking at the cost and benefits of all regulatory proposals. Some agencies are using other regulatory instruments (i.e. Regulatory Documents) implemented through Licences to impose new requirements. These do not undergo the RIAS process and are often justified by the statement “staff believe that this will increase safety” with no scientific or evidence based justification. These new requirements often have significant costs and burdens on stakeholders. Q4: This is a good practise, however; caution must be taken to avoid unintended burden on stakeholders. In our experience, where we are required to implement numerous standards as part of our regulatory framework, frequently changing regulatory requirements create significant burden to stakeholders and may in fact distract stakeholders with constant changes to their business governance in a way that is counterproductive to the end goal of the regulations (i.e. protection of the public, workers, environment and security). Q5: Some agencies are using other regulatory instruments (i.e. Regulatory Documents) implemented through Licences to impose new regulatory requirements. These do not undergo the RIAS process and are often justified by the statement “staff believe that this will increase safety” with no scientific or evidence based justification. These new requirements often have significant costs and burdens on stakeholders. It would be good to have this directive 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.

It is not clear how you are accepting comments on this consultation. Can you only provide comments through these online comment spaces? Are you accepting any written comments, if so, to whom would we direct them to?

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Thanks for the opportunity to comment on such an important initiative. Can you please advise how long the consultation will be open?

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b. Thank you for the opportunity to provide input as part of this consultation process.

b. Thank you for the opportunity to participate.

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I want to view the guiding questions.

It is not clear that this is the place to select the viewpoint ("Academia, Business...") it sounds like the list provided above is selectable... "Please Select" . If people are to input their selection into the comment box then the instructions should indicate as such. Thanks