Consultation on the draft Cabinet Directive on Regulation

Notice to Readers

The consultation period on this draft has now closed. We are considering all input when finalizing the draft Cabinet Directive on Regulation. Thank you for your participation.

Consultation is a key element of Canada’s open government efforts, and essential to our Third Biennial plan to the Open Government Partnership (2016-2018). The goal of this plan is to make government information and policies more open and transparent, which will in turn increase Canadians’ trust in government.

The Government of Canada is committed to ensuring that its regulatory activities result in the greatest overall benefit to current and future generations of Canadians. Regulation is a key policy instrument used by government to enable the social and economic well-being of Canadians, but it is also a form of law. Regulations have a binding legal effect that usually set out rules that apply generally, rather than to specific persons or situations. Regulation is also a necessary foundation for market economies. We work with Canadians and other governments when regulating -- protecting and advancing the public interest in health, safety, and security, and the quality of the environment.

A robust and effective regulatory system provides consistency and fairness, and supports innovation and competition. In addition, an effective regulatory system is not just for protective purposes. Regulation can be an enabler. For example, in the economic sphere, regulation establishes the rules for fair markets, reduces barriers to trade through alignment with trading partners, clarifies conditions for the use of new products, services, and technologies, and fosters new investment.

In this consultation, there are eight (8) sections for you to explore:

  1. Purpose
  2. Scope of Application
  3. Guiding principles of federal regulatory policy
  4. Regulatory Lifecycle Approach
  5. Development of Regulations
  6. Regulatory management
  7. Review and Results
  8. Appendix A

In addition, there are five (5) guiding questions for your input. These questions are intended to seek your feedback on the new federal regulatory policy called the Cabinet Directive on Regulation (CDR). The feedback received from this consultation will be taken into account as the Treasury Board Secretariat is finalizing the CDR.

Guiding questions can be found at the end of Sections 4, 5, 7 and Appendix A. Please answer these questions based on your experience and familiarity with the federal regulatory development process. Do not feel obliged to answer a question if you feel it does not apply to you. When providing your comments and suggestions for improvement, please specify the question number (for example, Q1 or Q2 or Q3 or Q4 or Q5).

What’s next?

The Treasury Board Secretariat (TBS) will analyze and consider all relevant comments.

TBS may publish a report summarizing the main comments received, our rationale for accepting or declining stakeholder comments, any changes we made, and the impact the comments may have on the federal regulatory system.

Please select from which of the following viewpoint you are providing input: Please choose one letter and input your selection into the comment box.

  1. Academia
  2. Business
  3. Community or Non-profit
  4. Individual
  5. First Nations, Inuit or Métis government or organization
  6. Provincial/Territorial Government
  7. Media
  8. Municipal Government
  9. Federal Government
  10. Retired
  11. Student
  12. Other
  13. I prefer not to answer this question

Comments

James Martin - November 01, 2017

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.

Nancy Coulas - November 01, 2017

b

J. Babcock, Canadian Horticultural Council - October 31, 2017

C.

HB Geiger - October 29, 2017

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.

Ken Whitehurst, Consumers Council of Canada - October 28, 2017

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.

In reply to by Ken Whitehurst, Consumers Council of Canada

DraftConsultCDR - November 03, 2017

Hi Ken,
Yes indeed we did receive the Consumers Council of Canada's submission.
With respect to your point about this system for online consultation, you are correct, we continue to find ways to improve our online presence.

Maury Burton - October 26, 2017

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.

In reply to by Maury Burton

DraftConsultCDR - November 03, 2017

Hi Maury,
We appreciate your comments and will take them into account to finalize this draft policy.

Community or Non-profit - October 26, 2017

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?

DraftConsultCDR - November 03, 2017

Dear representative of the Community or Non-Profit,

You are correct, comments can be submitted online at the bottom of sections 4, 5, 7 and of Appendix A. We have five (5) guiding questions to help us finalize this draft‎ document. These questions can be found at the bottom of sections 4, 5, 7 and of Appendix A. To ease your navigation, here are the links:
Q1: http://open.canada.ca/en/40-regulatory-lifecycle-approach
Q2 and Q3: http://open.canada.ca/en/50-development-regulations
Q4: http://open.canada.ca/en/70-review-and-results
Q5: http://open.canada.ca/en/appendices

Alternatively, a generic email can be found by referring to the Notice to interested parties published in the Canada Gazette (CG), Part 1 on September 30, 2017. Here is the CG's hyperlink:
http://www.gazette.gc.ca/rp-pr/p1/2017/2017-09-30/html/notice-avis-eng…

Though this consultation ended on October 29, 2017, following a number of requests for additional time, we are accepting comments until November 10, 2017.

Gisele Magnusson - October 24, 2017

i

Sally Prawdzik - October 16, 2017

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

DraftConsultCDR - October 19, 2017

Hi Sally,
Thank you for your feedback. We look forward to receiving your suggestions or comments.

This consultation is opened until October 29, 2017. We have five (5) guiding questions to help us finalize this draft‎ document. These questions can be found at the bottom of sections 4, 5, 7 and of Appendix A.
To ease your navigation, here are the links:
Q1: http://open.canada.ca/en/40-regulatory-lifecycle-approach
Q2 and Q3: http://open.canada.ca/en/50-development-regulations
Q4: http://open.canada.ca/en/70-review-and-results
Q5: http://open.canada.ca/en/appendices

In addition, we invite you to refer to the Notice to interested parties published in the Canada Gazette (CG), Part 1 on September 30, 2017. Here is the CG's hyperlink:
http://www.gazette.gc.ca/rp-pr/p1/2017/2017-09-30/html/notice-avis-eng…

Tom Anderson - October 13, 2017

b

Charles Tam - October 12, 2017

b.

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

In reply to by Charles Tam

DraftConsultCDR - October 12, 2017

Hi Charles,
We appreciate your comment. We look forward to receiving any thoughts you may have in general for the proposed CDR policy update and for sections 4, 5 and 7.

Francis Schiller - October 11, 2017

b. Thank you for the opportunity to participate.

DraftConsultCDR - October 12, 2017

Hi Francis,
We believe strongly that by creating opportunities to engage the public, Canadians and businesses, we can improve the federal regulatory system. We invite you to provide us your comments and suggestions by referring to the guiding questions. Guiding questions can be found at the end of Sections 4, 5, 7 and Appendix A. Do not feel obliged to answer a question if you feel it does not apply to you. When providing your comments and suggestions for improvement, please specify the question number (for example, Q1 or Q2 or Q3 or Q4 or Q5) and from a business viewpoint.

Ida Liu - October 11, 2017

i

DraftConsultCDR - October 11, 2017

Hi Enver,

Thank you for your request to see our guiding questions. Guiding questions can be found at the end of Sections 4, 5, 7 and Appendix A. Please answer these questions based on your experience and familiarity with the federal regulatory development process. Do not feel obliged to answer a question if you feel it does not apply to you. When providing your comments and suggestions for improvement, please specify the question number (for example, Q1 or Q2 or Q3 or Q4 or Q5).
To ease your navigation, here are the links:
Q1: http://open.canada.ca/en/40-regulatory-lifecycle-approach
Q2 and Q3: http://open.canada.ca/en/50-development-regulations
Q4: http://open.canada.ca/en/70-review-and-results
Q5: http://open.canada.ca/en/appendices

Robert Davidson - October 06, 2017

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

DraftConsultCDR - October 06, 2017

Hi Robert,
Thank you for this precision. You are correct, please select one letter that represents your viewpoint and provide us your input in the comment box. We are working on changing the instructions to reflect your recommendation.