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Presented at CLEARs 23rd Annual Conference

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Toronto, Ontario September, 2003. Goals of Rulemaking. Educate (e.g. ... Toronto, Ontario September, 2003. Administrative Rulemaking The Canadian Experience ... – PowerPoint PPT presentation

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Title: Presented at CLEARs 23rd Annual Conference


1
Administrative Rulemaking
  • Richard Steinecke

2
Administrative Rulemaking
  • "Any fool can make a rule. - Henry David Thoreau
  • It is good to obey all the rules when you're
    young, so you'll have the strength to break them
    when you're old. - Mark Twain
  • Each problem that I solved became a rule which
    served afterwards to solve other problems. - Rene
    Descartes

3
Goals of Rulemaking
  • Educate (e.g., as to values of profession)
  • Guide (e.g., applying values to situation)
  • Facilitate (e.g., procedure for a hearing)
  • Direct (e.g., expected professional conduct)
  • Enforce (e.g., ability to successfully prosecute
    if breach of the rule)

4
Administrative Rulemaking The Canadian
Experience
  • An accepted and frequently used aspect of
    administrative regulation
  • Increasingly creative forms of rules
  • Constant tension with the courts who challenge
    authority and enforceability of administrative
    rules

5
Administrative Rulemaking The Canadian
Experience
  • Three categories of rules
  • Regulations
  • Other types of subordinate legislation
  • Policies, guidelines and informal standards
  • Each category has advantages and disadvantages
  • So choose type of rule carefully

6
Traditional Approach Make a Regulation
  • Process
  • Regulator proposes
  • Line Ministry reviews
  • Used to be just of drafting
  • Now extensive policy review
  • Legislative Drafting
  • Red Tape Review
  • Cabinet review
  • Published in the Gazette

7
Traditional Approach Make a Regulation
  • External consultation process
  • Used to be virtually non-existent
  • Now voluntary consultation with affected groups
  • Many Board / Council meetings are now open to the
    public
  • Health professions require 60 day circulation to
    members

8
Traditional Approach Make a Regulation
  • Advantages
  • Clear authorization in enabling statute
  • Legally enforceable
  • Publicly available (libraries and internet)
  • External validation (from Cabinet)
  • Strong legal review of wording

9
Traditional Approach Make a Regulation
  • Disadvantages
  • Enactment process has become unwieldy
  • Difficult to amend on a timely basis
  • Restricted to areas authorized by statute
  • Legalistic language
  • Strict court scrutiny of language
  • Interpretation or words
  • Improper purpose, restraint of trade, etc.

10
Less Formal Subordinate Legislation
  • Authorized by statute
  • Has authority of law
  • Does not require Cabinet approval
  • Often requires no external approval
  • At most, approval of relevant Minister
  • Usually little consultation required
  • At most, a 60-day circulation period

11
Less Formal Subordinate Legislation
  • Examples
  • By-laws (for internal matters)
  • Rules (e.g., Securities Commission)
  • Standards (e.g., Facility Standards)
  • Procedural Rules (under SPPA)
  • Rolling incorporation regulations
  • Status as regulation
  • But references an external, changing document

12
Less Formal Subordinate Legislation
  • Advantages
  • Easier to enact and amend
  • Can be made quickly by regulator
  • Can adapt to changing conditions
  • Still has authorization in statute
  • Has the status of law
  • Legally enforceable
  • Subject matter better for mandatory obligations
    that are unlikely to go to discipline

13
Less Formal Subordinate Legislation
  • Disadvantages
  • Can become ad hoc, reactive or overdone
  • Quality of provisions can deteriorate because of
    lack of external review controversy
  • Drafting can become loose, inconsistent and
    difficult to enforce
  • Regulator has to make an effort to make publicly
    accessible
  • Courts closely scrutinize authority for rule
    making

14
Policies, Guidelines and Informal Standards
  • Have no legal authority
  • A publication by the regulator to educate its
    members on an issue
  • Can be
  • Educational (e.g., privacy law)
  • Interpretative (e.g., discharging clients)
  • Guidance (e.g., use of assistants)
  • Used with increasing frequency

15
Policies, Guidelines and Informal Standards
  • Advantages
  • Flexible and easily amended
  • Does not need to be directive / legalistic
  • Can be chatty, helpful and user friendly
  • Language can be less formal
  • Low level of legal scrutiny
  • Flexible consultation process is acceptable
  • Subject matter better for non-mandatory rules

16
Policies, Guidelines and Informal Standards
  • Disadvantages
  • Not legally enforceable
  • This is often forgotten by regulator
  • Can be made without sufficient consideration
  • Content can be inconsistent or inappropriate
  • Drafting can be poor
  • Need systematic review of them over time
  • Special effort needed to ensure public access

17
Lessons Learned From the Canadian Experience
  • Start with your goal what are you trying to
    achieve from the rule?
  • Understand advantages and disadvantages of each
    type of rule
  • Then choose the type of rule suited to goal
  • Develop a voluntary consultation process to
    ensure good content
  • Launch the rule right
  • Make all rules easily accessible

18
Presentation Follow-up
  • Presentation materials are posted on CLEARs
    website
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