Title: Presented at CLEARs 23rd Annual Conference
1Administrative Rulemaking
2Administrative 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
3Goals 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)
4Administrative 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
5Administrative 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
6Traditional 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
7Traditional 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
8Traditional 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
9Traditional 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.
10Less 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
11Less 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
12Less 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
13Less 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
14Policies, 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
15Policies, 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
16Policies, 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
17Lessons 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
18Presentation Follow-up
- Presentation materials are posted on CLEARs
website