Transcript Presentation Title

Administrative
Rulemaking
Richard Steinecke
Presented at CLEAR’s 23rd Annual Conference
Toronto, Ontario September, 2003
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
Presented at CLEAR’s 23rd Annual Conference
Toronto, Ontario September, 2003
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)
Presented at CLEAR’s 23rd Annual Conference
Toronto, Ontario September, 2003
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
Presented at CLEAR’s 23rd Annual Conference
Toronto, Ontario September, 2003
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
Presented at CLEAR’s 23rd Annual Conference
Toronto, Ontario September, 2003
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

Presented at CLEAR’s 23rd Annual Conference
Toronto, Ontario September, 2003
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

Presented at CLEAR’s 23rd Annual Conference
Toronto, Ontario September, 2003
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

Presented at CLEAR’s 23rd Annual Conference
Toronto, Ontario September, 2003
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.

Presented at CLEAR’s 23rd Annual Conference
Toronto, Ontario September, 2003
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
Presented at CLEAR’s 23rd Annual Conference
Toronto, Ontario September, 2003
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

Presented at CLEAR’s 23rd Annual Conference
Toronto, Ontario September, 2003
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
Presented at CLEAR’s 23rd Annual Conference
Toronto, Ontario September, 2003
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 Presented at CLEAR’s 23rd Annual Conference

Toronto, Ontario September, 2003
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
Presented at CLEAR’s 23rd Annual Conference
Toronto, Ontario September, 2003
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

Presented at CLEAR’s 23rd Annual Conference
Toronto, Ontario September, 2003
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

Presented at CLEAR’s 23rd Annual Conference
Toronto, Ontario September, 2003
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
Presented at CLEAR’s 23rd Annual Conference
Toronto, Ontario September, 2003
Presentation Follow-up
Presentation materials are posted on
CLEAR’s website
Presented at CLEAR’s 23rd Annual Conference
Toronto, Ontario September, 2003