In a past post, we covered tracing regulations, but what about finding the legislative intent of regulations? Unfortunately, compared to statutes, this is not always easy or straightforward.
Read on for strategies to locate legislative intent for Federal and Ontario regulations.
Why is this so difficult?
Regulations are delegated legislation; they are drafted and filed by the responsible ministries, so they are discussed outside the Legislature/Parliament. As a result, parliamentary debates (i.e., Hansard) do not record deliberations about each regulation.
How to locate legislative intent for regulations
So, what is a researcher to do? Here are some strategies and resources you can use to research a regulation’s legislative intent:
• Trace the regulation (evolution)
• Find commentary or secondary sources
• Perform a general search of Hansard
• Find the Federal RIAS
• Check the Ontario Regulations Registry
Trace the regulation (evolution)
Locating textual changes and amendments made over time (i.e., legislative evolution) is a method which may be used to interpret legislation [1].
As a first step, we recommend that you trace the evolution of a regulation when researching intent because this step typically uncovers key dates and (alternate) names for the legislation. You can use this information as search parameters for further research.
See our previous week’s blog post about how to Trace Regulations.
Find commentary or secondary sources
With key dates and search terms in mind, you can seek out commentary including textbooks, articles, and government reports (if they exist) that may help explain the context leading up to and after changes made to regulations.
Annotations
Depending on the significance of your regulation, you may be able to find some historical background or overview materials written about the impact of the changes. For example, our copy of the annotated Ontario Building Code Act contains a brief introduction to the Ontario Building Code (its main regulation). It provides key in-force and amendment dates and describes how the building code amendments were developed. Journal and law review articles can sometimes provide helpful references in their footnotes.
Government Documents
Although not all regulatory changes are preceded by reports, government reports or royal commission reports can illuminate policy changes or recommendations that later materialize as regulations. (See the next section for an example of this).
You can try searching on the Ontario Government Documents search portal, which rounds up various digitized Ontario government documents. Alternatively, you can conduct general searches on different library catalogues to see what (if anything) exists in their government documents collections. GALLOP portal allows you to search multiple provincial legislative library catalogues at once.
Don’t be disheartened if you can’t find anything at all about your regulation. It’s possible that your regulation was simply not significant enough to warrant much commentary.
Perform a general search of Hansard
Although parliamentary debates (i.e., Hansard) do not address specific regulations, debates can provide a snapshot in time of attitudes, events, publications, and controversies that may inform future regulation-making. We recommend that researchers use a combination of keyword searching and browsing by topical indices when attempting to locate regulatory intent in Hansard.
As an example, Ontario’s Accessible Vehicles regulations (R.R.O. 1990, Reg. 629) were first filed in 1981 as O. Reg 167/81. Law Librarian Elizabeth Bruton investigated the Hansard discussions around accessible transportation, which occurred prior to 1981 [2]. Hansard provided clues: a mention of the 1977 Ontario Human Rights Commission report; multiple attempts to amend the Highway Traffic Act from 1979 to 1980; and the story of a Toronto poet and wheelchair-user, who was tragically killed in an accident involving unregulated private van services. Bruton obtained the inquest recommendations, most of which later appeared in the 1981 regulation [3].
Thoughtful keyword searching, careful reading of Hansard, and persistent sleuthing paid off for Bruton, but we remind researchers that other regulations may not be as well-documented or even discussed at all.
Find the Federal RIAS (after 1987)
The Regulatory Impact Analysis Statement (RIAS) sets out the government’s rationale for individual regulations, which means it is a very effective resource to locate intent for federal regulations. As an example, a RIAS was produced as part of eliminating the penny from Canada’s currency. Attached to the full-text of the regulation, this RIAS summarizes the purpose of the Regulations for the Redemption of One Cent Coins, SOR/2012-264 published in Canada Gazette Part 2.
The RIAS is “…a summary of the expected impact of a regulatory initiative” which “…provides a cogent, non-technical synthesis of information that allows the various RIAS audiences to understand the issue being regulated” and “…is a public accounting of the need for each regulation” [4].
RIAS appears with proposed and official federal regulations in the Canada Gazette starting in 1987 [5]. In 1986, the federal government changed its regulatory policy to require prepublication of proposed regulations and their accompanying RIAS documents, which are circulated for notice and comments [6]. In Part I of the Canada Gazette, the RIAS typically precedes the full-text of the proposed regulation. Once the comment period closes and the regulation is adopted, the finalized RIAS is appended to the official regulation printed in Canada Gazette, Part II [7].
Although the federal Treasury Board may grant exemptions from pre-publication in Part I, all approved regulations must be published in Part II along with their RIAS [8]. Therefore, if you have trouble locating the RIAS in part I, try locating the RIAS in Part II instead.
Check the Ontario Regulations Registry
In Ontario, the Regulations Registry can provide some insight on some (but not all) proposed regulations. The registry provides “information on new or amended provincial policy instruments that affect Ontario’s regulated entities”, which “…include for-profit business, not-for-profit organizations, broader public sector, municipalities, and long-term care homes” [9].
The Registry’s coverage of past proposals begins in 2005, but it is NOT exhaustive.
If you wanted to know more about the 2007 amendment affecting fishing huts (s. 37 of O. Reg. 664/98: Fish Licensing), we suggest browsing and searching the registry for past proposals, focusing on submissions made 2007 AND PRIOR to that date.
Be careful when using the search feature on the registry. Simpler keyword searches tend to surface content more effectively. In the example, searching ‘fishing hut’ among entries that are “Closed for Comments” turns up no results.
However, simply searching ‘hut’ produces a list of search results, which includes “Ecological Framework for Recreational Fisheries Management”. This past proposal was closed for comments on June 5, 2006, which is close to our regulation’s 2007 date.
The search results often contain links to accompanying documents, which may provide further context for the proposal. In this example, the Ecological Framework for Recreational Fisheries Management webpage is linked, but the page currently redirects to an unrelated page.
If links are broken or lead to an unexpected result, you can try to copy and paste the link into the Internet Archive’s Wayback Machine. In this example, the Ecological Framework for Recreational Fisheries Management webpage can be found via the WayBack Machine.
Final thoughts…
Locating legislative intent for regulations is less straightforward than locating intent for statutes. Exploring different sources of information can yield interesting findings, but results are not always guaranteed. Therefore, we recommend that researchers allocate lots of time for conducting regulatory intent research.
References
[1] Susan Barker & Erica Anderson, Researching Legislative Intent: A Practical Guide (Toronto: Irwin Law, 2019) at 209.
[2] Elizabeth Bruton, “Time Travelling: Intent Behind Regulations”, (2016) 41:2 Can L Library Rev 20 at 21 online: CanLII.
[3] Ibid at 24.
[4] Canada, Treasury Board of Canada Secretariat, RIAS Writer’s Guide 2009, Catalogue No. BT53-16/2009E-PDF (Ottawa: TBS, 2010) at 2, online: TBS.
[5] The first RIAS published in 1987 was for the Canada Oil and Gas Spills and Debris Liability Regulations under the Oil and Gas Production and Conservation Act, RSC 1970, c O-4. It can be found on page 6 of the Canada Gazette, Part I (1947-1997), vol. 121, no. 1, Regular Issue, January 3, 1987.
[6] France Houle, “Regulatory History Material as an Extrinsic Aid to Interpretation: An Empirical Study on the Use of RIAS by the Federal Court of Canada”, (2006) 19 Can J Admin L & Prac 151 at 152 (Westlaw).
[7] Ibid.
[8] Canada, Treasury Board of Canada Secretariat, “Policy on Regulatory Development” (2018) ss 7.2.9, 7.3, online: Government of Canada.
[9] Ontario, “About the Registry” (last modified 19 May 2022), online: Ontario’s Regulatory Registry.
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