E. Understanding and Researching Regulations (Step 4)

• Author: Ted Tjaden
• Profession: National Director of Knowledge Management McMillan LLP
• Pages: 79-82

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Once you have identified the correct jurisdiction (Step 1) and identified and read the relevant statute (Step 2), and then checked to make

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sure the statute had not been amended or repealed (Step 3), it is often prudent to check for regulations enacted under the statute to determine if any regulations are relevant to the legal research problem (Step 4). To start with, it is important to realize that both statutes and regulations are considered to be legislation since they regulate the conduct of people and have the impact of law. There are, however, several basic distinctions between statutes and regulations. Simply put:

· Statutes are enacted by the legislative assembly after debate and vote of the entire house. Regulations, on the other hand, do not endure the same public scrutiny but are instead promulgated by the appropriate government ministry bureaucrats or other bodies after varying degrees of public consultation, and then most often enacted by the Lieutenant Governor or Governor General. As such, regulations are considered subordinate or delegated legislation.

· The phrase "statutory instrument" is broader than the term "regulation" and is defined under the federal Statutory Instruments Act²³ to include "any rule, order, regulation, ordinance, direction, form, tariff of costs or fees, letters patent . . . made . . . under an Act of Parliament . . . or under the authority of the Governor-in-Council" (the Governor-in-Council is just a fancy way of saying the Governor General acting on behalf of the federal Cabinet - the same applies at the provincial level with a "Lieutenant Governor-in-Council"). Thus, an "Order-in-Council" is an order made by the Governor General (or Lieutenant Governor at the provincial level) on behalf of Cabinet, usually under statutory authority, although the power to issue these orders can arise under royal prerogative.

· The government may not legislate by regulation. What this means is that the contents of the regulation are prescribed by the governing statute - the regulations must not exceed the powers given for making regulations in the main statute. This restriction prevents the government from attempting to do through regulation what would not have been allowed by statute. This is an important restriction since the regulatory process is often not subject to the same public scrutiny as the statutory process.

· Statutes tend to state broad principles or statements whereas regulations...