19 CJALP 151
Canadian Journal of Administrative Law & Practice
Regulatory History Material as an Extrinsic Aid to Interpretation: An Empirical Study on the use of RIAS by the Federal
Court of Canada¸
July, 2006
19 Can. J. Admin. L. & Prac. 151
Canadian Journal of Administrative Law & Practice
July, 2006
Article
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Regulatory H istory M aterial as an Extrinsic Aid to Interpretation: An Empirical
Study on the Use of RIAS by the Federal Court of Canada
[FNd1]
France Houle
[FNa1]
Copyright © 2006 by Thomson Canada Limited; France Houle
Since 1986, the Canadian Public Administration is required to analyze the socio
economic impact of new regulatory requirements or regulatory changes. To report on
its analysis, a Regulatory Impact Analysis Statement (RIAS) is produced and published
in the Canada Gazette with the proposed regulation to which it pertains for notice to, and
comments by, interested parties. After the allocated time for comments has elapsed, the
regulation is adopted with a final version of the RIAS. Both documents are again
published in the Canada Gazette. As a result, the RIAS acquires the status of an official
public document of the Government of Canada and its content can be argued in courts as
an extrinsic aid to the interpretation of a regulation. In this paper, an analysis of
empirical findings on the uses of this interpretative tool by the Federal Court of Canada is
made. A sample of decisions classified as unorthodox show that judges are making
determinations on the basis of two distinct sets of arguments built from the information
found in a RIAS and which the author calls “technocratic” and “democratic”. The author
argues that these uses raise the general question of “What makes law possible in our
contemporary legal systems”? for they underline enduring legal problems pertaining to
the knowledge and the acceptance of the law by the governed. She concludes that this
new interpretive trend of making technocratic and democratic uses of a RIAS in case law
should be monitored closely as it may signal a greater change than foreseen, and
perhaps an unwanted one, regarding the relationship between the government and the
judiciary.
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1. I N TRODUCTI ON
In 1986, the Canadian Federal Government approved a regulatory policy requiring
departments and agencies to analyze the socioeconomic impact of any new regulatory
requirements or regulatory changes.
[FN1]
From then to now, a Regulatory Impact
Analysis Statement (RIAS) accompanies a draft regulation and both documents are
published in Part I of the
Canada Gazette
for notice to, and comments by, interested
parties. After the allocated time for comments has elapsed, the regulation is adopted with
a final version of the RIAS. Both documents are then published in Part II of the
Canada
Gazette
. As a result, the RIAS acquires the status of an official public document of the
Government of Canada and its
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content can be argued in courts as an extrinsic aid
to the interpretation of a regulation.