Governor in Council Process Guide

Developing a Proposal Seeking the Approval of an Order by the Governor in Council

Table of Contents

Part A: THE TREASURY BOARD CABINET COMMITTEE

Treasury Board’s New Role
Composition (as of July 20, 2004)
Deadlines
Critical Periods for the Approval of Submissions

Part B: DOCUMENTATION

Letter of Transmittal
Recommendation to the Governor General in Council
Recommendation of Appointments to the Governor General in Council
Recommendation to the Governor General in Council to Bring an Act into Force
Draft Order in Council
Explanatory Note
Schedule

Part C: COMING INTO FORCE OF ORDERS IN COUNCIL

Part D: SUBMISSIONS REQUIRING TREASURY BOARD APPROVAL

Part E: ORDERS AUTHORIZING MINISTERS TO PRESCRIBE FEES

Part F: ACCESS TO ORDERS IN COUNCIL

Part G: DISTRIBUTION

Part H: INDEX AND OBTAINING COPIES OF ORDERS IN COUNCIL

Part I: CHECKLIST

Part J: MODELS

Letter of Transmittal

APPOINTMENT

Ministerial Recommendation
Order in Council

AGREEMENT

Ministerial Recommendation
Order in Council
Explanatory Note

COMING INTO FORCE OF AN ACT

Ministerial Recommendation
Order in Council
Explanatory Note

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Part A: TREASURY BOARD CABINET COMMITTEE

Treasury Board’s New Role

• Traditionally, Treasury Board (TB) has been the Cabinet committee who’s recommendation or approval is required for regulations liable to have significant financial implications or those that, through their enabling statute, require Board approval or recommendation (Part A of the TB Meeting Agenda).

• Pursuant to changes in Cabinet committee mandates on December 12, 2003, TB’s role was expanded to include approving regulation and most Orders in Council¹ requiring Governor in Council approval.

• Consequently, proposed Orders in Council which previously would have been submitted to the Special Committee of Council, are now considered by the TB (Part B of the TB Meeting Agenda).

Composition (as of July 20, 2004)

Deadlines

• Meetings of the TB are held on a regular basis, normally each Monday when the House of Commons is in session. An agenda listing the recommendations to the Governor in Council that are to be considered in a given week is distributed to all TB members on the Wednesday prior to the meeting.

• The deadline for receipt in PCO of complete signed submissions will continue to be 10 working days (2 weeks) prior to the Cabinet committee meeting.

• Two advance copies of the Explanatory Note in both official languages must be forwarded to the PCO (Orders in Council Division) 15 working days (three weeks) prior to the TB meeting. As submission deadline are based on a fixed number of working days prior to the meeting, deadline dates are adjusted to account for holidays during the period. For guidance in preparing a comprehensive explanatory note, early in the process, please consult the PCO Regulatory Affairs Division analyst responsible for the said department. See link to “Contact Us” in the PCO-PUBLISERVICE web site.

• As the Explanatory Note contains confidential and/or sensitive information, it should not be sent electronically to PCO. For guidance in preparing a comprehensive Explanatory Note, early in the process, you should consult the PCO Regulatory Affairs Division responsible for your department.

• Submissions that are received after the deadline will be scheduled for the following TB meeting.

• The advance and final documentation should be received by noon and be sent by messenger directly to:

Ms. Eileen Boyd
Assistant Clerk of the Privy Council
Orders in Council Division
Privy Council Office
Langevin Block, Room 105
80 Wellington Street
Ottawa, Ontario
K1A 0A3

• It is important for departments to plan for the timing of their submissions and to ensure that they allow adequate time for the clearance process, which includes the Regulations Section of the Department of Justice and PCO Policy Secretariats.

• Requests to have TB consider urgent submissions, received after the deadline, require a letter from your Minister to the President of the Treasury Board justifying urgent consideration of the late submission. The signed letter should then be inserted in an envelope addressed to the Assistant Clerk of the Privy Council and must be delivered by secure messenger, or by secure fax (613) 957-5773. If sent by secure fax, the original letter must then follow by secure messenger. Please advise the Assistant Clerk of the Privy Council of the urgency as soon as possible (613) 957-5430. Consistent with establish TB practice, urgent submissions will be scheduled for consideration by the Board at the discretion of the President.

• When submitting a recommendation that becomes effective on the same day as the TB meeting (e.g., the coming into force of an Act), departmental officials must submit the recommendation two weeks prior to that date to allow Ministers the opportunity to hold proper consultations and to review the recommendation in advance without being pressed for decisions.

• When the coming into force date is required in an Order in Council or schedule, please ensure this date is at least one working day subsequent to the TB meeting to allow time for the Governor General to sign.

Critical Periods for the Approval of Submissions

• The Regulatory Affairs and Orders in Council Secretariat has three extremely hectic periods:

• the end of the fiscal year (March);

• the House of Commons summer recess (towards the end of June); and

• the end of the calendar year (December).

• The agendas for these periods are extremely unwieldy and the possibility of error is greater. Timely and adequate documentation helps Ministers deal efficiently and speedily with problems. Respecting the deadlines will avoid a backlog of documentation upon which Ministers will be pressed for decisions without proper review.

Part B: DOCUMENTATION

• As described in greater detail below, the documentation for a submission to the Governor in Council consists of:

• one original letter of transmittal;

• one original recommendation in both official languages, signed and dated by the sponsoring Minister(s);

• one bilingual copy of the draft Order in Council accompanied by a version on a 6.1 WordPerfect/Word diskette clearly identified and placed in a disk mailer envelope;

• one bilingual copy of the explanatory note;

• one original bilingual schedule (if applicable) and eight copies; and

• two extra copies of the complete package to be inserted in a separate envelope and addressed to the Orders in Council Division, Privy Council Office.

Letter of Transmittal

• When sending a recommendation to the Governor in Council, the sponsoring department must submit a letter of transmittal to the Assistant Clerk of the Privy Council.

• The letter must:

• be signed by an Assistant Deputy Minister (ADM) or a Director General if the ADM is not available;

• specify any special instructions relating to the timing of approval of the department’s recommendation to the Governor in Council (e.g., the date of signature of an agreement or treaty, an effective date in the Order or schedule, an Order to be approved on the same day as TB, or the date of a Minister’s announcement);

• state whether the recommendation has direct or indirect financial implications and whether TB authority exists in its financial capacity, citing the authority where it does exist; and

• indicate the name, title and telephone number of the most knowledgeable official in the department who can be contacted for additional information about the recommendation.

Recommendation to the Governor General in Council

• The recommendation to the Governor in Council must be signed and dated:

• by the appropriate Minister;

• in the absence of that Minister, by another Minister who has been authorized by Order in Council to sign on that Minister’s behalf; or

• by a Minister of State, on behalf of the appropriate Minister, who has been formally delegated signing authority for specific purposes by that appropriate Minister.

• The recommendation must clearly describe the action requested by the Minister.

• When the recommendation requires the signature of another Minister, it can be signed by both Ministers. Departments can also submit a separate recommendation signed by each Minister.

• The recommendation must be drafted in both official languages and prepared on departmental or Ministerial letterhead. The responsible Minister must sign both versions. The recommendation may appear on one page with French and English in a side-by-side format. Where it consists of more than one page, the pages are to be numbered.

• Officials preparing a recommendation must consult with their legal adviser to ensure that the recommendation meets the requirements of the law.

• Each recommendation must state whether it has direct or indirect financial implications and whether TB authority exists for the recommendation, citing the authority where it does exist. Where no TB authority is cited for the recommendation that has financial implications, it will not be considered until TB approval has been obtained. However, if the recommendation does not have any financial implications, the explanatory note should indicate that consultations were held with TBS officials who confirmed that there was no requirement for TB approval under its financial authority (although the proposal is still required to be submitted to TB for GIC approval).

Recommendation for Appointments to the Governor General in Council

• When sending a recommendation, and after ensuring that officials from the Minister’s Office have consulted with the Director of Appointments in the Prime Minister’s Office, the sponsoring department must submit the following documents:

• the original recommendation in both official languages, signed and dated by the Minister;

• the draft Order in Council in both official languages;

• a current résumé of the nominee; and

• a transmittal letter signed by an ADM (or a Director General if the ADM is unavailable to sign) indicating the name, title and telephone number of the most knowledgeable official in the department/Minister’s Office who can be contacted for additional information about the recommendation.

• To avoid any possibility of ambiguity or error, the signed recommendation for appointment must include:

• the full name of the appointee;

• the appointee’s place and province of residence;

• the name of the agency, board and/or commission and the title of the position to be filled; and

• a reference to the relevant legislation authorizing the appointment.

• Where an appointment is purported to have been made by an agency, a board, or a commission or the Lieutenant Governor in Council, proof of the nomination signed by the appointing authority should accompany the recommendation.

• Officials preparing a recommendation must consult their legal adviser to ensure that the recommendation meets the requirements of the law.

• Conditions of employment and salary ranges may be obtained from the Management Priorities and Senior Personnel Secretariat of the Privy Council Office.

• Recommendations for appointments to the Governor in Council should be sent by messenger directly to the:

Ms. Eileen Boyd
Assistant Clerk of the Privy Council
Orders in Council Division
Privy Council Office
Langevin Block, Room 105
80 Wellington Street
Ottawa, Ontario
K1A 0A3

Recommendation to the Governor General in Council to Bring an Act into Force

• The documentation for submission to the Governor in Council to bring an Act into force consists of:

• a letter of transmittal to the Assistant Clerk of the Privy Council;

• one original bilingual recommendation, signed and dated by the responsible Minister(s) and prepared on departmental or ministerial letterhead;

• two blue-stamped bilingual copies of the draft Order in Council and the explanatory note (see page 36 of this Guide for a model of an explanatory note in the case of a submission to bring an Act into force) from the Regulations Section of the Department of Justice;

• four bilingual photocopies of the blue-stamped copies of the draft Order in Council;

• one extra copy of the complete package is to be inserted in a separate envelope addressed to the Director of Operations, Regulatory Affairs Division, Privy Council Office; and

• one original Request for Insertion in the Canada Gazette form. (Form PWGSC-TPSGC 3105-1) or available at http://canadagazette.gc.ca/index-e.html

• If required, two copies of a Supplementary Note in both officials languages:

Use of a Supplementary Note is recommended to inform ministers of confidential or sensitive matters that should not be contained in the Explanatory Note (which is published in the case of a submission to the Governor in Council to bring an Act into force). For example, you could use the Supplementary Note to acquaint ministers with the objectives, nature and consequences of the coming into force. Supplementary Notes do not form part of the submission. They are Cabinet confidences and, as such, are not published. Because they contain confidential and/or sensitive information, they should not be sent electronically to PCO.

How to prepare a Supplementary Note:

• Title the Supplementary Note as such.

• Indicate any security classification in the top right-hand corner.

• Indicate "NOT FOR PUBLICATION" in the top right-hand corner (immediately below the applicable security classification).

• Provide briefing information in a format and at a level of detail appropriate to the case.

• Do not attach the Supplementary Note to any document.

• The Supplementary Note is to be submitted on standard size paper 8½" x 11", in both French and English.

Draft Order in Council

• The format to be used for a draft Order in Council is 8½" x 11" plain white paper.

• The wording of the draft Order in Council is usually similar to that of the recommendation, with the exception that the former anticipates the action of the Governor in Council, acting on the Minister’s recommendation.

• Officials preparing the draft Order in Council must consult their legal adviser to ensure that it meets the requirements of the law.

• A 6.1 WordPerfect/Word diskette version of the draft Order in Council, in both official languages, must be provided. The diskette must be clearly labelled with the title of the proposal and be packaged in a disk mailer envelope, accompanying the hard copy version.

Explanatory Note²

• Two advance copies of the Explanatory Note in both official languages must be forwarded to the PCO (Orders in Council Division) 15 working days (three weeks) prior to the TB meeting.

• The Explanatory Note (two to three pages) must provide sufficient and substantive information to brief TB Ministers, explaining in more detail the content and necessity of the proposed recommendation. Submissions will not be accepted on the agenda without an Explanatory Note or where the note does not meet standards.

• Explanatory Notes are not part of the Order in Council. They are Cabinet confidences and, as such, are not released to the public. Because Explanatory Notes contain confidential and/or sensitive information, they should not be sent electronically to PCO.

• The explanatory note should reflect:

• the proposal;

• the purpose of the proposal;

• background;

• financial implications;

• federal-provincial implications;

• any consultations undertaken;³

• communication strategies (if applicable);

• any policy implications; and

• a departmental contact (name, title and telephone number).

• The explanatory note is to be submitted on standard size paper 8½" x 11", in both French and English. It should be accompanied by the following statement: (This note is not part of the Order.). The word “Protected” should appear on the top right hand corner of the page.

• For guidance in preparing a comprehensive explanatory note, consult the analyst of the Regulatory Affairs Division early in the process. See link to “Contact Us” in the PCO-PUBLISERVICE web site.

Schedule

• In cases where a recommendation is accompanied by a schedule, the sponsoring department must ensure that the original and eight copies of the schedule in both official languages are enclosed with the package being sent to PCO.

• The explanatory note must not be attached (or stapled) to the eight copies of the schedule as it is not part of the Order in Council.

Part C: COMING INTO FORCE OF ORDERS IN COUNCIL

• With the exception of Orders in Council that constitute regulations, Orders come into force upon approval by the Governor in Council unless they cite a subsequent effective date in the Order or schedule.

• Orders in Council approved by TB on Monday are sent to the Governor General for final approval the following day (Tuesday). If an Order comes into force on the same day as TB’s meeting (e.g., the coming into force of an Act), this important detail must be brought to the attention of the Assistant Clerk of the Privy Council in the letter of transmittal. Necessary steps with Government House officials will be taken to submit the Order in Council for approval by the Governor General on that day.

• When the coming into force date is required in an Order in Council or schedule, please ensure this date is at least two working days subsequent to the TB meeting to allow time for the Governor General to sign.

• Public announcement of the government’s decision taken by Order in Council must not be made until approval by the Governor in Council is obtained.

• When a press release of an Order in Council is to be issued on the same day as the Order is approved by the Governor in Council, the letter of transmittal to the Assistant Clerk of the Privy Council must indicate this fact, with the name of a contact person in the department. Appropriate action will then be taken in order to obtain confirmation from Government House officials of the approved Order in Council as soon as reasonably possible. The department will be contacted immediately following final approval and the press release can then be issued accordingly.

Part D: SUBMISSIONS REQUIRING TREASURY BOARD APPROVAL UNDER ITS FINANCIAL AUTHORITY

• TB’s role has recently been expanded to include approving regulation and most Orders in Council requiring Governor in Council approval.

• However, the process in approving submissions to the Governor in Council with financial implications, traditionally managed by TB (i.e., where TB acts as the Committee of the Privy Council), continues to apply.

• Orders in Council approved by TB acting as the Committee of the Privy Council will be forwarded to the Governor General for final approval the next day (Tuesday).

Part E: ORDERS AUTHORIZING MINISTERS TO PRESCRIBE FEES

• TB approves proposed fees to be prescribed by ministers, as a regular TB submission with financial implications (Part A of the TB Agenda).

• Subsequently, the department forwards a notice of the proposed fees to be pre-published in the Canada Gazette, Part I, for comment purposes.

• Departmental officials must forward the following documentation directly to Public Works and Government Services Canada for pre-publication in the Canada Gazette, Part I:

• one original letter of transmittal to the Chief of Editorial Services signed by a departmental official;

• two bilingual photocopies of the Regulatory Impact Analysis Statement (RIAS) with a WordPerfect/Word diskette that contains only the RIAS;

• two bilingual photocopies of the notice;

• two bilingual photocopies of the schedule prescribing fees, blue-stamped by the Regulations Section of the Department of Justice; and

• one original request form for insertion in the Canada Gazette, Part I.

• After pre-publication, with no amendments to the ministerial fee schedule, the department will submit a recommendation to the Governor in Council, where TB, in its role in approving Orders in Council, will authorise the minister to prescribe such fees (Part B of the TB Agenda).

• The department should submit the following documentation to the Assistant Clerk of the Privy Council:

• one recommendation to the Governor in Council signed by the Minister including a copy of the previously approved TB submission;

• one bilingual original copy of the Ministerial Order (undated) and of the schedule, blue-stamped by the Regulations Section of the Department of Justice. The Ministerial Order will be dated only upon final approval of the Order in Council authorizing the Minister to prescribe fees;

• one bilingual photocopy of the blue-stamped schedule;

• two bilingual original copies of the draft Order in Council, blue-stamped by the Regulations Section of the Department of Justice, authorizing the Minister to prescribe fees;

• two bilingual original copies of the explanatory note, blue-stamped by the Regulations Section of the Department of Justice;

• one request form for insertion in the Canada Gazette, Part II; and

• one original bilingual RIAS signed by the Minister and four copies of the RIAS, plus a diskette containing the RIAS only, accompanying the Ministerial Order.

• One copy of the complete package is to be inserted in a separate envelope addressed to the Director of Operations, Regulatory Affairs Division, Privy Council Office.

• Following final approval, the Order in Council authorizing the Minister to prescribe fees, together with the Ministerial Order prescribing fees for specific activities, will be forwarded to the Registrar of Statutory Instruments, for registration and publication in the Canada Gazette, Part II.

Part F: ACCESS TO ORDERS IN COUNCIL

• Orders in Council are public documents and usually become available to anyone wishing to obtain a copy three working days after their approval. At the same time, a copy of a listing of approved Orders (stating the Privy Council number, the sponsoring department, the relevant Act made thereunder, with a short précis of the item) is made available at the Privy Council Office, 4th Floor, Reading Room, Blackburn Building, 85 Sparks Street, Ottawa, Ontario, K1A 0A3, from Monday to Friday, 9 a.m. to 5 p.m. or on the Internet at the following address: http://canada.gc.ca/howgoc/oic/oic_e.html (for the English version) and http://canada.gc.ca/howgoc/oic/oic_f.html (for the French version).

Part G: DISTRIBUTION

• Copies of Orders in Council passed by TB on Monday, and signed by the Governor General on Tuesday, are normally mailed to sponsoring departments or agencies on or before the following Friday. One copy is addressed to the sponsoring Minister and the other copy is addressed to the Deputy Minister or agency head.

• In cases of urgency, or if a large number of copies of an Order in Council approved that same week by the Governor General is required, special arrangements should be made with the Coordinator, Service to the Public and Conservation, Privy Council Office by calling 957-5443. Copies can be picked up at the Langevin Block, Room 105, 80 Wellington Street (corner of Elgin and Wellington Streets), Ottawa, Ontario K1A 0A3, or by attending the office of the said Coordinator, Room 418, Blackburn Building, 85 Sparks Street, Ottawa, Ontario.

Part H: INDEX AND OBTAINING COPIES OF ORDERS IN COUNCIL

• The original Orders in Council are kept on file in the office of the Assistant Clerk of the Privy Council for five years after enactment.

• When requesting a copy of an Order in Council, officials are urged to first check the office of their Deputy Minister, agency head or their departmental distribution centre in order to reduce the number of unnecessary requests made to the Orders in Council Division. Officials requiring a copy of an Order in Council that is not available from departmental sources may contact the office of the Coordinator, Service to the Public and Conservation, by calling (613) 957-5436; Fax: (613) 957-5026.

• Copies of Orders in Council made prior to the last five years are available for a nominal fee from the National Archives of Canada by calling Reference Services at (613) 992-3884; Fax: (613) 995-6274.

• Approved Orders in Council are indexed electronically for research and retrieval purposes.

• Indices can be examined for research purposes by attending the office of the said Coordinator, Room 418, Blackburn Building, 85 Sparks Street, Ottawa, Ontario by calling (613) 957-5443.

Part I: CHECKLIST

DOCUMENTS TO BE SUBMITTED TO PCO REQUIRING GOVERNOR IN COUNCIL APPROVAL

Part J: MODELS

¹ An Order in Council is the instrument by which the Governor General, acting on the advice of the Queen's Privy Council for Canada, expresses decisions.  Orders in Council can be made pursuant to a statute that conveys authority for specific actions to be taken by the Governor in Council or pursuant to the royal prerogative.  An Order in Council is made on the recommendation of a specific Minister of the Queen's Privy Council for Canada in respect of his or her portfolio.

² This version of the explanatory note is not applicable for Orders under the Statutory Instruments Act.

³ Departments must ensure that proper consultation is undertaken with the First Nations or other affected groups implicated by the proposal in respect of all measures that may have direct or indirect impact on their lands or other areas of interest, for example, land transfers, the issuance of permits for oil and gas exploration or mining, etc.

⁴ Two copies of the complete package must also be enclosed in a separate envelope and addressed to the Orders in Council Division of the Privy Council Office.

⁵ Two advance copies of the explanatory note must be sent to the Assistant Clerk of the Privy Council 15 working days before the meeting.  Without a draft note, items will not be scheduled on the agenda.

National Library of Canada cataloguing in publication data

Canada. Privy Council Office.  Regulatory Affairs Division

Governor in Council processe guide [electronic resource] : developing a proposal seeking the approval of an order by the Governor in Council

Issued also in French under title : Guide du processus du Gouverneur en conseil : élaboration et approbation d'une soumission pour la prise d'un décret par le Gouverneur en Conseil.
Electronic monograph in HTML format.
Mode of access: Privy Council Office website (www.pco-bcp.gc.ca)
ISBN 0-662-36452-X
Cat. no. CP22-76/2004E-HTML

1.  Executive orders - Canada - Handbooks, manuals, etc.
2.  Administrative procedure - Canada.
3.  Legislation - Canada.
I.  Title.

JL87.C36 2004               342.71'06           C2004-980112-0