Process Guide for Governor in Council Submissions (Other than Regulations)

Prepared by the Privy Council Office - Orders in Council Division

and

the Treasury Board Secretariat - Regulatory Affairs Sector

September 2022

1. Introduction

The purpose of the Process Guide for Governor in Council (GIC) submissions (Other than Regulations) is to provide step-by-step instructions in preparing submissions for consideration by the GIC. Information on categories of submissions, the approval process and documentation requirements follow. In regards to preparing regulatory GIC submissions, please refer to the Guide to the Federal Regulatory Development Process.

The Constitution Act, 1867 states that there “shall be a Council to aid and advise in the Government of Canada, to be styled the King’s Privy Council for Canada”.  All references to the GIC in the Constitution Act, 1867 “shall be construed as referring to the Governor General acting by and with the advice of the King’s Privy Council for Canada”. A Privy Councillor is appointed for life, however, in practice only current Cabinet ministers have the responsibility of advising the Governor General to make GIC decisions.

When making a decision, the GIC issues an Order in Council (OIC), a formal action taken by the Government. It is a legal document which can be used in a court of law.

Recommendations to the Governor General are usually made by Treasury Board members in their role of approving OICs and regulations (also known as Part B). Their decisions are not reviewed or ratified by any other Cabinet Committee or full Cabinet. The decision is made only when the OIC is signed by the Governor General.

Any information pertaining to Treasury Board meetings are protected as Cabinet confidences (including the dates and times of meetings, which members were present, agendas, briefing materials and ministers’ discussions).

2. Key players in the GIC approval process

Each has distinct roles and responsibilities:

• Departments, agencies and other federal government bodies – Certain federal departments and agencies, Crown corporations, commissions and other bodies may be authorized by an Act of Parliament or, less frequently, the royal prerogative, to develop through their responsible ministers, regulations and other non-regulatory proposals in specified areas of public policy. Different organizations can also be responsible for the implementation once enacted.
• Governor in Council – The “Governor in Council” or the “Governor General in Council” is the Governor General acting on the advice of Cabinet ministers.
• Justice (DOJ) –As legal advisors to PCO, DOJ/Legislative Counsel is responsible for ensuring that a proposed submission is authorized in law, that any legal risks have been addressed and that it meets certain other requirements as set out in the Statutory Instruments Act (SIA). Legislative Counsel also draft and/or revise proposals on behalf of an organization making the submission. A legal review of the submission by departmental legal services unit (DLSU) counsel should have been completed prior to submitting the document to DOJ Legislative Counsel.
• Privy Council Office – Orders in Council Division (PCO-OIC) – Provides advice and support to the Clerk of the Privy Council and Secretary to the Cabinet on the use and management of OICs, provides secretariat support to the Treasury Board (TB Part B) in relation to its role in approving OICs, maintains records of approved OICs and responds to public inquiries regarding OICs. The Assistant Clerk oversees the registration and publication of Statutory Instruments. Departments, agencies and other federal government bodies must send their signed GIC submissions to PCO-OIC.
• Treasury Board – Performs two separate functions: its role as the management board (program and financial submissions) of the federal government (as established under the Financial Administration Act), and as the Cabinet Committee to approve most OICs. These functions are distinguished by dividing TB meetings into: Part A (management board) and Part B (GIC). An up-to-date list of Treasury Board members can be found on the Treasury Board Secretariat’s and the Prime Minister’s websites.
• Treasury Board Secretariat – The Regulatory Affairs Sector (TBS-RAS) is responsible for ensuring that the analysis that departments, agencies and other government bodies provide in respect of regulatory as well as other than regulations submissions is consistent with existing policies and the Government’s policy agenda.

3. Preparation of a GIC submission

3.1 Examples of GIC submissions

Submissions that are not regulations generally fall under two categories: 

3.2 Overview of the approval process

Step 1 - Review by TBS-RAS

The Cabinet Committee Operations Division of TBS-RAS is responsible for providing policy guidance to departments, agencies and Crown corporations and for preparing briefings to the Treasury Board (Part B). It is important that the appropriate TBS-RAS analyst be informed at the beginning of the process. To find the TBS-RAS analyst responsible for your organization, please contact:

Treasury Board of Canada Secretariat
Cabinet Committee Operations Division
90 Elgin Street
Ottawa, ON,K1A 0R5
613-793-2165

The TBS-RAS analyst will review the draft documentation to ensure that the information presented is complete and clear. The analyst also performs a challenge function in relation to the proposal.

Step 2 – Review by DOJ Legislative Counsel and DLSU Counsel

One of the services provided by DOJ Legislative Counsel (at the Legislative Services Branch (LSB) of DOJ) is the review of OICs and other documents which are not regulations, to ensure their legality. This service is provided in the LSB’s capacity as legal adviser to PCO in accordance with sections 4 and 5 of the Department of Justice Act. The criteria used to review the documents are the same as those enumerated in subsection 3(2) of the SIA.

Departments and/or agencies may send their draft documents directly to LSB – to the PCO Coordinator at Headquarters Regulations Section – for review before submitting the signed GIC package to PCO-OIC.  LSB satellite offices are provided for clients at the Departments of Transport, Health and National Defence. Clients of these departments may forward draft documents to the Director at their DOJ satellite office for review prior to submission to PCO-OIC, if this service is one provided to the client by the satellite office.

During this process, departments and/or agencies will find out whether the proposed OIC is a Statutory Instrument (SI) and is subject to the publication requirement of the SIA. If the proposed OIC falls in the category of a registrable SI, the department and/or agency publishes the approved OIC in the Canada Gazette following GIC approval.

Step 3 – Approval by the minister(s)

The minister(s) responsible for the administration of an Act recommends that an OIC be made. This is conveyed through a document called the “Ministerial Recommendation” (see section 3.3.2) and is normally drafted by an official of the department or agency and signed by the minister(s).

Step 4 – Delivery to PCO-OIC and Processing of submissions

Prior to the consideration and approval by Treasury Board ministers of a proposal, PCO-OIC is responsible for receiving the GIC submission from departments and/or agencies. PCO-OIC reviews the submission to ensure completeness, forwards a copy to TBS-RAS, prepares the agenda, ensures the legality of the draft OIC by requesting its final review by the DOJ Legislative Counsel, and distributes the proposal to Treasury Board members and other select high-level officials.

An e-version in MS Office format (Word, Excel, etc.) must be included in all submission packages on a USB key or CD, and its contents must be clearly identified. If the OIC is not published in the Canada Gazette,the USB key will be returned to the person who signed the transmittal letter to the Assistant Clerk of the Privy Council once the proposal has been processed.

Step 5 – GIC decision

As advisors to the Governor General, Treasury Board members consider the proposal and make a recommendation to the Governor General.

Members have the following decision options:

• approve;
• not approve;
• defer decision; or
• refer to another cabinet committee.

Final approval occurs when Treasury Board members recommend approval to the Governor General and the OIC is signed by the Governor General. Orders come into force on the day they are signed by the Governor General, unless they contain a specific effective date.

For submissions in Category A (see 3.1), TBS-RAS analysts inform departments of the GIC decision. For Category B submissions, departments are informed by PCO-OIC.

Step 6 – Registration (when applicable)

Section 6 of the SIA states that the Clerk of the Privy Council shall register every SI that is published in the Canada Gazette, Part I and II, because of the statutory requirement and every document authorized by the Clerk of the Privy Council and Secretary to the Cabinet to be published in the Canada Gazette, Part I and II.

Step 7 – Publication (when applicable)

Certain OICs (i.e., those that fall in the category of a SI) are subject to the publication requirement of the SIA following GIC approval. These OICs are published in the Canada Gazette.

For further details on the publication process, you may contact the Canada Gazette at info.gazette@pwgsc-tpsgc.gc.ca or visit their website.

Step 8 – Distribution and Web Posting

The Orders in Council Division provides certified to be true copies of Orders in Councils (OICs) to the responsible Minister and Deputy Minister or agency head as soon as possible following their approval. For transparency, OICs are publicly available on the third working day after approval by the Governor General, but in exceptional circumstances, OICs may be posted on the web prior to the third working day if requested by the responsible Minister. They can be found on the Privy Council Office website at the Orders in Council Database.

*Of note, certain Acts (namely the Statutory Instruments Act, the Access to Information Act, the Privacy Act and the Investment Canada Act) contain provisions which prohibit the release of Orders in Council pertaining to national security or military operations or those containing personal or commercially-sensitive information.

3.3 Required documentation

The components of a submission are described below to assist departments in the preparation of the required documentation. Pages are to be numbered should the documents exceed one page. English and French documents should be numbered as separate documents.

3.3.1 Letter of Transmittal

The sponsoring department must prepare a letter of transmittal to the Assistant Clerk of the Privy Council in either official language and

• mark it according to the sensitivity of its content, but no lower than Protected B and must include the caveat “Confidence of the King’s Privy Council”;
• have it signed by the Assistant Deputy Minister (ADM) or equivalent, or, if the ADM is not available, the Director General or equivalent, on departmental letterhead stationery;
• state the subject matter and provide a short description of the submission;
• specify any special instructions relating to the timing of approval of the department’s recommendation to the GIC (e.g., the date of signature of an agreement or treaty, an effective date in the OIC or schedule, an OIC to be approved on the same day as TB Part A meeting, or the date of a ministerial announcement, communication, registration, publication in the Canada Gazette, as appropriate;
• specify the coming-into-force date, when required, in an OIC or schedule.
• state whether the recommendation has direct or indirect financial implications and cite the authority (e.g., Financial Administration Act or other);
• state if a letter of concurrence is required and from who;
• indicate the name, title and telephone number of the most knowledgeable official in the department who can be contacted for additional information about the submission (i.e., the designated official should be available during the whole process); and
• indicate the name, title and telephone number of the person who can assist with questions of an administrative nature.

While developing a submission, departments should work closely with the PCO/PMO Communications and Consultation Secretariat regarding announcements and press releases of approved OICs. The Secretariat can be contacted at 613-957-5420.

Sample

3.3.2 Ministerial recommendation to the Governor in Council

The recommendation to the GIC must:

• be marked according to the sensitivity of its content, but no lower than Protected B and must include the caveat “Confidence of the King’s Privy Council”
• be in both official languages and prepared on departmental or ministerial letterhead. The recommendation may appear on one page in a bilingual side-by-side format or each English and French versions can appear on separate pages.
• clearly describe the action requested by the responsible minister(s), following as closely as possible the wording of the relevant legislation and the OIC;
• be signed and dated by the minister(s). If the minister is unable to sign, the recommendation can be signed by another minister who has been authorized by the Acting Ministers’ Minute to sign on that minister’s behalf. (Note: During a general election, the recommendation must be signed by the minister); and

When the recommendation requires the signature of multiple ministers, it can either be signed by all ministers on the same document or a separate recommendation signed by each minister.

Officials preparing a recommendation must consult with their DLSU counsel to ensure that the recommendation meets the requirements of the enabling legislation.

Sample

3.3.3 Draft Order in Council

The document is to be marked according to the sensitivity of its content, but not lower than PROTECTED B and must include the caveat “Confidence of the King’s Privy Council”.

The wording of the draft OIC clearly describes the action the GIC is taking on the minister’(s’) recommendation, and follows as closely as possible the wording of the relevant legislation.

All draft OICs should be drafted by DLSU counsel ensuring that they meet the requirements of the enabling legislation.

The document is to be drafted in both official languages, as two separate documents, on plain letter size paper (8½" x 11").

3.3.4 Schedule

As an appendix to the OIC, the schedule typically contains detailed information not included in the Order itself. A schedule to an OIC could, for example, be used to: indicate personal information as it pertains to Orders granting or revoking citizenship (i.e., name of individual, date and place of birth); provide detailed information as it pertains to the setting apart of reserve lands, terms and conditions of land transfers; specify the terms and conditions of certain loans; or specify the terms and details of an agreement, provide individuals’ names, effective dates for promotions, salary information, etc.

The document is to be marked according to the sensitivity of its content, but not lower than Protected B and must include the caveat “Confidence of the King’s Privy Council”.

The document is to be drafted in both official languages on letter size paper (8½" x 11") and the word “Schedule” is to be clearly indicated at the top centre of the document.

Note that there are specific circumstances where the schedule is not required to be submitted in electronic format (i.e., for some land transfers). Contact the appropriate TBS-RAS analyst for further information.

3.3.5 Explanatory Note

The explanatory note must provide sufficient and substantive information, in plain language, to Treasury Board members, stakeholders and Canadians, in relation to the OIC. Thus, the explanatory note should include detailed information on the issue at play, objectives pursued, relevant background information, as well as related implications or impacts. As to submissions in Category A (see 3.1), the explanatory note must be provided to the TBS-RAS analyst for review and comment.

The document is to be marked according to the sensitivity of its content, but not lower than PROTECTED B and must include the caveat “Confidence of the King’s Privy Council”.

Once the OIC has been approved by the GIC, the explanatory note is no longer protected as a Cabinet confidence and, if the OIC is an SI, it will be published in the Canada Gazette. 

The explanatory note is to be submitted on standard letter size paper (8½" x 11"), in both official languages, as two separate documents.

Sample

3.3.6 Supplementary note

A supplementary note is used to inform Treasury Board members of matters (e.g., federal/provincial issues) which would be unsuitable to include in the explanatory note. Supplementary notes may be initiated by the sponsoring department or agency, or requested by the TBS-RAS analyst. It is a Cabinet confidence, is not released to the public, and its transmission should be handled in accordance with its level of security. The TBS-RAS analyst should receive a copy for review and comment.  The supplementary note should not repeat information provided in the explanatory note.

The document is to be marked according to the sensitivity of its content, but not lower than Protected B and must include the caveat “Confidence of the King’s Privy Council”. It should also include the wording ‘not for publication’ immediately below the caveat.

The supplementary note is to be submitted on standard letter size paper (8½" x 11"), in both official languages, as two separate documents.

Sample

3.4 Formatting and required copies of documents

When preparing submissions, the following guidelines must be respected in order to ensure the most effective handling of the submission:

• Any document that forms part of the submission must include the caveat “Confidence of the King’s Privy Council” on all pages
• No stapled documents
• No double-sided/back-to-back pages
• No colour photocopies of any documents (except geographical maps)
• All document pages must be numbered – Note: English and French (E&F) versions of documents should be numbered independent of each other.
• Prepare copies as follows and identify each package A, B and C or A and C:

3.5 Delivery and deadlines

TB Part B meetings are usually held on a weekly basis when the House of Commons is in session (see House of Commons calendar). The norm is to distribute material to all Treasury Board members the week prior to the meeting. The deadline for receiving signed submissions at PCO-OIC is set at a minimum of 17 business days prior to a TB meeting. Please contact the appropriate TBS-RAS analyst for current deadlines.

Submissions are delivered by hand, between 8:00 a.m. and 5:00 p.m. and addressed to:

• Ms. Wendy Nixon
  Assistant Clerk of the Privy Council
  Orders in Council Division
  Privy Council Office
  Room 811, Thomas D’Arcy McGee Building
  90 Sparks Street
  c/o 11 Metcalfe Street
  Ottawa, ON K1A 0A3

Exceptionally, submissions from outside the National Capital Region may be sent by Canada Post or by a national courier service as follows:

• Ms. Wendy Nixon
  Assistant Clerk of the Privy Council
  Orders in Council Division
  Privy Council Office
  Room 811, Thomas D’Arcy McGee Building
  90 Sparks Street
  Ottawa, ON K1A 0A3

4. TB (Part A) acting as Committee of the Privy Council (CPC) and dual/concurrent approval submissions

4.1 TB acting as CPC

In 2001, the Prime Minister assigned TB Part A the authority to advise the Governor General for the purpose of approving OICs for certain matters (discussed below) falling within its management board responsibilities (referred to as TB Acting as CPC). This authority applies when a minister is seeking TB Part A approval of funding or program authorities, as well as a related GIC approval of an Order for the following management matters:

• Orders dealing with federal-provincial agreements, federal-territorial agreements, or federal-First Nations agreements;
• Orders dealing with assets or real property management;
• Corporate plans and other corporate transactions; and
• Pension plan benefits for federal employees.

Consult your TBS Program Analysts and TBS-RAS Analyst to confirm if a proposal qualifies as one of the above. Once confirmed, you should work with your program analyst in the preparation of the TB submission, including the necessary OIC documentation. In the case of TB Acting as CPC, no ministerial recommendation is required (it will be captured in a TB submission proposal section).

TB Acting as CPC submissions should be sent to the Submission Control Centre at TBS (TBS officials will ensure the appropriate materials are forwarded to PCO-OIC). Please refer to A Guide to Preparing Treasury Board Submissions for documentation requirements and delivery address.

4.2 Dual/concurrent approval submissions

There are two instances where TB Part A approval may be needed to support an OIC but the matter does not qualify as TB Acting as CPC:

• Dual Approval: when the legislation enabling an OIC requires the recommendation of TB Part A to the GIC for a matter that does not fall within one of the TB Acting as CPC categories above (e.g. remission orders); and
• Concurrent Approval: when TB Part A authority approvals (e.g. of funding, or of terms and conditions) are required in support of a related OIC (e.g. Main or Supplementary Estimates).

A TB submission (for presentation at TB Part A) and a GIC submission (for presentation at TB Part B) must be prepared in both cases. For the TB submission, please refer to A Guide to Preparing Treasury Board Submissions for documentation requirements and delivery address.

As such, departments and agencies work with the appropriate Program Sector Analyst (for the TB submission) and with the departmental TBS-RAS Analyst (for the GIC submission). Please note that for a dual approval, the TB submission must explicitly seek a TB recommendation to the GIC and the OIC must reference the TB recommendation. For concurrent approvals, there should be no request for a TB recommendation to the GIC and the OIC must not reference a recommendation of the TB.

Ideally, both submissions are presented at each Part (A & B) of the same TB meeting. If this is not possible, the Part A submission must be presented ahead of the Part B submission (except in the case of Canada Development Investment Corporation, premium rate approvals, where the reverse is necessary).

The TB submission must be sent to the Treasury Board Submission Control Centre and the GIC package must be sent directly to PCO-OIC.

5. Urgent submissions

When the deadline for receipt of a GIC submission cannot be met and urgent consideration of a proposal can be justified, the first step is to contact the TBS-RAS analyst responsible for submissions in Category A (see 3.1), or the Coordinator, PCO-OIC for submissions in Category B. The responsible minister’s office must contact the President of Treasury Board’s office, explaining why the submission deadline cannot be respected, the urgency of the proposal, and the impact should the proposal not be considered on an urgent basis.  Additionally, the proposal must be accompanied by a letter of urgent consideration, addressed to the President of the Treasury Board and signed by the minister, highlighting the aforementioned rationale and justification, but delivered to PCO-OIC as part of the GIC submission package. As per the established practice, urgent submissions will be scheduled for consideration only at the discretion of the President of the Treasury Board.

In the letter of urgent consideration, it is not appropriate to request a specific date for consideration by the GIC, as this could reduce flexibility in planning for its inclusion on the agenda (e.g. if there is no TB meeting on the date specified or the meeting date has changed). However, it is appropriate to indicate time sensitive elements that need to be taken into consideration by the President and TB members (e.g. coming into force date of the Act).

If an Order must come into force on the same day as the TB meeting, this important detail must be brought to the attention of the Assistant Clerk of the Privy Council in the letter of transmittal. Necessary arrangements will be made with Government House officials for approval by the Governor General on that day, if possible.

Public announcement of the Government’s decision must not be made until after the Governor General has signed the OIC.

6. Useful contacts and resources

Drafting documents

For assistance in preparing and drafting OICs and Schedules, and Ministerial Recommendations, contact the departmental legal services unit (DLSU) or Senior Counsel, Department of Justice, Headquarters Regulations Section, Legislative Services Branch at 613-941-1235 (or satellite offices, if applicable).

Obtaining approved Orders in Council

Instructions on how to obtain approved Orders in Council can be found on the Privy Council Office website at the Orders in Council Database.

Preparing submissions

For assistance in preparing submissions and to obtain examples of required documentation, contact the TBS-RAS analyst responsible for your department or call 613-793-2165 or e-mail questions@tbs-sct.gc.ca for assistance.

For routine items which are not sent to TBS-RAS, contact PCO, Orders in Council Division, for assistance 613-957-5435 or 613-957-5433. Examples of routine items are listed in section 3.1 (Category B).

Security of Cabinet Confidences

The Policy on the Security of Cabinet Confidences is available on PCO’s Publiservice website. Additional information on the security of Cabinet confidences may be obtained by contacting the Security Operations Division, PCO, at 613-943-9460.

Press releases and announcements

To arrange for announcements and press releases of approved OICs, contact the Communications and Consultation Secretariat at the Privy Council Office (613) 957-5420.

Publication in the Canada Gazette

For further details on the publication process, please contact the Canada Gazette at info.gazette@pwgsc-tpsgc.gc.ca or visit their website at http://www.canadagazette.gc.ca.

7. Glossary

The following definitions are not to be considered official as they are provided solely for the purpose of facilitating users' understanding of the Guide.

• Act - A law made by Parliament or a provincial legislature. The process of making an Act of Parliament begins with the introduction of a proposed act, or bill, in one of the two houses of Parliament (the Senate or the House of Commons). A bill becomes an act if it is passed (approved) by both Houses and receives royal assent.
• Bill - A proposed law submitted to Parliament for its approval. It may originate either with the Government, with a private Member or from a committee, and may relate either to public or private interests. Bills may be first introduced in either the Senate or the House of Commons, but money bills must be introduced in the House of Commons by a Minister.
• Blue-stamp - The name given to the stamp placed on draft regulations by the Regulations Section of the Department of Justice. The stamp signifies that the draft regulations have been examined by Justice as required by the Statutory Instrument Act.
• Cabinet - The executive arm of government. Cabinet Ministers are chosen by the Prime Minister.
• Governor (General) in Council (GIC) - The Governor General of Canada acting by and with the advice and consent of the King's Privy Council for Canada (i.e., Cabinet).
• Legislation - Written laws (Acts) made by Parliament or a provincial legislature or by a person or body that has law-making authority, usually delegated by Parliament or a legislature and exercised by making regulations or other delegated legislation.
• Order in Council (OIC) - A legal instrument made by the Governor in Council pursuant to a statutory authority or, less frequently, the royal prerogative. All orders in council are made on the recommendation of the responsible Minister of the Crown and take legal effect only when signed by the Governor General.
• Regulation - A law made by a person or body that has been granted (delegated) law-making authority. Used both to indicate a specific type of delegated legislation as well as to refer generically to all forms of delegated legislation. For the purposes of the Regulatory Policy, we rely on the Department of Justice's determination that an item will receive a Statutory Orders and Regulations (SOR) number to indicate that it is a regulation. More broadly, a regulation may refer to any government intervention in the lives of citizens.
• Regulatory Impact Analysis Statement (RIAS) - A statement to the public, and to Cabinet, that justifies regulatory action by demonstrating that the requirements of the Regulatory Policy have been met.
• Royal Assent– The approval, by a representative of the Crown, of a bill passed by the House and the Senate, making it an Act of Parliament, Royal assent is accorded in the Senate Chamber, usually by a deputy of the Governor General in the presence of members of the House and Senate.
• Royal Prerogative – The rights, powers and privileges exercised by the Crown (G.G.)
• Treasury Board (TB) – Cabinet Committee that manages the government's financial, personnel and administrative responsibilities, as well as approving regulations and most orders in council requiring Governor in Council approval.