Duhaime's Law Dictionary

Regulation Definition:

A law on some point of detail, supported by an enabling statute, and issued not by a legislative body but by an executive branch of government.

Related Terms: Ordinance, By-Law, Rules of Court, Statutes, Law, Act, Enactment, Policy

A regulation is essentially a law but which draws its life not from the decision of a legislative assembly directly but indirectly. A regulation is often passed by the executive branch of government. For example, the federal cabinet meeting in session endorses a regulation. But a regulation has a unique feature: it must draw its authority from a statute. Every regulation must have some statute which enables it.

In California Advocates, Justice Kline of the California Court of Appeal, building off a statutory definition,  used these words to define regulation:

"... every rule, regulation, order, or standard of general application or the amendment, supplement, or revision of any rule, regulation, order, or standard adopted by any state agency to implement, interpret, or make specific the law enforced or administered by it, or to govern its procedure....

"A regulation ... has two principal identifying characteristics. First, the agency must intend its rule to apply generally, rather than in a specific case. The rule need not, however, apply universally; a rule applies generally so long as it declares how a certain class of cases will be decided. Second, the rule must implement, interpret, or make specific the law enforced or administered by the agency, or govern the agency's procedure."

As Justices Anglin and Fitzpatrick wrote in Re Gray:

"[R]egulations is a term usually employed to describe provisions of an ancillary or subordinate nature which the executive, or a Minister, or some subordinate body is empowered to make to facilitate the carrying out of a statute....

"The practice of authorizing administrative bodies to make regulations to carry out the object of an act, instead of setting out all the details in the Act itself, is well known and its legality is unquestioned. But it is said that the power to make such regulations could not constitutionally be granted to such an extent as to enable the express provisions of a statute to be amended or repealed; that under the constitution Parliament alone is to make laws, the Governor-in-Council to execute them, and the courts to interpret them; that it follows that no one of these fundamental branches of government can constitutionally either delegate or accept the functions of any other branch."

The usual course is for a government to issue broad or essential points of law in the enabling statute but delegate the elaboration of points of details to regulation.

Often, such a statute will use words such as, to use the example of Canada:

"The lieutenant governor in council may make regulations pursuant to this act in the following areas...."

In Drew v BC, Justice Hunter adopts these words:

"A regulation is in fact an enactment controlled by another enactment of a different and higher order, a statute.  Whereas a statute is passed by the sovereign legislative body, a regulation, made by an administrative agency, is always subordinate to Parliament and to the statute. It is specifically this subordinate nature which justifies the imposition of specific limits or conditions upon the exercise of regulation-making power."

In Manitoba Language Rights, Canada's Supreme Court quoted these words:

"A regulation is a rule of conduct, enacted by a regulation-making authority pursuant to an Act of Parliament, which has the force of law for an undetermined number of persons."

These distinctions sometimes appear trivial and even in practice, are not rigouroulsly followed. To the average citizen, the body of law contained in regulation outwieghs, by far, the impact of the body of law contained in statutes. There can be no question that the executive branch, contrary to the wishful opinion of Justice Fitzpatrick in Re Grey, makes law.


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