Mitch Heimpel: Our processes are a problem

There's a reason Carney and Ford are both advocating bills that bypass regulations — they know the regulations are broken, and fixing that is very, very hard.

Matt’s birth certificate request at an Ontario government office.

By: Mitch Heimpel

One of the better analyses of Canadian government I've come across in recent months was this piece from John Michael McGrath at TVO.

In it, McGrath makes the astute observation that — confronted with different iterations of exactly the same problem — Doug Ford and Mark Carney have arrived at remarkably similar conclusions regarding the new economic development legislation proposed by both levels of government.

McGrath seems to diagnose the problem as two-fold. Canada currently has onerous systems of regulation and consultation that seem to make themselves the point, which has dramatically slowed down the approvals process for all kinds of projects, especially complicated resource projects. And, though everyone seems to recognize that this is indeed a problem, governments lack sufficient commitment to regulatory reform.

A provincial cabinet minister once told me a funny story that speaks to this reality. They were at an event with their federal counterpart, somewhere in Europe, when the representative of the host country was talking about the length of time for the permitting process to bring a new energy project online. The provincial minister leaned forward and, gently, tapped a rear leg of his federal colleague's chair with his foot to get their attention. The federal minister leaned back and was asked, "How long would that take us back home?"

"Don't be smart," was the reply from the federal minister to their provincial colleague.

Everyone knows it’s a problem. No one is incentivized to fix it.

It’s not just big projects, mind you. This problem of bureaucratic and procedural bloat, which adds complexity year after year and never seems to be rationalized or streamlined, can be found across the board in government services. Your Line editors have joked on podcasts and in columns — semi-seriously — that the bureaucracy grows to meet the needs of the expanding bureaucracy, and that shows up everywhere. Editor Gurney highlighted this with an almost British dry humour in his recent quest to retrieve basic personal documents from the Ontario government. Retrieving basic personal information in the form of documents that the government requires you to obtain should not be an onerous process.

The process for obtaining these documents is not new. Digitization is now decades old. Retrieving these documents should be simple. That it isn't, isn't a function either of political willingness or of an onerous regulatory culture. It's a sign of a core function problem: the government doesn’t prioritize speedy service delivery unless it’s forced, and if left alone, the nature of government and bureaucracy will naturally result in slower processes. That must be actively resisted by political leadership.

It’s easy to recognize the problem, which is why almost everyone does. Solving it is harder. Imposing timelines is one way of changing bureaucratic culture that governments can rely on. As the Ontario government pointed out in materials supporting Bill 5, the government of India requires a three-month turnaround on a mining application. It puts the onus on the civil service to run a tidy process — especially if the failure to meet the timelines prescribed by legislation, or regulation, would automatically deem compliance on the part of the applicant.

This is actually already a principle that we have put to work in the criminal justice system, where the lack of a speedy trial is grounds for dismissing serious charges against violent offenders. To be glib about it, our processes are required to be more mindful of your time and freedom if you're a repeat sex offender than they are if you want to open a mine or build a petroleum refinery.

Another suggestion that is frequently made is that the regulatory process should be reformed so that all comments submitted by the civil service in their initial response to an application are deemed final. In other words, no new grounds of objection can be raised later in the process.

That’s a fine idea on the merits. But a dirty secret of Canadian bureaucracy is that it's not actually the application that drags the process out, it's the endless back and forth with various government officials. Applicants are forced to deal with an Associate Assistant Deputy Minister, after they’ve dealt with a Managing Program Director, after an Area Manager, all on the same question.

Indeed, because of this, applicants are encouraged in many cases to provide the government with more information than is actually called for in the scope of the application, in the hope that providing it upfront will cut out a three-month delay caused by it being asked for later. In other words, our applicants are now actively planning for a bureaucracy that they believe is trying to slow things down.

This adds labour and complexity, for both applicant and reviewer, at the very outset of the process. This is the only recourse applicants have, really, since there is no incentive built into our system to say yes to projects — all the incentives are to refuse permissions and slow things down. Applicants are either frontloading everything imaginable into their applications, or simply not proceeding … or proceeding outside of Canada.

Instituting a project-by-project exemption from the existing rules, which is effectively what Ontario and the federal government are both proposing, is a response to this lack of accountability. It's a signal to the civil service that certain projects enjoy priority status and that delays will have to be explained, should they occur at all. It will also be a crucial road-testing of whether certain processes have made themselves redundant. If they aren't needed for this specific clutch of a half dozen or so projects, are they really needed at all? Are they adding anything to the process other than time?

None of this solves for the very specific problems that both the Ontario and federal governments are going to encounter, through constitutional challenges, over the need to consult with Indigenous communities. But that's not my main focus here. This is: Ford and Carney are both doing this because the process is currently broken, everyone knows it, and no one has yet fixed it.

What Ford and Carney are proposing presents new problems, no doubt. But opponents of Bill 5, and its soon-to-be-introduced federal counterpart, are finding themselves defending a system with many obvious flaws, while presenting no viable alternative.

And we really need an alternative. Like, as a matter of urgent national priority. We all spent the better part of the spring, through two elections (in Ontario, one in the rest of the country), talking about how our current method of doing things has made us more economically dependent on the United States and less able to react to changing economic and geopolitical circumstances. Every political party agreed, at the time, that that was a bad thing.

If we truly believe that changing that is a pressing public policy concern, then we have to actually do something about it. And speed is of the essence.

I applaud and echo McGrath's desire for a better process for changing our regulations in a way that supports better overall governance. But changing the culture of how the machinery of government runs is every bit as important. The intent of Bill 5, and the comparable legislation from the federal government, seems targeted at doing that as much as anything else.

It's about time.

Mitch Heimpel has served Conservative cabinet ministers and party leaders at the provincial and federal levels, and is currently on parental leave from his role as director of campaigns and government relations at Enterprise Canada.

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