Simon's Megalomaniacal Legal Resources

Administrative - Policy Directives

. Canada (Public Safety and Emergency Preparedness) v. Canadian Association of Refugee Lawyers

In Canada (Public Safety and Emergency Preparedness) v. Canadian Association of Refugee Lawyers (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal of a JR, here where the successful JR applicant argued that immigration inadmissibility [under IRPA, s.34(1)(a) and (f) - 'Inadmissibility - Security'] required that the applicant was a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in espionage "contrary to Canada’s interests", and that such espionage have a Canadian nexus.

Here the court considers the limited statutory interpretive role of policy guidelines:

[75] As the Supreme Court has previously observed, guidelines such as those found in CIC’s Policy Manuals provide a useful indicator of what will constitute a reasonable interpretation of a given provision of IRPA: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 at para. 32. That said, CIC Policy Manuals are not legally binding on this Court: Canada (Citizenship and Immigration) v. Kassab, 2020 FCA 10 at para. 42.

. Harold The Mortgage Closer Inc. v. Chief Executive Officer of the Financial Services Regulatory Authority of Ontario

In Harold The Mortgage Closer Inc. v. Chief Executive Officer of the Financial Services Regulatory Authority of Ontario (Div Court, 2024) the Divisional Court considered a motion to quash a JR, here which challenged the issuance of a 'notice of proposal' by the 'Financial Services Regulatory Authority' (FSRA) tribunal to revoke and refuse to renew a mortgage broker license, to impose administrative penalties - and as well of the FSRA's publication of tribunal enforcement policy documents, and more. The applicants also filed for a full de novo hearing before the Financial Services Tribunal in relation to this matter.

Here the court addresses the Authority's "publication decisions" - including aspects of the public 'notice of proposal', which the court does not quash out of concern that the 'notice of proposal' contained some defamatory-like statements which had been shown to "to slag them in the marketplace":

[8] Under the applicable statutory scheme, the applicants will be entitled to a full hearing process before the tribunal in respect of the allegations contained in the regulator’s notice of proposal. A very high degree of procedural protection is available to the applicants in light of the serious nature of the relief sought against them. The hearing is a full trial de novo. It is not just an appeal from the notice of proposal. The hearing outcome will be based on the evidence to be admitted, after pre-hearing disclosure, cross-examination of witnesses, and submissions.

[9] The regulator rightly distinguishes two types of claims brought by the applicants. They each result in different outcomes.

....

[23] The other aspect of the case involves the regulator’s publication decisions. The regulator submits that it did not exercise a statutory power of decision when it adopted its publication guidelines. They are not binding on anyone and do not have the force of law. They just tell the marketplace when to expect enforcement steps to be publicized by the regulator.

[24] Similarly, the regulator submits that it has no statutory duty to publish the applicants’ request for a hearing although the applicants dispute the facts in the notice of proposal and ask the regulator to be fair and balanced.

[25] The applicants can also show that competitors have used the notice of proposal as published by the regulator to slag them in the marketplace. They submit that the regulator’s decisions to publish the notice of proposal and the decision to refuse to publish their request for hearing impair its reputation and impact its legal rights.

[26] As I am not quashing these requests for judicial review, I will say little about them. The SCC has recognized peoples’ legal interest in their reputation. While I am dubious that the applicant has standing to challenge the publication guidelines or that the publication of the guidelines was an exercise of a statutory power, to the extent that the guidelines become an excuse or justification for the regulator’s publication decisions, I would not put challenging them beyond the applicants’ reach.

[27] But the real focus of the applicant is on the regulator’s decision to publish the notice of proposal and the decision to refuse to publish the request for a hearing. It is not impossibly far-fetched that ss. 3 and 6 of the Financial Services Regulatory Authority of Ontario Act impose constraints (if not a duty) on the activity of the regulator especially where reputational harm of a registrant is at risk (or is intended rightly or wrongly). Moreover, since the notice of proposal is not a dead letter in the tribunal hearing, issues of procedural fairness may arise concerning the regulator’s conduct if it affects the fairness of the hearing.

[28] I cannot say that it is plain and obvious that the applicants have no rights vis-à-vis the regulator’s decisions about what to publish or not publish concerning the applicants. I expressly leave open to the panel of the Divisional Court the possibility that it may find this issue too best dealt with first before the Financial Services Tribunal. But while the validity of the notice of proposal and its contents is squarely before the tribunal, I am less sure that this issue will necessarily be before the tribunal.

[29] I am in no way endorsing the strength of the claims to challenge either the guidelines themselves or the publication decisions surrounding the notice of proposal, I do not accept the regulator’s submissions that it is plain and obvious that they are either unreviewable private decisions or decisions that do not impair the legal rights or interests of the applicants.

[30] Mr. Solmon asks me to defer to the panel the question of whether the applicants need or ought to be granted more time to bring their applications under s. 5 (2) of the JRPA. Having quashed the claims against the notice of proposal, perhaps this is no longer an issue. Regardless, in my view, the panel that hears matters on their merits is generally better armed to assess the equities involved in the balancing of interests under s 5 (2). I therefore defer that issue to the panel.

. Casella v. Ontario (College of Chiropodists)

In Casella v. Ontario (College of Chiropodists) (Div Court, 2024) the Divisional Court considers an HPPC s.70(1-2) appeal from a misconduct finding of the "Discipline Committee (the “Committee”) of the College of Chiropodists of Ontario". Here, the court considers a form of 'policy directive', which are taking on a greater (and poorly governed) role in administrative tribunal proceedings - and it's role in this disciplinary context:

The College’s Discontinuation of Services Advisory

8. The College’s Discontinuation of Services Advisory, which was posted on the College’s website, provided members with guidance on the steps required to close their practices, including in circumstances related to licence revocations and suspensions. This included notification to patients regarding the closure of the practice and the transfer of records and patients to another member of the profession. The Advisory also reminds persons who are suspended that they are not permitted to say that they are a member of the College and/or use the title “chiropodists” or “podiarists” and that this is an offence under the Chiropody Act, 1991, S.O 1991, c. 20. The Appellant’s evidence is that he did not consult the Advisory on being suspended.

9. Shortly after the Appellant’s first suspension terminated, the College adopted Suspension Guidelines which state, among other things, that a suspended member must not benefit or profit from the practice of chiropody. The Deputy Registrar, Meghan Clarke, testified at the hearing that Suspension Guidelines were adopted because there was a need to clarify for members who were suspended “what practicing meant and what they could do and could not do in their hiring a locum”. Ms. Clarke’s undisputed evidence was that the Guidelines merely set out the College’s expectations for conduct during a suspension; it did not alter members’ existing obligations or the College’s interpretation of those obligations prior to its adoption, which that College says were the same as set out in the Guidelines.

10. The Appellant relies upon the fact that the Suspension Guidelines did not exist during his suspension and were only adopted three days after his first suspension terminated. His submission is that during his suspension, there was no prohibition on benefitting from the practice of chiropody and a suspension did not necessarily imply such a prohibition.

....

32. The Committee acknowledged that the College did not have written suspension guidelines in place at the time of the Appellant’s suspension and that it therefore did not measure the Appellant’s conduct against the Guideline for Suspension approved after the completion of the Appellant’s suspension. The Committee also accepted that there was no specific guidance offered by the College at the time to clarify for the Appellant how and to what extent he could continue to use his corporation to maintain his clinic. However, it found that if he had any questions, he had resources available to him, including the College and his counsel. The College’s uncontradicted evidence, as noted above, was that the Guidelines merely formalized for members the options available to them: while suspended, the member either closes their practice or transfers the practice to a locum but is not permitted to profit or benefit from that engagement.

. Chaban v. Royal College of Dental Surgeons of Ontario

In Chaban v. Royal College of Dental Surgeons of Ontario (Div Court, 2023) the Divisional Court considered the role of 'prevention advisories', here a form of policy assistance by the Royal College of Dental Surgeons of Ontario (here addressing the use of social media):

The Committee Did not Err in Finding that Dr. Chaban Breached the Prevention Advisory

[33] The thrust of Dr. Chaban’s argument regarding the Prevention Advisory is two-fold. First, he states that it is aimed at sexual abuse. But there is no allegation, let alone evidence, that he committed any form of sexual abuse. Second, he states that the Prevention Advisory is intended to deal with a dentist’s behaviour towards their actual patients. But the Videos make no reference to any actual patients.

[34] Dr. Chaban’s claim of innocence regarding any sexual abuse is fair and uncontested. However, that is not determinative of the scope of the Prevention Advisory.

[35] The breadth of the Prevention Advisory is not limited to sexual abuse; it is far broader than that. It includes written communication and the maintenance of a professional working environment. It requires dentists to “maintain professionalism in their written communication, including content on websites and social media”.

[36] The Prevention Advisory specifically refers to the applicability of the Social Media Advisory. It states that “[i]napproriate use of social media or websites can harm your practice and your reputation”. In referring to the obligation to maintain a professional working environment, it requires dentists to ensure that their workplace “does not include sexually suggestive jokes, posters, pictures, and/or documents that could be offensive to patients or staff”.

[37] This obligation extends to the virtual realm as well. The Social Media Advisory states that “dentists are bound by ethical and professional obligations that extend beyond their clinics or offices. When you are online, you must follow the same rules of professional conduct that guide you at work” [emphasis added]. The Social Media Advisory adds that dentists must ensure that “content [they] upload to the internet does not hurt public confidence in the dental profession or compromise [their] professionalism.”

. Athletes 4 Athletes Foundation v. Canada (National Revenue)

In Athletes 4 Athletes Foundation v. Canada (National Revenue) (Fed CA, 2021) the Federal Court of Appeal considered the role of published 'guidelines' in legal interpretation:

[26] The Crown, in paragraph 78 of its memorandum, submits that "“the examples of exclusive purposes referred to in the guidance documents are entirely consistent with the definition of CAAA in the French version of para. 149.1(1)(d) of the Act […]”". There are two points that arise from this statement. The first point is that the French version does not convey a different meaning than the English version. The second point is that the issue is not whether "“the examples of exclusive purposes referred to in the guidance documents are entirely consistent with the definition of a CAAA”" but rather whether the Minister relied exclusively on this list of examples and, therefore, treated it as binding list of acceptable purposes.

[27] In Stemijon Investments Ltd. v. Canada (Attorney General), 2011 FCA 299, this Court noted:

[59] Policy statements play a useful and important role in administration: Thamotharem v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198, [2008] 1 F.C.R. 385. For example, by encouraging the application of consistent principle in decisions, policy statements allow those subject to administrative decision-making to understand how discretions are likely to be exercised. With that understanding, they can better plan their affairs.

[60] However, as explained in paragraphs 20-25 above, decision-makers who have a broad discretion under a law cannot fetter the exercise of their discretion by relying exclusively on an administrative policy: Thamotharem, supra at paragraph 59; Maple Lodge Farms, supra at page 6; Dunsmuir, supra (as explained in paragraph 24 above). An administrative policy is not law. It cannot cut down the discretion that the law gives to a decision-maker. It cannot amend the legislator's law. A policy can aid or guide the exercise of discretion under a law, but it cannot dictate in a binding way how that discretion is to be exercised.

....

[34] Since the comments in Stemijon Investments Ltd. that administrative guidance cannot change the law are applicable when the Minister has discretion, they are also applicable when the Minister does not have the broad discretion under the Act to refuse the registration of a CAAA as a RCAAA, other than when the conditions in subsection 149.1(25) of the Act are satisfied. The role of the Minister in determining whether a particular organization qualifies as a CAAA and should be registered as a RCAAA, is to determine whether, based on the application of that organization, it satisfies Parliament’s statutory requirements. The guidance as previously drafted by the CRA cannot bind the Minister nor can it alter the provisions of the statutory definition of a CAAA.

. Masters v. Claremont Development Corporation

In Masters v. Claremont Development Corporation (Div Ct, 2021) the Divisional Court makes these comments on the role of policy directives (here in a planning context, regarding the Clergy principle). The case was an appeal involving an over 30 year-old rezoning/subdivision application, the result of which the application was allowed to continued:

[6] This appeal requires an appreciation of the difference between a legal principle that must be applied in a prescribed manner, and a policy directive, the application of which is more flexible and amenable to different treatment by those responsible for its promulgation and implementation, depending on the circumstances being addressed.

[7] In its Review Decision the Local Planning Appeal Tribunal made the following determination:

The Tribunal finds that the Clergy principle applies in this case and that the applicable policy regime is the one described in paragraphs 57 to 66 of the joint affidavit of Messrs. Given and Cory.[7]

[8] The Clergy principle originates in a case bearing the same name.[8] The lands in question were located close to the Lester B. Pearson International Airport (Toronto’s main airport). Airplane noise was a concern. The applications for approval of lands for residential development had been made in July 1989. They were revised during 1994 to reflect ongoing work directed to an amendment to the applicable official plan and, again, in 1996, at the request of the City of Mississauga, with respect to a church site. The official plan amendment (OPA 238) was approved by the Ontario Municipal Board on September 13, 1995 “at the end of a very open and public process, culminating in its testing by parties at a hearing before the [Ontario Municipal] Board.”[9] Despite its approval after the making of the initial applications, the proponent (Clergy Properties) agreed to conform to the policies of OPA 238.[10] Thereafter, on May 1, 1996 a new guideline, “Land Use in the Vicinity of Airports, 7th Edition” was published. Particularly in relation to residential development, it was more restrictive than its predecessor, produced in 1989. The issue in the Clergy case was which of the two guidelines should govern, the one from 1989 which was in place when the original applications were made and remained in place after the approval of OPA 238 or the new guideline brought forward in 1996. The Ontario Municipal Board found that the prevailing policy should be the one in place when the applications were made:

The Board, in determining the policy framework under which an application should be examined, has consistently stated that an application must be tested against the policy documents in place at the date of the application. … In the Board's view, to now depart from this consistent adjudication of matters, would undermine the planning process and bring the integrity of the planning and adjudication process into disrepute.[11]