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Statutes and Regulations - Regulations versus Guidelines. Biogenie Canada Inc. c. Canada (Food Inspection Agency) [important]
In Biogenie Canada Inc. c. Canada (Food Inspection Agency) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, here from an order "dismissing the appellant’s application for judicial review of the seizure and detention of two soil products (Englobe Environment Inc. v. Canada (Canadian Food Inspection Agency)".
Here the court considers whether a Memorandum is a 'disguised regulation', and (importantly) the status of a "directive, memorandum, interpretation guide or other similar text" (SS: such as a policy guideline):E. Did the Federal Court err in finding that the Memorandum is not a disguised regulation?
[88] The appellant submits that the trial judge erred in finding that the Memorandum is merely a guide the only purpose of which is to guide the exercise of the discretionary power conferred on the CFIA. It maintains that, on the contrary, the Memorandum seeks to impose a standard of conduct and thus constitutes a regulation that is not authorized under the Act. In support, it cites section 1 of the Memorandum, which states that it is a "“single source”" for all standards used by the respondent to evaluate the safety of fertilizers and supplements. It also relies on several pieces of evidence, including the letters of non-compliance and the affidavits and examinations of the respondent’s employees, to show that the respondent applies the Memorandum rigidly and has assigned it the value of a regulation allowing for no exceptions.
[89] The appellant also contends that the decisions on which the trial judge relies are not relevant, because the issues in those cases concerned whether the public authority had fettered the exercise of its discretionary power by applying a directive, whereas in this case the issue is whether a directive can impose a standard of conduct in the absence of statutory authorization. In the appellant’s view, more relevant decisions can be found in Dlugosz c. Québec (Procureur général), 1987 CanLII 1115 (QC CA), [1987] R.J.Q. 2312 and Canada (Minister of Citizenship and Immigration) v. Ishaq, 2015 FCA 194, in which the Court of Appeal of Quebec and the Federal Court of Appeal ruled that a directive should be deemed a regulation because it imposed standards of conduct.
[90] In my view, these arguments cannot succeed. There is no longer any doubt that an administrative decision maker may, through a directive, memorandum, interpretation guide or other similar text, indicate to citizens how it intends to exercise the discretionary power conferred on it by law, and at the same time guide the actions of its officers in exercising their duties. Such a practice is in fact often desirable, particularly in a technical field where it is difficult to define in a statute or even a regulation all the ways the power will be exercised. As long as these various instruments do not fetter the discretion of administrative decision makers and do not prevent them from considering the specific circumstances of the case, these tools will not be considered disguised attempts to impose a standard of conduct in the absence of authorizing legislation: see Maple Lodge Farms v. Government of Canada, 1982 CanLII 24 (SCC), [1982] 2 S.C.R. 2 at 6–7; Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 at para. 32; Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31 at para. 93; Stemijon Investments Ltd. v. Canada (Attorney General), 2011 FCA 299; Carpenter Fishing Corp. v. Canada, 1997 CanLII 26668 (FCA), [1998] 2 F.C. 548 at para. 28; Thermophore v. Canada (Minister of Citizenship and Immigration) (F.C.A.), 2007 FCA 198 at paras. 55–64. Ultimately, we must not lose sight of the fact that it will be up to the courts to determine whether the measures taken by the CFIA are reasonable, in light of the Regulations and the other legal and factual constraints upon it: see, by analogy, CCFR at paras. 70–71.
[91] The trial judge properly directed himself in law and did not err in applying the principles outlined above in this dispute. He noted that the purpose of the Memorandum itself was not to impose a standard of conduct on citizens, but merely to provide a guideline for application. He also considered the evidence and found that the CFIA inspector did not apply the standards in the Memorandum blindly; in fact, it appears that, before filing its application for judicial review, the appellant never questioned the maximum concentrations appearing in the Memorandum or argued that special circumstances justified diverging from them. Merely asserting that the CFIA inspectors claim to have followed the guidelines in the Memorandum or that its first provision states that it is a single source for the standards used by the CFIA is not sufficient to establish that the CFIA abdicated the discretion it is afforded in the Regulations or that it applied those standards blindly in exercising its duties. On the contrary, the evidence submitted by the appellant establishes that the Memorandum had the expected effect of increasing the level of consistency and foreseeability for citizens in the implementation of the Regulations.
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