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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)
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Administrative - Policy Directives

. 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]



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Last modified: 24-02-24
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