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Administrative - Policy Directives. Trozzi v College of Physicians and Surgeons of Ontario
In Trozzi v College of Physicians and Surgeons of Ontario (Div Court, 2024) the Divisional Court dismissed a JR, here against a decision and penalties [ie. it "revoked his licence to practise medicine in Ontario"] imposed by the Ontario Physicians and Surgeons Discipline Tribunal that found the applicant doctor had engaged "in conduct that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional" and "incompetent" ["as defined by subsection 52(1) of the [Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act"] over a COVID dispute.
Here the court considered the enforceability of CPSO misconduct policies, holding that they are not law bur 'evidence':(c) Did the Tribunal Err by Treating Guidelines and Policies as having Statutory Force?
[72] Dr Trozzi objects to being found to have committed misconduct based on breach of non-statutory policies. He submits that the categories of failing to maintain the “standard of practice” and committing conduct “that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional” are vague and cannot be filled by non-binding guidelines and policies.
[73] The lack of specific regulatory definitions of professional misconduct was also the basis of Dr. Trozzi’s challenge of the “reasonable and probable grounds” for the College’s initial investigations. He argued that he was not required to produce files as ordered because there were insufficient particulars of the alleged misconduct to support an investigation and a production order.
[74] This issue has previously been resolved by this court. In The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2018 ONSC 579, aff’d 2019 ONCA 393 (CanLII), this court held,[28] The Policies have been adopted by the CPSO as policies of general application. The Policies establish broad expectations of physician behaviour and are intended to have normative force. They articulate what the CPSO believes the tenets of medical professionalism require independently of CPSO policy. There is no issue that the Charter applies to the Policies.
[29] However, the Policies have not been adopted pursuant to the authority granted to the CPSO under the RHPA to enact regulations. Nor are the Policies a "code, standard or guideline relating to standards of practice of the profession" adopted pursuant to section 95(1.1) of the Code of which compliance is required pursuant to such provision. Accordingly, non-compliance with the Policies is not a specific act of professional misconduct under the professional misconduct regulation of the CPSO, being Professional Misconduct, O. Reg. 856/93. The Policies also do not provide for a penalty for non-compliance with their terms and no mandatory consequences flow from their breach.
[30] This raises the applicability of the Policies in respect of any allegation of professional misconduct involving a breach of a provision of the Policies by a physician. Whether a physician's actions amount to such misconduct would require a determination by the Discipline Committee of the CPSO, having regard to the standards of practice and professionalism. The Policies may be used as evidence of such professional standards, and of the conduct expected of a physician in particular circumstances, in support of an allegation of professional misconduct. However, a physician remains entitled to seek to lead contrary evidence and to argue that failure to adhere to the Policies' guidance did not, on the particular facts, constitute professional misconduct. [75] The tribunal was alive to the role of policies before it. In discussing the concept of “disgraceful” conduct, the tribunal received several policies and other guidance documents that were in evidence before it and reasoned,[64] The above documents do not bind the Tribunal in our determination of what constitutes professional misconduct, but they do provide useful guidance in determining what conduct "would reasonably be regarded by members as disgraceful, dishonourable or unprofessional." Taken together, they establish that the profession's core values and expectations include behaving professionally while advocating for patients, in a manner that promotes the health and well-being of the public. Even when engaged in debate or conflict, members should be civil, collaborative and work towards the public good. Physicians are also expected to stay informed during a public health emergency and, in the context of the COVID-19 pandemic, should not undermine public health measures. [Emphasis added.] [76] The bolded words in the preceding quotation correctly express the court’s decision in The Christian Medical and Dental Society of Canada.
[77] In Yazdanfar v. The College of Physicians and Surgeons, 2013 ONSC 6420, this court discussed the determination of standards of practice from evidence reflecting a common understanding within the profession. The court wrote,[36] A standard of practice exists even when it is not explicitly set out in a written code; a reviewing tribunal may ascertain it "by reference to evidence of a common understanding within the profession as to expected behavior of a reasonable professional, or by deducing it from the profession's fundamental values": Walsh v. Council for Licenced Practical Nurses, 2010 NLCA 11, 295 Nfld. & P.E.I.R. 222, at para. 48, Green C.J.N.L ., concurring. The ASPS guideline was not found to comprise a binding code in the present case; rather, it was found to be reflective, after consideration of extensive evidence, of a common understanding within the profession of which the appellant had a responsibility to be apprised. [78] In discussing how to determine “standards of practice” in connection with the claim that Dr. Trozzi failed to maintain standards of practice, the tribunal again found,[68] College policies can provide guidance as to the standards against which the actions of physicians are assessed (Khan v. College of Physicians and Surgeons of Ontario, 2023 ONSC 2096 at para. 60) ...
[69] In this case, we rely on the College's policies and statements, as well as the CanMEDS Framework, as evidence of a common understanding within the profession as to the expected behaviour of members with regards to communications during a pandemic. Dr. Gardam's opinion also assists in determining the applicable standard of practice. As we will discuss in more detail below, we find that what is "reasonably expected of the ordinary, competent practitioner" is that they refrain from spreading misinformation and conspiracy theories intended to undermine public health measures during a pandemic. [79] The tribunal did not give statutory force to any policies or guidelines. This ground of appeal is dismissed.
(d) Did the tribunal err in Finding that the College had Reasonable and Probable Grounds to Embark on an Investigation of Dr. Trozzi’s Conduct?
[80] I do not need to decide if this ground of appeal lies given the tortured procedural history by which it was dealt with and appealed below. Even if the issue remains appealable, I would dismiss this ground of appeal.
[81] The principal submission made to oppose the investigation was that the College was basing its charges on the non-statutory guidelines and policies. As described in para. 20 of the tribunal’s interlocutory decision dated March 10, 2023, Dr. Trozzi argued that without those guidelines and policies being treated as binding standards of law, the investigation was just a fishing expedition under an order that lacked reasonable and probable grounds.
[82] The tribunal correctly found in both its interlocutory decisions that the College only advanced guidelines and policies as evidence and not as binding statements of law. As such there is no reason why they could not stand as a reasonable and probable grounds to support an investigation. This court found as much in the case of Dr. Luchkiw v. College of Physicians and Surgeons of Ontario, 2022 ONSC 5738 at para. 65. . Elguindy v. Galaxy Real Estate Core Ontario LP [expiry of eviction order: RTA s.81]
In Elguindy v. Galaxy Real Estate Core Ontario LP (Div Court, 2024) the Divisional Court dismissed an appeal from "a Review Order, ... of the Landlord and Tenant Board (the “LTB”), which dismissed a Motion to Void an Eviction Order ...", here where the issue was the expiry of an eviction order [if, after becoming effective, "it is not filed within .... six months with the sheriff" [RTA s.81].
Here the court considers the non-binding role of LTB Interpretation Guidelines:[13] The Tenant argued that the Eviction Order was void and unenforceable because, pursuant to s. 81 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “RTA”), more than six months had passed since the date of the order could first be enforced by the Sheriff. However, the Member found that when the Tenant filed an appeal to the Divisional Court, resulting in a stay of the LTB’s Eviction Order pursuant to section 25(1) of the Statutory Powers Procedures Act (“SPPA”), the clock on the six-month enforcement period was also stayed until the appeal was resolved by the Divisional Court. The Member noted that any other interpretation of the SPPA “could give rise to serious issues of unfairness as it would permit a tenant to frustrate the landlord’s right to enforce an order after an appeal is dismissed.” As such, the Member found that the Eviction Order was not void and could still be enforced by the Sheriff.
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[19] With respect to the first issue, s. 81 of the RTA provides as follows:An order of the Board evicting a person from a rental unit expires six months after the day on which the order takes effect if it is not filed within six months with the sheriff who has territorial jurisdiction where the rental unit is located. [20] Pursuant to s. 25 of the SPPA, where a party appeals a tribunal’s decision to this Court, the matter is stayed until the resolution of the appeal:25(1) An appeal from a decision of a tribunal to a court or other appellate body operates as a stay of the matter unless,
(a) another Act or a regulation that applies to the proceeding expressly provides to the contrary; or
(b) the tribunal or the court or other appellate body orders otherwise. [21] The LTB publishes Interpretation Guidelines “which are intended to assist the parties in understanding the Board’s usual interpretation of the law, to provide guidance to Members and promote consistency in decision-making.” However, a Member is not required to follow a Guideline and may make a different decision depending on the facts of the case. Interpretation Guideline 10 contains a section headed “Expiry of Eviction Order” that states:Under s. 81 of the RTA, an order of the Board that evicts someone expires within 6 months of the date of the order unless it is filed with the appropriate Court Enforcement Office before that time. This expiration provision applies notwithstanding any appeal proceeding that may be initiated in a court of competent jurisdiction. Once an eviction order expires, there is no authority to renew it, nor will the landlord be able to apply again for the same remedy for the same time period. [22] The Eviction Order at issue was not filed with the Sheriff within 6 months of the date of the order. According to the Landlord, that is because the Tenant filed his appeal one week after the order was granted, which resulted in a stay of the order.
[23] The Tenant submits that the Eviction Order is void. In doing so he relies on the wording of s. 81 of the RTA, which states that such an order expires “six months after the order takes effect” if it is not filed with the Sheriff, and on Interpretation Guideline 10, which makes it clear that this provision applies even if an appeal proceeding has been initiated.
[24] The Landlord submits that whether the Eviction Order in this case had expired is a question of fact and, therefore, the Member’s determination that it had not expired cannot be appealed. I disagree. The issue is one of statutory interpretation, which is a question of law.
[25] In Guideline 10, the LTB has provided its “usual interpretation” of the applicable provisions, which support the Tenant’s position. However, it is clear that this interpretation was not binding on the Member and is not binding on this Court.
[26] Statutory provisions are interpreted in accordance with the “modern principle” of statutory interpretation that the legislative provisions must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament:Those who draft and enact statutes expect that questions about their meaning will be resolved by an analysis that has regard to the text, context and purpose, regardless of whether the entity tasked with interpreting the law is a court or an administrative decision maker. (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 563, at paras. 117-118). [27] It is also a “well-established principle of statutory interpretation that the legislature does not intend to produce absurd consequences … [A]n interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment.” (Rizzo v. Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 (S.C.C.), at para. 27).
[28] As set out by the Court of Appeal in Blue Star Trailer Rentals Inc. v. 407 ETR Concession Company Limited, 2008 ONCA 561, 91 O.R. (3d) 321, at paras. 21-25, when applying the modern approach to statutory interpretation the court should start with the ordinary meaning of the words used and then consider the context in which the language is found as well as the purpose of the statutory scheme.
[29] The ordinary meaning of the words in s. 81 has been considered by this Court in Briarlane v. Limas, 2020 ONSC 7118 (Div. Ct.), at para. 34, where the Court states:Neither s. 81 [of the RTA] nor s. 83 applies. The six-month time period in s. 81 begins to run on the day the eviction order takes effect. Given the Tenants’ appeal of the May 6, 2019 order, together with the stay of that order, the eviction order in issue here has not yet become effective. [30] The Landlord agrees with the Tenant that the issue in Briarlane was very different than the issue in this case and that it may be that the statement quoted above could be regarded as “obiter”. However, this does not detract from the fact that this is a court’s view of the ordinary meaning of the words in s. 81.
[31] The question then becomes whether I should adopt this meaning. Even though I may not be bound by the statement in Briarlane, I agree with it. The interpretation given in that case accords with the ordinary meaning of the words in the statute, the context in which is found and the purpose of the RTA.
[32] Part of the context of s. 81 is s. 25(1) of the SPPA, which provides for the stay of an eviction order if the order is appealed. Like the order in Briarlane, because the Eviction Order was appealed, it could not be acted upon until the Tenants’ appeal rights were exhausted. Interpreting the section in this way acknowledges the impact of s. 25(1) of the SPPA on the effectiveness of the Eviction Order.
[33] With respect to purpose, s. 1 of the RTA describes its purposes:The purposes of this Act are to provide protection for residential tenants from unlawful rent increase and unlawful evictions, to establish a framework for the regulation of residential rents, to balance the rights and responsibilities of residential landlords and tenants and to provide for the adjudication of disputes and for other provisions to informally resolve disputes. [34] The Briarlane interpretation is consistent with the purposes of the RTA, one of which is to balance the rights and responsibilities of residential landlords and tenants. One of the fundamental responsibilities of a tenant is to pay rent. The RTA should not be interpreted in such a way as to foster the ability of a tenant to continue to live rent free in the rental unit. If the Tenant’s interpretation is adopted, this is what would happen. The Eviction Order at issue would be considered void even though a court has determined that it was lawful. The Tenant would be able to continue to live rent free in the premises while the Landlord would be forced to take other steps to evict the Tenant, with all the time and cost that will entail.
[35] For these reasons, I find that the Member was correct when she found that the clock on the six month enforcement period was stayed until the appeal was resolved by the Divisional Court. . Colella v. Ng
In Colella v. Ng (Div Court, 2024) the Divisional Court considered the legal status of the "WSIB Operational Policy Manual":[19] In making the determination as to whether Colella was in the course of employment, the Tribunal referred to the WSIB Operational Policy Manual 15-02-02 (the “OPM”) which provides some guidance on when an accident will be found to be in the course of employment. The OPM provides that the determination of that question will depend primarily on the circumstances relating to place, time and activity surrounding the accident.
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[42] I agree with counsel for the Tribunal that the policies referred to in the decisions under review have no necessary binding force on the Tribunal. Even if they were so binding, the Tribunal would have been required to consider whether and how they might be applied with regard to the facts and unique circumstances of the case before it, as was done here. In this case, the Tribunal carefully reviewed those policies and relevant past decisions and properly considered whether they applied to this particular case. . 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.
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[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.
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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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