Simon's Megalomaniacal Legal Resources

Administrative - Policy Directives (2)

. 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.

. Bokhari v. Top Medical Transportation Services

In Bokhari v. Top Medical Transportation Services (Div Ct, 2025) the Divisional Court faced a JR, this against main and reconsideration decisions regarding HRTO applications which "alleged discrimination with respect to employment because of disability". Within the JR, the HRTO brought (and the court granted) two motions - one to quash summons and the other to strike part of the JR record.

The court tolerates varying standards of proof at the HRTO, here in a "jurisdictional issues" policy direction:

[6] In December 2022, the HRTO released a Practice Direction indicating that starting in January 2021, the Tribunal determined jurisdictional issues on a balance of probabilities, rather than the ‘plain and obvious’ standard. The Practice Direction noted that this was not a rule, and the Tribunal could vary its approach when appropriate. The Practice Direction was released through what the HRTO calls an Operational Update, which is a brief online alert with a link to the Practice Direction. The Operational Update called the above a ‘protocol’.

[7] In addition to the above Practice Direction, it was discernible from HRTO decisions, which are publicly available on CanLII, that since 2021 some adjudicators were using the balance of probabilities standard, and others used the plain and obvious standard. The non-mandatory nature of the standard described in the Practice Direction was apparent in that period. After the release of the Practice Direction both standards continued to be used.

[8] There is no issue that a tribunal may have a tribunal-wide policy or practice provided that it does not compel or induce decision-makers to decide against their own conscience or opinion: Iwa v. Consolidated-Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), [1990] 1 S.C.R. 282, at pp. 327-328, 332-333. Tribunal-wide policies encourage uniformity and advance the important benefits of experience: Consolidated-Bathurst, at p. 327. Discussions between colleagues do not constitute, in and of themselves, infringements on an adjudicator’s capacity to decide the issues independently: Consolidated-Bathurst, at p. 333.

[9] The above practice at the HRTO, as described in the Practice Direction, is in accordance with the principles in Consolidated-Bathurst. Although a Tribunal practice, it is not mandatory on its face, which is also shown by the HRTO decisions released after the practice began.

. Ahsan v. Canada (Attorney General)

In Ahsan v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed a JR, this from a finding of the Appeal Division of the Social Security Tribunal that the applicant's disability "was neither severe nor prolonged" under CPP-D legislation.

Here the court considers 'publicly available policies or guidelines', and the argument that they were ignored below:

C. The Appeal Division’s refusal to consider the Adjudication Framework

[29] The third ground on which Mr. Ahsan challenges the Appeal Division’s decision is the latter’s refusal to consider the Adjudication Framework. Mr. Ahsan argues that considering the framework would have led the Appeal Division to a different decision.

[30] The parties did not include the Adjudication Framework in their records. The Appeal Division describes the framework as a "“document that the Minister’s staff uses to assess disability applications”": Appeal Division’s decision at para. 36.

[31] The Supreme Court teaches us that it is appropriate for a decision maker like the Appeal Division to consider "“publicly available policies or guidelines”": Mason v. Canada (Citizenship and Immigration), 2023 SCC 21 at para. 61, citing Vavilov at para. 94. But here, the Appeal Division wrote that it "“cannot rely on a document that was internally generated within [""sic] Minister’s department”": Appeal Division’s decision at para. 37. This statement is at odds not only with the Supreme Court’s teachings, but also with the Appeal Division’s reliance on the Adjudication Framework in another matter: see Ibrahim at para. 44.

[32] The Attorney General of Canada does not dispute that the Appeal Division could have considered the Adjudication Framework. The Attorney General says that the Appeal Division’s statement that it cannot rely on the framework must be read in context, that is, in response to Mr. Ahsan’s argument that the Appeal Division had to rely on the Adjudication Framework. In fact, before it made the statement, the Appeal Division wrote that Mr. Ahsan "“repeatedly insisted”" that his earnings were within the guidelines contained in the Adjudication Framework: Appeal Division’s decision at para. 36.

[33] Viewed in its context, the statement that the Appeal Division cannot rely on the framework — although unfortunate — does not render the decision for the years 2009 to 2013 unreasonable.

. 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]