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Administrative - Policy Directives (2). Mendowegan v. Definity Insurance Company
In Mendowegan v. Definity Insurance Company (Div Ct, 2026) the Divisional Court dismissed a LAT SABS appeal, this brought against a decision finding the appellant "was statute-barred [SS: this term is used to mean limitation-barred] from proceeding with an application for statutory accident benefits (“SABs”)".
The court considered a same-level administrative ruling for it's potential role in stare decisis [see esp para 30], and - in deciding this - points to tribunal policy directives as a method of ensuring consistency:[19] In the case at bar, the adjudicator did not mention Shaver [SS: 'Shaver v. Onlia, 2023 ONLAT 22-009102'] in her decision, and accordingly she did not distinguish that authority, nor otherwise explain why an arguably analogous case produced a result contrary to the conclusion she ultimately reached. The appellant argues that the failure to consider Shaver constitutes an error of law.
[20] In his reconsideration decision, Vice-Chair Moore found that the adjudicator had applied the correct legal test, and that the manner in which she weighed the evidence did not constitute an error of fact or law. He noted that the adjudicator considered both subjective and objective factors in her analysis. He agreed with the appellant that the adjudicator “should have addressed Shaver in its decision”, but the requesting party must both show that an error occurred and that the error would likely have impacted on the outcome. He found that the appellant had not pointed him to any legal principle that was missed in the adjudicator’s decision.
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[23] In the case at bar, it is conceded that the adjudicator applied the correct six-part legal test when determining whether the appellant had provided a reasonable explanation for failing to notify the respondent of her involvement in the accident within the requisite time period. The appellant’s complaint is that, when applying that test to the evidence before her, the adjudicator failed to approach the case in a similar manner to Shaver, in that she failed to give sufficient weight to the fact that the appellant was unsophisticated, and that she “failed to correctly balance” the prejudice to the insurer for having lost the opportunity to medically assess the appellant in a timely manner as against the hardship to the appellant in having her claim for accident benefits barred. I find that these are not questions of law, they are questions of mixed fact and law. They constitute the application of the correct legal standard to the facts of the case.
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[25] While questions of mixed fact and law are reviewable on an application for judicial review (on a standard of reasonableness), no such application has been brought. Thus, this appeal must fail unless the appellant can demonstrate an error of law.
[26] Given that Shaver was the one and only legal authority relied upon by the appellant in her submissions, I agree that it would have been preferable had the adjudicator expressly discussed it in her reasons, and provided an explanation as to why an arguably similar fact situation there led to the opposite result arrived at by the adjudicator. However, counsel for the appellant candidly concedes that he is unable to provide any authority for the proposition that the failure to expressly discuss a particular precedent in reasons for decision amounts to an error of law.
[27] In CNH Canada Ltd. v. Chesterman Farm Equipment Ltd., 2018 ONCA 637, at para. 87, the Court of Appeal made it clear that “an alleged inconsistency with another decision of the tribunal is not reason for this court to intervene”.
[28] The appellant relies on Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 to argue that those affected by administrative decisions are entitled to expect that like cases will generally be treated alike. At para. 129, Wagner C.J.C. said the following in that regard:Administrative decision makers are not bound by their previous decisions in the same sense that courts are bound by stare decisis. As this Court noted in Domtar, “a lack of unanimity is the price to pay for the decision-making freedom and independence” given to administrative decision makers, and the mere fact that some conflict exists among an administrative body’s decisions does not threaten the rule of law: p. 800. Nevertheless, administrative decision makers and reviewing courts alike must be concerned with the general consistency of administrative decisions. Those affected by administrative decisions are entitled to expect that like cases will generally be treated alike and that outcomes will not depend merely on the identity of the individual decision maker — expectations that do not evaporate simply because the parties are not before a judge. [29] However, Wagner C.J.C. went on, at paras 130-131, to describe how and when any inconsistency in established internal decisions might be addressed:Fortunately, administrative bodies generally have a range of resources at their disposal to address these types of concerns. Access to past reasons and summaries of past reasons enables multiple individual decision makers within a single organization (such as administrative tribunal members) to learn from each other’s work, and contributes to a harmonized decision-making culture. Institutions also routinely rely on standards, policy directives and internal legal opinions to encourage greater uniformity and guide the work of frontline decision makers. This Court has also held that plenary meetings of a tribunal’s members can be an effective tool to “foster coherence” and “avoid ... conflicting results”: I.W.A., Local 2-69 v. Consolidated Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), [1990] 1 S.C.R. 282 (S.C.C.), at pp. 324-28. Where disagreement arises within an administrative body about how to appropriately resolve a given issue, that institution may also develop strategies to address that divergence internally and on its own initiative. Of course, consistency can also be encouraged through less formal methods, such as the development of training materials, checklists and templates for the purpose of streamlining and strengthening institutional best practices, provided that these methods do not operate to fetter decision making.
Whether a particular decision is consistent with the administrative body’s past decisions is also a constraint that the reviewing court should consider when determining whether an administrative decision is reasonable. Where a decision maker does depart from longstanding practices or established internal authority, it bears the justificatory burden of explaining that departure in its reasons. If the decision maker does not satisfy this burden, the decision will be unreasonable. In this sense, the legitimate expectations of the parties help to determine both whether reasons are required and what those reasons must explain: Baker, at para. 26. We repeat that this does not mean administrative decision makers are bound by internal precedent in the same manner as courts. Rather, it means that a decision that departs from longstanding practices or established internal decisions will be reasonable if that departure is justified, thereby reducing the risk of arbitrariness, which would undermine public confidence in administrative decision makers and in the justice system as a whole. [30] These passages reaffirm the longstanding principle that administrative tribunals are not bound by prior tribunal decisions, in the same way that courts are bound by stare decisis. Some conflict among an administrative body’s decisions, such as that which arguably exists between the decision under review and Shaver, does not threaten the rule of law. One can conclude from this that the failure of a tribunal to follow a prior decision does not amount to an error of law. In contrast, the failure of a court of law to follow binding precedent could well amount to an error of law.
[31] Wagner C.J.C. outlines a number of strategies for encouraging coherence in administrative decision-making, such as policy directives, training, and similar measures. The only role for the courts in such an exercise is outlined in para. 131. Where a decision-maker departs from longstanding practices or established internal authority, a court may conclude that the decision is unreasonable, absent reasons from the tribunal that explain and justify that departure. This could only occur on an application for judicial review, where the decision, as a whole, is reviewable on a standard of reasonableness.
[32] The case before this court is not an application for judicial review but is, instead, an appeal on a question of law only. Nowhere does Wagner C.J.C. state that a departure from established internal authority constitutes an error of law.
[33] Furthermore, there is nothing before the court to indicate that the decision of the adjudicator constitutes a departure from longstanding internal authority, nor that Shaver is representative of any longstanding internal authority. Instead, one may well conclude that Shaver is an outlier. KH v. Northbridge General Insurance Company, 2019 CanLii 101613 (ON LAT) is a decision which concluded that the applicant had failed to provide a reasonable explanation for late notice, and was cited by the adjudicator in her decision. KH had been cited on CanLii by the LAT 126 times as of the date of the respondent’s factum. By contrast, Shaver had been cited only 6 times, and each time was distinguished. . Aubin v. Law Society of Ontario [fettering by policy directives]
In Aubin v. Law Society of Ontario (Div Ct, 2026) the Divisional Court granted a JR, this brought against a decision by the Compensation Fund Subcommittee of the LSO that it was 'without jurisdiction' to grant the applicant's claim.
Here the court considers whether the LSO subcommittee had 'fettered' it's discretion by treating it's policy guidelines as law:[2] Leeanne Aubin retained a lawyer in 2022 who sexually harassed her and attempted to extort sexual favours from her in exchange for legal services. When she reported the lawyer to the Law Society, he publicly defamed her, threatened to kill her and attempted to procure a firearm with which to do so. Ms. Aubin successfully sued the lawyer and was awarded damages of $195,000.00 plus costs. By the time she did so, the lawyer’s licence had been revoked and he was a serving a four-year penitentiary sentence.
[3] As she was unable to enforce the judgment, Ms. Aubin applied for a grant from the Fund. The Subcommittee was satisfied that Ms. Aubin had suffered significant harm as a result of the lawyer’s dishonesty. However, the Guidelines define “loss” as “the difference between what the lawyer … received from the claimant or on the claimant’s behalf, and the amount that was earned and accounted for, and/or returned to the claimant.” Since the loss Ms. Aubin was seeking compensation for did not meet that definition, the Subcommittee concluded that it was “without jurisdiction” to grant the claim.
[4] Ms. Aubin applies to this court for judicial review of the Subcommittee’s decision. She submits that the Subcommittee fettered its discretion by treating the Guidelines as binding, resulting in an unreasonable decision. The Law Society disagrees and submits that the Subcommittee’s decision was the result of a reasonable exercise of its discretion to decide what types of losses should be compensated.
[5] The following reasons explain why I agree with Ms. Aubin and would grant the application and set aside the Subcommittee’s decision.
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B. Fettering Discretion: Relevant Legal Principles
[21] Any discretionary decision-making power of a public administrative body, like all exercises of public authority, must find its source in law: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 27-28. The law that gives the decision-maker the discretion also informs how it is exercised, as any such discretion must be exercised in “accord with the purposes for which it was given”: Vavilov, at para. 108.
[22] In exercising discretion, it is entirely appropriate for a decision-maker to create and rely on decision-making guidelines. Such guidelines can serve a useful purpose by ensuring that relevant factors are considered and by promoting consistency: El-Hennawy v. Law Society of Upper Canada, 2014 ONSC 375, 316 O.A.C. 260 (Div. Ct.), at para. 30; Stemijon Investments Ltd. v. Canada (Attorney General), 2011 FCA 299, 341 D.L.R. (4th) 710, at paras. 59. However, such guidelines do not have the force of law and cannot have the effect of superseding the law that is the source of the decision-making power. As stated in Stemijon Investments, at para. 60: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. [23] It follows from the foregoing that a decision-maker cannot abdicate a statutorily-imposed responsibility to exercise its discretion to guidelines or policies that do not have the force of law, what is often referred to in the caselaw as “fettering discretion.” It is well-established that any decision that is the result of a fettered discretion is per se unreasonable: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909, at para. 60; Maple Lodge Farms v. Government of Canada, 1982 CanLII 24 (SCC), [1982] 2 S.C.R. 2, at pp. 6-7; Canadian Assn. of Refugee Lawyers v. Canada (Minister of Immigration, Refugees and Citizenship), 2020 FCA 196, 92 Admin. L.R. (6th) 1, at para. 53; Stemijon Investments, at paras. 23-34.
C. Did the Subcommittee Fetter Its Discretion?
(i) The Issue
[24] As this court recognized in El-Hennawy, at para. 31, the Guidelines in this case are not intended to be binding or to fetter the discretion of the Subcommittee, as is clearly stated in the Preface. The issue in this case is whether despite this, the Subcommittee treated them as binding and thereby fettered its own discretion. In my view, it did. There are several reasons for this conclusion.
(ii) The Guidelines “Define” the term “loss”
[25] First, while the Guidelines are overall clearly not intended to be binding, the portion relating to the meaning of the term “loss,” which the Subcommittee relied on in denying the applicant’s claim, is worded in such a way as to suggest otherwise. It purports to “define” the term “For the purposes of the Compensation Fund” and restricts it to losses of money paid by the claimant to the lawyer which are not earned, accounted for or returned to the client.
[26] Section 51(5) of the LSA requires only that a loss be sustained by a person “in consequence of . . . dishonesty on the part of a person, while a licensee, in connection with his or her professional business or in connection with any trust of which he or she was or is a trustee.” It is clear from the wording of the section that while the term “loss” is not defined, it refers to more than misappropriated trust funds and includes any loss “in connection with” the lawyer’s professional business.
[27] In this case, the Subcommittee was satisfied that the applicant suffered harm as a result of the lawyer’s dishonesty and there is no issue that she had been awarded damages for that harm which she was unable to recover. The respondent accepts that it was open to the Subcommittee to grant compensation to the applicant, from which it follows that she suffered a “loss” for the purposes of s. 51(5). The language of the Guidelines, however, suggests that there was no “loss,” which supports the conclusion that the Subcommittee fettered its discretion.
(iii) The Language in the Decision Letter
[28] The language in the Decision Letter from counsel for the Fund supports the conclusion that the Subcommittee fettered its discretion. The letter specifically refers to the term “loss” being “defined” by the Guidelines and states that the claim “does not meet the Fund’s definition of compensable loss,” suggesting that the Subcommittee did not exercise its discretion to decide whether the loss in this case justified a grant from the Fund. This conclusion is supported by the Subcommittee minutes, which reflect that the sole reason for denying the applicant’s claim was “Guideline 8 (“loss” definition).”
[29] The letter also stated, incorrectly, that the Fund was “governed by specific criteria under the Fund’s Guidelines.” This reflects a misunderstanding of the purpose of the Guidelines, which is to guide, not govern.
[30] Finally, the letter ended by stating, “We are truly sympathetic to the Claimant’s experience and regret that we are without jurisdiction to assist.” Counsel for the respondent submitted in her factum that what was meant by this was that the Subcommittee had determined that the claim “fell outside the scope of the statutory scheme.” However, in oral argument counsel conceded that it was open to the Subcommittee to grant all or part of the applicant’s claim, so doing so would clearly not fall outside the statutory scheme.
[31] The word “jurisdiction” has a specific legal meaning when referring to a decision-maker, especially when the term is used by a lawyer, and refers to the scope of a statutory power: Vavilov, at para. 65; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31, [2018] 2 S.C.R. 230, at para. 38. The statement in the Decision Letter that the Subcommittee was “without jurisdiction to assist” can only be understood as expressing a belief on the part of the Subcommittee that it did not have the statutory authority to grant the applicant’s claim. This reflects a clear misunderstanding of the powers granted to the Subcommittee by s. 51(5) and shows that it fettered its own discretion.
(iv) Failure to Consider Other Factors
[32] Finally, the Subcommittee did not consider any factors other than whether the loss in this case met the definition in the Guidelines. Section 51(5) grants the Subcommittee a broad discretion and it is for the Subcommittee to determine what factors are relevant in a given case. Such factors could (but do not have to) include the egregiousness of the lawyer’s dishonest conduct, the causal connection between the misconduct and the loss, the extent to which the loss was connected to the lawyer’s professional business, and the Law Society’s duty, pursuant to s. 4.2 of the LSA, to “advance the cause of justice” and “protect the public interest”: El-Hennawy, at paras. 36-39. The fact that no such factors were considered also supports the conclusion that the Subcommittee did not exercise its discretion but, rather, denied the claim because it believed that the Guidelines required it to do so. . Canada (Attorney General) v. Matco Tools Corporation
In Canada (Attorney General) v. Matco Tools Corporation (Fed CA, 2025) the Federal Court of Appeal allows a Crown appeal, this from a JR which granted a challenge to "a decision of the Commissioner of Patents".
Here the court considered the appropriateness of the Commissioner of Patents' referral to one of the Patent Office’s policy documents:[36] A preliminary issue concerns the reference in the Commissioner’s Decision to the Due Care Observations. Matco notes that this document was published only after it made its final submissions to the Commissioner upon receiving his letter indicating an intention to refuse reinstatement. Before the Federal Court, Matco attempted to argue that the Commissioner’s reference to this document was procedurally unfair. However, the Federal Court refused to consider that argument because it was raised for the first time in oral argument. That finding by the Federal Court has not been put in issue, and therefore the fairness of the Commissioner’s reference to the Due Care Observations is not in dispute in this appeal.
[37] In my view, there was nothing inappropriate in the Commissioner’s reference to this document. The Commissioner simply indicated at the end of his decision that Matco might wish to read it. My analysis of the reasonableness of the Commissioner’s Decision does not depend on the Due Care Observations.
[38] Before discussing the issues in dispute, I will also note that this Court in Taillefer v. Canada (Attorney General), 2025 FCA 28, [2025] F.C.J. No. 219 at paras. 8 and 9, in another case involving a request for reinstatement, found that the Commissioner’s reference to the WIPO Guidelines to interpret the due care standard in that case, just as in this case, was reasonable. . 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]
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