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Discretion - Fettering. Bell Canada v. British Columbia Broadband Association
In Bell Canada v. British Columbia Broadband Association (Fed CA, 2020) the Federal Court of Appeal considered one indicia of fettering discretion:[157] ... An administrative decision-maker fetters the exercise of their discretion by relying exclusively on an administrative policy without regard to the law (Stemijon Investments Limited v. Canada (Attorney General), 2011 FCA 299, 475 N.R. 341, at paragraphs 24 and 60). . Canada v. Bowker
In Canada v. Bowker (Fed CA, 2023) the Federal Court of Appeal considered a Crown appeal from a Tax Court cost award. In this quote the court considers whether the court below was 'fettering it's discretion':[23] The appellant argues that the Court erred, by fettering its discretion, in limiting the range of costs to 50%-75% of solicitor-client costs while the respondent argues that the appellant places too much emphasis on the sequence in which the Tax Court ordered its analysis, that is, dealing with the issue of the range before examining the various relevant factors.
[24] It is true that the argument that the Court fettered its discretion arises from the fact that the Court established the range before it had even considered the factors set out in Rule 147(3).
[25] When one reviews the Tax Court’s analysis of the various factors listed in Rule 147(3), it is apparent that the Court’s focus is on how each factor moves the needle higher or lower in the 50%-75% range that it had previously selected. But a review of like cases undertaken after the Tax Court had addressed the various factors may have pointed to the possibility of a lower range. The fact that the possibility of a lower range was precluded by the approach taken by the Tax Court is an indicator that the Tax Court had, in fact, fettered its discretion and, in doing so, erred in law.
....
[28] The Tax Court’s selection of the 50% to 75% range was made in the name of consistency. Unfortunately, the sources cited showed no consistency. Assuming that the Court had in mind that its award should be consistent with other decisions of the Tax Court, it is notable that it did not cite other costs decisions of the Tax Court to demonstrate that the amount which it awarded was consistent with what had been done in other cases.
[29] The Tax Court was right to advance consistency as a basis upon which to base an award of costs but it erred in principle in not addressing the Court’s own jurisprudence in setting a range of possible awards. The Court’s own jurisprudence is important because a lack of consistency in the treatment of comparable cases leads to arbitrary results: see Teva Canada Ltd. v. TD Canada Trust, 2017 SCC 51, [2017] 2 S.C.R. 317 at para. 138, Sriskandarajah v. United States of America, 2012 SCC 70, [2012] 3 S.C.R. 609 at para. 18.
[30] Consistency is important for another reason. A consistent approach to costs leads to predictability. Litigants’ decision-making is improved if they are able to assess, to a reasonable degree, the potential quantum of costs to which they may be exposed in the event of an adverse result. To the extent that a secondary purpose of costs is to encourage proportionality and advance settlements (Decision at para. 19), a reasonable grasp of one’s potential exposure to costs can only assist in achieving those purposes.
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