When Do Guidelines Bind? The Level of Detail and Precision
I have written a paper entitled, “How Binding are Binding Guidelines? An Analytical Framework” to be published later this year in Canadian Public Administration. You can access a pre-publication version here. In a previous post, I introduced the paper. In this post, I explain the second indicium of bindingness: the level of detail and precision
The level of detail and precision of guidelines is an indicium of bindingness. The greater the level of detail and precision, the more likely it is that the guidelines are binding.
Detailed and Precise Guidelines
Guidelines which set out detailed, precise provisions – sometimes even algorithms or mathematical formulae – relating to regulated activities are more likely to be binding. There are two points to make here. First, where guidelines provide detailed and precise information about how people should perform regulated activities, they are more likely to be binding (Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component,  2 SCR 295 (SCC)). Guidelines which delve deep into the details of areas of regulation leave little or no scope for the exercise of judgment. By virtue of their detail, they have binding effect. Federal guidelines on railway safety, for example, contain minute levels of detail, leaving little or no scope for judgment (Canada, Transport Canada 2018).iv
Second, it follows that guidelines which set out algorithms or mathematical formulae are more likely to be binding. By prescribing the steps to be followed, such guidelines limit or eliminate the judgment of those who apply them. Accordingly, they are more likely to be binding. Federal guidelines on tax credits have this character (Canada, Canadian Audio-Visual Certification Office 2020),v as do Alberta’s municipal assessment guidelines (Alberta Machinery & Equipment Assessment Minister’s Guidelines, M.O 2018. 020),vi which prescribe the method for calculating municipal assessments, and Ontario’s statutory accident benefits guidelines (Canada, Financial Services Commission of Ontario 2014). For example, the Financial Services Commission of Ontario’s (2014) Guideline “sets out the goods and services that will be paid for by the insurer without insurer approval if provided to an insured person who has sustained a minor injury” (2014: 3). The Guidelineprescribes in detail the type of permissible treatments and fees for these treatments.
Where, by contrast, there is relatively less in the way of detail and relatively general language, it will be more likely that the guidelines are not binding. Whereas detailed and precise guidelines limit or eliminate the scope for judgment and are more likely to be binding, one hallmark of non-binding guidelines is that “a degree of judgment is still required when the policy is applied to particular facts” (Skyline Roofing Ltd v. Alberta (Workers’ Compensation Board),  ABQB 624 (ABQB): 89). The need to exercise judgment may be necessary even where there is a high level of detail and precision in the guidelines. Here, two considerations follow.
First, guidelines may expressly preserve a decision-maker’s judgment, for instance by making clear that the decision-maker must make a judgment based on “all the circumstances” (as with the CRTC’s guidelines on taxation of costs, considered below), or by expressly stating that a list of relevant factors is not exhaustive (as with the National Parole Board’s Policy Manual: the open-ended nature of the list of factors in the Manual – and consequent lack of precision – does not suggest any binding force) (Sychuk v. Canada (Attorney General),  340 FTR 160 (FC): 11; Latimer v. Canada (Attorney General),  FC 806 (FC)). Where there is a need for judgment in the application of a lengthy list of factors, the guidelines are more likely to be non-binding. The CRTC’s taxation of costs guidelines are particularly interesting in this regard: the terms “generally” and “normally” recur; the ultimate question is whether fees are “not excessive under the circumstances” (Canada, Canadian Radio-television and Telecommunications Commission 2007: art. 11); and an open-ended list of factors is set out to guide the taxation officer’s decision.
Second, some guidelines are discursive: they contain a discussion of a general principle, followed by an illustrative example. Discursive guidelines are designed to illuminate, to educate, to inform. Set out at a high level of generality, they are the opposite of definitive statements which are designed to command. In these circumstances, judgment in applying the principles to a given factual scenario is essential. The Ontario Human Rights Commission’s guidelines are an example of this phenomenon. The Ontario Human Rights Commission adopts guidelines under the Human Rights Code (R.S.O. 1990, c H.19, s. 30). As a general matter, the Ontario Human Rights Tribunal “may consider” these guidelines (s. 45.5(1)), and is obligated, per s 45.5(2), to take them into account in some instances. These guidelines are to be considered by the Tribunal but they do not direct the Tribunal to decide a given matter in any particular way. As the Commission explained in its Policy and Guidelines on Discrimination Because of Family Status, “Commission policies and guidelines set standards” based on “the Commission’s interpretation of the Code at the time of publication” (2007: 2). The text of the guidelines is discursive and contain relatively general language about discrimination.
Where guidelines are detailed and precise in the requirements they impose or establish a set formula to apply or algorithms to follow, the guidelines are more likely to be binding. By contrast, where guidelines expressly preserve a decision-maker’s judgment or are explicitly open-ended and thus do not eliminate the decision-maker’s ability to consider other requirements, the guidelines are less likely to be binding. Similarly, where guidelines set out principles rather than definitive statements and are discursive in character, they are less likely to be binding.
This content has been updated on March 28, 2023 at 20:21.