When Can “Policy” Be Taken into Account?
In what circumstances can the “policy” memorialized in the instruments described in the previous post be taken into account by administrative decision-makers?
The answer to this question is two-fold: it depends, first, on the nature of the decision-maker’s task and, second, on the relevant statutory provisions.
The Decision-Maker’s Task
First, decision-making in the contemporary administrative state is arrayed along a spectrum.
At one end of the spectrum are relatively political decision-makers, such as ministers. Here, it is typically assumed that a wide variety of considerations — including “policy” ones, of course — can legitimately be taken into account when a minister is exercising a discretionary power. This is not merely a question of the breadth of the discretionary powers granted to ministers but also of the nature of the decision-making body. Ministers have significant scope for action precisely because they are answerable to the legislature and, ultimately, the public for the considerations they take into account and the use they make of them.
At the other end of the spectrum are adjudicative tribunals:
It has many of the powers of a court. It is empowered to find facts, to interpret and apply the law to the facts before it, and to award appropriate remedies. Moreover, its hearings have much the same structure as a formal trial before a court. The parties before the Tribunal lead evidence, call and cross-examine witnesses, and make submissions on how the law should be applied to the facts. The Tribunal is not involved in crafting policy, nor does it undertake its own independent investigations of complaints (Bell Canada v. Canadian Telephone Employees Association, 2003 SCC 36,  1 SCR 884, at para. 23).
Along this spectrum of administrative decision-makers there is a spectrum of legitimate influence for “policy”. Ministers are entitled (and can reasonably be expected) to act on “policy”. But adjudicative tribunals are confined to making decisions on the law and facts before them:
Imagine our outrage if, at the end of a court trial, the president of the United States called up the judge and told her how he wanted the case to come out. Let us suppose an agency has held a rule-making proceeding that involved hundreds of hours of testimony and thousands of pages of written submissions. It has listened at length to every interested group and heard the rebuttal of each group to the testimony of every other. It has compiled a thousand-page-long rule-making record. It has then composed a statement showing that it has acted synoptically to consider every significant issue and arrive at the best possible decision. Those who have been watching and participating in such a process are going to be equally outraged if, just before the agency publishes its final rule, the president calls to tell the agency what rule it should adopt (Martin Shapiro, Who Guards the Guardians? Judicial Control of Administration (University of Georgia Press, Athens, 1988), at p. 112).
Indeed, the Supreme Court made clear in Innisfil v. Vespra,  2 SCR 145 that a regulator is under no general obligation to follow government “policy”. Here, in the context of a hearing about the annexation of townships, a Minister wrote to the Ontario Municipal Board setting out government policy about the projected size of Barrie in 2011. The Board then refused to permit the parties to cross-examine the Minister. The Supreme Court was unimpressed:
A court will require the clearest statutory direction along the lines, for example, of the Broadcasting Act, supra, to enable the executive branch of government to give binding policy directions to an administrative tribunal and to make such directions immune from challenge by cross-examination or otherwise by the objectors. It is, of course, open to the Legislature at any time to make provision for the issuance of binding directions by the executive branch to the Board whereby the Board would be required to conform strictly to the announced policies of the executive branch or its agent, a Minister; and thereby to withdraw the subject of the policies so announced from the hearing procedure (at p. 173. Cf Bushell v Secretary of State for the Environment,  AC 75, where government policy could not be put into issue by a local inquiry into the siting of part of a national road network).
This is the case even when a tribunal is exercising a fairly broad power, say a disciplinary tribunal in relation to the imposition of a sanction; it is not clear that a national net zero “policy” should affect the exercise of this discretion. Note, too, that this analysis fixes on the power being exercised: sometimes a relatively political body will find itself acting in more of an adjudicative capacity and its freedom of action will be more constrained than usual.
The problem with the spectrum metaphor is that it is less useful where it is most needed: in the middle, between the relatively legal and relatively political, where most regulatory tribunals are located. Happily, another spectrum is helpful: that of statutory language.
Statutory language will be relatively broad or relatively narrow. The Supreme Court of Canada noted this phenomenon in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65,  4 SCR 653, at para. 110:
If a legislature wishes to precisely circumscribe an administrative decision maker’s power in some respect, it can do so by using precise and narrow language and delineating the power in detail, thereby tightly constraining the decision maker’s ability to interpret the provision. Conversely, where the legislature chooses to use broad, open-ended or highly qualitative language — for example, “in the public interest” — it clearly contemplates that the decision maker is to have greater flexibility in interpreting the meaning of such language. Other language will fall in the middle of this spectrum.
The contemporary principles of statutory interpretation also offer some space to consider “policy” in determining the meaning of a statutory provision. Of course, when statutory language is “precise and unequivocal” (Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54,  2 SCR 601, at para. 10) and its “true” meaning can be discerned from text and purpose (R (Officer W80) v Director General of the Independent Office for Police Conduct,  UKSC 24, at para. 104), resort to broader considerations will be unnecessary and inappropriate. Nonetheless, the search for legislative intent is often more wide ranging:
Statutes are legal instructions transmitted into an existing, highly developed framework of legal values and expectations. The existing law, modes of reasoning, and established localized value systems provide the interpretive context in which a statute is read. Upon receipt of a statutory text, lawyers and the judiciary seek to knit it into the fabric of the law.
Lord Sales, “Modern Statutory Interpretation” (2017) 38 Statute Law Review 125, at p. 128.
This opens up the possibility that soft law instruments (Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36,  2 SCR 559, at para. 85) or international law obligations (Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30, at paras. 44-46) will be relevant to ascertaining the meaning of statutes. Again, the broader the statutory language, the greater the range of interpretive manœuvre for an administrative decision-maker or any other interpreter. Hence why the Alberta Court of Appeal concluded that consideration of the “public interest” by a regulator encompassed the Honour of the Crown (Fort McKay First Nation v Prosper Petroleum Ltd, 2020 ABCA 163) and why at least one judge considers that it includes the national policy of reconciliation (AltaLink Management Ltd v Alberta (Utilities Commission), 2021 ABCA 342, at paras. 117-124, per Feehan JA).
In the same vein, Miller JA noted in Pong Marketing and Promotions Inc. v. Ontario Media Development Corporation, 2018 ONCA 555, at para. 48 that vague statutory language is often used to empower administrative decision-makers:
Concretizing vague criteria is a creative yet bounded role. It is different in kind from the task of resolving legislative ambiguity, which is presents a closed choice between given alternatives. A decision maker that is required to interpret the vague criteria of a statute is required to make a decision that renders the statute more specific. The decision maker is constrained by the text of the statute and by the requirement that the interpretation further the objectives of the statute and be consistent with the rest of the law as a whole. In administrative law, legislation is often deliberately worded vaguely, the intention being that vaguely worded standards will be made more concrete by the decisions of specialized administrative actors, who are best placed to develop the relevant policies. These interpretive decisions will sometimes be of a nature that different decisions could reasonably have been made — decisions equally consistent with the guidance and constraints provided by existing law.
So, for example, a power to set just and reasonable rates will naturally give its holder greater scope to consider “policy” than a power to set conditions on the sale of an asset by a utility company or a power to expropriate land for constructing transmission lines. Similarly, a power to revoke a license on grounds of “suitability” is broader, and lends itself more to consideration of “policy”, than a power to revoke on stated grounds.
Note, in this regard, that old-style ‘command-and-control’ regulation has been replaced by “new governance techniques which have been fashionable in academic and policy circles for some time” (Julia Black, “Paradoxes and Failures: ‘New Governance’ Techniques and the Financial Crisis” (2012) 75 Modern L Rev 1037, 1041). Already in the 1990s, regulatory theorists could recognize that discretion was being distributed “within rules in which legal actors may exercise choice” through the “conscious and strategic use of terms which are vague as to manner, time or place, are evaluative or use generic terms to act as implicit derogations…” (Julia Black, Rules and Regulators (Oxford: Clarendon Press, 1997), 216). The process has only accelerated since then, with context-sensitive techniques such as principles-based regulation, responsive regulation and risk-based regulation coming to the fore, all of which involve the exercise of discretion and judgement by front-line officials overseen by hierarchical superiors.
In summary then, depending on the nature of the decision-maker and the nature of the statutory scheme, “policy” may be a relevant consideration: a posture adopted might legitimately influence positions taken in individual cases.
UPDATE: Members of the Canadian Council on Administrative Tribunals can join me today December 5, 1pm to 2.30pm Eastern for a talk on this topic. The link is here.
This content has been updated on December 5, 2023 at 13:15.