When Do Guidelines Bind? Outside the Analytical Framework

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 this post, I discuss two features that, although they are regularly mentioned in the case law, are not actually indicative of bindingness.

Two other factors feature in judicial decisions on whether guidelines are binding and which recur in any study of guidelines: statutory authority to promulgate guidelines (Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 SCR 3 (SCC)); and the level of formality prior to the promulgation of guidelines (Bell Canada v. Canadian Telephone Employees Association, [2003] 1 SCR 884 (SCC)). Careful consideration, however, suggests that these factors are not indicia of bindingness.

Statutory Authority

In Greater Vancouver Transportation, the Supreme Court of Canada suggested that whether guidelines are binding might depend, at least in part, on statutory authority to promulgate guidelines:

In order to be legislative in nature, the policy must establish a norm or standard of general application that has been enacted by a government entity pursuant to a rule-making authority. A rule‑making authority will exist if Parliament or a provincial legislature has delegated power to the government entity for the specific purpose of enacting binding rules of general application which establish the rights and obligations of the individuals to whom they apply (Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, [2009] 2 SCR 295 (SCC): 64).

In this case, the Supreme Court of Canada was concerned with whether policies could be “law” for the purposes of Canadian constitutional law. In that particular context, the presence of statutory authority is indeed a relevant consideration for a court. However, it is not an indicium of bindingness.

If a guideline is binding, it cannot be promulgated without statutory authority (which can be express or necessarily implied). In other words, statutory authority is only relevant if one has already arrived at the conclusion that a guideline is binding. But statutory authority cannot shed any light on the necessarily prior question of whether a guideline is binding. For this reason, statutory authority is not an indicium of bindingness.

Formality

At first blush, it may seem more likely that guidelines will be binding where they are promulgated pursuant to a formal process established by statute. Real-world examples of guidelines whose binding force is underscored by the formality of the process through which they are issued are the Canadian Human Rights Commission’s guidelines on the interpretation of the Canadian Human Rights Act,the guidelines on statutory accident benefits in Ontario and the Alberta municipal assessment guidelines. However, the presence of formal procedures does not necessarily indicate that guidelines are binding.

The other side of the coin is illustrated by Environment and Climate Change Canada’s (2020) Technical Guidelines for the Environmental Emergency Regulations, 2019 Version 2.0. These guidelines are required to be published in the Canada Gazette (Canadian Environmental Protection Act, S.C. 1999, c. 33, s.196). However, these Guidelines are intended to be non-binding: “These Guidelines are designed to help regulatees better understand the E2 Regulations and ensure that their facilities are compliant with its requirements”(9) (and any conflict between the Guidelines and the Regulations must be resolved in favour of the latter). Plainly, the formality of the process through which they are promulgated does not transform these guidelines into binding guidelines.

Equally, the absence of formal procedures does not necessarily mean that guidelines will be non-binding. No formal process is envisaged for the Canadian Heritage guidelines, the control-in-fact guidelines in relation to federal credit unions, the railway safety guidelines, the Bank of Canada’s systemic risk guidelines or the Canadian Transportation Agency’s noise and vibration dispute resolution guidelines. These guidelines are, nonetheless, binding.

Summary

Neither statutory authority to promulgate guidelines nor the level of formality required prior to the promulgation of guidelines is an indicium of bindingness. The presence or absence of statutory authority does not shed any light on whether or not a guideline is binding. A more formal process may underscore the conclusion that a guideline is binding, but the absence of a formal process does not mitigate in favour of the conclusion that a guideline is non-binding.

This content has been updated on April 18, 2023 at 21:10.