When Do Guidelines Bind? Presence or Absence of Imperative Language

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 first indicium of bindingness: the presence or absence of imperative language

The presence or absence of imperative language is an indicium of the bindingness of guidelines. It is necessary to consider “the thrust of the language considered in its entirety and not on isolated words or passages” (Ainsley Financial Corp v. Ontario (Securities Commission),[1994] 121 DLR (4th) 79 (Ont. CA): 84–85) but it is possible to identify indicators of bindingness.

Imperative Language

There are three points to bear in mind here.First, by the presence of imperative language, I mean the use of words such as “shall”, “must”, or “required”. Guidelines which contain imperative language are more likely to be binding. For example:

1. Where there is a direction that certain factors “shall be considered” or “must be considered” (Equal Wages Guidelines, S.O.R. 1986, 1082);ⁱ

b) Where there is a direction that certain factors “shall not be considered” (Equal Wages Guidelines, S.O.R. 1986, 1082);

c) Where there is a direction that certain things are “required” to be done when certain factors are present (Guidelines Respecting Control in Fact for the Purpose of Section 377.2 of the Bank Act, S.O.R. 2012, 278); and

• Where there is a direction that certain things are “not required” to be done or permitted (See the discussion of the Age Guidelines below).

This imperative language is designed to compel people to act in particular ways. It is the language of command, providing direction on what has to be done.

Second, where imperative language is combined with an exhaustive list of factors, the guidelines are more likely to be binding. When the list of factors is stated to be exhaustive, there is no scope to look outside the list of factors and, as a consequence, the list is binding.

Third, binding effect is sometimes achieved by making a definitive statement. This does not require the use of terms such as “shall”, “must” or “required” or the use of a list. For example, the Canadian Human Rights Commission’s Age Guidelinesstate simply and clearly in art. 3 that certain types of fare reduction are not discriminatory:

Where adverse differentiation in relation to any individual in the provision of goods, services, facilities or accommodation customarily available to the general public is based only on a reduction or absence of rates, fares or charges with respect to children, youths or senior citizens, such adverse differentiation is reasonable and is not, in the opinion of the Commission, a discriminatory practice within the meaning of section 5 of the Act (Age Guidelines, S.I. 1978, 165).

Although imperative language is not used here, the provision has mandatory effect. The guideline sends the message that a defined set of types of adverse differentiation “shall not” or “must not” be treated as discriminatory and that decision-makers are “required” to treat these types of adverse differentiation as reasonable and non-discriminatory. Put another way, it is a definitive statement which sets out what the decision-maker is to do.

Permissive Language

The opposite of imperative language is permissive language. Rather than providing direction on what is to be done, permissive language provides general guidance about what can be done. There are two considerations here.

First, by permissive language, I mean the use of words such as “may”, “generally”, “normally” or “typically”. The use of these words indicates that it is permissible to depart from the guidelines where appropriate. There is, in other words, an absence of imperative language. The OFSI Liquidity Principlesare a good example. Under the Bank Act (S.C. 1991, c. 46), the Governor in Council has a regulation-making power in respect of the maintenance of adequate capital and liquidity; the Office of the Superintendent of Financial Institutions has a guideline-making power in respect of the same subject matter (Bank Act, S.C. 1991, c. 46, s485(2)).ⁱⁱⁱ The Superintendent has, under this power, issued Liquidity Principles, B-6 (Canada, Office if the Superintendent of Financial Institutions 2020). Page 2 sets a descriptive tone – relating to “some of the elements that will be considered” – and the document goes on to set out a series of 13 principles in non-exhaustive style. See for example, paragraph 11.

Second, guidelines are sometimes also expressed to be “non-binding”. At the risk of stating the obvious, this is a good indication that the guidelines are, indeed, non-binding.

A useful example is the Canada Competition Bureau’s (2019) Abuse of Dominance Enforcement Guidelines. In the preface to the Guidelines, there is a plain statement that the Guidelinesdo not “constitute a binding statement of how the Commissioner will proceed in specific matters”. Then the word “typically” appears 15 times in the body of the Guidelinesand “generally” 23 times, with the formulations “may consider” and “seek to” featuring 12 and 22 times respectively.

Another example comes from the area of immigration and refugee law. The Chairperson of the Immigration and Refugee Board has issued jurisprudential guides. Under the Immigration and Refugee Protection Act, “the Chairperson… may issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides, after consulting with the Deputy Chairpersons, to assist members in carrying out their duties” (S.C. 2001, c. 27, s. 159(5)(h)). To begin with, the Immigration and Refugee Board has a Policy on the Use of Chairperson’s Guidelines and Jurisprudential Guides, which is explicit as to the non-binding nature of the guides as “members remain free to reach their own conclusions, based on the facts of each particular case” (2022: s. 8). This point was also reiterated, for instance, in a recent jurisprudential guide from 2020, the Policy note for identification of MB8-00025 as a Refugee Appeal Division Jurisprudential Guide (https://irb.gc.ca/en/legal-policy/policies/Pages/note-mb8-00025.aspx). The Federal Court of Appeal held that such jurisprudential guides are appropriate in Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), [2020] FCA 196 (FCA), at paragraphs 84–86.

Summary

Imperative language helps to give guidelines binding character. Where terms such as “shall” or “must” are used, or guidelines are otherwise couched in mandatory terms – because, for instance, they set out exhaustive lists or make definitive statements – the guidelines are more likely to be binding. By contrast, where the language in guidelines is permissive or the guidelines are stated to be “non-binding”, the guidelines are more likely to be non-binding.

This content has been updated on March 22, 2023 at 01:43.