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Law, Regulation, Policy, Rule, Guideline, or Mere Suggestion?

Or As My Kids Might Say, “Do I Have To?”

For some who do not routinely work in the field of administrative law, the idea of statutory authority is generally thought of as the statute itself and whatever regulations might be created by cabinet in relation to the statute. However, administrative law is replete with examples of statutes that grant administrative bodies the authority to create regulations or other kinds of rules.

There is also ample case law regarding scope of an administrative body’s authority to create regulations, rules, guidelines, or other principles by which it might compel or direct. For some very recent examples, see West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22 (regarding workers’ compensation boards) or Green v. Law Society of Manitoba, 2017 SCC 20 (regarding law societies). Anyone who practices tax law is no doubt familiar with the different kinds of rules and directives that might be issued by the tax authorities. While not traditionally viewed as an administrative body, the scope of a municipality’s delegated authority to create bylaws has also been the subject of similar judicial review proceedings (e.g. Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2).

While all these cases largely dealt with the administrative body’s authority to create regulations, rules, guidelines, and other directives, in Anglin v Chief Electoral Officer, 2018 ABCA 296, the Court of Appeal of Alberta recently considered the degree to which a rule created by an administrative body had the force of law or was merely a non-binding and unenforceable piece of information suggesting how something should be done under a statutory scheme.

Anglin was a judicial review of a decision of the Chief Electoral Officer of Alberta under that province’s Election Act, RSA 2000, c. E-1 (“Act”). Mr. Anglin was a member of the provincial legislature who ran for re-election in the 2015 Alberta general election. The Chief Electoral Officer determined that Mr. Anglin’s election signs violated Guidelines for electoral candidates created by Elections Alberta regarding election advertising. The Guideline in question required candidates to include certain information on their print and electronic advertising. It also required the mandatory information (which included sponsorship information) to be of a font size no smaller than 25% of the size of the main text of the advertisement. The Chief Electoral Officer found that the required information on Mr. Anglin’s signs were in a smaller than permissible font and imposed a $250 administrative penalty on Mr. Anglin.

On judicial review, the chambers judge confirmed the Chief Electoral Officer’s decision. On appeal, Mr. Anglin argued that the Guidelines were merely a “guideline”, in that they were simply a directive that allows for some leeway or discretion as to whether it is implemented, adopted, or followed. As such, Mr. Anglin took the position that they were unenforceable under the Elections Act and the Chief Electoral Officer could not issue a penalty for any breach of the Guidelines.

The Court of Appeal determined that the binding nature and enforceability of the Guidelines were a matter of statutory interpretation. Section 134 of the Act establishes rules for election advertising “in accordance with the guidelines of the Chief Electoral Officer”. Section 134 also includes provisions mandating the inclusion of sponsorship information and requiring the Chief Electoral Officer to establish guidelines regarding that requirement. The court found that the Guideline in question did exactly that, by requiring candidates to present the mandatory information in a sufficiently legible manner and in a minimum font size. Furthermore, the Act included a mechanism of enforcement for the Guidelines, as set out in section 153.1(1).

The court determined that this statutory scheme meant that the Guidelines were binding and had the force of law. The legislature had the authority to create the regulatory scheme described in the Act, it had the authority to delegate rule-making power to the Chief Electoral Officer in the form of the Guidelines, and it had the authority to require candidates to consider and comply with the Guidelines. Despite their description in the Act as “guidelines”, they were a form of subordinate or delegated legislation. Reading the provisions of the Act regarding the Guidelines within the context of the Act as a whole makes it clear that candidates had to comply with the advertising requirements of the Act, as directed by the requirements of the Guidelines.

There really is no doubt as to a legislature’s authority to delegate rule-making powers to an administrative body. What is interesting about Anglin is that it is a reminder that the courts will look at a rule-making scheme within the context of a statutory scheme. Moreover, it is a reminder that the label given to a rule-making scheme is not determinative of the authority to compel compliance with the rules created under the scheme. While a term like “guideline” might have an everyday meaning that implies that it is simply something that is a good idea to follow, within a statutory scheme the word can take on a greater meaning. Therefore, whether compliance with a “guideline”, “directive”, “policy”, or some other title for a set of rules is mandatory or voluntary depends on the authority granted under an administrative body’s enabling statute.

As for my kids, yes, you do have to do as you’re told. There is no judicial review – although grandpa and grandma might say otherwise.

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