[Vol. 18
The Self-Created Rule of Policy and Other Ways of
Exercising Administrative Discretion
Henry L. Molot *
… let your own discretion be your tutor:
suit the action to the word, the word
to the action; with this special observance,
that you o’erstep not the modesty of
nature.
(Hamlet, III. ii).
I DISCRETION: ADJUDICATION AND
SUBORDINATE LEGISLATION ……………………………………………………………..
311
II THE INTERPLAT BETWEEN ADJUDICATION AND
A TRIBUNAL’S PRE-EXISTING POLICY RULE ……………….
317
III THE ANALYTICAL APPROACH TO THE POLICY RULE ………………..
324
IV INDIVIDUAL RIGHTS AND THE POLICY RULE ……………………………..
330
V ADMINISTRATIVE PREFERENCE FOR THE POLICY RULE
AND ABSENCE OF PUBLIC PARTICIPATION ………………..
334
VI DISCRETION: THE COMMON CHARACTERISTIC …………………………
341
* BA. (Toronto), LL.B., LL.M. (Yale), of the Canadian Department of
Justice. It goes without saying that the views expressed herein represent
only the author’s opinions and are not necessarily those of the Department
of Justice or the Government of Canada.
No. 3]
SELF-CREATED RULE OF POLICY
The exercise of discretion and the capacity for policy-making
often travel together. Lawyers do not always notice the relation-
ship because the influence of the judicial process may have led
them to believe the shibboleths of the courts that decisions of
policy are for the legislature alone to enact. Certainly the profession
would agree that the legislature, subject to constitutional limitations,
possesses wide discretionary and policy-making powers. But that
of course is a subject for examination by political and other
social scientists! This same predisposition has even left studies
on how judges and juries exercise the undoubted discretion given
them to persons, legally trained or not, who often are versed
in the behavioural sciences. However, administrative law often has
proved to be an upsetting area for the lawyer who finds bodies
that are neither courts nor legislature clothed with a goodly share
of discretion. And yet, marvellous to behold, much of what these
bodies often do in microcosm begins to resemble the functions
of legislatures and courts. Consequently, it is not surprising that
his experience with the decisions of the latter, when commingled
with a penchant for procedure, should have led him to place
greater weight on how a tribunal performs its tasks than on
the substance of the decision itself. The question that bears some
examination, therefore, is the extent to which the law should become
more concerned with the interplay of administrative discretion
and policy-making and with the access to this process by the
individual.
I. Discretion: Adjudication and Subordinate Legislation
At the federal level and now generally as a reflection of its
Administrative Procedure Act,’ American law has focused a good
deal of attention on the distinction between the “adjudicative” 2
and “rule making” 3 functions of an agency. Because this statute
requires different procedures attend the performance of each of
these tasks, it may become vital to discover not only what dis-
tinguishes in essence one from the other but which function the
agency was performing at the time in question. The Act itself
attempts to define both these expressions 4 but as recent juris-
1011.
15 U.S.C. 1001 –
25 U.S.C. 1004.
3 5 U.S.C. 1003.
45 U.S.C. 1001(c) and (d).
McGILL LAW JOURNAL
[Vol. 18
prudence 5 and commentary 6 in the United States demonstrate
this may not always be so easy of solution as one would imagine.
Moreover, for one reason or another and despite the authority in
an agency to proceed as it chooses by adjudication or rule making,7
it may prefer to originate and promulgate policies prospective and
general in application in the course of an adjudicative hearing 8 or,
on the other hand, by rule-making limit the area in which it would
otherwise have the authority to adjudicate. Although each function
attracts somewhat different procedures to itself, both in substance
have the common quality that the agency is exercising a statutory
discretion, perhaps one possessed of a great many policy impli-
5 N.L.R.B. v. Wyman-Gordon Company, 394 U.S. 759 (1969).
6 Robinson, The Making of Administrative Policy: Another Look at Rule-
making and Adjudication and Administrative Procedure Reform,
(1970),
118 U. Pa. L. Rev. 485, at pp. 508-512; Bernstein, N.L.R.B.’s Adjudication –
Rule-Making Dilemma under the Administrative Procedure Act,
Yale L.J. 571.
(1970), 79
7 This choice, given to the agency empowered both to adjudicate and to
make rules, was confirmed by U.S. v. Storer Broadcasting Co., 351 U.S. 192
(1955) and F.P.C. v. Texaco Inc., 377 U.S. 33 (1964). Although both cases
were immediately concerned with the ability of particular rules to erode
away a portion of the general adjudicative jurisdiction given to an agency,
what these cases, in alliance with S.E.C. v. Chenery Corp., 332 U.S. 194 (1947),
spawned was a quest for the answer to the more basic question: having
been given the choice should an administrative agency proceed to develop
its policies by adjudication or rule-making? Some of the more important
investigations of this fundamental issue are to be found in Davis, Discre-
tionary Justice, (Louisiana State U. Press, 1969); Friendly, The Federal
Administrative Agencies: The Need for Better Definition of Standards,
(1962), 75 Harv. L. Rev. 863, at p. 1055, 1263; Baker, Policy By Rule or Ad
Hoc Approach – Which Should It Be?, (1957), 22 Law and Contemp. Probs.
658; Cohen and Rabin, Broker-Dealer Selling Practice Standards: the Im-
portance of Administrative Adjudication in Their Development, (1964), 29
Law and Contemp. Props. 691; Peck, The Atrophied Rule-Making Powers
of the National Labour Relations Board, (1961), 70 Yale L.J. 729; Peck
A Critique of the National Labour Relations Board’s Performance in Policy
Formulation: Adjudication and Rule-Making, (1968), 117 U. Pa. L. Rev. 254;
Shapiro, The Choice of Rule-making or Adjudication in the Development
of Administrative Policy, (1965), 78 Harv. L. Rev. 921; Fuchs, Agency Develop-
ment of Policy Through Rule-Making, (1965), 59 Nw. U. L. Rev. 781; Robinson,
op. cit., n. 6.
sSee, e.g. N.L.R.B. v. Wyman-Gordon Company, op. cit., n. 5, and cases
subsequent to it such as N.L.R.B. v. Hondo Drilling Company, 428 F. 2d 943
(1970); N.L.R.B. v. DIT-MCO Inc., 428 F. 2d 775 (1970); American Machinery
Corp. v. N.L.R.B., 424 F. 2d 1321 (1970). See also the articles cited in note 6.
9E.g., U.S. v. Storer Broadcasting Co., op. cit., n. 7; F.P.C. v. Texaco
Inc., op. cit., n. 7.
No. 3]
SELF-CREATED RULE OF POLICY
cations. That a tribunal may be given wide discretionary powers
in a statute and its regulations raises many of those fears that
declaim against socialism and the rising bureaucratic tide. How-
ever, the introduction of procedural checks, such as those to be
found in the Administrative Procedure Act, are only too typical
of the lawyer’s over reliance on, almost at times an apotheosis of,
this method of controlling whatever he puts his hand to. Those
who have knowledge of the administrative process are only too
able to point to the various ways by which agencies have circum-
vented these strictures and thrown off some of these procedural
restraints.’0 One need only refer to the general statement of policy,
released to the public of course, the advisory opinion and the
attempt by the agency to compress its past and present practices
into a code or guide as examples.” It
is for these and other
reasons that American commentators have begun to call for the
introduction of substantive means for channeling and controlling
the exercise of discretionary powers. 2
Canada, it need not be emphasized, also has tribunals on which
has been bestowed a great deal of administrative discretion. How-
ever, the two general compartments described by the American
Procedure Act have here been expanded to three under the common
law. The difficulty in distinguishing among legislative, adminis-
trative and judicial acts, particularly the latter two,13 will be only
too familiar to those who have engaged themselves in the task of
determining whether the rules of natural justice apply to the act
being performed by a tribunal and whether the remedy of certiorari
or prohibition lies against this body. However hopeful one may
10 Davis, op. cit., n. 7, ch. IV; Fisher, Rule-Making Activities in Federal
Administrative Agencies, (1965), 17 Ad. L. Rev. 252; Shapiro, op. cit., n. 7,
at pp. 9234; Friendly, op. cit., n. 7, at pp. 1296-7.
11 See the methods listed by Fisher, ibid., at pp. 253-5. Of course, it must here
be emphasized that neither the advisory opinion given to the individual in
a particular case [Woon v. M.N.R., 50 D.T.C. 871 (1950); but cf. new Information
Circulars 70-6 and 71-25 of the Department of National Revenue in which
there is expressed that an advance ruling “will be regarded as binding upon
the Department”] nor the more general policy statement or information
bulletin (Aspinall v. M.N.R., 70 D.T.C. 1669 (1970); Pioneer Laundry and Dry
Cleaners Ltd. v. M.N.R., [1940] A.C. 127, at p. 134) can of itself have the
binding force of law.
12 Op. cit., n. 17.
13 See, e.g., de Smith, Judicial Review of Administrative Action, (2d ed.,
1968) ch. 2; Molot, Administrative Bodies, Economic Loss and Tortious
Liability, in Fridman, Studies in Canadian Business Law, (Toronto, 1971),
at pp. 427447.
McGILL LAW JOURNAL
[Vol. 18
be that some of these distinctions may slowly be disappearing, 4
it is as true here as it is in the United States that whatever
label is given to what a tribunal be doing this administrative
body is exercising a discretion. And the breadth of that discretion
is not likely to be measurable by the referent of its legislative,
administrative or judicial quality. Moreover, in Canada as well,
one cannot ignore the presence of the same unconventional and
less open methods by which officials may influence how they will
exercise their discretion. For example, there are the advance rulings
and bulletins given by the Department of National Revenue under
the Income Tax Act, the general policy statements of the Canadian
Radio Television Commission in speeches and press releases, and
the general guidelines issued by the Treasury Board of Canada.
If the American dichotomy between the adjudicative and rule
making functions in the exercise of discretionary power cannot
be expressed in exactly the same way in Canada, it is probably
fair to say that our legislative act corresponds to American rule
making whereas adjudication is represented more closely by the
combined forces of the administrative and judicial. All of which
leads to the following question: to what extent may a Canadian
tribunal possessed of adjudicative powers harken to more general
guidelines of a legislative nature as a valid means of limiting the
administrative or judicial discretion conferred on it by law? ‘5
Firstly, and probably least controversial of all, is the situation
where a valid regulation or by-law finds itself operating to some
extent in the same sphere as the adjudicative discretion given to
a tribunal. As noted earlier, the American decisions have had to
concern themselves with that contraction of the area in which an
adjudicative hearing might be demanded that a lawful rule could
impose. It is not too difficult to understand the grievance felt
by an individual who can refer to judicial or administrative dis-
cretion in a tribunal and who then finds that valid subordinate
legislation has subtracted from that circle of discretion the very
sector in which he is particularly interested. These sentiments
are perhaps aggravated when this person would have been entitled
to have this exercise of adjudicative power accompanied or pre-
ceded by -a hearing, a procedure that is avoided by the tribunal
14See reference to this evolution in Molot, Annual Survey of Canadian
Law: Administrative Law, (1970), 4 Ottawa L. Rev. 458, at p. 469; Molot,
Annual Survey of Canadian Law: Administrative Law, (1971), Ottawa L. Rev.
(forthcoming).
15 See generally, Anisman, Book Review, (1969), 47 Can. Bar Rev. 670, at p. 680.
No. 3]
SELF-CREATED RULE OF POLICY
that can refer to the regulation in question as having effectively
removed from it the power to adjudicate. Nevertheless, unless one
were to deny a tribunal the authority to pass valid subordinate
legislation wherever this authority and an adjudicative discretion
overlapped, the only general answer to the conundrum that can
be given is the one that recognizes the primacy of the former.
This, of course, is a consequence perhaps more in tune with
Canadian constitutional theory which in recognizing the supremacy
of the legislative arm of government gives credence to the para-
mountcy of rule making over adjudication. For example, 6 the
statute constituting the University of Sydney at one and the same
time gave the Senate the general discretionary power to “act in
such manner as appears to them to be best calculated to promote
the purposes of the University” 17 and the subordinate legislative
authority to “make by-laws and regulations relating to … all other
matters whatsoever regarding the University”. 8 A committee of
the Senate in the exercise of its adjudicative powers refused a
student re-admission to the University and in doing so purported
to rely on a Senate resolution. Before concluding that this reso-
lution was not a valid “by-law” or “regulation”, the court had
occasion to state that although the presence of a rule making power
does not of itself cut down the generality of the Senate’s discretion,
once a valid rule has been enacted there exists
a law binding on all persons to whom it applies, whether they agree to be
bound by it or not. All regulations made by a corporate body, and intended
themselves and their officers and servants, 19 but
to bind not only
members of the public who come within the sphere of their operation,
may be properly called ‘by-laws’…20
As one might expect, where the regulation or by-law relied
upon by a tribunal turns out to be invalid, no longer can the admin-
istrative process lean on the theory of “a law having the attributes
of generality of operation and binding force upon itself and others”.2 1
Although attempts to enforce an invalid regulation and the in-
hibitions created by its very presence may cause a great many
16Ex parte Forster, [1963] 63 S.R. (N.S.W.) 723.
17 University and University Colleges Act, 1902-1959, (N.S.W.) s. 14(2).
18Ibid., s. 15(1)(e).
19 Berger, Do Regulations Really Bind Regulators?, (1967), 62 Nw. U. L. Rev.
137.
20Ex parte Forster, op. cit., n. 16, at p. 731, quoting Lindley, L.J. in London
Ass. of Shipowners and Brokers v. London and Indian Docks Joint Com-
mittee, [1892] 3 Ch. 242, at p. 252.
21 Bx parte Forster, op. cit., n. 16, at p. 731.
McGILL LAW JOURNAL
[Vol. 18
practical difficulties for the individual,22 the law recognizes that
without more he is at liberty to act as if it never existed. However,
it is where this purported law of general application and the tri-
bunal’s exercise of individual discretion intersect that difficulties
begin to abound. For to conclude that this “law” has no binding
force upon the tribunal or individuals still leaves room for the
persuasive or precedential effect it may be given in the admin-
istrative or judicial decision that then follows. To refer again to
Ex parte Forster as illustration, one will note that there in the
attempt to exercise its power to “make by-laws and regulations”
the Senate passed “resolutions” that vere not only misnamed, but
had not been approved by the Governor and laid before both
Houses of the Legislature as the statute required. Therefore, when
the Senate finally came to consider Forster’s request for re-enroll-
ment in the courses in question it could not claim that this reso-
lution was the law of the University and hence capable of tying
its hands in the matter. It could not, as it attempted to do, authorize
a faculty committee to entertain applications from students for
re-enrollment, and save for rights of appeal insulate itself against
having to decide such questions. Having thereby placed itself in
a position almost the converse of that successfully claimed by the
Federal Communications Commission in the Storer decision, 23 the
Senate could not rely on non-existent regulations to interfere with
or diminish the adjudicative power bestowed upon it personally
by legislation.
However, it must be remembered that this discretion given to
the Senate was the very wide one to “act in such manner as ap-
pears to them to be best calculated to promote the purposes of
the University”. In examining the effect to be given to the reso-
lutions of the University Senate, the Court of Appeal had to decide
whether a tribunal exercising adjudicative powers could look else-
22 E.g., in Producers Cold Storage Ltd. v. The Queen, June 24, 1968 (Ex.
Ct.), aff’d. (1969) S.C.R. vi, officials enforced their interpretation of statutory
provisions only to discover after a long period of time that they had erred.
There may be posed an unhappy dilemma for the individual who does not
want to offend officials on whose good graces he must depend in future
dealings and yet whom a legal system based on individualism and the
adversary process leaves no choice but to fight. Failure to recognize and
pursue its rights at the very outset instead of waiting until thirty-seven
years had passed proved a heavy blow indeed
to the petitioner. For a
discussion of how legal and economic systems based less on free entreprise
than even Canada is, see: Roundtable on Adiministrative Law, (1970), 22 3.
Legal Ed. 363.
23 Op. cit., n. 7.
No. 3]
SELF-CREATED RULE OF POLICY
where than to valid legislation, principal or subordinate, for general
guidelines and points of reference. It is at this level that the
legal impact of the invalid regulation on a tribunal’s exercise of
discretion in individual cases begins to resemble a much more
general situation. As we have seen, there may have been the vain
attempt to enact a valid regulation: reliance on it by the tribunal
as a policy formulation will not protect this body from successful
attack if what it “has really done is to make and operate a regu-
lation” 24 that is ultra vires. However “the dividing line between
the legitimate pursuit of a general policy in a matter of admin-
istration and the enforcement of an extra-statutory regulation may
be narrow and sometimes difficult to draw”.25 That line had to be
drawn in the Forster decision, but the more common situation
does not raise any plea of statutory regulation. This then leads
to an investigation of the extent to which the law will permit a
tribunal to have regard to policy guidelines or formulations, what-
ever form they may take. Of course, that policy may be one that
the tribunal must adhere to, a situation represented by a transitional
decision 26 in which the “guideline” took the form of instructions
by the Secretary of State, which immigration officers, under valid
regulations, “shall act in accordance with”.27 An individual asking
a tribunal to make a decision that would conflict with or contradict
such an instruction is confronted with a well nigh impossible task.
But such instructions, on the other hand, may find no legislative
sanction at all or be accompanied by permissive rather than
mandatory language. How radically does this alter the positions
of individual and tribunal concerned is the question next to be
examined.
II. The Interplay Between Adjudication and a Tribunal’s
Pre-existing Policy Role
As a point of departure on this issue it may be well to begin
with the locus classicus of Lord Justice Bankes, who sought to
synthesize the results of earlier decisions and has often assisted
the efforts of later courts confronted with similar problems.
24 Magistrates of Kilmarnock v. Secretary of State for Scotland, 1961 S.C.
350, at p. 357.
25 Ibid., at p. 359.
26Schmidt v. Secretary of State for Home Affairs, [1969] 2 Ch. 149 (C.A.).
See also: Alden v. Gaglardi, [1971] 2 W.W.R. 148 (B.C.C.A.).
27 Stat. Inst. 1953, No. 1671, s. 30(2).
McGILL LAW JOURNAL
[Vol. 18
There are on the one hand cases where a tribunal in the honest exercise
of its discretion has adopted a policy, and, without refusing to hear
an applicant, intimates to him what its policy is, and that after hearing
him it will in accordance with its policy decide against him, unless
there is something exceptional in his case. I think counsel for the
applicants would admit that, if the policy has been adopted for reasons
which the tribunal may legitimately entertain, no objection could be
taken to such a course. On the other hand there are cases where a
tribunal has passed a rule, or come to a determination, not to hear any
application of a particular character by whomsoever made. There is
a wide distinction to be drawn between these two classes.28
The two factors the quality or character of which this statement
seems to focus upon are the hearing and the rule or policy formu-
lation. Each will be examined in turn, but it should be noted that
because of the connotation that in administrative law is enjoyed
by the idea of a “hearing” the use of the expression by Bankes, L.J.
may be somewhat misleading. The right to a hearing associated
with the principles of natural justice and ultimately with the pre-
requisite of a judicial or quasi-judicial function might seem to
limit the occasions when this recited statement of principle would
apply. However, as mentioned earlier, a tribunal’s exercise of
discretionary power in individual circumstances encompasses the
executive or administrative act as well as the judicial, and it is
for that reason that clarity seemed to demand reliance on “ad-
judicative” as more expressive of the general function being per-
formed.
If one begins with the situation where the policy adopted before-
hand by the tribunal is one which it may lawfully consider during
its deliberations, the courts there have generally addressed their
minds to the question of whether the presence of that policy has
led this body ultimately to refuse to exercise its discretion. In
other words, its statutory obligation to consider each individual
case before it and exercise its discretion accordingly has been
abandoned in favour of following a general rule with no legislative
sanction: to that extent it has ignored its statutory mandate. So,
where magistrates had earlier resolved to follow in all cases before
them a settled policy in the matter of costs,2 9 of hearing applications
for new liquor licences, 30 and of the renewal of licences of those
28 R. v. Port of London Authority ex p. Kynoch Ltd., [1919] 1 K.B. 176,
at p. 184 (C.A.).
29 R. v. Glamorganshire JJ., (1850), 19 LJ.M.C. 172; R. v. Merionethshire JJ.,
(1844), 6 Q.B. 163, 115 E.R. 63.
30 R. v. Walsall J., (1854), 24 L.T.O.S. 111.
No. 3]
SELF-CREATED RULE OF POLICY
refusing to take out a full licence,3’ the courts were willing to
conclude that there had been a failure to exercise discretion. A
similar fate befell the municipality which, empowered to decide
upon the sanitary facilities a house-owner should provide, passed,
and attempted to enforce, a general resolution calling for water
closets in all cases 2 It becomes clear that, despite certain mis-
leading words of Wightman, J.,33 it was not the presence of this
general resolution during the tribunal’s deliberations that mattered
so much as its blind enforcement “without reference to the exi-
gencies in any particular case”.3 4
From this it follows that the courts at the very least are asking
a tribunal to give consideration to the merits of the individual ap-
plications before it. If the question before magistrates is one of
costs, for example, mandamus has been granted against them and if
they “have already considered that question, they may make a
return, and state that they did consider the matter”.33 Of course,
the courts will have little trouble in coming to a conclusion on
this question of fact where the tribunal openly states that it cannot
make an exception to its policy “even in a most deserving case”.3 6
In conceptual terms one can understand that in such circumstances
the Council acted “on the basis of a preconceived policy or resolution
when it should have dealt with the particular case before it” 3 7
Similarly, when a statute granted the officer in charge of police
a discretion of whether or not to take fingerprints from a person
in lawful custody, the court was able to conclude that his desire
to do so in the face of an instruction issued by the Commissioner
that he take fingerprints “in every instance” meant that he had
not exercised his own judgment in the individual circumstances of
this case.3
8 And then there is the recent British Columbia case in
31 R. v. Sylvester, (1862), 31 LJ.M.C. 93, 121 E.R. 1093.
32 Wood v. The Widnes Corporation, [1898] 1 Q.B. 463 (C.A.); Tinkler v.
Board of Works for the Wandsworth District, (1858), 27 L.. Ch. 342; R. ex
rel. Wilson v. Holmes, [1931] 3 D.L.R. 218, at p. 224 (Sask. C.A.).
3R. v. Sylvester, op. cit., n. 31, at p. 95.
34 Wood v. The Widnes Corporation, op. cit., n. 32, at p. 467.
35R. v. Glamorganshire JJ., op. cit., n. 29, at p. 174.
36 R. v. L.C.C. ex p. Corrie, [1918] 1 K.B. 68.
37 Leddy v. Saskatchewan Government Insurance Office, 45 D.L.R.
(2d)
3 8 Sernack v. McTavish, 15 Fed. L.R. 381 (A.C.T. Sup. Ct. 1970). On the
police as an administrative agency and as public officers with a discretion
to exercise, see Weiler, The Control of Police Arrest Practices: Reflections
of a Tort Lawyer in A.M. Linden, Studies in Canadian Tort Law, (Toronto,
1968), 410, at pp. 461-467; Grosman, The Prosecutor, (Toronto, 1969), at pp.
445, at p. 457 (C.A.).
McGILL LAW JOURNAL
[Vol. 18
which there was discussed the statutory power lying on the Super-
intendent of Motor Vehicles to suspend or cancel the licence of a
driver who in his opinion is unfit to drive or operate a motor
vehicle.38 The defendant’s affidavit disclosed that where a licensee
had been convicted of impaired driving he was to be subject to
a 30-day suspension “in every case”. Because the Court of Appeal
found that the circumstances surrounding the conviction were never
considered, but rather the Superintendent’s pre-determined policy
governed every case of impaired driving entering his office, it
concluded that he never entered into the inquiry required by the
Act and had thereby exceeded his jurisdiction. These instances fall
clearly into the last category of Bankes, L.J. because, as he and
others have underscored,
it is this tribunal that the evidence
establishes has closed its mind to all but its own rule or general
policy.
Moving away from this rather extreme position, one may ask
whether the professions of a tribunal that it did hold the required
hearing, listen to the applicant’s submissions and never close its
mind to exceptional circumstances will preserve its decision from
judicial condemnation. Lord Hewart, in one such case, seemed to
rest part of his judgment against the decision of licensing magis-
trates on the conclusion that even in these circumstances there
would “be an abdication of the duty of the justices impartially to
consider upon the particular facts the merits of each individual
application”.4 This stand appears to conflict with the words ex-
pressed in the Kynoch case and more recently has been repudiated
by Lord Goddard. 1 As the latter points out, the justices “may lay
down for themselves a general rule but are bound to consider
whether it is applicable to any particular case”.4 2 It
is only too
clear that the two Chief Justices differ on the weight each is willing
to give the general rule adopted by a tribunal in the course of its
decision-making. For once it is admitted that a tribunal may set
general rules for its own future guidance, a premise that will have
to be further examined, a certain tension invariably will grow up
between them and the claim of an individual that they should not
23-25; Barker, Police Discretion and the Principle of Legality, (1966), 8 Crim.
L.Q. 400; Gandy, The Exercise of Discretion by the Police as a Decision Making
Process in the Disposition of Juvenile Offenders, (1970), 8 Osgoode Hall L..
329.
39 Lloyd v. Superintendent of Motor Vehicles, [1971] 3 W.W.R. 619.
4oR. v. Rotherham JJ. ex p. Chapman, [1939] 2 All E.R. 710, at p. 714.
41R. v. Torquay Licensing JJ. ex p. Brockman, [1951] 2 K.B. 784.
42 Ibid., at p. 789.
No. 3]
SELF-CREATED RULE OF POLICY
be applied to his particular circumstances. Because it is not un-
common to find that the individual appearing before an admin-
istrative body is there to obtain some benefit or advantage from it,
whether that be the elevation of a restricted to a full licence,43
the granting of an occasional licence, 44 the transfer of a licence,4 5
permission to build a dock 46 or amendment of a municipality’s
by-law,40 it perhaps is less surprising to find the courts more inclined
to conclude that the burden lies on the individual to convince the
tribunal that “on the facts of the particular case, there is enough
to take it out of the general rule which they (the justices )have
laid down” 0 On the other hand, where that rule has been formulated
by a body that is empowered to deprive someone of a vested benefit
or right only after it or a prosecutor has established the necessary
factual foundation, there may be stronger grounds for believing
that the courts should be more chary of placing this onus on the
individual. This may help to explain why the courts were some-
what less generous to the official who sought to employ a general
policy in favour of fingerprinting the complainant 51 or suspending
his driver’s licence. 2
Another factor that may bear on the manner in which courts
ultimately treat the self-created rule of a tribunal is the nature
of the administrative body itself. For example, a Minister of the
Crown is more likely than most other officials to have many of
his responsibilities associated with matters of high policy and
discretion. One would be quite naive to rely on this as a universal,
for the reference by Martland, J.53 to this special attribute can
be countered by still other decisions such as Padfield ‘1 where
the House of Lords found limits to the discretion exercisable by
the Minister of Agriculture, and more recently in a decision of the
British Columbia Court of Appeal that refused to interpret the
431d.
44R. v. Rotherham JJ. ex p. Chapman, op. cit., n. 40.
45 R. v. Holborn JJ. ex p. Stratford Catering Co. Ltd., (1926) 136 L.T. 278.
46 R. v. Port of London Authority ex p. Kynoch Ltd., op. cit., n. 28.
47Ex p. Forster, op. cit., n. 16.
4 SMagistrates of Kilmarnock v. Secretary of State for Scotland, op. cit., n. 24.
49 Re Hopedale Development Ltd. and Town of Oakville, [1965] 1 O.R. 259
(C.A.).
5o R. v. Torquay Licensing JJ. ex p. Brockman, op. cit., n. 41, at p. 792.
51 Sernack v. McTavish, op. cit., n. 38.
52Lloyd v. Superintendent of Motor Vehicles, op. cit., n. 39.
53 Calgary Power Ltd. v. Copithorne, [1959] S.C.R. 24, at p. 33. See also:
Dowhopoluk v. Martin, [1972] 1 O.R. 311, at pp. 316-7 (High Ct.); Re Board of
Moosomin Unit No. 9 and Gordon, 24 D.L.R. (3d) 505, at pp. 511-2 (Sask. Q. B.).
54 Padfield v. Minister of Agriculture, [1968] A.C. 997.
McGILL LAW JOURNAL
[Vol. 18
power in the Minister of Finance to determine “in his absolute
discretion” whether a testamentary purpose trust was charitable
or not as anything but quasi-judicial in nature 5 It may be thought
that the validity of this factor is in some doubt both because of
these contradictory illustrations and because more recent juris-
prudence has divided on the merits, one case rejecting a Minister’s
reliance on pre-existing policy 56 whereas two others found nothing
erroneous in his doing so. 5 7 And yet, these three do not disagree
on the fundamental considerations at stake. Mention by Lord Reid
that “a Ministry or large authority may have had to deal already
with a multitude of similar applications and then they will almost
certainly have evolved a policy so precise that it could well be
called a rule” 5 finds an even stronger proponent in Willis, 3. who
rejects the assistance of licensing cases “when considering the scope
of a Minister’s duties within a statutory framework”. 9 However,
there seems no disagreement with the proposition that a tribunal,
in these cases a minister of the Crown, that has developed such a
general rule does not act improperly “provided that the existence
of that general policy does not preclude him from fairly judging
all the issues” 60 before him: so long as it does not lead him “to
refuse to listen at all”. 61 And this seems none too different from
the manner in which the self-created policies of lesser bodies are
treated, a conclusion perhaps borne out by the judgment of Willis, 3.
who found against the Minister of Agriculture on this point. Never-
55 Executors of Woodward Estate v. Minister of Finance, [1971] 3 W.W.R.
645. To be noted also is the attempt by s. 28(6) of the Federal Court Act,
S.C. 1970, c. 1, to shield the Governor in Council and the Treasury Board
from some aspects of judicial review. Certainly one might expect that the
former would be even more deeply concerned with policy considerations
than individual ministers of the Crown. And yet, however generous to these
tribunals the courts are likely to be in deciding whether they refused
“to listen at all”, it must always be borne in mind that generally it is the
ultra vires concept that has been used to strike down abuses of discretion
and it is this selfsame concept that has permitted courts to escape even
more strongly worded privative clauses than is to be found in this provision
of the Federal Court Act.
56 Lavender and Son Ltd. v. Minister of Housing and Local Government,
[1970] 3 All E.R. 871.
57British Oxygen Co. Ltd. v. Minister of Technology, [1971] A.C. 610;
Stringer v. Minister of Housing, [1971] 1 All E.R. 65.
58 British Oxygen Co. Ltd. v. Minister of Technology, ibid., at p. 625. See
also: R. v. Port of London Authority ex p. Kynoch Ltd., op. cit., n. 28, at p. 187.
59 Lavender and Son Ltd. v. Minister of Housing and Local Government,
op. cit., n. 56, at p. 878.
GOStringer v. Minister of Housing, op. cit., n. 57, at p. 80.
6 1 British Oxygen Co. Ltd. v. Minister of Technology, op. cit., n. 57, at p. 625.
No. 3]
SELF-CREATED RULE OF POLICY
theless, because a Minister is likely to be less accessible to the
public than licensing tribunals or local authorities and to have the
reasons for his decision more enshrouded by imponderable policy
and departmental considerations, it comes as no surprise that the
courts are somewhat more disinclined to fault a Minister for re-
fusing “to listen at all”.
In common law jurisdictions, which rely so heavily on the
judicial process and precedent for their source of law, it is inter-
esting that tribunals as well have imitated the courts to the extent
of finding guidelines and rules in their own earlier decisions. The
Americans have actively pursued this avenue as a source of “agency
law”. Though not valid subordinate legislation which without more
must be obeyed by the tribunal and members of the public, ad-
judicated cases do serve as a means of formulating agency policy
and, consequently, offer guidelines to what the agency may be
expected to do in future.2 Anglo-Canadian jurisprudence has followed
similar lines of reasoning. When the Ontario Municipal Board
dismissed an applicant’s appeal because it had not brought itself
within the principles enunciated in earlier decisions of the Board,
the Court of Appeal admitted that this did tend to reduce the
scope of the inquiry.6 However, more importantly, they also offered
“reasonable and wise” ” guidance to the Board and, one might
add, to the public at large but without assuming the character of
rules with which the appellant must comply before its application
would be granted. What is to be assessed is how rigidly and authori-
tatively a tribunal’s earlier pronouncements and decisions are ap-
plied to the present case and whether that administrative body has
given “due regard to the discretion which each application involves
and to the changing and developing circumstances in which the
Act, as distinct from the decisions, calls for interpretation and
application”.65 The general words of Devlin, L.J. echo sentiments
02See: N.L.R.B. v. Wyman-Gordon Company, op. cit., n. 5; Friendly, op. cit.,
n. 7; Robinson, op. cit., n. 6.
3 Re Hopedale Developments Ltd. and Town of Oakville, op. cit., n. 49.
6
04 Ibid., at p. 265.
015Merchandise Transport Ltd. v. British Transport Commission, [1962] 2
Q.B. 173, at p. 186. See also judgment of Devlin, J. in this case, and R. v.
Flintshire C.C. County Licensing (Stage Plays) Committee ex p. Barrett,
[1957] 1 Q.B. 350; R. v. Brighton Corp. ex p. Thomas Tilling, Lim., (1916),
85 L.J.K.B. 1552, 114 L.T. 800; R. v. Prestwich Corp. ex p. Gandz, (1945), 43
L.G.R. 97, 109 J.P. 157; Milner, Planning and Municipal Law, [1966] Special
Lectures of Upper Canada Law Society 77, at pp. 147-9; Arthurs, Developing
Industrial Citizenship: A Challenge for Canada’s Second Century, (1967),
45 Can. Bar Rev. 786, at pp. 819-20.
McGILL LAW JOURNAL
[Vol. 18
not confined to the form in which the general policy happens to
be expressed: “a tribunal must not pursue consistency at the ex-
pense of the merits of individual cases”. 6
III. The Analytical Approach to the Policy Rule
The courts have met the issue of the pre-existing policy or rule
on the field of discretion. If, in refusing to listen to the request
of the individual applicant for waiver of the policy in a particular
case or rejection of it altogether, a tribunal fails to heed “the
dividing line between the legitimate pursuit of a general policy
in a matter of administration and the enforcement of an extra-
statutory regulation”, 7 it will then have failed to address its mind
to the case before it and exercise the discretion given it by statute.
Conceptually, the tribunal has acted without jurisdiction or au-
thority.’ But it is not difficult to perceive how other doctrine
might be brought to bear upon the matter. The applicant to the
court for judicial review is complaining that an administrative
body has formulated beforehand a policy or rule which it intends
to apply to all cases of a similar nature coming before it. To that
extent it has not only curtailed the scope of the adjudicative
inquiry and the issues with which it will concern itself, but it
may also be accused of having prejudged the matter. This reasoning
process has led to the claim of bias being raised against a tribunal.
If such a claim were to be successful, that would put an end to
the capacity of bodies exercising quasi-judicial functions to adopt
any extra-statutory rules or guidelines and, carried further, might
well prevent these tribunals from even being able to refer to earlier
decisions in the course of their reasoning. Not only would such a
result play havoc with even the more limited doctrine of stare
decisis applicable to the administrative process but, more funda-
mentally, it would destroy what certainty and consistency are
66Merchandise Transport Ltd. v. British Transport Commission, ibid., at
p. 193.
n. 24, at p. 359.
67Magistrates of Kilmarnock v. Secretary of State for Scotland, op. cit.,
08See: Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C.
147, where the House or Lords played with the difference between “juris-
diction” and “nullity”. Also to be noted are Metropplitan Life Insurance Co.
v. International Union of Operating Engineers, [1970] S.C.R. 425; Executors
of Woodwards Estate v. Minister of Finance, op. cit., n. 55; Wade, Con-
stitutional and Administrative Aspects of the Anisminic Case, (1969), 85 L.Q.
Rev. 198.
No. 3]
SELF-CREATED RULE OF POLICY
offered by the presence of these rules and guidelines. As we have
seen, the courts have readily accepted the need for the latter; it
is therefore not at all surprising that the argument of bias, based
on the existence of such policies alone, has been so readily rejected.6 9
In the Hopedale case the Court of Appeal referred to the de-
sirability of tribunals’ openly stating their guiding policies to the
parties. 70 Particularly as pertains to the administrative body exer-
cising a quasi-judicial function, the reason for this expectation is
clear.71 If the rules of natural justice are not to be offended, that
tribunal must be careful that the hearing held by it affords the
individual involved a sufficient opportunity to answer the allegations
against him. That of course implies that beforehand he has been
given enough information and notice with which to meet the case
against him and part of that case may be a pre-ordained policy
of the tribunal. As Lord Justice Bankes stated in the course of
his much quoted judgment, such a tribumal must still hear the
applicant and do so after it “intimates to him what its policy is”.72
More recently, Lord Reid echoed this sentiment or requirement
when in demanding that an authority “always (be) willing to listen
to anyone with something new to say” ” he implied that the ap-
plicants must be made aware of the policy the effects of which
they are seeking to escape. An individual denied adequate know-
ledge of the policy or rule that a tribunal intends to apply in his
case can no more respond to the situation or allegations against
him than the person who complains of ex parte representations
or that materials and evidence on which the tribunal might base
its decision and to which he has had no access have not been
disclosed to him before the hearing.75
69 Boyle v. Wilson, [1907] A.C. 45. See also: de Smith, op. cit., n. 13, at pp.
244-245.
7 0 Op. cit., n. 49, at p. 264.
71 Although the expansion of the situations falling into the category of quasi-
judicial and the growth of the idea of “fairness” in administrative decision-
making (op. cit., n. 14) may make it difficult to foresee when an individual
is entitled to natural justice and what quality of “fairness” he may lawfully
claim.
72 R. v. Port of London Authority ex p. Kynoch Ltd., op. cit., n. 28, at p. 184.
See also: R. v. Holborn JJ. ex p. Stratford Catering Co. Ltd., op. cit., n. 45,
at pp. 280-281; R. v. Torquay Licensing JJ. ex p. Brockman, op. cit., n. 41, at
p. 788.
73British Oxygen Co. Ltd. v. Minister of Technology, op. cit., n. 57, at p. 625.
74 E.g., Errington v. Minister of Health, [1935] 1 K.B. 249 (C.A.).
7GE.g., R. v. Ontario Racing Commission ex p. Taylor, [1971] 1 O.R. 400
(C.A.).
McGILL LAW JOURNAL
(Vol. 18
This interplay of discretion, policy and hearing may, of course,
be thwarted by legislation that denies the individual any opportunity
to present submissions against the rule created by the tribunal
for itself. In one recent case 76 the courts concluded that a super-
intendent was empowered by statute to suspend a licence without
any notice or hearing at all. The relationship between these latter
incidents and the power of this official to formulate a pre-existing
policy for himself was not made the subject of comment, but rather
the Court of Appeal was able to escape this possible snare by
concluding that the superintendent had misapplied his policy.”
And yet one is left with a feeling of unease that once a tribunal
need not hold any form of hearing there is no way of exercising
sufficient control on the manner in which it exercises its discretion
and applies its rules and policies. Only a tribunal’s own self-re-
straint and sense of fairness and integrity can accomplish this,
and it is worthwhile here to underscore that in the Lloyd case,
for example, the superintendent did file with the court a very candid
and detailed affidavit setting forth the procedures he and his staff
had been following. This merely emphasizes how unfortunate it
is that procedural solutions, the epitome 78 of which is to be found
in the volumes of the McRuer Report, should blind us to the more
fundamental issues at stake.
Another interesting feature of a tribunal’s adoption of a general
rule or guideline focuses on the validity of the rule itself rather
than on the lawfulness of the manner in which it was applied.
Lord Justice Bankes, in referring to the policy having “been
adopted for reasons which the tribunal may legitimately enter-
tain”,79 established this as a condition precedent to the imple-
mentation of that policy. For example, the courts have upheld
as “legitimate” the policy of the Port of London Authority against
granting permission to construct docks or wharves on grounds that
the Authority is charged with the duty of providing this accom-
modation; 80 the policy of the Board of Directors under the Saskat-
chewan Automobile Accident Insurance Act requiring all medical
bills of claimants be routed to the Medicare Commission for pay-
ment; 81 the policy of licensing magistrates in favour of a minimum
security of tenure for lessees in applications to them for the transfer
76Lloyd v. Superintendent of Motor Vehicles, op. cit., n. 39.
17 Supra, p. 320.
78Apotheosis might be even more accurate.
79 R. v. Port of London Authority ex p. Kynoch Ltd., op. cit., n. 28, at p. 184.
80 Id.
81 Leddy v. Saskatchewan Government Insurance Office, op. cit, n. 37.
No. 3]
SELF-CREATED RULE OF POLICY
of a public-house licence; 82 and the policy of the Secretary of State
for Scotland against appointments of chief constables from within
the force in question.83 By now these illustrations will have become
recognizable as instances of the doctrine recently revitalized by
Anisminic Ltd. v. Foreign Compensation Commission,84 which has
permitted courts a wide and highly elastic measure of control over
the exercise of administrative discretion. As that case, and the
precedent relied on by their Lordships, bear out, a tribunal may
commit an error of law rendering its decision a nullity where it
bases that decision on a consideration outside the purview of the
statutory provisions in question or where that decision fails to
account for a consideration contemplated by the legislation. Our
own situation looks at the former and asks whether the general
policy adopted and applied by the tribunal can be described as a
consideration that is within the contemplation of the legislative
scheme in issue. Thus, the Minister of Housing in exercising planning
authority may have and apply a policy with respect to the Jodrell
Bank radio telescope when the proposed development is only four
miles away,8 5 and an education authority may exclude the students
of Roman Catholic primary schools from non-Roman Catholic
secondary schools where there is not enough room in the latter
for all comers.” As Lord Denning states in respect of the latter
decision, “if the policy is one which could be reasonably upheld for
good educational reasons, it is valid”.1
The Supreme Court of Canada recently has brought into bold
relief the relationship between the general policy or rule of a
tribunal and the Anisminic doctrine.8 The Ontario Labour Relations
Act granted the Board a discretion to decide whether “more than
55 per cent of the employees in the bargaining unit are members
of the trade union”.8 9 In certifying a trade union the Board out-
lined in its reasons the policy it applied to the question of whether
an employee was a member of the applicant union and the Board
then proceeded to find that the evidence presented to it satisfied
n. 24.
8 R. v. Holborn JJ. ex p. Stratford Catering Co. Ltd., op. cit., n. 45.
83Magistrates of Kilmarnock v. Secretary of State for Scotland, op. cit.,
84 0p. cit., n. 68.
85 Stringer v. Minister of Housing, op. cit., n. 57.
86 Cumings v. Birkenhead Corporation, [1971] 2 All E.R. 881 (C.A.).
81 Ibid., at p. 885.
8sMetropolitan Life Insurance Co. Ltd. v. International Union of Operating
Engineers, op. cit., n. 68.
8 9Labour Relations Act, R.S.O. 1960, c. 202, s. 7(3).
McGILL LAW JOURNAL
[Vol. 18
the requirements of this policy. Because the Board addressed itself
to this self-created criterion rather than to the demands of the
statute being applied, the Board erred in law. This was a conclusion
not in dispute amongst the various courts, but differing from the
lower ones the Supreme Court concluded that the Board “failed
to deal with the question remitted to it… and instead has decided
a question which was not remitted to it.. .”0 None of the courts 81
discussed whether the Board’s policy had been blindly applied
without listening to the submissions of the applicant,92 but rather
had concentrated their attention on the very applicability of the
Board’s practice to the case before it. It was the Supreme Court
that, in light of the limits placed on the Board’s discretion by the
Labour Relations Act, concluded that this tribunal had allowed
its decision to be influenced by a consideration or question not
contemplated by the legislation.
This same issue became the essential point d’appui for Lord
Goddard 93 who having to decide whether licensing justices could
lawfully apply a policy against raising restricted licences to full
ones was confronted by an earlier decision 0 4 in which Lord Hewart
had agreed to grant mandamus in somewhat similar circumstances.
Because in the latter the magistrates had only applied their policy
after considering the exceptional matters raised by the applicant
and after giving him a full and fair opportunity to avert its effects,
the later court somehow had to avoid this precedent if licensing
justices, and perhaps other tribunals, were to be able to adopt and
implement informal rules and policies in their decision-making.
Lord Goddard was able to do just that by noting that the earlier
court had been concerned with a policy that would have forbade
more than two occasional licences being granted to any one
organization in a twelve-month period and, more critically, with
the application of that policy against the applicant merely because
at the dance he wanted to make money from the bar. Instead of
90Metropolitan Life Insurance Co. Ltd. v. International Union of Operating
Engineers, op. cit., n. 68, at p. 435.
91 [1969] 1 O.R. 412 (CA.); [1968] 2 O.R. 37 (High Court).
02The reasons for the decision of the Board, quoted at some length by the
Supreme Court of Canada, refer to its “long-standing policy” and as well
to the submission of the employer that for purposes of interpreting “member”
of a trade union in the legislation “the Board must look to the constitution”
of the union. This, and the fact that the employer did not complain of a
denial of natural justice, may serve to explain this omission.
93R. v. Torquay Licensing JJ. ex p. Brockman, op. cit., n. 41.
94R. v. Rotherham JJ. ex p. Chapman, op. cit., n. 40.
No. 3]
SELF-CREATED RULE OF POLICY
considering why the occasional licence was wanted and whether
it was for the comfort and convenience of the public, very material
considerations indeed, the justices had indulged themselves in play-
ing with numbers, which was “bringing into consideration matter
[sic] outside the Act altogether”. 5 To revert briefly to the earlier
discussion of the importance of the nature of the tribunal to the
question of whether a tribunal’s policy has improperly fettered
its discretion, one should note that the rejection of licensing cases 96
where ministerial discretion is in play has vital significance.
Where “a Minister or large authority” to which Lord Reid makes
reference is performing adjudicative functions, be they quasi-ju-
dicial or purely administrative, the legislation under which it is
operating very likely contemplates a much greater panoply of
relevant considerations than would be the case where, for example,
licensing justices were concerned. It may be pertinent to compare
the position of a local governmental authority which under the
Education Act was confined to “good educational reasons” 917 with
the Minister of Housing and Local Government whose planning
decision could encompass the efficient function of a radio tele-
scope 8
Not too far removed from this situation of the policy or rule
that turns out to be an irrelevant consideration to the question
before a tribunal was the case where a municipality had contracted
with two persons to license no other persons but them under
statutory provisions that empowered the council to grant hackney
coach and carriage licences in such number “as they think fit”.
Notwithstanding prior cancellation of this agreement the council
continued to apply its terms by refusing to license any other pro-
prietors. The court had little difficulty in concluding that in their
attempt to give effect to an agreement which, if it had remained
in effect, would have unlawfully inhibited their discretion, the
council indirectly was attempting to accomplish the same purpose
and had surrendered their judgment to the provisions of an illegal
agreement. 99 Also illustrated by this case is the variety of forms
95 R. v. Torquay Licensing JJ. ex p. Brockman, op. cit., n. 41, at p. 791.
96 Op. cit., n. 59.
97 Cumings v. Birkenhead Corporation, op. cit., n. 86.
9a Stringer v. Minister of Housing, op. cit., n. 85. See also: R. v. Port of
London Authority ex p. Kynoch Ltd., op. cit., n. 28, at pp. 185 and 187.
99 For a recent example of the impact of a valid contract by a local authority
on the limits of its discretion see Dowty Boulton Paul Ltd. v. Wolverhampton
Corporation, [1971] 2 All E.R. 277. See also: Rogerson, On The Fettering of
Public Powers, [1971] Public Law 288.
McGILL LAW JOURNAL
[Vol. 18
the policy may take: it may be found in a formal resolution or
invalid by-law, an unlawful or unenforceable contract, earlier de-
cisions of the tribunal, or, as often is the case, more casual dress.
IV. Individual Rights and the Policy Rule
It may here be asked how effectively the courts manage to
channel this informal method of administrative policy-making past
the Scylla of individuated adjudication and the Charybdis of formal
rule-making. It has already been noted that by preventing a tribunal
from applying a policy as generally and blindly as it might a regu-
lation, the courts have tried to draw a qualitative distinction
between the two. It is true that a regulation, 00 like its more in-
formal counterpart, might be found inapplicable to the particular
circumstances at hand, but this is far different from the way in
which the courts are telling administrators to approach a self-
created policy that may only too clearly bear upon the case before
them. Unlike the valid regulation which in the absence of repeal
binds all, including officialdom as well, the more casual policy or
rule can be shunted aside as the tribunal sees fit. It does not
apply per se to any given situation unless a tribunal wishes it to
do so. Moreover, despite the legislative nature characterizing both
and leading them to possess more general efficacy than flows im-
mediately from the particularistic judicial, administrative or minis-
terial act, a regulation is less flexible for still other reasons. Not
only must it be able to point to some rather clearly defined rule-
making authority in the statutes under consideration, but it is also
subject to the subsequent procedural niceties dictated by a variety
of statutory instruments legislation. On the other hand, the general
policy of a tribunal will find itself only subject to the condition
of being relevant to, and within the contemplation of, the em-
powering statute.
100 Alden v. Gaglardi, op. cit., n. 26, demonstrates the semantic trap that
lies in wait for those that are unaware of the variety of expressions used
synonomously with “regulation”, on the one hand, and “policy”, on
the
other. Already noted are rules and guidelines that may serve to describe
the policies of a tribunal; and by-laws, rules and regulations can also inter-
change with one another. In Alden, the British Columbia Social Assistance
Act, R.S.B.C. 1960, c. 360, s. 13, provided that the Director had the power to
“establish regulations and formulate policies not inconsistent with this
Act”, and consequently the court concluded that the Director was exercising
a subordinate
legislative role when he formulated “policies” consistent
with the Act.
No. 3]
SELF-CREATED RULE OF POLICY
We have already observed that the courts are far from blind
to the possible erosion of formal rule-making by the formulation
of policy. In the Kilmarnock decision’01 the solicitor-general con-
ceded that the statute required the qualifications for the office
of chief constable to be set out in the regulations. By concluding
that the policy of the Secretary of State against internal appoint-
ments did not prescribe such a qualification, Lord Cameron dis-
tinguished between a general rule that he could apply or not as his
discretion dictated and one that he had no alternative but to give
effect to universally. This, of course, is to beg the very question
being asked. And His Lordship was perhaps being more candid
when he drew attention to the “narrow and sometimes difficult
to draw” dividing line between a general policy and an extra-
statutory regulation. Nevertheless, the court had little else on which
to proceed, short of becoming highly conceptual and perhaps meta-
physical in making this distinction, than the conduct of the decision-
maker and how in the particular circumstances he perceived the
general rule he was applying. Though describing that rule as mere
“policy” the Secretary of State did not without more give effect
to its demands. If he had thought of it as a universally applicable
regulation one hardly would have expected him in his reasons for
decision to give grounds for having adopted such a policy and to
present additional reasons to the policy itself for his ultimate
decision. Similarly in the Forster case 102 the University did not
simply apply its invalid by-law as if it were valid. Although the
Court of Appeal for New South Wales may have strained itself
and the facts before it somewhat in characterizing the applicant’s
appearance before the Senate Committee as a hearing on the merits
rather than an appeal, their decision emphasized that the Com-
mittee in fact was acting like a tribunal of first instance that did
not feel itself bound by the invalid resolution in question. What
the courts apparently consider crucial in making this distinction
between a general policy and an extra-statutory regulation
is
whether the tribunal conducts itself in such a way as to convey
the impression that it believes itself bound by the general rule
in issue, or whether that rule forms but one consideration amongst
others which that administrative body can accept or reject at will.
Of course, it would be foolish to overlook realities and ignore the
important, and on occasion vital, role played by a general policy
in the exercise of administrative discretion. In earlier discussion
that has been made only too clear.
101 Op. cit., n. 24.
102 Op. cit., n. 16.
McGILL LAW JOURNAL
[Vol. 18
But neither may the individual be so well protected nor the
court so capable of observing the tribunal at work as the foregoing
may have led the reader to believe.0 3 It will be recalled how great
an emphasis the courts placed on the right of the individual to
present argument against the application of the policy in his special
circumstances. That, classically, flowed from his right to be heard,
a right that was thought to arise only if the tribunal was exercising
a quasi-judicial function. If courts continue to draw their imaginary
line between this function and the purely administrative act, it will
be readily apparent that in the latter case, whether the individual
knows of the existence of a general policy or not, he will be un-
able to complain of either the tribunal’s refusal to listen to him
or its failure to make him aware beforehand that it even had a
policy it proceeded then to apply. The burden otherwise placed on
a tribunal not “to refuse to listen at all” would have significance
only where there was some duty cast on that body to hear or
listen to the individual in the first place. It is here that one finds
the seam binding the right to be heard to the quasi-judicial act
has begun to rupture. For no longer are all courts as mesmerized
by that classical idde fixe that saw fairness to all concerned sub-
ordinated to a conceptual imbroglio. “Fairness” has become the
watchword, and in echoing the sentiments expressed by Davis, J.101
more than three decades ago more contemporary judges have become
ever favourably disposed to divorcing the characterization of a tri-
bunal’s function from that body’s duty to “act fairly in accordance
with the principle of proper justice”. 10 5
But even this more ample grant of fairness to the individual
has its limitations where, for example, it is concluded not to be
“required”. 106 Beyond these borders neither the common law nor
administrative procedure acts grant the right to a hearing before
the tribunal that has created for itself a policy it may wish or
mean to apply in the case before it. Without this hearing the in-
dividual is denied the ability to convince the tribunal of the ex-
103 See supra, p. 326.
104 St. John v. Fraser, [1935] S.C.R. 441.
lOSEx p. Beauchamp, [1970] 3 O.R. 607, at pp. 611-12. See also: Schmidt
v. Secretary of State for Home Affairs, op. cit., n. 26; Breen V. Amalgamated
Engineers Union, [1971] 1 All E.R. 1148, per Lord Denning M.R. dissenting
on another point; In re Pergamon Press, [1971] Ch. 388; R. v. Birmingham
City Justice ex p. Chris Foreign Foods (Wholesalers) Ltd., [1970] 3 All E.R. 945.
1060ntario Royal Commission Inquiry into Civil Rights, (1968) Report
No. 1, at p. 213. For an interesting comparison, contrast the reasons of
Pennell, J. in Ex p. Beauchamp, id., and Voyageur Explorations Ltd. v. Ontario
Securities Commission, [1970] 1 O.R. 237.
No. 3]
SELF-CREATED RULE OF POLICY
ceptional nature of his particular case and to ask for an exercise
of discretion without reference to this policy. This consequence is
in marked contrast to the very important factor that contributed
to the willingness on the parts of the courts to permit tribunals
to adopt and apply extra-statutory policies in the exercise of their
discretion. The individual affected, by his representations to the
tribunal, could emphasize that its discretion had to be exercised
within the context of the specific case before it and its own
particular facts and that a less than thoughtful application of its
policy might indicate a failure to acknowledge the very presence
of this individuated discretion. For it must be recalled that, save
where the rules of natural justice or fairness may be said to have
been breached, a tribunal’s misuse of its own policy in the course
of decision-making has found its cure within the realm of ultra vires
and by reference to the administrative body’s refusal to exercise
this individuated discretion which alone it was authorized to put
into play. Characterizing its function as “purely administrative” or
as one guided only by the administrator’s own views as to the
policy he ought to pursue cannot thereby provide him with an
escape-route if his discretionary power is of an adjudicative, non-
legislative nature. He remains, as did the Secretary of State for
Scotland, enclosed within parameters that forbid him from en-
forcing “an extra statutory regulation”.
But, of course, if there is no hearing and the decision is made
without any accompanying reasons to indicate the influence that
the tribunal’s policy may have played in the result, nothing on
the face of the record will contribute a mite to an argument based
on this kind of administrative abuse. Earlier discussion presented
illustrations of how a hearing helped a tribunal to resist the
temptation to conceal the extent to which its mind may have been
closed by a general policy or rule. The exemplary candour of of-
ficialdom displayed in the Kilmarnock and Lloyd cases, without
further research of a more behavioural nature, offers little evidence
of a general pattern amongst tribunals. However, to harp on the
evils that attend the failure of a tribunal exercising administrative
powers to offer affected individuals a hearing or to be less than
honest in signifying how it reached its decision may be to err
on the side of asperity and cynicism. Certainly one implication of
characterizing the tribunal’s function as purely administrative is
that this body has only its own policy considerations to bring to
bear on the matter. Moreover, by not hearing other parties or
disclosing the true grounds for its decision the tribunal also seems
to be acknowledging that whatever policy may have been applied
McGILL LAW JOURNAL
[Vol. is
in the situation there can be no doubt of its desire to keep that
policy confidential. And one should not forget the influence that
confidentiality plays in a court’s deliberations. Evidentiary privi-
lege is but one example of this, and the need for secrecy may
similarly induce a court to find that a tribunal is exercising an
administrative function. In other words, the confidentiality is more
likely to be a contributing factor in characterizing the function
being performed than a consequence of it. In addition, one cannot
be too surprised at the judicial indifference, if not diffidence,
towards how the tribunal then performs this function, including
the weight it may have placed on a pre-existing policy. As has been
stated in the Supreme Court, the administrative decision of the
Minister of Agriculture in that case was “to be made in accordance
with the statutory requirements and to be guided by his own views
as to the policy which in the circumstances, he ought to pursue”.107
V. Administrative Preference for the Policy Rule
and Absence of Public Participation
But the interplay of a tribunal’s self-created rule and the hearing
that an individual should ordinarily be given to urge its inappli-
cability in his particular case has even wider ramifications than this.
For, as Lord Reid pointed out, this hearing also offers the op-
portunity of “urging a change of policy”, or, to be more accurate,
of influencing what the content of that tribunal’s rule shall be at
any point in time. However informal the rule may be, it, like the
more legislative regulation or by-law, reflects the presence of a
general policy that has been adopted by an administrative body.
One does not need to seek far for the reason prompting a tribunal
faced with a multitude of cases and required to pass upon the
individual merits of each of them to take refuge in certain rules
of thumb. In the Lloyd case the trial judge, 08 though reversed on
appeal, 09 described the forces driving the Superintendent of Motor
Vehicles to adopt a general policy suspending the licences of drivers
who were convicted of impaired driving. It would be unrealistic
to demand that such a preconceived rule be abandoned.
The sheer volume of the matters to be dealt with, and the entirely com-
mendable motives indicated and objectives sought by the respondent in
107 Calgary Power Ltd. v. Copithorne, op. cit., n. 53, at p. 34. See de Smith,
op. cit., n. 13, at p. 171; Reid, Administrative Law and Practice, (1971), at pp.
150-151.
108 [1971] 2 W.W.R. 523.
109 Op. cit., n. 39.
No. 3]
SELF-CREATED RULE OF POLICY
the implementation of his policy in this area, justify policy decisions,
the administration of which may, in my view and assuming the decisions
themselves to be sound, be appropriately delegated to inferiors, which
in consimile casu.”0
result in no discrimination as between drivers
Although the reference to delegation raises other nice issues of
law, a large work-load may leave little alternative to an official
such as the Superintendent, but to have subordinates exercise much
of the authority given him on his behalf. Whether the adjudicative
power be applied by this person or those under his control, there
remain to be satisfied administrative efficacy and fairness to the
individual. One cannot permit a tribunal to fall prey to the oppressive
backlog of cases that at the moment dog the efforts of the Im-
migration Appeal Board and for the relief of which the courts
apparently can offer no solution to those in the queue,-” At the
same time the oft-repeated criticisms of the sentencing process in
criminal proceedings leads one to fear possible disparities in the
way in which a multitude of cases before a tribunal are treated
over time. Besides, to encourage a tribunal to ignore its own past
experiences and the knowledge it has been accumulating is far
from efficient or in tune with the idea of administrative expertise.
It is in response to these problems, and hence as a functional means
to a number of ends, that the concept of the general rule or guide-
line has prospered.
Individual adjudication too may not be so far removed from
the arena of policy-making as some would like to believe. We have
already observed situations in which administrative tribunals devel-
oped precedent for itself through the familiar device of stare
decisis and, consequently, were able to manifest their policies in
a more incremental manner. In other words, a tribunal may have
no clearly defined policy in mind when it comes to decide the first
few cases in any specific area. At such an early stage in its efforts
there may be lacking a sufficiently clear appreciation of what
exactly are the problems; only time and observation give an op-
portunity for acquiring the experience and sensitivity necessary
for a more general understanding of what is at stake. Policy
formulation can then begin to become a more reasoned, inductive
exercise that permits a tribunal to develop the line of precedent
most representative of the way it perceives that it and members
of the public should conduct themselves in future. And so one
finds 112 the Ontario Municipal Board harking back to its earlier
11 Op. cit., n. 108, at p. 527.
“‘ See: R. v. Dick ex p. Bennett, [1971] 2 O.R. 441.
” 2 Re Hopedale Developments Ltd. and Town of Oakville, op. cit., n. 49.
McbILL LAW JOURNAL
[Vol. is
decisions for guidance in the case presently before it. The Board
may not be able to bind its hands in this way, but who can doubt
that only the naive would ignore the influence such a policy would
have on that body’s later actions and decisions. The manner in
which an administrative body develops its policies out of the stuff
of individuated adjudication and why this may be a good or bad
method for doing so are themes that American commentators,
particularly those interested in the behaviour of the National Labour
Relations Board, have pursued in some depth.” 3
Nevertheless, tribunals can and do formulate policies in the
course of adjudication. Whether they do so by reference to prin-
ciples and guidelines to be found in their own earlier decisions
or to a self-confessed policy they announce to the parties at or
before the hearing may matter little to how they see their decision-
making role. Further, and despite the muted protests of the law,
in the course of adjudication they may find little to distinguish
in impact between the formal regulation and the more casual rule.
In analytical terms this phenomenon has already been noted in
the discussion of the Kilmarnock case and Lord Cameron’s reference
to the difficulty in drawing the line between “the legitimate pursuit
of a general policy in a matter of administration and the en-
forcement of an extra-statutory regulation”.1 4 The similarity between
the two is emphasized to an even greater extent when their function
has come to be discussed. The need “to confine, to structure, and
to check necessary discretionary power” 115 through better definition
of standards that guide the exercise of this discretionary power
has produced two basic responses. Davis has called upon rule-
making or regulations to accomplish this end, whereas Friendly I”0
believes that administrative tribunals can also help themselves
to reach this goal through adjudication and the promulgation of
policy statements. What assumes great importance, therefore, is
not the disparate ways in which the law has regarded the processes
of rule-making and adjudication, but rather the close kinship between
the two in the way they are put into play “to confine, to structure,
and to check” the exercise of a tribunal’s discretionary power.
113 Peck, The Atrophied Rule-Making Powers of the National Labour Relations
Board, op. cit., n. 7; Peck, A Critique of the National Labour Relations Board’s
Performance in Policy Formulation: Adjudication and Rule-Making, op. cit.,
n. 7, Bernstein, op. cit., n. 6.
114 Davis, op. cit., n. 7, at p. 4.
11 Ibid., chaps. III and VIII.
116 Friendly, op. cit., n. 7.
No. 3]
SELF-CREATED RULE OF POLICY
After our earlier discussion of how the courts view the relation-
ship between subordinate legislation and adjudication, it may be
asked in turn how the legislative and executive arms of govern-
ment have addressed themselves to this task. In the United States
the Administrative Procedure Act requires generally that in the
course of rule-making or adjudication an agency must hold a
hearing. The hearings, however, differ from one another. Adjudi-
cation only requires that “interested parties” be given notice and
an opportunity to be heard,” 7 whereas in the exercise of its rule-
making powers an agency must give “general notice of proposed
rule making in the Federal Register” and then permit “interested
persons” to make submissions.” 8 Clearly, the latter places the more
onerous demands on a tribunal, but it also recognizes that the
general effects this subordinate legislation is likely to have on
many segments of the public at large make it more necessary for
it to harken to their views as one important step to the enactment
of regulations. Subject to the demands of administrative productivity
that cannot be ignored if government and society as a whole are to
remain credible, there is also the need for recognizing that the
presence of “fairness” in the administrative process and the desire
to retain democratic institutions of government introduce credibility
into this side of the equation as well. And so American legislation
has prescribed what might be described as a form of prior ac-
countability or responsibility on the part of the tribunal for the
legislative power it exercises. But adjudication too may have con-
sequences for a great many more people than the parties to the
immediate proceedings before the tribunal. This we have already
observed in the latter’s use of precedent and the National Labour
Relations Board’s preference for prospective policy-formulation in
the course of adjudication, which the Supreme Court approved.” 9
And yet the functional similarity of the two processes in their
creation and application of policy is not borne out in the less
burdensome procedures required of the American agency exercising
adjudicative power.
In Canada, common law and statutory attitudes towards sub-
ordinate legislation and adjudicative powers treat even more lightly
the policy making consequences that tie the two even more closely
together than the law is perhaps willing to admit. At common law,
only the quasi-judicial function, and increasingly now some admin-
117 5 U.S.C., 1004.
11s 5 U.S.C. 1005.
119N.L.R.B. v. Wyman-Gordon Company, op. cit., n. 5.
McGILL LAW JOURNAL
[Vol. 18
istrative ones,’120 placed a duty on the tribunal to give notice and
hold a hearing. Moreover, members of the public who could osten-
sibly influence its decision and any policy it might wish to adopt
were usually limited to interested parties. Tribunals were made to
resemble courts which while restricting those who might make
submissions in the cases before them developed and announced
their present and future intentions in the form of precedent. Since
legislatures and executives could formulate policy without this prior
recourse to formal notice and hearing, tribunals fulfilling similar
roles were treated much the same. It is perhaps not too difficult to
understand why this penchant for characterizing what the tribunal
is doing at any particular time seems to flow almost naturally,
irresistibly from a simplistic analysis of the basic institutions of
government that earlier had produced
the separation-of-powers
doctrine. The growing willingness of the courts to breach the wall
surrounding the quasi-judicial function in favour of granting some
form of hearing to the person being subjected to a power more
administrative in nature has found an echo as well in provincial
legislation establishing procedures that tribunals in specified in-
stances must follow.’21 But even here the statutory powers of
decision that are made subject to these procedures exclude the
authority to enact subordinate legislation. 2 2 Consequently, one can
only conclude that the influence of conceptualism continues un-
abated: the acts of an administrative body may have immediate
consequences for any number of persons, but for society as a whole
it is the “ripple effect” flowing from the prospective formulation
of policy in the tribunal’s decision, rule or regulation that will
have the more profound, general and long-term consequences.
However, in the area between adjudication and subordinate
legislation there lie other instrumentalities by which tribunals can
express their policies and put them into play. We have already
noted how a less formal vehicle for expressing this policy, be
it in the guise of adjudicative precedent, informal guideline or
advisory opinion, is regarded by the courts as not possessing the
binding force of statutory regulation. Whether a tribunal has found
it necessary or desirable to make and apply policy in this way
120 Op. cit., n. 105.
121 E.g., The Administrative Procedures Act, R.S.A. 1970, c. 2; The Statutory
Procedures Act, S.O. 1971, c. 47.
2 The Administrative Procedures Act, ibid., s. 2(c); The Statutory Pro-
cedures Act, ibid., s. 3(2)(h).
No. 3]
SELF-CREATED RULE OF POLICY
because it has no power to enact regulations, 1 because it wishes
to avoid some of the consequences that attend subordinate legis-
lation,124 or because it genuinely desires to test a policy that is not
yet “ripe for precise articulation”, 125 the substance of what is being
done should not be ignored unduly in favour of the manner in
which it happens to be expressed. That, however, is far from saying
that the variety of ways in which a policy may be pronounced does
not serve other important objects. Policy statements or guidance
rules permit a tribunal to experiment and test hypotheses without
having to issue binding regulations or to pursue the time-consuming
and uneven course of adjudication. Advisory opinions give individuals
who might otherwise run afoul of the statutory scheme a firm
indication from the tribunal in advance that their activities will
or will not be permitted. The important role played by these
various devices for expressing policy have been recognized informally
by such tribunals as the Canadian Radio Television Connission
which, though possessed of the power to make regulations and to
adjudicate in the matter of licenses, has also made its presence felt by
way of the more casual policy statement. 26 The Commission does
however remain subject to the unusual requirement in Canada that it
publish its proposed regulations in advance so as to give interested
persons a chance to make representations. 12 7 Moreover, the Compe-
tition Bill that was introduced into Parliament in 1971 128 and died
when the Session ended made express provision for the formulation
of guidance rules and advance rulings. 29 By formalizing the pro-
cedures and effects that were to precede and follow their issue the
123 E.g., even if the Ontario Labour Relations Board in the Metropolitan
Life Insurance case, op. cit., n. 68, had wished to legitimate their policy
by way of subordinate legislation, they, unlike their American federal counter-
part, were not given the power to do so by the Labour Relations Act.
124 E.g., N.L.R.B. v. Wyman-Gordon Company, op. cit., n. 5, at p. 764.
12r Friendly, op. cit., n. 7, at p. 1297. See also Fisher, op. cit., n. 10, at pp.
253-255; Davis, op. cit., n. 7, at pp. 102-103.
126 See press releases of the Commission dated June 17, 1971, July 16, 1971,
and October 13, 1971. These concerned public statements made with respect
to extension of television service to inadequately serviced areas of Canada,
cable television and self-regulation by advertisers. A more recent example
found the Chairman of the Commission making a speech on the Canadian-
content regulations, and in his report of its substance a reporter referred
“to the rubber chicken circuit in which he (the Chairman) makes speeches
which point the way without being specific:”
(Toronto Globe and Mail,
February 25, 1972, at p. 14, col. 1).
127 Broadcasting Act, R.S.C. 1970, c. B-11, s. 16(2).
128 Bill C-256, 19-20 Eliz. II (1970-71).
129 Ibid., ss. 4445.
McGILL LAW JOURNAL
[Vol. 18
Bill no doubt hoped to retain many of their benefits while simul-
taneously avoiding such disadvantages as extensive and prolonged
adjudication proceedings, uncertainty, notice of their contents, how
binding they were and the absence of any imput by the publicY
But what a startling contrast exists between these methods of
formulating policy and subordinate legislation. Adjudication pro-
ceedings often allow parties to be heard and to present arguments
against whatever policy it is that the tribunal has adopted in the
past or intends now to formulate. Even the extra-statutory policy
statements of the CRTC still remain subject to implementation,
and that in itself may subject these expressions of intent to the
hearing requirements of the Broadcasting Act and natural justice.
Moreover, such statements may well include undertakings to hold
hearings, to consult with persons involved and to accept represent-
ations before the Commission adopts a final position on the matter.13
1
The sections of the Competition Bill that made provision for rules
and rulings were even more clear about the way in which the
public may influence the ultimate position of the tribunal. For
example, the Bill set forth a procedure that would have allowed
the public and persons who in the opinion of the tribunal were
likely to have a material interest in the draft guidance rules to
make representations before they were adopted.13 2 Similarly, an
advance ruling was to be preceded by a hearing at which the ap-
plicant and others appearing to the tribunal to have an interest in
the matter could make representations. 33 On the other hand, the
substance of any subordinate legislation generally is not subject
to any form of hearing or representations. Apparently, the public
are thought to be sufficiently protected by the machinery of ultra
vires and statutory instruments legislation, neither of which offer
the individual the opportunity of speaking to the merits or substance
of the regulation in issue. Professor Stone, for example, describes
130See explanatory notes accompanying the Competition Bill and tabled
in the House of Commons on June 29, 1971, at pp. 66-68. With respect to the
desire to give binding effect to these guidance rules and advance rulings
it is appropriate to recall the legal consequences of not making statutory
provision for such machinery. In footnote 11, there are references to income
tax jurisprudence and to bulletins of the Department of National Revenue
which purport to make advance rulings binding on the Department. Compare
both situations with the British use of “circulars” issued pursuant to some
statutory power (de Smith, op. cit., n. 13, at pp. 58-60).
‘3’ See press releases of the CRTC date May 22, 1970 and February 18, 1971.
132 Op. cit., n. 128, s. 44(2).
133 Ibid., s. 45(2).
No. 3]
SELF-CREATED RULE OF POLICY
prompt publication an dready access to regulations as an im-
portant control-device:
yet it is little more than this, and it scarcely touches the question of
paramount control of administrative policy-making. 34
The case for rejecting the kind of hearing contemplated by the
Broadcasting Act and the Competition Bill is hardly assisted by
the McRuer Report’ 35 which not only spoke of the delay and
duplication that would attend any requirement for compulsory
prior hearings but in addressing itself to the real question of the
control of “administrative policy-making” concluded that “extensive
consultations usually take place” with persons who will be affected.
Unfortunately, no evidence of the extent or efficacy of this pro-
cedure is presented. It is therefore useful to compare what this
Report said with the Report of the Special House of Commons
Committee on Statutory Instruments which though in the end
reaching the same position presented a modicum of data on the
amount of consultation that precedes regulation-making. 3 Although
the Committee recommended that regulation-makers consult with
persons directly affected and with the public at large, no machinery
for carrying out this task was suggested, nor could any other in-
ference be drawn but that a more covert and behind-the-scenes
form of consultation would continue and it would be the organized
groups in society that would likely have the ear of officialdom.
VI. Discretion: The Common Characteristic
It is somewhat unremarkable now to conclude that in formu-
lating and breathing life into its policies a tribunal is exercising
but a single facet, albeit a most important one, of the discretionary
power conferred on it. As has already been observed, there is avail-
able a variety of modalities or instrumentalities by which a policy
may be expressed, but all have this in common. Whether the tri-
bunal is acting by means of regulation, the less formal rule or
guideline, advisory opinion, or adjudicative order or decision, it
is merely selecting a vehicle for indulging in policy-making or
planning through the exercise of discretion. It is true, of course,
that there are great differences amongst these various methods
134 Stone, The Twentieth Century Administrative Explosion and After,
(1964), 52 Calif. L. Rev. 513, at pp. 524-525.
135 Op. cit., n. 106, at pp. 362-364.
136 House of Commons, Third Report of the Special Committee on Statutory
Instruments, (1969), ch. 3.
McGILL LAW JOURNAL
[Vol. 18
and that they themselves may well be determinative of how a
tribunal with freedom to choose elects to proceed. Equally inter-
esting is the manner in which these modalities may happen to
interplay: how, for example, a tribunal’s informal rule is given
substance and impact in an adjudicative proceeding.
But apart from whatever interplay the law is willing to allow,
to what extent should the choice of modality be left open? This of
course becomes a question of the appropriateness of the instrument
used for expressing policy to the particular circumstances in which
the tribunal exercising its discretion happens to be operating. It
may well be that the legislature or executive establishing the
administrative scheme is sufficiently wise and prescient to choose
for the tribunal. Then again, it may be thought best to per-
mit this body to choose for itself. By way of illustration, one
may ask whether in the Metropolitan Insurance case the Ontario
Labour Relations Board, if given the choice, would have preferred
to promulgate the policy applied by it there in the form of sub-
ordinate legislation. And yet, we have a similar body in the United
States eschewing such formality in preference for prospective ad-
judication. The Competition Bill did attempt to make available to
its tribunal an array of weaponry for expressing policies. At the
same time, however, the Bill saw fit to introduce markedly “ju-
dicialized” procedures into the process and to risk thereby the
appearance in Canada of the unfortunate American experience.
Nevertheless, the modalities made available to a tribunal or
chosen by it for developing policy must be observed against a back-
drop of even more basic proportions. The very function of the
administrative process and of establishing government-by-tribunal
in a particular area cannot help but raise fundamental issues of
where the responsibilities of these bodies lie. And ultimately, there-
fore, the question of modalities will have to measure itself against
the tribunal’s responsibility for accomplishing the objects which
it has been obligated to undertake while at the same time remaining
accountable for its conduct.137
137 See generally Spiro, Responsibility in Government (1969).
