by jlhsprague

In Canada (Attorney General) v. Bri-Chem Supply Ltd., 2016 CarswellNat 5260, 2016 FCA 257 (Fed. C.A.) the Federal Court of Appeal, while purporting to recognize that stare decisis, does not apply to agencies, has modified the traditional legal position to make agency decisions operate as binding precedents for those who appear before them as well as apparently reducing the ability of agency decision-makers to depart from earlier agency decisions. It appears that Bri-Chem Suppply LtdS. now governs administrative decision-making at the federal level until such time as it is reversed or repudiated by other decisions of the Court of Appeal. Thus, federal administrative agencies, and those who are subject to their decisions must guide themselves by a new (and likely developing) common law respecting the role of precedent in administrative decision-making.

This discussion assumes a basic familiarity with the common law principles of precedent in administrative decision-making.  As discussed in much more detail in chapter 6 of  Macaulay and Sprague, Practice and Procedure Before Administrative Tribunals (Carswell) agency decisions (while binding on the parties in the particular dispute as to the outcome of that dispute) do not create any binding precedent for agency decision-makers or panels of decision-makers in future cases – even similar cases.  Nor is an agency permitted to simply and automatically bind itself voluntarily to the policies or interpretations of those decisions – even if the decision-maker in question is at the initial level and the earlier decision is from a review or appeal level of the same agency.  The principle of stare decisis which is applicable to the courts and their decision-making does not apply to administrative decision-making.  Agencies are required, however, to consider their earlier positions and to determine if they agree with them or if there is good reason to follow them in whatever case is before them at the moment.  All of this is, of course, subject to legislative direction.

In Bri-Chem Supply Ltd., 2016 CarswellNat 5260, 2016 FCA 257 (Fed. C.A.) the Federal Court of Appeal moved agencies significantly towards the standard operation of stare decisis in the courts. It did this by using the equitable principle of abuse of process as jumping board  to modify stare decisis.  Bri-Chem Supply Ltd. modifies the common law of stare decisis from two directions. First at the agency level it appears arguable that the decision reduces the ability of agency decision-makers to depart from earlier decisions. Arguably, following Bre-Chem Supply Ltd. a federal administrative decision-maker cannot depart from an earlier policy or interpretation decision of the agency unless it has a “good reason” to do so. It appears that having a good reason is restricted to situations where a case can be distinguished from an earlier decision or the decision-maker, based on elements or arguments that were not raised in the earlier decision believes that the earlier decision is wrong. It appears that simply having a different policy or interpretation view which a decision-maker believes is preferable to that of earlier decisions likely will not constitute having a “good reason” to depart from an earlier agency decision.   Bre-Chem Supply Ltd. also reduces the ability of agency decision-makers to depart from earlier decisions by restricting the opportunities through which an issue will be brought by the parties before the agency. Bre-Chem Supply Ltd. operates to require those who administer federal law to follow an agency decision as binding precedent other than in cases where the case may be distinguished or is felt, based on new elements or arguments not raised in the earlier decision, to be wrong.


The underlying issue in Bri-Chem Supply Ltd. was whether under the Customs Act an importer could correct the tariff classifications in customs declarations in order to obtain more favourable tariff treatment. The Canadian International Trade Tribunal had ruled in an earlier proceeding that this could be done. The Canada Border Services Agency appealed this ruling to the Federal Court of Appeal but discontinued the appeal before its resolution. Instead, as the Tribunal and the Federal Court of Appeal both later concluded, the Agency deliberately set out to disregard the Tribunal’s earlier ruling and to continue to apply its own interpretation of the law to new cases.


Bri-Chem Supply Ltd. dealt squarely with whether an agency’s decision should be considered to be precedential. The Tribunal itself in its decision had noted its concern that the actions of Border Services had placed “the precedential value of its decisions into question.” That its decisions be treated as precedential was, in its view, “important for stability and predictability in the importing community.” It treated the matter before it as an abuse of process.


“37. Finally, the Tribunal wishes to articulate its concern in regard to the practice of putting the precedential value of its decisions into question by the CBSA.  Both respectful and responsible application of Tribunal precedent is important for stability and predictability in the importing community. Importers should not be subjected to costly and unfair litigation of cases for matters that have already been dealt with through proper legal authority. This is a matter that goes to the heart of, and constitutes a fundamental tenet of, the rule of law and fair and easy access to Canada’s system of administrative justice. Such opposition ultimately leads to a breach of trust in the system and obfuscates the proper administration of justice.” [Bri-Chem Supply Ltd.
President Of The Canada Border Services AgencyAppeal No. AP-2014-017.  Footnotes omitted]


The Federal Court’s decision focused on the duty of government officials who administer programs (referred to by the Court as “administrators”) to adhere to decisions of administrative bodies which sit on appeal or review from the officials’ program decisions. In doing so it went far further than the equitable principle of abuse of process.


The Court of Appeal started off by affirming the traditional common law principle that while agencies should try to follow their earlier decisions they are not bound by them. But, the Court of Appeal stated, that was only the starting point and that other principles also came to bear.


First, agencies were bound to follow “any rulings and guidance given by courts that govern the facts and issues in the case.”


Second, Parliament in passing a law empowering an agency to decide issues it did so with the view to furthering efficient and sound management and that “certainty, predictability and finality matter.” In the case in point Parliament had empowered an agency “to decide certain issues efficiently and once and for all.” [emphasis added]. The Court stated that allowing agency panels “to disagree with each other without any limitation tears against the need for a good measure of certainty, predictability and finality.” This was particularly so when, as was the case in point, one was dealing with commercial importation and international trade where the participants “are deluged every day by millions of goods seeking quick, efficient and predictable entry” to the domestic market.


Therefore the Court of Appeal held that “while it is true that later tribunal panels are not bound by the decisions of earlier tribunal panels, it is equally true that later panels should not depart from the decisions of earlier panels unless there is good reason.”


As will be discussed below the Court’s reference to agency decision-makers departing from earlier decisions only where there is “good reason” likely means more than the traditional common law position where one agency decision-maker simply disagrees with another on policy or interpretation. The lead up references to the aim of agency legislation having the aim of furthering efficiency and sound management, the assertion that the establishment of the, in this case, the Canadian International Trade Tribunal to decide matters “once and for all”, the need for certainty, predictability and finality all point to the Court of Appeal believing that something more than simple disagreement is needed to amount to “good reason”.


As will be noted below it is uncertain how a court is to enforce this direction given the current Dunsmuir standard of review analysis. Would a reviewing court use its judgment to determine whether an agency’s departure from an earlier decision was based on a “good reason” or would the reasonableness standard apply such that the agency’s decision departing from an earlier position need only be plausible?


After dealing with agency decision-makers the Court of Appeal went on to consider the position of officials charged with administering legislative schemes where there are appeals or reviews from the decisions of the officials to an agency (the “administrators”). Here too the Court of Appeal held, for the purposes of certainty, predictability and finality, an administrator whose actions are regulated by an agency must follow that agency’s decisions. In this assertion the Court of Appeal was not referring simply to the traditional position that an appeal or review agency’s decision in a specific case binds the parties for that case. It was asserting that officials are obligated to follow agency rulings generally in situations outside of a specific case. The Court of Appeal explained that this was due to its aforementioned goals of certainty, predictability and finality. This duty to apply an agency’s rulings generally also flowed from what the Court of Appeal called the concept of “tribunal pre-eminence: tribunals bind those who are subject to their jurisdiction, including administrators, subject to any later orders by reviewing courts.” One can see that in making this assertion the Court of Appeal leapt from the traditional concept of agency rulings being determinative in the case submitted to them to the new position that agency rulings being generally binding with respect to other similar situations outside of the case ruled on.


The Court of Appeal did allow for two limited exceptions to this new principle. An administrator is not required to follow an earlier agency decision where the case before it can be distinguished on the facts from the earlier. An administrator, acting bona fide and in accordance with its legislative mandate, can assert that an earlier agency decision on its facts does not apply in a matter that has different facts.


Also an administrator with a bona fide concern that an earlier decision is flawed and should not be followed can act upon its view of the matter and, if challenged, should be allowed to act upon its view of the matter.   For this situation to occur the administrator must be able to identify and articulate with good reasons one or more specific elements in the agency’s earlier decision known to the administrator, including the probable impact of the flaw on future cases and the prejudice that will be caused to the administrator’s mandate, the parties it regulates, or both. The Court of Appeal stated that this is “something different from an administrator putting essentially the same facts, the same law and the same arguments” to an agency “on the off-chance it might decide differently.” The administrator must offer submissions that are not simply a rerun but must go further than just a modest modifying or small supplementing of the earlier submissions.   In other words, an administrator is not precluded from re-raising an issue on the basis of materially different arguments likely including matters that were not considered in the earlier decision.


“50      In my view, an administrator can act or take a position against an earlier tribunal decision only if it is satisfied it is acting bona fide in accordance with the terms and purposes of its legislative mandate and only if a particular threshold has been crossed. This threshold should be shaped by two sets of clashing principles discussed above: the principles of certainty, predictability, finality and tribunal pre-eminence on the one hand, and, on the other, ensuring that potentially meritorious challenges of arguably wrong decisions can go forward.


51      What is the threshold? In an administrative regime like the one before us, the administrator must be able to identify and articulate with good reasons one or more specific elements in the tribunal’s earlier decision that, in the administrator’s bona fide and informed view, is likely wrong. The flaw must have significance based on all of the circumstances known to the administrator, including the probable impact of the flaw on future cases and the prejudice that will be caused to the administrator’s mandate, the parties it regulates, or both.”


The Court of Appeal explained that an administrator could not be precluded from re-raising an issue in all cases because if that were the case an agency would never be able to consider the matter nor would a receiving court receive it and serious error might persist. The Court also noted that an administrator was free to request that an agency submit the issue on a reference to a court for definitive resolution. (It also noted that legislative change could be made to reverse the position of the agency.)


Lastly, the Court of Appeal noted that where an administrator decides that an earlier tribunal decision “can and should be challenged, the administrator, and later the tribunal, might wish to expedite matters so that the matter may be clarified as soon as possible.” The Court of Appeal also noted that other particular means may exist to facilitate an administrator’s disagreement with an agency’s ruling. An agency could be asked to state a case to the Federal Courts under the Federal Courts Act. The Court of Appeal also referred to section 70 of the Customs Act which authorizes the President of the Customs Border Services Agency to refer directly to the Canadian International Trade Tribunal for decision “any questions relating to the origin, tariff classification or value for duty of any goods or class of goods.”  (As an aside, in my view section 70 does not operate in the same way as a stated case to the Federal Courts. Section 70 only appears to allow a question to be referred to the Tribunal without waiting for an appeal. This is evidence insofar as section 70(1) refers to the reference for the Tribunal’s “opinion” respecting any questions relating to the origin, tariff classification or value for duty of any goods or class of goods.” Questions relating to the origin or value for duty appear to be questions relating to a specific case. Section 70(2) further directs that such references are to be governed by the relevant legislative provisions “as if the reference were an appeal taken pursuant to section 67.”)


On the whole I believe the approach taken by the Federal Court of Appeal is neither particularly innovative (the attempt to have agency decisions treated as being binding precedent has been around since at least 1919 with the decision of R. v. Port of London Authority, [1919] 1 K.B. 176 if not earlier), nor necessary and is not particularly logically or practically supportable. I believe that a number of points should be made respecting this decision.


  1. Where agencies depart from earlier decisions, or panels of agencies depart from decisions of earlier panels, they do not do so for no good reason. Absent situations where the current decision-maker is unaware of the earlier decision agency decision-makers almost always depart from earlier decisions because they believe that the earlier decision can be distinguished, or it was wrongly decided, or because they believe that their own reasoning is preferable to that of the earlier decision-maker. We are long past the days, if they ever existed, that administrative agencies depart from earlier decisions on whim or for purely arbitrary purposes. Where the Federal Court of Appeal states that an agency must have a good reason from departing from an earlier position it cannot restrict that “good reason” to the same situation the Court imposes on administrators as justifying a failure to follow an earlier agency decision – i.e. that the agency has a materially different reason than that rejected in the earlier decision or that the case is distinguishable. Implicit in the Court of Appeal’s decision is the view the fact that one decision-maker may have a different policy or interpretative view from that set out in an earlier decision is not in itself a good reason for the former to depart from the earlier position. If this is so I disagree with this view. If the Federal Court of Appeal is taking the position that an agency is acting without good reason because, after considering the matter fully and fairly, it disagrees with the principles upheld by an earlier agency decision the Court of Appeal’s position is contrary to the past positions taken in the case law and significantly modifies the principle of stare decisis for agencies. To adopt the position that an agency decision-maker is bound to follow an earlier decision in the same way as an administrator is proposed to be bound (i.e. distinguishable or wrong due to a significant flaw) it means that whichever decision-maker or panel of decision-makers of an agency gets to an issue first gets to bind the discretion of future panels absent new arguments or the ability to distinguish. This undermines one of the underlying reasons for having decisions made by administrative agencies – flexibility. As recognized by the Supreme Court of Canada in Domtar Inc. c. Québec (Commission d’appel en matière de lésions professionnelles), 1993 CarswellQue 145, [1993] 2 S.C.R. 756, 105 D.L.R. (4th) 385 (S.C.C.) the clash of conflicting agency decision-making is one of the means by which agency policy evolves and develops.


  1. Furthermore, if one adopts the position that an agency should consider an earlier decision to be wrong by reason of a significant flaw only on the basis of new arguments or elements not raised in that earlier decision then one must at the same time elevate the precedential value of an agency decision over a judicial ruling by a superior court – including the Supreme Court of Canada – when that judicial decision is made on the reasonableness standard. A judicial determination, whether on appeal or judicial review, that a decision or interpretation is reasonable does not mean that that decision or interpretation is correct and leaves open the possibility that another panel of the agency may decide the matter differently even on the same arguments. Reading Bri-Chem Supply Ltd. as precluding an agency panel from deviating from an earlier panel decision unless materially new arguments are presented has the effect of granting greater precedent weight to agency decisions than to some judicial determinations made on the reasonableness standard. Alternatively, one might argue that a court determination that a particular agency decision is reasonable precludes an agency from deviating from that earlier decision except in the case of new arguments or distinguishing circumstances. That of course would elevate reasonableness review to a form of correctness review. (Albeit this might be considered consistent with past Federal Court of Appeal decisions attempting to displace reasonableness review with correctness in certain circumstances.)


  1. The Court of Appeal’s underlying reasoning respecting the recognition of certainty and predictability on administrators is problematic when applied to agencies themselves. First, the Court’s assertion that Parliament creates a review agency in order to decide matters “once and for all” is questionable. That has not been the common law of agency precedent. An agency decision settles the specific case before it “once and for all” (subject to judicial review or other legislative avenues of recourse). It has never been the position of the common law that Parliament creates agencies to provide “once and for all” generally binding across the board determinations – at least in the absence of specific wording to that effect. That has traditionally been the role of the courts through the principle of stare decisis – not agencies.


Furthermore, to the extent that one hopes to draw support from the “hierarchical” positions of administrators and any relevant review or appeal agency, agency decision-makers or panels of decision-makers of the same level do not sit in a hierarchical arrangement. One panel is not superior to another at the same level. Yet the comments in Bri-Chem could operate to preclude a second panel from departing from the decision of an earlier panel simply on the grounds that the second panel prefers its reasoning to that of the first.


Lastly, the so-called principle of “tribunal pre-eminence” operates in the sense of res judicata (i.e. the parties are bound in that case are bound by the decision of the agency respecting the specific question before it) and not as a formalization of abuse of process through re-litigation. Where the equitable principle of abuse of process by re-litigation is invoked the agency possess the discretion to continue with a proceeding notwithstanding the re-litigation if appropriate. There is a duty on the agency to consider the exercise of that discretion. Bri-Chem operates to remove that discretion by creating a bar to an official re-litigating except in the Court of Appeal’s delineated circumstances which are smaller in number than the circumstances that might lead an agency to exercise its discretion to permit an issue to be re-litigated.


  1. Bri-Chem Supply Ltd. does not consider the principle that an agency cannot fetter its discretion by simply following earlier decisions without giving due consideration to the principles established by those cases and whether the agency decision-maker agrees with those principles. The common law imposes a duty on an agency, in the exercise of its discretion, to consider whether it agrees with an earlier decision before applying it rather than blindly following that earlier decision as precedent. Thus, an agency must say “I agree with the position taken” in the cited earlier decision rather than saying simply “this issue was decided earlier and I apply that ruling as I cannot identify any new argument or element establishing that the earlier decision is wrong”.


At the same time if one assumes that Bri-Chem Supply Ltd. does not intend to alter the ability of administrative decision-makers to depart from earlier decisions it creates a discord with the duty imposed in Bri-Chem Supply Ltd. upon administrators to act as if an agency decision settles an issue authoritatively absent the ability to distinguish or establish that the earlier decision is wrong based on new elements or arguments.


Insofar as under the traditional common law an agency is neither required nor permitted to follow earlier administrative decisions with which it disagrees (which disagreement can include the fact that the agency, or panel of the agency, agrees with reasoning rejected in the earlier decision) the position of the Federal Court of Appeal requiring an administrator to follow earlier administrative decisions (other than in the exceptions noted by the Court) or precluding the administrator from essentially re-raising an issue before an agency on the same arguments earlier rejected becomes somewhat illogical. This is particularly so in the case of panel decision-making.


It is not uncommon that different panels of an agency may prefer different approaches or interpretations than others. Assuming that Bri-Chem Supply Ltd. does not preclude a subsequent panel from simply preferring its own reasoning or interpretation over that preferred by an earlier panel how is it logical that an administrator should be precluded from recognizing this reality? Bri-Chem Supply Ltd. requires an administrator to treat agency decisions with a finality or precedential effect that they do not have. If the case operates to preclude an administrator from re-raising an issue before an agency, or panel of an agency, it does not preclude the agency or panel from itself raising the issue. Agencies, unlike courts, are not restricted to the consideration of only those issues raised by the parties. Provided that the parties are provided with a fair opportunity to respond an agency can raise and put additional issues to the party. This is particularly so where agencies are required to consider the public interest in decision-making. In fact, as noted above, the agency is required to consider whether it agrees with that earlier position. In doing so the agency should consider the views of the parties and it is surely open to the administrator at that time from raising the same arguments as were raised earlier if those are the only material arguments to be made.


Thus, Bri-Chem Supply Ltd. stands for the principle that, other than where new information or arguments can establish that an earlier decision is either wrong or distinguishable, an administrator must apply a ruling of an agency notwithstanding that it always remains open that a different panel of an agency may disagree with the earlier decision on the basis of the argument preferred by the administrator notwithstanding the earlier rejection of that argument by another panel. This appears illogical and requires administrators to operate contrary to the actual operation and reality of the law.


Furthermore, precluding a party from re-raising an earlier rejected argument before a different decision-maker in effect re-writes the operation of stare decisis on agencies by effectively reducing the ability to bring cases forward to an agency for reconsideration. It is important to note that this is not the equitable doctrine of abuse of process which doctrine does not operate as a ban on the attempt to re-litigate but is rather a discretion in an agency to decline to hear an issue that was earlier litigated fairly and fully.


  1. Nor does Bri-Chem Supply Ltd. not appear to take into account that administrators (i.e. the government officials who administer programs at the first level) are administrative decision-makers in the same way as the agencies to whom their decisions can be appealed. They too must receive and consider the arguments presented by the persons before them before making a decision. They exercise the same discretionary decision-making powers as do the reviewing agencies. Yet Bri-Chem Supply Ltd. can be seen as imposing a limitation on the discretion of these first level administrative decision-makers. There may be instances where a review agency rules against a private person’s position and in favor of that of an administrator. Bri-Chem Supply Ltd. will now permit the administrator to cite that administrative decision as imposing a duty on it to follow the administrative decision in future cases other than in circumstances where the situation may be distinguished or new arguments can be raised. (Disagreement may also be raised as to whether the party in the later case is actually raising a new argument.)   It imposes a duty on the citizen to prove that the review agency decision is wrong or distinguishable. Thus, in order to be able to rely on an earlier decision as being precedential and binding the administrator is no longer required to consider the position of the earlier case and determine whether it agrees with it. In fact in situations where the administrator lost before the reviewing agency Bri-Chem Supply Ltd. contemplates the administrator thereafter applying a decision with which it disagrees. Under Bre-Chem Supply Ltd. the agency assumes the role and authority of a court. An administrative review decision can now be cited by the administrator against a party as having binding precedential effect.


  1. The Court of Appeal sets some store on the fact that a decision may have been rendered by an agency which is in a superior hierarchical position than the original administrator. Formal tribunals, of course, are not the only bodies that may be found in a hierarchical structure in administrative decision-making. There may often be different levels of decision-making before one reaches an agency. Does a decision by a higher ranking bureaucrat now create a precedent binding all other bureaucrats in that department or ministry. Presumably, under Bri-Chem Supply Ltd. it does. What about decisions made at the same level of bureaucrat? Does one decision by a departmental official now bind all other officials (subject to legislative review routes)?


  1. Are citizens now bound by departmental decisions in particular cases involving different people from raising the same arguments again in their own cases? (This point is similar to that made in point 5 earlier.) Does Bri-Chem Supply Ltd. preclude the citizenry from raising arguments rejected in earlier agency (or administrator) decisions other than cases where new information or argument can prove the earlier decision wrong or distinguishable? Are people who are not administrators bound by the Bri-Chem Supply Ltd. rules when taking their cases to review by agencies? And if not, are there now two types of parties before agencies – administrators who are bound by the Bri-Chem Supply Ltd. principles and other persons who are not? Furthermore, what is the value in holding that a party can seek to re-litigate an issue before an administrator if the administrator is not able to depart from an earlier position absent the ability to distinguish or prove wrong?


  1. As an aside one can also note that to the extent that Bri-Chem Supply Ltd. does not preclude re-raising an issue on the basis of materially different arguments than those advanced in an earlier decision the case operates differently than the common law principle of abuse of process through re-litigation. In this sense the common law principle precluding abuse of process through re-litigation is broader than Bri-Chem Supply Ltd. as it extends to arguments that could have been raised in the earlier decision.


  1. All in all Bri-Chem Supply Ltd. is another attempt to deal with the problem of consistency in agency decision-making.   In its reasons the Federal Court of Appeal echoed the traditional recognition of the importance of predictability and certainty.


“42      … Certainty, predictability and finality matter. Allowing tribunal panels to disagree with each other without any limitation tears against the need for a good measure of certainty, predictability and finality.


43      In some contexts, certainty, predictability and finality arguably matter even more. Here, for example, we are dealing with commercial importation and international trade, an area where the CBSA, customs brokers and others are deluged every day by millions of goods seeking quick, efficient and predictable entry to our domestic market: see the Tribunal decision at para. 37, quoted in para. 13, above.”


However, there is nothing new in the recognition of the importance of consistency in decision-making. Nor is the creation of binding precedential rulings the only, or even best, way to secure consistency. Consistency and predictability have been values in administrative decision-making for decades without the courts having resorted to extending some sort of stare decisis to agency decisions or precluding officials or parties from deviating from agency decisions in future cases.


See for example, the decision of the Ontario Court of Appeal in C.U.P.E., Local 1394 v. Extendicare Health Services Inc., 1993 CarswellOnt 887, [1993] O.J. No. 1545, 104 D.L.R. (4th) 8, 14 O.R. (3d) 65, 17 Admin. L.R. (2d) 27, 64 O.A.C. 126, 93 C.L.L.C. 14,052 (Ont. C.A.) where the Court considered the effect of a statutory direction that a decision of the Ontario Labour Relations Board was to be conclusive for all purposes. The Court of Appeal held that that statutory direction did not make the Board’s interpretation of a statutory provision or arbitration agreement conclusive and binding upon a subsequent decision-maker – including an arbitrator (a body, which if considered in the hierarchical sense, would be lower than the Labour Board). Justice Doherty wrote:


“56      The Union’s argument requires that s. 106(1) be read as declaring that the Board’s determination of questions of fact or law, such as the interpretation of the terms of a collective bargaining agreement, are final and conclusive as between the parties. That is not what the section says. It gives the Board the power “to determine all questions of fact or law that arise in any matter before it” but it declares only “the action or decision” of the Board to be “final and conclusive for all purposes.” The Board must make findings of fact and decide questions of law in arriving at its decision. Only the end product is, however, protected by the finality clause in s. 106(1).


57      It follows that I must disagree with the conclusion of the Divisional Court. Section 106(1) does not limit the Arbitration Board’s power to hear and determine the dispute brought before it concerning the meaning to be given to the terms of the collective agreement settled in August, 1985. Section 44 of the Labour Relations Act fixes the Arbitration Board with that responsibility. The fact that the Board had engaged in the same interpretive exercise when performing an entirely separate function assigned to it under the Labour Relations Act did not diminish the Arbitration Board’s authority under s. 44 of the Labour Relations Act .”


There are answers to the issues that arise from the non-application of stare decisis to administrative decision-making without abandoning or altering the principle. Numerous tools adopted over time to encourage consistency and predictability (guidelines, generic hearings, manuals, full-board meetings, and so forth –  agencies can themselves in considering whether to follow an earlier decision take into account the value served by consistency.). Until the Dunsmuir era of reasonableness review respecting questions of law judicial review and appeals to court served an important role in this. (It seems somewhat of an unexpected consequence that as a result of the adoption of reasonableness review by the courts one would impart binding precedential value to agency decisions.) Some agencies have adopted the practice of indicating agency decisions whose principles are thought to be particularly useful to assist parties in identifying particularly precedential decisions which the agency is likely to follow consistently absent circumstances justifying departure. Similarly, equitable principles respecting abuse of process (which include re-litigation) can be used where appropriate and useful by agencies. Admittedly, as noted by the Tribunal in its decision in Bri-Chem Supply Ltd. abuse of process is not a universal panacea in every case as it may not, for example, address the issue of costs. And it is always open, as noted by the Federal Court of Appeal in Bri-Chem Supply Ltd. for an agency to refer an issue to the courts by way of reference or stated case through which definitive answers to issues which are proving particularly burdensome can be secured.


Bri-Chem Supply Ltd. attempts to control consistency at the level of the parties before agencies. In doing so it raises significant issues in logic and legal principle. It remains to be seen whether the provincial superior courts will adopt the Bri-Chem Supply Ltd. principles or whether the decision will ultimately take its position alongside other failed Federal Court alterations of the common law such as Grenier, Georgia Strait Alliance and Wilson v. Atomic Energy.


  1. In my opinion, while it was perfectly open to the Federal Court of Appeal to find that on the specific circumstances in Bri-Chem Supply Ltd. it was open to the Canadian International Trade Tribunal to treat the attempted re-litigation of the issue before it as an abuse of process. However, the Court’s apparent re-writing of the operation of stare decisis seemly to meet the specific facts in one case was unwarranted and imprudent.


While it would be a simple thing to treat administrative decisions as being binding precedent such an approach does not take into account the reality of administrative decision-making.


First, administrative decision-making is intensely driven by circumstances. Furthermore, if one agrees with the position of the Supreme Court of Canada in British Columbia (Securities Commission) v. McLean, 2013 CarswellBC 3618, 2013 SCC 67, [2013] 3 S.C.R. 895, 366 D.L.R. (4th) 30 (S.C.C.) agencies, in their interpretations, often choose between multiple reasonable interpretation on the basis of policy considerations. These policy considerations are not always fully fleshed out or identified by agencies in resolving one particular case.


Second, agencies are not staffed by the same type of people who sit on courts. They often have expertise in subject matters other than law and are not trained or sometimes even particularly skilled in identifying, crafting or expressing broad principle. The Courts have long held that agency reasons are not required to be finely crafted, read with a fine tooth comb, or otherwise approached in the same respect as judicial reasons. There can be frequent, and sometimes intense, disagreement between individual agency members (and agency staff) as to the proper approach to matters. And insofar as Dunsmuir reduces the likelihood of the judicial provision of determinative answers it would be imprudent to have binding precedent established on a “first come first severed” basis.   Unless one wishes to absorb administrative decision-making into the judicial stream (including qualification, appointment, tenure, term, and remuneration) one should not blindly treat agency decisions as the equivalent of judicial decisions.


Third, it is true that outside of the particular case before it an administrative decision does not bind those who implement the law in other cases. However, the Federal Court of Appeal in Bre-Chem Supply Ltd. appears to elevate the particular situation where one agency has a particular beef with one approach of one agency to a general crisis where government officials and parties readily and regularly ignore the precedential value of administrative decision-making necessitating a major revision of the common law. I very much doubt that there exists in Canada a crisis where government officials regularly and cavalierly disregard the views and interpretations of administrative agencies. Costs alone argue against such a cavalier position. While an important aspect of administrative decision-making involves the testing and evolution of prior decisions and approaches it is only common sense that well reasoned and sound agency interpretations be accepted and applied. Even the government does not have endless fonts of resources to ignore reality. Where it is evident that an agency policy or interpretation is sound, whether set out in non-binding guidelines or decisions which are not binding as precedent, government officials and parties tend to follow them. This is the basic premise behind such things as policies and the publication of agency decisions. It appears to me that the Federal Court of Appeal in Bre-Chem Supply Ltd. has taken one situation without consideration of the degree to which it exists generally, or the degree to which other administrative principles or tools operate to ameliorate or control that situation, to re-write the common law of administrative precedent based on the elements identified in the case before it.



This, and other aspects of the Bri-Chem Supply Ltd. decision will be discussed in the forthcoming release 2017-2 of Macaulay and Sprague, Practice and Procedure Before Administrative Tribunals which is published by Carswell.