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JR - SOR - Reasonableness Review - Justification - Governing Legislative Scheme. Canada (Attorney General) v. Canadian Civil Liberties Association
In Canada (Attorney General) v. Canadian Civil Liberties Association (Fed CA, 2026) the Federal Court of Appeal dismissed a federal AG JR, this brought against "the Federal Court’s finding that the declaration of a public order emergency was unreasonable and that some provisions of the Regulations and of the Economic Order violated the Charter", here where the emergency order was made under the federal Emergencies Act.
Here the court considers the 'legislative scheme' element of the JR 'reasonableness' SOR:[244] As previously mentioned (supra, para. 173), Vavilov made it clear that the legislative scheme is the most salient aspect to be considered in assessing the reasonableness of a decision. When Parliament has circumscribed a decision-maker’s discretion with precise and exacting definitions, the acceptable approaches to decision making will correspondingly be restricted (Vavilov at para. 108). This is a choice that Parliament made consciously, intent on preventing the excesses to which the WMA gave rise, and heed must be paid to that clear intention. Courts must therefore ensure that Cabinet does not overextend the scope of its authority beyond what was intended when determining the reasonableness of the interpretation relied upon in coming to a decision. . Canada (Attorney General) v. Canadian Civil Liberties Association
In Canada (Attorney General) v. Canadian Civil Liberties Association (Fed CA, 2026) the Federal Court of Appeal dismissed a federal AG JR, this brought against "the Federal Court’s finding that the declaration of a public order emergency was unreasonable and that some provisions of the Regulations and of the Economic Order violated the Charter", here where the emergency order was made under the federal Emergencies Act.
The court considers the Vavilov 'reasonableness review' aspect of 'governing scheme', here on the issue of the degree of discretion afforded to decision-makers:[168] Both the Supreme Court and this Court have reiterated that reviewing courts must pay attention to the nature of decisions and to the language chosen by the legislature in describing the limits of a decision-maker’s authority. In Vavilov, for example, the Supreme Court stressed that a decision-maker will have more flexibility when the language used in the enabling legislation is broad, open-ended or highly qualitative (like "“in the public interest”"): Vavilov at para. 110; Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2. In the same vein, administrative decision-makers will be less constrained when they are vested with a broad scope of discretion, or where they make public interest determinations based on multifaceted considerations of policy and public interest: see, for example, FortisAlberta Inc. v. Alberta (Utilities Commission), 2015 ABCA 295 at paras. 171-172; Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2020 FCA 100 [Entertainment Software] at paras. 28-32.
[169] On the other hand, when the power-conferring statute is specifically worded and laden with legal content and well-known juridical concepts, the decision-maker’s discretion to interpret the relevant provision will be more constrained: Vavilov at para. 110; Gitxaala Nation v. Canada, 2016 FCA 187 at para. 153, citing Canadian National Railway; Public Mobile Inc. v. Canada (Attorney General), 2011 FCA 194 at para. 29; Canada v. Kabul Farms Inc., 2016 FCA 143 at paras. 24-25.
[170] In the case at bar, the AGC’s suggestion that the decision at issue is a discretionary one to which significant deference ought to be afforded is undercut by the preamble to the Act, which makes clear that the GIC, in employing the powers under the Act, is subject to the Charter and must have regard to the International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171 arts 9—14 (entered into force 23 March 1976, accession by Canada 19 May 1976).
[171] Moreover, the wording of subsection 17(1) is quite circumscribed and cannot be interpreted as conferring unconstrained discretion. The "“belief on reasonable grounds”" concept has been the subject of numerous judicial pronouncements, and the definition of "“public order emergency”" as found in section 16 refers to objective standards and to a clear definition in the CSIS Act which makes this provision "“more akin to the legal determinations courts make, governed by legal authorities, not policy”" (Entertainment Software at para. 34, cited by the Federal Court in Nagle at para. 288).
[172] The AGC’s argument that the GIC should enjoy a high degree of discretion not only in making the ultimate decision to issue the Proclamation under the Act but also in interpreting the requirements to be met before coming to that conclusion could well have carried the day, as the Federal Court acknowledged, had Parliament decided not to define what is a public order emergency. As it stated at paragraph 287 of its reasons:This Court may share the views of those who think that a definition designed to constrain the investigative actions of the security service is ill-suited to serve as a threshold for the invocation of emergency powers by the GIC. Particularly when there may be other valid reasons for declaring an emergency such as those set out in the Proclamation and Section 58 Explanation. But the Court cannot rewrite the statute and has to take the definition as it reads. [173] This is entirely consistent with Vavilov, where the Supreme Court opens its analysis of the first constraint bearing on an administrative decision:[108] Because administrative decision makers receive their powers by statute, the governing statutory scheme is likely to be the most salient aspect of the legal context relevant to a particular decision. That administrative decision makers play a role, along with courts in elaborating the precise content of the administrative schemes they administer should not be taken to mean that administrative decision makers are permitted to disregard or rewrite the law as enacted by Parliament and the provincial legislatures… Likewise, a decision must comport with any more specific constraints imposed by the governing legislative scheme, such as the statutory definitions, principles or formulas that prescribe the exercise of a discretion ... ....
[176] One must not lose sight, moreover, of the history of the Act and of the context in which it was adopted. Parliament’s choice to precisely circumscribe Cabinet’s discretion under the Act must be considered against the backdrop of its predecessor, the WMA, in which, as discussed above, section 2 provided that the issue of a proclamation "“shall be conclusive evidence that war, invasion or insurrection, real or apprehended, exists and has existed for any period of time therein stated”".
[177] Because the WMA did not define any of the circumstances that could justify Cabinet to invoke it, and provided that Cabinet’s determination that one of these statutory triggers existed was conclusive evidence, courts were left powerless to judicially review the use of the exceptional powers granted to the government by that statute, as previously mentioned (para. 129 of these reasons).
[178] During the parliamentary debates leading to the adoption of the Act, there were several indications that the express purpose of the "“reasonable grounds”" standard was to empower courts to judicially review emergency proclamations on an objective basis. Bill C-77 originally provided that Cabinet could declare a public order emergency if it was "“of the opinion”" that an emergency existed. Minister Beatty explained that replacing this requirement with the more stringent "“reasonable grounds”" standard:[…] will give someone who wants to contest the government’s decision to invoke a declaration of a national emergency the ability to take us to court, if they believe it has been frivolously done. It will guarantee Canadians the ability that the courts could rule on whether the government had reasonable grounds to believe that a national emergency existed. Bill C-77, An Act to authorize the taking of special temporary measures to ensure safety during national emergencies and to amend other Acts in consequence thereof, First Reading, Legislative Committee on Bill C-77, 33-2 (February 23, 1988) at 1315 (Hon Perrin Beatty).
[179] Speaking to the changes that had been brought to the original Bill as a result of a committee hearings, the Parliamentary Secretary to the Minister of National Defence, Mr. Bud Bradley, similarly had this to say:Let me now turn to a second general category of amendments. Several important changes have been made to enhance the manner in which the Government’s use of the Act will be overseen by the courts and by Parliament. Perhaps the most important of these is the change in wording in about 20 subsections to ensure that judgments made about the necessity for exceptional measures must now be based on “reasonable grounds” rather than the unqualified “opinion” of the Governor in Council. This change means that all important decisions by the Governor in Council relating to the invocation and use of the emergency power will be challengeable in the courts. Bill C-77, An Act to authorize the taking of special temporary measures to ensure safety during national emergencies and to amend other Acts in consequence thereof, Second Reading, House of Commons Debates, 33-2 (April 25, 1988) (Bud Bradley).
[180] This context and the drafting history of the Act, along with the exacting thresholds found in subsection 17(1) that must be met before Cabinet can issue a proclamation, are key factors that must be considered when interpreting the Act and assessing the reasonableness of a proclamation. The fact that Cabinet sits at the apex of the Canadian executive and that it must take a precautionary and preventive approach to addressing emergencies does not affect the standard or degree of scrutiny by the reviewing court (Vavilov at para. 89). At the end of the day, a decision will be reasonable not only if it bears the hallmarks of reasonableness (justification, transparency and intelligibility), but also if it is justified in relation to the relevant factual and legal constraints that bear on the decision (Vavilov at para. 99). And as part of the legal constraints, the wording of the relevant provisions of the Act, interpreted with the modern principles of statutory interpretation, is the most salient aspect to be considered in assessing the reasonableness of the decision at issue in this appeal.
[181] To summarize, we would agree with the AGC that the decision by the GIC to issue a proclamation involves a broad range of policy and public interest factors. Such an exercise calls for a balancing of competing interests and a decision on how best to use public resources in fast-moving situations that is best left to the GIC. That discretion, however, can only be exercised once the various legal thresholds found in subsection 17(1) of the Act have been met. In other words, the GIC must be able to show that it had reasonable grounds to believe that a public order emergency (as defined in section 16 of the Act) existed and necessitated the taking of special temporary measures before being able to use its discretion to issue a proclamation. . Auer v. Auer
In Auer v. Auer (SCC, 2024) the Supreme Court of Canada dismissed an appeal of a JR, here challenging the Federal Child Support Guidelines as ultra vires their Governor-in-Counsel-delegated Divorce Act authority.
The court considers JR 'reasonableness review', here on the constraining factor of 'governing statutory scheme':(a) Governing Statutory Scheme
[61] “Because administrative decision makers receive their powers by statute, the governing statutory scheme is likely to be the most salient aspect of the legal context relevant to a particular decision” (Vavilov, at paras. 108‑9; Mancini, at p. 275).
[62] The language chosen by the legislature in an enabling statute describes the limits and contours of a delegate’s authority (Vavilov, at para. 110). The legislature may use precise and narrow language to delineate the power in detail, thereby tightly constraining the delegate’s authority. Alternatively, the legislature may use broad, open‑ended or highly qualitative language, thereby conferring broad authority on the delegate (ibid.; see also Keyes (2021), at pp. 195‑96). Statutory delegates must respect the legislature’s choice in this regard. They “must ultimately comply ‘with the rationale and purview’” of their enabling statutory scheme in accordance with its text, context and purpose (Vavilov, at para. 108, citing Catalyst Paper, at paras. 15 and 25‑28, and Green, at para. 44).
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