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Judicial Review - SOR - Exception - Ultra Vires Delegated Legislation
MORE CASES
Part 2
. TransAlta Generation Partnership v. Alberta
In TransAlta Generation Partnership v. Alberta (SCC, 2024) the Supreme Court of Canada dismissed an appeal by a "coal‑fired electric power generation facilities" operator, this from an dismissed appeal to the Alberta CA, that from a dismissed JR to the Alberta QB challenging "the vires of the 2017 Alberta Linear Property Assessment [SS: taxation] Minister’s Guidelines (2018) (“Linear Guidelines”) issued by the Minister of Municipal Affairs under the Municipal Government Act".
Here the court considers the JR SOR for ultra vires challenges to subordinate legislation [esp. see para 17 re 'it's about statutory interpretation'], considered more in depth in it's sister case of Auer v Auer (SCC, 2024):[4] In the companion case, Auer v. Auer, 2024 SCC 36, our Court holds that, as established in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, the reasonableness standard presumptively applies when reviewing the vires of subordinate legislation. Given that no exception to that presumption applies here, this appeal provides our Court with an opportunity to illustrate how the reasonableness standard of review applies to a vires review of subordinate legislation when the challenger invokes the common law rule against administrative discrimination.
[5] As I will explain, the Linear Guidelines discriminate against TransAlta and other parties to off‑coal agreements by depriving them of the ability to claim additional depreciation reflecting the reduced lifespan of their coal‑fired facilities. However, that discrimination is statutorily authorized by necessary implication. To ensure that the assessment of TransAlta’s coal‑fired facilities was “current, correct, fair and equitable” in accordance with the purposes of the MGA (Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293, at para. 46), it falls within a reasonable interpretation of the Minister’s statutory grant of power to conclude that he was authorized to deprive TransAlta of the ability to claim additional depreciation. This is because the transition payments from Alberta to TransAlta under the Off‑Coal Agreement already account for at least some loss of value to TransAlta’s coal‑fired facilities due to their reduced life. Further, the existence of the Off‑Coal Agreement is a “specification” or “characteristic” of TransAlta’s coal‑fired facilities that the Minister was authorized to consider in establishing valuation standards for those facilities.
[6] Given my conclusion that it is a reasonable interpretation of the Minister’s statutory grant of power to conclude that discrimination is statutorily authorized by necessary implication, it follows that the Linear Guidelines are consistent with the purposes of the MGA. To reiterate, the Linear Guidelines serve to ensure that tax assessments are “current, correct, fair and equitable” in accordance with the purposes of the MGA.
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V. Standard of Review
[14] As set out in the companion case, Auer, the reasonableness standard under Vavilov presumptively applies when reviewing the vires of subordinate legislation. No exception to the presumption of reasonableness review applies in this case. Indeed, the legislature has not indicated that the Linear Guidelines must be reviewed on a different standard, and the rule of law does not require that the correctness standard apply. Thus, the reasonableness standard applies when reviewing the vires of the Linear Guidelines.
[15] As explained in Auer, Katz Group continues to provide helpful guidance and inform reasonableness review. In particular, the following principles from Katz Group continue to apply:. Subordinate legislation “must be consistent both with specific provisions of the enabling statute and with its overriding purpose or object” (References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, [2021] 1 S.C.R. 175 (“GGPPA”), at para. 87; see also Vavilov, at paras. 108 and 110; Reference re Impact Assessment Act, 2023 SCC 23, at para. 283, per Karakatsanis and Jamal JJ., dissenting in part, but not on this point).
. Subordinate legislation continues to benefit from a presumption of validity (Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2023 SCC 17, at para. 54).
. The challenged subordinate legislation and the enabling statute are to be interpreted using a broad and purposive approach to statutory interpretation (see Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360, at para. 28; West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 S.C.R. 635, at para. 12).
. A review of the vires of subordinate legislation does not involve assessing policy merits. Courts are to review only the legality or validity of subordinate legislation (West Fraser Mills, at para. 59, per Côté J., dissenting, but not on this point; La Rose v. Canada, 2023 FCA 241, 488 D.L.R. (4th) 340, at para. 28). [16] At the same time, for subordinate legislation to be ultra vires on the basis that it is inconsistent with the purpose of the enabling statute, it no longer needs to be “irrelevant”, “extraneous” or “completely unrelated” to that statutory purpose (see Auer, at paras. 4, 41 and 49; see also Katz Group, at para. 28). Continuing to maintain this threshold from Katz Group would be inconsistent with the robust reasonableness review introduced by Vavilov and would undermine Vavilov’s promise of simplicity, coherence and predictability.
[17] Reviewing the vires of subordinate legislation is fundamentally an exercise of statutory interpretation to ensure that the delegate has acted within the scope of their lawful authority under the enabling statute (Vavilov, at para. 108; M. P. Mancini, “One Rule to Rule Them All: Subordinate Legislation and the Law of Judicial Review” (2024), 55 Ottawa L. Rev. 245, at pp. 274‑75; see, e.g., West Fraser Mills, at para. 23). This exercise must be carried out in accordance with the modern principle of statutory interpretation (Vavilov, at paras. 120‑21; Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21). The governing statutory scheme, other applicable statutory or common law, and the principles of statutory interpretation are particularly relevant constraints when determining whether the subordinate legislation at issue falls reasonably within the scope of the delegate’s authority (J. M. Keyes, Executive Legislation (3rd ed. 2021), at p. 175).
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[52] When a court reviews the vires of subordinate legislation, the challenged legislation and the enabling statute must be interpreted using a broad and purposive approach (Katz Group, at para. 26). ... . Auer v. Auer [these are Divorce Act Guidelines, not Regulations]
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.
Here the court summarizes the case, including conclusions - while focussing on the applicable SOR:[2] To answer this question, our Court has to determine the standard of review that applies when reviewing the vires of subordinate legislation. Doing so requires the Court to resolve debates about the continued relevance of Katz Group Canada Inc. v. Ontario (Health and Long‑Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810, in light of our Court’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653.
[3] I conclude that the reasonableness standard as set out in Vavilov presumptively applies when reviewing the vires of subordinate legislation. I also conclude that some of the principles from Katz Group continue to inform such reasonableness review: (1) subordinate legislation must be consistent both with specific provisions of the enabling statute and with its overriding purpose or object; (2) subordinate legislation benefits from a presumption of validity; (3) the challenged subordinate legislation and the enabling statute should be interpreted using a broad and purposive approach to statutory interpretation; and (4) a vires review does not involve assessing the policy merits of the subordinate legislation to determine whether it is necessary, wise, or effective in practice.
[4] However, for subordinate legislation to be found ultra vires on the basis that it is inconsistent with the purpose of the enabling statute, it no longer needs to be “irrelevant”, “extraneous” or “completely unrelated” to that statutory purpose. Continuing to maintain this threshold from Katz Group would be inconsistent with the robust reasonableness review detailed in Vavilov and would undermine Vavilov’s promise of simplicity, predictability and coherence.
[5] The Child Support Guidelines are intra vires the GIC. They fall within a reasonable interpretation of the scope of the GIC’s authority under s. 26.1 of the Divorce Act, having regard to the relevant constraints. Section 26.1(1) of the Divorce Act grants the GIC extremely broad authority to establish guidelines respecting child support. This authority is constrained by s. 26.1(2) of the Divorce Act, which requires that the guidelines be based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute. The Child Support Guidelines respect this constraint. . 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 for ultra vires challenges to delegated legislation:E. How To Conduct a Reasonableness Review of the Vires of Subordinate Legislation Under the Vavilov Framework
[50] In conducting a reasonableness review, “the reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov, at para. 99). Subordinate legislation benefits from a presumption of validity (Katz Group, at para. 25). The burden is on the party challenging the subordinate legislation to show that it is not reasonably within the scope of the delegate’s authority (Vavilov, at paras. 100 and 109).
[51] Vavilov recognized two types of fundamental flaws that would make an administrative decision unreasonable: (1) there is a failure of rationality internal to the reasoning process; or (2) the decision is untenable in light of the factual and legal constraints that bear on it (para. 101). In what follows, I will explain how the principles outlined in Vavilov for conducting reasonableness review apply to a review of the vires of subordinate legislation.
(1) Reasonableness Review Is Possible in the Absence of Formal Reasons
[52] Most of the time formal reasons are not provided for the enactment of subordinate legislation (Vavilov, at para. 137). However, Vavilov contemplated reasonableness review in the absence of formal reasons, including in the context of a vires review of subordinate legislation (ibid., referring to Catalyst Paper and Green). “[E]ven in such circumstances, the reasoning process that underlies the decision will not usually be opaque” (Vavilov, at para. 137). The reasoning process can often be deduced from various sources.
[53] In Catalyst Paper, our Court reviewed the validity of municipal taxation bylaws. Chief Justice McLachlin noted that “[t]he reasons for a municipal bylaw are traditionally deduced from the debate, deliberations and the statements of policy that give rise to the bylaw” (para. 29). Courts can also look to regulatory impact analysis statements if they are available. As Mancini explains:... something akin to a form of justification — whether a record of submissions, an accompanying statement of purpose, or specific recitals — may sometimes accompany regulatory action. Specifically — especially in the modern era — the problem of having neither a record nor reasons is less likely to arise. As [John Mark] Keyes noted, the sources for the “reasoning process” of executive legislation “have become increasingly rich as the processes for making it have become more transparent in the latter part of the 20th century and into the 21st.” At the federal level, statutory instruments, like regulations, “are accompanied by Regulatory Impact Analysis Statements outlining the reasons for regulations and their anticipated impact.” Courts can use Regulatory Impact Analysis Statements to assess the reasonableness of executive legislation by providing insight into the interlocking purposes of the enabling statute and regulatory instrument.
(pp. 278‑79, citing J. M. Keyes, “Judicial Review of Delegated Legislation: The Long and Winding Road to Vavilov”, in University of Ottawa Faculty of Law, Working Paper No. 2020‑14 (June 18, 2020), at p. 11, and J. M. Keyes, Executive Legislation (2nd ed. 2010), at ch. 4.) [54] Even where such sources are not available, “it is possible for the record and the context to reveal that a decision was made on the basis of an improper motive or for another impermissible reason, as, for example, in Roncarelli [v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. 121]” (Vavilov, at para. 137). However, importantly, as I explain below, the issue of whether the regulations is a reasonable decision depends on whether the regulations are justifiably (or reasonably) within the scope of the authority delegated by the enabling legislation.
(2) Reasonableness Review Is Not an Examination of Policy Merits
[55] Justice Pentelechuk was of the view that applying Vavilov’s reasonableness standard when reviewing the vires of subordinate legislation would violate the principle of separation of powers because the court would be examining the policy merits of the subordinate legislation (paras. 58‑59 and 63; see also S. Blake, Clarity on the standard of review of regulations, December 20, 2022 (online)).
[56] With respect, this concern is misplaced. As Paul Salembier explains, “[t]he reasonableness standard does not assess the reasonableness of the rules promulgated by the regulation‑making authority; rather, it addresses the reasonableness of the regulation‑making authority’s interpretation of its statutory regulation‑making power” (Regulatory Law and Practice (3rd ed. 2021), at p. 159). A court’s role is to review the legality or validity of the subordinate legislation, not to review whether it is “necessary, wise, or effective in practice” (Katz Group, at para. 27, citing Jafari, at p. 604; see also Keyes (2021), at pp. 186‑88). “It is not an inquiry into the underlying ‘political, economic, social or partisan considerations’” (Katz Group, at para. 28, citing Thorne’s Hardware, at pp. 112‑13).
[57] A court must be mindful of its proper role when reviewing the vires of subordinate legislation, especially when it relies on the record, other sources or the context to ascertain the delegate’s reasoning process. Mancini explains:Importantly courts must organize these various sources properly to preserve the focus on the limiting statutory language. Again, the reasonableness review should not focus on the content of the inputs into the process or the policy merits of those inputs. Rather, courts must key these sources to the analysis of whether the subordinate instrument is consistent with the enabling statute’s text, context, and purpose. For example, Regulatory Impact Analysis Statements can inform a court as to the link between an enabling statute’s purpose and a regulatory aim, much like Hansard evidence. These analyses can help show how the effects of a regulation which, at first blush appear unreasonable, are enabled by the primary legislation. [p. 279] [58] The potential or actual consequences of the subordinate legislation are relevant only insofar as a reviewing court must determine whether the statutory delegate was reasonably authorized to enact subordinate legislation that would have such consequences. Whether those consequences are in themselves necessary, desirable or wise is not the appropriate inquiry.
(3) The Relevant Constraints
[59] In Vavilov, our Court explained that “[e]lements of the legal and factual contexts of a decision operate as constraints on the decision maker in the exercise of its delegated powers” (para. 105). Reviewing the vires of subordinate legislation is fundamentally an exercise of statutory interpretation to ensure that the delegate has acted within the scope of their lawful authority under the enabling statute (para. 108; Mancini, at pp. 274‑75; see, e.g., West Fraser Mills, at para. 23).
[60] Accordingly, the governing statutory scheme, other applicable statutory or common law and the principles of statutory interpretation are particularly relevant constraints when reviewing the vires of subordinate legislation (Keyes (2021), at p. 175).
(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).
(b) Other Statutory or Common Law
[63] The scope of a statutory delegate’s authority may also be constrained by other statutory or common law. Unless the enabling statute provides otherwise, when enacting subordinate legislation, statutory delegates must adopt an interpretation of their authority that is consistent with other legislation and applicable common law principles (Vavilov, at para. 111, referring to Katz Group, at paras. 45‑48; Montréal (City) v. Montreal Port Authority, 2010 SCC 14, [2010] 1 S.C.R. 427, at para. 40; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 74; Canada (Transport, Infrastructure and Communities) v. Farwaha, 2014 FCA 56, [2015] 2 F.C.R. 1006, at paras. 93‑98; Keyes (2021), at pp. 205‑6).
(c) Principles of Statutory Interpretation
[64] Statutory delegates are empowered to interpret the scope of their authority when enacting subordinate legislation. Their interpretation must, however, be consistent with the text, context and purpose of the enabling statute (Vavilov, at paras. 120‑21; Keyes (2021), at p. 193). They must interpret the scope of their authority in accordance with the modern principle of statutory interpretation. The words of the enabling statute must be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, citing E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87).
[65] In conducting a vires review, a court does not undertake a de novo analysis to determine the correct interpretation of the enabling statute and then ask whether, on that interpretation, the delegate had the authority to enact the subordinate legislation. Rather, the court ensures that the delegate’s exercise of authority falls within a reasonable interpretation of the enabling statute, having regard to the relevant constraints.
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[114] The reasonableness standard under the Vavilov framework presumptively applies when reviewing the vires of subordinate legislation. Katz Group continues to provide helpful guidance. However, for subordinate legislation to be ultra vires on the basis that it is inconsistent with the purpose of the enabling statute, it no longer needs to be “irrelevant”, “extraneous” or “completely unrelated” to that statutory purpose. Continuing to maintain this threshold from Katz Group would be inconsistent with robust reasonableness review and would undermine Vavilov’s promise of simplicity, predictability and coherence. . Humberplex Developments Inc. v. Ontario (AG)
In Humberplex Developments Inc. v. Ontario (AG) (Div Court, 2024) the Divisional Court dismissed a JR, here of "O.Reg. 382/19, which amended O.Reg. 303/19: Transition for Planning Act Appeals" under the Local Planning Appeal Tribunal Act, 2017 on ultra vires grounds. "The amending regulation reimposed the more restrictive procedural regime that previously applied to appeals of municipal planning decisions heard by the Ontario Land Tribunal (the “Tribunal”). Under the amending regulation, the more restrictive regime was reimposed only on appeals solely by third party appellants.".
Here the court considers (but does not resolve: see para 45) the JR SOR for a matter of ultra vires regulations - and in the course of that canvasses some of the substantive law of ultra vire regulations:IV. Jurisdiction and standard of review
[34] This judicial review application relates to the exercise or purported exercise of a statutory power, which includes the power to make a regulation. Therefore, the Divisional Court has jurisdiction to hear this application: Judicial Review Procedure Act, R.S.O. 1990, c. J.1, ss. 1, 2, 6(1).
[35] The standard for assessing regulations upon judicial review is a matter of controversy in recent case law.
[36] In Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 810, [2013] 3. S.C.R. 810, at para. 24, the Supreme Court held that a “successful challenge to the vires of regulations requires that they be shown to be inconsistent with the objective of the enabling statute or the scope of the statutory mandate”. Following that approach, “the focus of judicial review of a regulation is narrow. It is not the role of the court to decide whether [a regulation] is effective, overly broad or unduly restrictive. These are policy choices made by the Ontario government….”: Hudson’s Bay Company ULC v. Ontario (Attorney General), 2020 ONSC 8046, 154 O.R. (3d) 103 (Div. Ct.), at para. 4.
[37] Under Katz, the role of the court upon review is limited to assessing whether the regulation is (a) consistent with the objective of its enabling statute, and (b) within the scope of the statutory mandate: Katz, at para. 24; Hudson’s Bay, at para. 37. As set out in Hudson’s Bay, at para. 37 (citing the relevant paragraphs in Katz), the following principles apply:(a) Regulations are presumed to be valid. This means that challengers have the burden of demonstrating that the regulations are invalid. In addition, courts are to favour an interpretation that reconciles the regulation with its enabling statute so that, where possible, the regulation is construed in a manner which renders it intra vires” (para. 25) [emphasis in original].
(b) “Both the challenged regulation and the enabling statute should be interpreted using a ‘broad and purposive approach . . . consistent with this Court's approach to statutory interpretation generally’” (para. 26).
(c) Judicial review of a regulation is usually restricted to the issue of whether the regulation is inconsistent with the purpose of the enabling statute or whether a condition precedent was not met before the regulation was made (para. 27).
(d) Courts are not to assess the policy merits of a regulation or to decide whether it is “necessary, wise, or effective in practice” (para. 27).
(e) The motives for making a regulation are irrelevant (para. 27).
(f) Under-inclusiveness is not a valid ground for challenging a regulation as ultra vires (para. 40).
(g) Regulations must be “irrelevant”, “extraneous” or completely inconsistent with the statutory purpose to be found ultra vires. It would take an “egregious” case to strike a regulation down as ultra vires (para. 28). [38] Since deciding Katz in 2013, the Supreme Court revisited the issue of standard of review for administrative decisions in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653. At paras. 23-25, 32, the court stated that reasonableness is the presumptive standard on judicial review applications in the absence of clear legislative intent, a constitutional question, or a question of law of central importance to the legal system as a whole.
[39] In Vavilov, the court did not specifically address whether the reasonableness presumption applied to assessing regulations. However, at para. 111, the court cited Katz (at paras. 45-48) with approval for the principle that “an administrative decision maker interpreting the scope of its regulation-making authority in order to exercise that authority cannot adopt an interpretation that is inconsistent with applicable common law principles regarding the nature of statutory powers”. Citing Vavilov, at para. 111, the Divisional Court in Hudson’s Bay, at para. 39, rejected the submission that Vavilov changed the test for challenging regulations to require reasonableness assessment.
[40] Since Vavilov, other Canadian appellate courts have considered whether that decision had the effect of changing the standard of review for regulations.
[41] In Portnov v. Canada (Attorney General), 2021 FCA 171, 461 D.L.R. (4th) 130, the Federal Court of Appeal (per Stratas J.A.) found that the reasonableness standard applies to review of regulations, displacing the Katz framework. In Innovative Medicines Canada v. Canada (Attorney General), 2022 FCA 210, the Federal Court of Appeal followed Portnov. The British Columbia Court of Appeal also applied reasonableness standard in British Columbia (Attorney General) v. Le, 2023 BCCA 200, and 1120732 B.C. Ltd. v. Whistler (Resort Municipality), 2020 BCCA 101, 445 D.L.R. (4th) 448.
[42] The Alberta Court of Appeal took the opposite approach. In Auer v. Auer, 2022 ABCA 375, leave to appeal granted, [2023] S.C.C.A. No. 38, the appeal court held that the the test articulated in Katz remains the appropriate test to apply when the vires of a regulation is being challenged, and that this test has neither been overtaken nor modified by Vavilov. In TransAlta Generation Partnership v. Alberta (Minister of Municipal Affairs), 2022 ABCA 381, leave to appeal granted, [2023] S.C.C.A. No. 135, the Alberta Court of Appeal followed the approach taken in Auer. The Supreme Court of Canada has granted leave to appeal both Alberta decisions. The appeals are scheduled to be heard together on April 25, 2024.
[43] In Sul v. St. Andrews (Rural Municipality), 2023 MBCA 25, 479 D.L.R. (4th) 160, the Manitoba Court of Appeal also considered whether the presumptive standard of reasonableness in Vavilov applied to assessing the vires of legislative action in the form of municipal by-laws and resolutions. In the decision under review in Sul, the application judge applied the reasonableness standard of review, adopting the joint position of the parties to the application: Sul, at para. 10. On appeal, the appellant changed her position, arguing that the application judge erred in applying the reasonableness standard: Sul, at paras. 16, 19. The appeal court, at para. 19, noted that the “law regarding the standard of review to be applied to the vires of legislative action is also evolving” and, at paras. 20-36 undertook a review of recent case law, including reference to Katz, Vavilov, Portnov, Innovative Medicines, Whistler and Auer.
[44] In Sul, at para. 37, the appeal court ultimately decided that it was “not prepared to state that the application judge erred in choosing to apply the reasonableness standard”, noting that applying either standard of review argued in that case “leads to the same result.” The court also stated that given “the developing jurisprudence and the lack of comprehensive argument” before the court, the issue was “better left to be decided in a future case”.
V. Regulation validity: O. Reg. 382/19 was inter vires
[45] As explained below, I have concluded that O. Reg. 382/19 was a valid exercise of the Attorney General’s statutory power under s. 43.1 of the LPATA. That conclusion would be the same whether the governing authority for determining the standard of review is Katz or Vavilov. Therefore, as in Sul, it is not necessary determine the standard of review issue currently before the Supreme Court of Canada in Auer and TransAlta. At paras 46-81 the court walks through these amended provisions in the course of an actual proceeding, dispelling the argument that they were ultra vires as regulations.
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