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Delegated Legislation - Sub-Delegation. Canada (Attorney General) v. Ibrahim
In Canada (Attorney General) v. Ibrahim (Fed CA, 2023) the Federal Court of Appeal considered a Crown JR of a decision by the Social Security Tribunal (Appeal Division) that upheld the respondent's eligibility for a CPP-disability pension.
In these quotes the court considers the extent to which a regulation can 'change law' (ie. statute law):[33] The applicant submits that the Appeal Division’s conclusion was based on the flawed premise that regulations do not change existing laws (Reasons at para. 92). Regulations can change existing laws, consistent with the specific provisions of the enabling statute and its overriding purpose. I do not accept the applicant’s submission about the impact of the Appeal Division’s misstatement; it did not affect its reasoning or conclusions. . Doe v. the University of Windsor
In Doe v. the University of Windsor (Div Ct, 2021) the Divisional Court considered an issue of improper delegation in a judicial review application:[24] When an appeal is taken from a decision of the AVP respecting a complaint of student non-academic conduct, the Procedures give the power to determine the appeal exclusively to an Adjudicator. The Procedures provide that the Adjudicator, who is the Provost or the Provost’s designate, “has final and binding jurisdiction over appeals of Decisions of the Associate Vice-President, Student Experience (or designate)”. Nowhere in the Procedures is there any authority for an Adjudicator to delegate their decision-making authority.
[25] It has been consistently and authoritatively determined that administrative decision-makers cannot delegate their decision-making authority to another body in the absence of clear and express authorization by the statutory scheme. (See, for example, Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11 at para. 65. While Courts today avoid making the law obscure by the use of Latin maxims, the maxim delegatus non potest delegare (literally, a delegate cannot delegate) is hallowed by long use and is applicable here.
[26] The Adjudicator’s effective abdication of his power to determine the outcome of the appeal to the court hearing a related criminal trial is simply not authorized by the enabling instrument. The decision of the Adjudicator to do so was unreasonable. This is one of those rare cases where the language of the source of his decision-making authority necessarily limits the number of reasonable interpretations open to the decision maker to one: he and he alone must decide the appeal. . 30 Bay ORC Holdings Inc. et al. v. City of Toronto
In 30 Bay ORC Holdings Inc. et al. v. City of Toronto (Div Ct, 2021) the Divisional Court considered the application of the doctrine against improper sub-delegation:Administrative vs. Legislative Decision-Making
[90] The Applicants also argue that, by purporting to retain discretionary criteria to decide grant applications, the City has engaged in impermissible sub-delegation, citing cases such as Brant Dairy Co. v. Milk Commission of Ontario, 1972 CanLII 11 (SCC), [1973] S.C.R. 131 and Air Canada v. City of Dorval, 1985 CanLII 40 (SCC), [1985] 1 S.C.R. 861.
[91] The sub-delegation cases, in my view, have no application to the circumstances of this case. Unlike those and similar sub-delegation cases, the 2012 By-law does not simply repeat the power granting words of s. 28(7) of the Planning Act. The 2012 By-law is a 28-page document setting out, in great detail, the basis upon which eligible projects may receive IMIT grants.
[92] The principle against improper sub-delegation does not necessarily result in the total neutralization of otherwise legitimate discretion conferred upon the decision-maker.
[93] The Applicants’ real complaint comes back to the core issue discussed above – does the language of the 2012 By-law limit the factors that may be considered in approving a grant application to only the specified eligibility criteria, such that if those criteria are met, the grant must be approved? For the reasons already stated, I would hold that it does not.
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