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Delegated Legislation - Ultra Vires Regulations (3)

. Canadian Council for Refugees v. Canada (Citizenship and Immigration)

In Canadian Council for Refugees v. Canada (Citizenship and Immigration) (SCC, 2023) the Supreme Court of Canada considered an interesting ultra vires regulation case, here where the regulation-authorizing statutory provisions were undermined ("because of post‑promulgation constraints on the Governor in Council’s statutory authority to maintain a designation") such that the existing regulations now became questionable. The court held that pre-existing regulations drew their legislative authority from the time they were originally promulgated, and retained that authority until expressly amended or repealed:
[49] I turn now to the appellants’ argument that s. 159.3 of the IRPR is ultra vires because of post‑promulgation constraints on the Governor in Council’s statutory authority to maintain a designation. First, the appellants submit that it was unreasonable, given the factors in s. 102 of the IRPA, to maintain the United States’ designation when there is evidence that many refugees cannot access effective protection there. Second, they say that the Governor in Council breached its s. 102(3) obligation to ensure continuing review of the United States’ compliance.

[50] I would not give effect to these arguments. I agree with the respondents that the vires of s. 159.3 of the IRPR must be examined at the time of promulgation.

[51] Regulations “derive their validity from the statute which creates the power, and not from the executive body by which they are made” (Reference as to the Validity of the Regulations in relation to Chemicals, 1943 CanLII 1 (SCC), [1943] S.C.R. 1, at p. 13, per Duff C.J., quoting The Zamora, [1916] 2 A.C. 77 (P.C.), at p. 90). The limits imposed by the enabling statute are therefore fundamental to determining whether a regulation is intra vires (see J. M. Keyes, Executive Legislation (3rd ed. 2021), at p. 165).

[52] Here, the appellants misconstrue the limitations imposed by s. 102 of the IRPA. The Governor in Council may promulgate regulations “designating countries that comply with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture” (s. 102(1)(a)). The statute also prescribes factors for the Governor in Council to consider “in designating a country” (s. 102(2)). These factors concern when countries may be designated. Thus, s. 102(1)(a) and (2) establishes conditions precedent to designation for the purposes of s. 101(1)(e), as the Federal Court of Appeal held in CCR (2008) (para. 75). The statute requires that these conditions be met before, not after, a country is designated (see E. A. Driedger, “Subordinate Legislation” (1960), 38 Can. Bar Rev. 1, at p. 8).

[53] The Governor in Council does, however, have statutory obligations in the period after a country is designated pursuant to s. 102(1)(a). Section 102(3) creates an obligation to “ensure the continuing review” of the s. 102(2) factors. These reviews are not directed at whether the regulation exceeds the limits imposed by the statute, which is the proper focus of a vires challenge. In this sense, the s. 102(3) reviews are outside the scope of a challenge alleging that s. 159.3 of the IRPR is ultra vires the IRPA. Instead, the continuing reviews are a distinct statutory obligation of the Governor in Council. As a result, s. 102(3) reviews may be challenged based on administrative law principles (see C.A. reasons, at para. 96). However, the appellants did not seek judicial review of particular s. 102(3) reviews conducted after the promulgation of s. 159.3.

[54] Focusing on the appropriate date and recognizing that the s. 102(3) reviews are outside the scope of a vires argument, I am persuaded that the appellants fail on this point. As this Court has held, “[r]egulations benefit from a presumption of validity” (Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810, at para. 25; see also P.-A. Côté and M. Devinat, Interprétation des lois (5th ed. 2021), at para. 1314). Thus, to succeed in their argument based on s. 159.3’s inconsistency with the provisions they rely on, the appellants must show that on the date of promulgation, the designation of the United States was not authorized by s. 102(1)(a) or (2) of the IRPA. Because they have directed their argument at post‑promulgation developments, the appellants have not done so. Accordingly, the appellants’ submission that s. 159.3 of the IRPR is ultra vires should be rejected.
. International Air Transport Association v. Canadian Transportation Agency

In International Air Transport Association v. Canadian Transportation Agency (Fed CA, 2022) the Federal Court of Appeal discussed, but did not apply, the law of setting aside delegated legislation (here, regulations) as being ultra vires - an area of law that has been the subject of debate since Vavilov:
[71] The appellants do not challenge the validity of section 86.11 of the CTA, nor of any other of its provisions. The core of their challenges is that the minimum compensation scheme set out in the Regulations, insofar as it applies to international carriage, is ultra vires of the enabling provision found in section 86.11. Challenging the vires of a regulation is certainly a question of law. Indeed, section 41 of the CTA provides for an appeal from the Agency to this Court, with leave, only on questions of law and jurisdiction.


C. Is the Direction intra vires of the authority of the Minister under subsection 86.11(2) of the CTA?

[185] The appellants’ final argument is that the Minister’s Direction requiring the Agency to make regulations in respect of tarmac delays of three hours or less, exceeds the power that he has been granted under subsection 86.11(2). Pursuant to that subsection, the Minister is authorized to issue directions to the Agency to make a regulation respecting any of the carrier’s obligations towards passengers that are not listed in paragraph (1)(a) to (f). One of the obligations that the Agency is explicitly empowered to regulate relates to tarmac delays of more than three hours. In the appellants’ view, the Direction constitutes an impermissible attempt to amend the CTA and seeks to modify Parliament’s intent by purporting to remove an explicit and clear legislative limit to the regulatory powers granted by Parliament to the Agency. In other words, the Direction transformed an express statutory power to regulate tarmac delays of more than three hours into a power to regulate tarmac delays of any length whatsoever, and should therefore be held ultra vires the CTA. By the same logic, section 8 of the Regulations which imposes obligations regarding tarmac delays of any duration on air carriers should also be held ultra vires the regulation-making authority of the Agency under section 86.11 of the CTA.

[186] Prior to Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir], the analytical framework for the judicial review of delegated legislation was firmly established, and rested on the ultra vires doctrine. When the validity of delegated legislation was challenged, reviewing courts interpreted the statutory grant of authority to determine whether, correctly interpreted, it fell within or outside its ambit. This was essentially an exercise of statutory interpretation, with no deference to the delegate’s interpretation.

[187] In the years following Dunsmuir, some confusion arose in the highest court on this issue, no doubt because that decision was focused on the judicial review of decisions of adjudicative tribunals and not on delegated legislation. In some cases, the Court applied the judicial review framework (see Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5; Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360; West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 S.C.R. 635), whereas in other cases the Court reverted to the vires analysis (see for example, Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810 [Katz]; Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135 at para. 51; Donald Brown & John Evans, Judicial Review of Administrative Action in Canada (Toronto: Thomson Reuters Canada Ltd., 2022), Chap. 2021, at section 2021:5(ii)(3)).

[188] Unfortunately, Vavilov did not bring much clarity to that confusion. Because the Supreme Court purported to adopt the reasonableness standard as the default standard of review to all administrative actions, most intermediate appeal courts adopted the view that delegated legislation would henceforth be reviewed against that standard: see, for example, 1193652 B.C. Ltd. v. New Westminster (City), 2021 BCCA 176 at paras. 48-59; Portnov v. Canada (Attorney General), 2021 FCA 171; Canadian Association of Refugee Lawyers v. Canada (Citizenship and Immigration), 2020 FCA 196 [2021] 1 F.C.R. 271; Paul Daly, "“Regulations and Reasonableness Review”" (January 29, 2021), online (blog): Administrative Law Matters .

[189] This approach, however, has not been followed unanimously: see, for example, Hudson’s Bay Company ULC v. Ontario (Attorney General), 2020 ONSC 8046, 154 O.R. (3d) 103; Friends of Simcoe Forest Inc. v. Minister of Municipal Affairs and Housing, 2021 ONSC 3813 at para. 25. Indeed, the reasonableness standard review is fraught with difficulties, not the least of which is that it assumes the body or person that has been granted the power to adopt delegated legislation has also been vested with the power to decide questions of law and to determine the proper interpretation of the habilitating statute; yet, this is obviously not always the case: see John M. Evans, "“Reviewing Delegated Legislation After Vavilov: Vires or Reasonableness?”" (2021) 34:1 Can. J. Admin. L.& P. 1.

[190] More recently, the Supreme Court has brought grist to the mill of those who support the view that the Vavilov judicial review framework does not apply to delegated legislation. In References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, 455 D.L.R. (4th) 1 [Ref re Greenhouse Gas], the Court reviewed the validity of the regulations at issue on the basis of its own interpretation of the enabling statute, without expressing any deference to Cabinet on the interpretative issue. It is true that the majority (in contrast to the dissenting opinion of Rowe J.) made no mention of the ultra vires doctrine, but neither did it refer to Vavilov nor to reasonableness review. On the contrary, the majority took it upon itself to interpret the scope of the regulation-making powers found in the Greenhouse Gas Pollution Pricing Act, S.C. 2018, c. 12. While this is clearly not the last word on the subject, it signals at the very least that the issue is far from settled.

[191] That being said, and whether we assess the validity of the Direction and of section 8 of the Regulations through the lens of the reasonableness standard of review or through the more exacting prism of the ultra vires doctrine, the result would be the same. For the appellants to succeed with their argument that subsection 86.11(2) of the CTA does not encompass the power to issue the Direction (and section 8 of the Regulations) because it relates to matters covered at paragraph 86.11(1)(f), they would have to show either that the Direction: 1) is irrelevant, extraneous or completely unrelated to the statutory purpose (Katz at para. 28; Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231, 1994 CanLII 115 (SCC) at p. 280), or 2) rests on an unreasonable interpretation of subsection 86.11(2). If the Direction (and section 8 of the CTA) satisfies the more exacting ultra vires framework, it will obviously meet the less stringent reasonableness standard of review analysis.

[192] I agree with the Attorney General that the language of subsection 86.11(2) is quite broad, and that limiting the Minister’s ability to issue directions to matters not covered in paragraphs 86.11(1)(a) to (f) as suggested by the appellants would be inimical to the ordinary meaning of the words used by Parliament in subsection 86.11(2). The Minister is granted the power to issue directions to the Agency with respect to "“any of the carrier’s other obligations”". These terms are quite broad, and there is no indication that they were meant to limit the discretion of the Minister to those matters that are strictly speaking extraneous and unrelated to those listed in subsection 86.11(1).

[193] The Direction and section 8 of the Regulations are not only consistent with the wording of subsection 86.11(2) of the CTA, but also with the context and purpose of the CTA as a whole. In its summary, the Transportation Modernization Act states that it "“amends the [CTA] to make regulations establishing a new air passenger rights regime …”". The intent was clearly to provide better protection to air passengers, and it is in that spirit that Parliament compelled the Agency to make regulations regarding passengers’ rights and carriers’ obligations on specific matters. It is certainly not inconsistent or unrelated to that statutory purpose, let alone unreasonable, to interpret the list of matters found at subsection 86.11(1) as the baseline of carriers’ obligations towards passengers, rather than the upper limit. The fact that the delegation of power created by subsection 86.11(2) may be extensive and that the discretion conferred on the Minister may be broad is no obstacle to its validity: see Ref re Greenhouse Gas at paras. 85-88. In sum, I have not been convinced that the Minister has exceeded the scope and limits of his power under subsection 86.11(2) of the CTA. As a result, both the Direction and section 8 of the Regulations are valid.


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Last modified: 17-06-23
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