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Delegated Legislation - Ultra Vires Regulations (3)

. Sierra Club Canada Foundation v. Canada (Environment and Climate Change)

In Sierra Club Canada Foundation v. Canada (Environment and Climate Change) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal of two JRs, one which "challenged the validity of a report resulting from a regional assessment of offshore oil and gas exploratory drilling, conducted under the Impact Assessment Act" and the other to "quash a regulation made under the Act that exempts certain exploratory drilling activities from a number of impact assessment requirements".

Here the court considers the status of regulations made under unconstitutional statutes:
[2] After our Court heard this appeal, the Supreme Court of Canada released its decision on the constitutionality of the Act: Reference re Impact Assessment Act, 2023 SCC 23 [IAA Reference]. The Supreme Court opined that the federal impact assessment scheme, consisting of the Act and its accompanying Physical Activities Regulations, S.O.R./2019-285 (Activities Regs), is unconstitutional in part.


[68] Moreover, the Supreme Court has stated that a tribunal must refuse to give effect to unconstitutional legislation: Ontario (Attorney General) v. G, 2020 SCC 38 at para. 88.

[69] Since a valid regulation cannot be founded on an invalid statute, it stands to reason that the Excluded Activities Regs, like the Activities Regs, are invalid: Elmer A. Driedger, "“Subordinate Legislation”" (1960), 38 Can Bar Rev 1 at 7. In the context of this appeal, the IAA Reference’s that the Act (except sections 81-91) is unconstitutional entails that the Minister lacked the authorization to make the Excluded Activities Regs: Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14 at para. 16; Brown v. Canada (Citizenship and Immigration), 2020 FCA 130 at para. 40; Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2020 FCA 100 at para. 88; Canada (Citizenship and Immigration) v. Singh, 2016 FCA 300 at para. 16.
. 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.

. 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: 13-05-24
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