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Delegated Legislation - Ultra Vires Regulations (4). Thibault and Ramsay v. Attorney General of Ontario
In Thibault and Ramsay v. Attorney General of Ontario (Ont Divisional Ct, 2025) the Divisional Court dismissed a JR, this challenging part of an Ontario regulation [Towing and Storage Safety and Enforcement Act, 2021 (TSSEA, 2021), Reg. 167/23] on charter and ultra vires grounds. The regulation provision [Reg. 167/23, s.2(d)(i)] challenged disqualified a person from holding a "tow certificate, tow driver certificate or vehicle storage certificate" if "the person is subject to a court order, conditions of parole or an undertaking to a peace officer prohibiting him or her from, ... possessing a weapon".
Here the court conducts it's ultra vires analysis of this particular regulation, couched in classic Vavilov 'reasonableness' principles:(1) Vires of the Regulation
[42] The applicants submit that s. 2(d)(i) of the Regulation has both types of fundamental flaws that are recognized in Vavilov as rendering a decision unreasonable, at para. 101. They submit that there is a failure of rationality internal to the reasoning process, and the impugned provision is untenable in light of the factual and legal constraints that bear on it.
[43] 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”: Auer, at para. 60. They are therefore an appropriate starting point.
[44] Section 64(1) of the Act provides the authority to make regulations. It is broadly worded. It gives authority to make regulations “respecting any matter necessary or advisable to effectively carry out the intent and purpose the Act”. That authority is not limited to the specific matters listed under s. 64(1), but the list includes anything regarding the following:(d) governing certificates and their issuance, renewal, suspension and cancellation, including, …
(iii) governing qualifications and requirements for a certificate, ... [45] The rest of the Act does not limit the types of qualifications and requirements that may be imposed, which is consistent with the broad scope of the authorization to make regulations about certification.
[46] The legislative history summarized above confirms and supports the conclusion that the Regulation is consistent with the Act’s purpose. Although Cabinet gave no reasons for its decision to promulgate the Regulation, we may have regard to the submissions to Cabinet as giving indications as to the purposes of the Act and the Regulation: Auer, at paras. 52-54. The submissions here indicated that the certification system was the core of the Act and the primary mechanism by which the Act would improve outcomes. The expected benefits included the reduction of violence and crime, a serious, long-recognized problem in the industry. The use of criminal records in the certification regime is amply supported by the record that led to the Cabinet decision.
[47] The applicants accept that public safety is one of the goals of the Act and the Regulation. However, they submit that s. 2(d)(i) and the related provisions in the Regulation do not rationally advance public safety (emphasizing that the applicants themselves do not pose a risk). They submit that they have the opposite effect, because they exclude drivers such as themselves who have a demonstrated record of safe and competent participation in the industry. They submit that they limit the number of tow truck drivers and therefore interfere with the demand for those services.
[48] These submissions relate to the effectiveness and wisdom of the Regulation, which is not the question. The “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”: Auer, at para. 56.
[49] Nor have the applicants established their submission that the government did not consider the matter in detail and misunderstood the implications of the weapon prohibition.
[50] Contrary to this submission, the express words of s. 2 of the Regulation show a detailed level of consideration regarding what should be disqualifying under the Act. Section 2 of the Regulation has four categories of things that are disqualifying:(1) subsection (a) lists over two dozen specific criminal offences;
(2) subsection (b) lists specific offences and groups of offences that, if convicted in the prior five years, are disqualifying;
(3) subsection (c) lists specific offences under the CDSA that, if convicted in the prior ten years, are disqualifying; and,
(4) subsection (d), quoted above, expressly refers to court orders prohibiting a person from “possessing a weapon” as well as orders regarding some other matters. [51] Under this detailed regime, it is plainly shown that specific offences, time limits and types of court orders were considered to prepare the draft regulation and that people with weapons prohibitions would be disqualified. Including a weapons prohibition is amply supported by the legislative purposes of the Act.
[52] The applicants seek to move from the general categories in the above section, to the specific consequences for them. They submit that it is irrational to exclude people who have worked lawfully in the industry because of twenty-year-old convictions. They submit that other people with more violent offences may become eligible for a certificate (since some of the other categories under s. 2 have time limits), where the weapons prohibition category does not. These are, again, policy choices. And the submission overlooks the prospect that the people with those more serious offences may also have a weapons prohibition and be disqualified for that reason.
[53] The decision to impose a weapons prohibition on the applicants was made under the Criminal Code. There may be consequences for them. As put in Auer, at para. 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.”
....
[59] We conclude that s. 2(d)(i) of the Regulation is reasonably within the scope of Cabinet’s authority to make regulations under s. 64(1) of Act. In other words, having considered all relevant factors in the reasonableness review of the vires of the part of the Regulation at issue, as set out in Auer and Vavilov, the applicants have not shown that s. 2(d)(i) or the related subsections of the Regulation are unreasonable.
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