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Municipal - Discrimination. 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 common law administrative discrimination [SS Note: this seems to be a larger form of 'discrimination' than the municipal form you are familiar with - so it seems municipal bylaws are a subset of delegated legislation ...]:[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.
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[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. ....
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A. The Common Law Rule Against Administrative Discrimination
[40] Administrative discrimination “arises when [subordinate] legislation expressly distinguishes among the persons to whom its enabling legislation applies” (Keyes, at pp. 370‑71, citing L.‑P. Pigeon, Drafting and Interpreting Legislation (1988), at p. 42; Fédération des producteurs de fruits et légumes du Québec v. Conserverie canadienne Ltée, [1990] R.J.Q. 2866 (Sup. Ct.), at p. 2871; Sunshine Village Corp. v. Canada (Parks), 2004 FCA 166, [2004] 3 F.C.R. 600, at para. 13).
[41] Administrative discrimination is different than discrimination in the context of the Canadian Charter of Rights and Freedoms or human rights legislation: “When we speak of administrative discrimination, we are not speaking of discrimination based on personal characteristics, such as sex, race or religion, that is proscribed by many human rights statutes” (P. Salembier, Regulatory Law and Practice (3rd ed. 2021), at p. 303). Rather, administrative discrimination “relates to the drawing of distinctions between persons or classes that are discriminatory in a ‘non‑pejorative but most neutral sense of the word’, in that they simply ‘do not apply equally to all those engaged in the activity that is the subject of the enactment’” (p. 303, quoting Montréal (City of) v. Arcade Amusements Inc., 1985 CanLII 97 (SCC), [1985] 1 S.C.R. 368, at p. 406, and Sunshine Village Corp., at para. 13, citing D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (looseleaf), at para. 15:3212).
[42] The common law rule against administrative discrimination provides that subordinate legislation that discriminates in the administrative law sense is invalid unless the discrimination is authorized by the enabling statute (Arcade Amusements, at p. 404; Forget v. Quebec (Attorney General), 1988 CanLII 51 (SCC), [1988] 2 S.C.R. 90, at pp. 105‑6; Katz Group, at para. 47; Keyes, at p. 371; Salembier, at pp. 307‑8). The enabling statute may authorize administrative discrimination, either expressly or by necessary implication (Arcade Amusements, at p. 413; Forget, at pp. 105‑6; Katz Group, at para. 47).
[43] As McLachlin J. (as she then was), dissenting, but not on this point, explained when reviewing the validity of a municipal bylaw in Shell Canada Products Ltd. v. Vancouver (City), 1994 CanLII 115 (SCC), [1994] 1 S.C.R. 231, at p. 259, the rule against administrative discrimination is concerned with ensuring that statutory delegates act within the scope of their authority when they distinguish between the persons to whom the enabling legislation applies:The rule pertaining to municipal discrimination is essentially concerned with the municipality’s power. Municipalities must operate within the powers conferred on them under the statutes which create and empower them. Discrimination itself is not forbidden. What is forbidden is discrimination which is beyond the municipality’s powers as defined by its empowering statute. Discrimination in this municipal sense is conceptually different from discrimination in the human rights sense; discrimination in the sense of the municipal rule is concerned only with the ambit of delegated power. ....
[50] The question of statutory authorization to discriminate falls within the reasonableness review to be conducted in a vires challenge to subordinate legislation, unless the legislature has indicated otherwise or a question relating to the rule of law arises which should be reviewed for correctness (Vavilov, at para. 53).
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