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Canadian Animal Law

Statutes and Statutory Interpretation - Ultra Vires Regulations II

. Covant v. College of Veterinarians of Ontario

In Covant v. College of Veterinarians of Ontario (Div Ct, 2021) the Divisional Court considered whether regulations, made by the College of Veterinarians [subject to Cabinet approval: s.7(1) Veterinarians Act] attracted a duty of procedural fairness - which it concluded they didn't. Interestingly paras 44-53 are essentially the court's argument that, even though the College did not owe such a duty, that they complied with it anyway:
[37] Dr. Covant takes the position that as a self-regulatory body, the College has a contractual relationship with its members, resulting in a duty of procedural fairness or natural justice, both at common law and under the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”), when making rules that affect its members. Dr. Covant submits that the College’s Council breached this duty by failing to provide its members with adequate notice and consultation regarding amendments to the General Regulation. Dr. Covant further submits that under the doctrine of legitimate expectations, he and other members had an expectation that they would receive notice and be consulted about amendments to the General Regulation, which would affect standards of practice, before such amendments were made.

[38] The College’s position is that the amendments to the General Regulation were properly enacted pursuant to its governing statute and that no duty of procedural fairness is owed in recommending and approving changes to the Regulation.

[39] Subsection 7(4) of the Veterinarians Act sets out the notice requirements where a regulation is made or amended, as follows:
(4) The Council shall,

(a) forward a copy of each regulation made under subsection (1) to each member of the College; and

(b) keep a copy of each regulation made under subsection (1) available for public inspection in the office of the College.
[40] Subsection 43(1) states that notice is sufficiently given if delivered personally or by mail.

[41] In my view, the panel correctly determined that the amendments to the General Regulation, including s. 33(2)(d), were properly enacted. The panel found that the College, in exercising its regulation-making function, did not owe Dr. Covant or its members, a duty of procedural fairness akin to the duty owed in a disciplinary proceeding. As long as the Council followed the statutory requirements of s. 7 of the Veterinarians Act, as addressed further below, the College was not required to take any additional steps to fulfil any common law or statutory duty of procedural fairness.

[42] As noted by the College, s. 3(2)(h) of the SPPA states that the Act does not apply to a proceeding “of a tribunal empowered to make regulations, rules or by-laws in so far as its power to make regulations, rules or by-laws is concerned.”

[43] In addition, the case law relied upon by the Appellant, both before the Discipline Committee and on appeal, does not support his position. In Chalmers v. Toronto Stock Exchange (1989), O.R. (2d) 532, 40 Admin. L.R. 311 (C.A.), the Ontario Court of Appeal held only that a tribunal’s discipline proceedings must comply with the SPPA. In McGill v. Brantford (City of) (1980), 1980 CanLII 1741 (ON SC), 28 O.R. (2d) 721, 111 D.L.R. (3d) 405(Div. Ct.), the court held that the SPPA did not apply to a council passing a by-law.Similarly, in Canadian Union of Public Employees v. Canada (Attorney General), 2018 FC 518, 49 Admin. L.R. (6th) 34, the Federal Court held that the regulation-making function did not engage the applicant’s procedural fairness rights.
. Covant v. College of Veterinarians of Ontario

In Covant v. College of Veterinarians of Ontario (Div Ct, 2021) the Divisional Court considered an issue of the ultra vires of regulations:
[25] In Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810, at para. 24, the Supreme Court of Canada held that a successful challenge to the vires of a regulation requires that it be shown to be inconsistent with the objective of the enabling statute or the scope of the statutory mandate. The court outlined the guiding principles for assessing whether a regulation is ultra vires, which were summarized by this court in Hudson’s Bay Company ULC v. Ontario (Attorney General), 2020 ONSC 8046, 154 O.R. (3d) 103, at para. 37, as follows:
• Regulations are presumed to be valid, which places the burden on the challengers to demonstrate invalidity. Courts are to favour an interpretive approach that, where possible, reconciles the regulation with its enabling statute so that it is construed in a manner which renders it intra vires;

• The challenged regulation and the enabling statute should be interpreted using a broad and purposive approach;

• Judicial review of a regulation is usually restricted to the issue of whether the regulation is consistent with the statutory purpose or whether a condition precedent was not met before the regulation was made;

• Courts are not to assess the policy merits of the regulation or to decide whether it is “necessary, wise or effective in practice”;

• The motives for making a regulation are irrelevant;

• Under-inclusiveness is not a valid ground for challenging a regulation as ultra vires; and

• A regulation must be “irrelevant”, “extraneous” or completely inconsistent with the statutory purpose to be found ultra vires.
. McNeeley v. Canada

In McNeeley v. Canada (Fed CA, 2021) the Federal Court of Appeal resolved an apparent paramountcy conflict between a statute and a regulation:
[29] In Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 CanLII 110 (SCC), [1992] 1 S.C.R. 3, at page 38, Justice La Forest, writing on behalf of the Supreme Court of Canada, confirmed that regulations (which are subordinate legislation) cannot conflict with their parent legislation:
The basic principles of law are not in doubt. Just as subordinate legislation cannot conflict with its parent legislation (Belanger v. The King (1916), 1916 CanLII 87 (SCC), 54 S.C.R. 265), so too it cannot conflict with other Acts of Parliament (R. & W. Paul, Ltd. v. Wheat Commission, [1937] A.C. 139 (H.L.)), unless a statute so authorizes (Re Gray (1918), 1918 CanLII 533 (SCC), 57 S.C.R. 150). Ordinarily, then, an Act of Parliament must prevail over inconsistent or conflicting subordinate legislation. However, as a matter of construction a court will, where possible, prefer an interpretation that permits reconciliation of the two. …
[30] In this case, it is not possible to reconcile the two provisions as they apply to the D2L Employee Trust. The D2L Employee Trust fulfills both the requirements to be an employee benefit plan and a prescribed trust. The tax consequences for the D2L Employee Trust and the appellants are significantly different based on the classification of the D2L Employee Trust as an employee benefit plan or a prescribed trust. However, since the definition of an employee benefit plan is set out in the Act and since the definition of a prescribed trust is set out in the Regulations, the paramountcy of the definition of an employee benefit plan in the Act must govern. Otherwise, the Act would be amended by the Regulations if an arrangement, such as the one in this appeal, is not an employee benefit plan as defined in the Act because it is also a prescribed trust as defined in the Regulations.
. Portnov v. Canada (Attorney General)

In Portnov v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal (Stratas JA) chose to follow Vavilov, rather than Katz (SCC, 2013), for guidance on determining when a regulation is ultra vires. The decision hinges on equating regulation-making with administrative decision-making [paras 29-56]:
B. Reviewing regulations

[18] The Attorney General agrees that Mr. Portnov wants to end the continuing effect of the 2019 Regulations. He says that to accomplish that, Mr. Portnov must satisfy a special rule for attacking regulations. The rule is found in Katz Group Canada Inc. v. Ontario (Health and Long‑Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810.

[19] There are three parts to the Katz rule: (1) when a party challenges the validity of regulations, the party bears the burden of proof; (2) to the extent possible, regulations must be interpreted so that they accord with the statutory provision that authorizes them; and (3) the party must overcome a presumption that the regulations are valid. On the third part, Katz suggests (at paras. 24 and 28) that the presumption is overcome only where the regulations are "“irrelevant”", "“extraneous”" or "“completely unrelated”" to the objectives of the governing statute. A leading commentator on Canadian administrative law calls this "“hyperdeferential”": Paul Daly, "“Regulations and Reasonableness Review”" in Administrative Law Matters, (29 January 2021), . I agree.

[20] The first two parts of the Katz rule are well-accepted, judge-made principles. The third part—the presumption and the very narrow ways it can be rebutted—is more controversial. In my view, later jurisprudence from the Supreme Court, particularly Vavilov, has overtaken it.

[21] The presumption of validity and the very narrow ways it can be rebutted were first introduced into Canadian law at a time when "“legislative”" decisions (e.g., Alaska Trainship Corp. v. Pacific Pilotage Authority, 1981 CanLII 175 (SCC), [1981] 1 S.C.R. 261, 120 D.L.R. (3d) 577 at p. 274 S.C.R.) or decisions of "“public convenience and general policy”" (e.g., Thorne’s Hardware Ltd. v. The Queen, 1983 CanLII 20 (SCC), [1983] 1 S.C.R. 106, 143 D.L.R. (3d) 577 at p. 111 S.C.R.) could not be set aside unless "“jurisdiction”" was lost through some rare and significant error. These included "“egregious”" exceedance of authority (see e.g. Thorne’s Hardware and Alaska Trainship), pursuit of an improper purpose (Re Doctors Hospital and Minister of Health (1976), 1976 CanLII 739 (ON SC), 12 O.R. (2d) 164, 68 D.L.R. (3d) 220 (Div. Ct.)) and the taking into account of wholly irrelevant considerations. Tellingly, in developing the third part of the rule, Katz relies upon all of the cases in this paragraph—cases based on concepts of "“jurisdiction”"—and later cases that rely on them.

[22] Over the last half-century, the role of "“jurisdiction”" as a controlling idea in Canadian administrative law has been on the decline, along with the concomitant need for challengers to show exceedance of authority, improper purpose or the taking into account of wholly irrelevant considerations. Concepts of "“patent unreasonableness”" and "“reasonableness”" and, later, just "“reasonableness”" have been in the ascendancy. By 2008, only a last small vestige of "“jurisdiction”" remained—correctness review on "“true questions of jurisdiction”" such as the vires of regulations: Dunsmuir at para. 59, citing United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1 S.C.R. 485. In 2019, Vavilov eradicated that last vestige. Thus, the third part of the Katz rule is an artefact from a time long since passed.

[23] So how should we go about reviewing regulations today? We must begin by reminding ourselves that in answering questions like that we should concentrate on real substance, not superficial form: Canadian Council for Refugees; JP Morgan. In substance, regulations, like administrative decisions and orders, are nothing more than binding legal instruments that administrative officials decide to make—in other words, they are the product of administrative decision-making. This suggests that the proper framework for reviewing regulations must be the one we use to review the substance of administrative decision-making: see e.g. Terrigno v. Calgary (City), 2021 ABQB 41, 21 Alta. L.R. (7th) 376.

[24] Indeed, many Supreme Court cases considering regulations and subordinate legislation during the Dunsmuir era used that very framework, not the framework in Katz: see e.g. 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; see also the analysis in John Mark Keyes, "“Judicial Review of Delegated Legislation: The Long and Winding Road to Vavilov”", (18 June 2020), .

[25] Today, the framework for reviewing the substance of administrative decision-making is Vavilov. It is intended to be sweeping and comprehensive—a "“holistic revision of the framework for determining the applicable standard of review”" (at para. 143). We are to draw upon Vavilov, not cases like Katz: we must "“look to [""the] reasons [in ""Vavilov""] first in order to determine how [Vavilov’s] general framework applies to [a] case”" (ibid.).

[26] Vavilov offers us even more justification for not following Katz. Vavilov instructs us (at para. 143) that cases under the now-discarded category of "“true questions of jurisdiction”"—of which Katz is one—"“will necessarily have less precedential force”". As well, in the course of its discussion abolishing the category of "“true questions of jurisdiction”", Vavilov mentions that there are "“cases where the legislature has delegated broad authority to an administrative decision maker that allows the latter to make regulations in pursuit of the objects of its enabling statute”" (at para. 66) yet makes no attempt to carve out a special rule for regulations: see also the analysis in Morris v. Law Society of Alberta (Trust Safety Committee), 2020 ABQB 137, 12 Alta. L.R. (7th) 189 at para. 40; TransAlta Generation Partnership v. Regina, 2021 ABQB 37 at para. 46.

[27] More fundamentally, Vavilov instructs us to conduct reasonableness review of all administrative decision-making unless one of three exceptions leading to correctness review applies. This applies to regulations as a species of administrative decision-making: Federal Court’s reasons at para. 23; 1120732 B.C. Ltd. v. Whistler (Resort Municipality), 2020 BCCA 101, 445 D.L.R. (4th) 448 at para. 39. For good measure, Vavilov cites Green and West Fraser with approval—cases that conducted reasonableness review without applying the Katz rule: see paragraph 24, above. Finally, the Katz rule applies across-the-board to all regulations regardless of their content or context. This sits uneasily with Vavilov which adopts a contextual approach to reasonableness review.

[28] Thus, in conducting reasonableness review, I shall not apply Katz. I shall follow Vavilov.


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