In 1582235 Ontario Limited v. Ontario (Ont CA, 2020) the Divisional Court considered when a government agency's authority carried with it an implied legal power (here, the right to set-off against monies owing to a party in future) as a matter of statutory interpretation:
Finding on whether the Set-Off Decision was Unreasonable under the IHFA
[32] During cross-examinations in these proceedings, the Ministry conceded that there is no express statutory provision that they are relying upon to authorize the set-off at issue.
[33] There was an express power in s. 24(3) of the IHFA granting the Ministry an express power of set-off for a prescribed reason. It empowered the executive to enact regulations to govern the exercise of that power. No reasons were ever prescribed however.
[34] As set out by the Supreme Court in ATCO,[15] an implied power must arise out of “practical necessity” or by “practical implication” to give proper effect to legislative intent. No evidence was led as to why the government was unable to enact regulations to prescribe conditions for recovery and set-off pursuant to s. 24(3). Having failed to enact regulations, the Ministry cannot make out a case for “necessity”. Where the legislature has spoken and “dealt with [a matter] through use of expressly granted powers,” there is, by definition, “an absence of necessity.”[16]
[35] The Ministry has not cited any authority for the proposition that an implied power may co-exist with an express power. The Legislature cannot be taken to have created a scheme where implied powers may replace the express language of the statute.
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