INTRODUCTION

Last year marked the fifth anniversary of the Supreme Court of Canada’s landmark decision in Canada (Minister of Citizenship and Immigration) v Vavilov.^[1] At the five-year mark after the release of the predecessor to Vavilov,^[2] Professor Mullan wrote an 85-page article about the issues left unresolved — the top 15!^[3]

No such article could be written today. The issues left unresolved by Vavilov are comparatively few. I identified five subsequent to the decision: internal standard of review, arbitration appeals, procedural fairness, Charter^[4] review and the extent to which reasonableness review is constitutionally entrenched.^[5] I later added the standard of review for regulations to the list.^[6]

Of these six, the Supreme Court has squarely dealt with procedural fairness^[7] and the standard of review for regulations;^[8] and has decided cases addressing Charter review^[9] and the constitutional foundations of judicial review.^[10]

There has been no treatment of internal standard of review — though, to be fair, the Supreme Court has never addressed this issue. As far as arbitration appeals are concerned, the minority reasons in Wastech Services Ltd. v Greater Vancouver Sewerage and Drainage District^[11] sought to address them.

Accordingly, at the five-year mark, the question is more how faithful the Supreme Court has been to the Vavilov framework than how it needs to clarify or tweak the framework. In the last 12 months, the Court has made a number of significant decisions applying the Vavilov framework and addressing unresolved issues. Most of the focus of this ‘year in review’ paper will be on those. Only one of the cases involves energy law directly, a significant decision on stranded assets, but the others all have immediate implications for the sector.

I will begin in Part I with the standard of review of regulations. In Part II, I will address reasonableness review, focusing on the decision in the Mandate Letters^[12] case and also addressing the most recent entry in the ‘Charter values’ ledger. In Part III, I will focus on correctness review, with two Charter cases from the labour and employment field forming the core of my analysis. In Part IV, I turn my attention to constitutional issues, specifically the scope of the core constitutional minimum of judicial review post-Vavilov. And in Part V, I consider a number of regulatory conduct issues relevant to energy law practitioners that have arisen recently in lower courts (meetings with regulators, counsel in regulatory investigations and the desirability of transparency).

I. STANDARD OF REVIEW AND REGULATIONS

A) Clarifying the Standard

The Supreme Court of Canada handed down its much-anticipated decision on standard of review of regulations in 2024.^[13] Regulations in the energy sector are, of course, subject to the framework laid out in Auer.

I was co-counsel for the appellant, Roland Auer. After the hearing in April, two things seemed quite clear to me: the Supreme Court would apply the Vavilov framework to judicial review of regulations; but was also likely to find that the regulations at issue here (the federal Child Support Guidelines^[14] made by the Governor in Council) were valid. And so it transpired.

The major issue of administrative law principle was the standard to be applied in cases where an applicant seeks to challenge a regulation. In Katz Group Canada Inc. v Ontario (Health and LongTerm Care)^[15] the Supreme Court held that judicial intervention would only be appropriate “on the basis of inconsistency with statutory purpose”^[16] where regulations were demonstrated to be “irrelevant”, “extraneous” or “completely unrelated.” This standard was criticized as being “hyperdeferential”^[17] and an inappropriate carve-out from the general Vavilov framework.^[18] But in the Alberta Court of Appeal in Auer, the majority held that regulations have a special status recognized by the unique Katz standard.^[19]

The Supreme Court unanimously, in reasons written by Justice Côté , resolved that dispute in favour of Vavilov. The Vavilov framework is “comprehensive”^[20] and represents a “sea change”^[21] in Canadian administrative law, setting out the starting point for any future consideration of issues related to standard of review.^[22] Indeed, Vavilov specifically folded in cases involving challenges to the lawfulness of regulations.^[23] Furthermore, the majority in Vavilov contemplated that “robust reasonableness review” would suffice to ensure that administrative decision-makers (including those who make regulations) remain within the boundaries of their authority, even where no formal reasons have been provided for the decision.^[24]

However, some aspects of the decision in Katz survived the Vavilovian sea change. There were five aspects to the Supreme Court’s prior decision in Katz:

[1] “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”;^[25]

[2] “Regulations benefit from a presumption of validity… This presumption has two aspects: it places the burden on challengers to demonstrate the invalidity of regulations…and it favours an interpretive approach that reconciles the regulation with its enabling statute so that, where possible, the regulation is construed in a manner which renders it intra vires”;^[26]

[3] “Both the challenged regulation and the enabling statute should be interpreted using a ‘broad and purposive approach…consistent with the Court’s approach to statutory interpretation generally’”;^[27]

[4] “This inquiry does not involve assessing the policy merits of the regulations to determine whether they are ‘necessary, wise, or effective in practice’”.^[28] “It is not an inquiry into the underlying ‘political, economic, social or partisan considerations’” or an assessment of whether the regulations “will actually succeed at achieving the statutory objectives”;^[29]

[5] The regulations “must be ‘irrelevant’, ‘extraneous’ or ‘completely unrelated’ to the statutory purpose to be found ultra vires on the basis of inconsistency with statutory purpose.”^[30]

Several of these propositions are entirely unobjectionable, as Justice Stratas observed in Portnov.^[31] In Auer, only the last of them was held to be inconsistent with Vavilov, as it created a carve-out based on the status of the decision-maker and nature of decision at issue:

In my view, all of the above-mentioned principles in Katz Group, except for the “irrelevant”, “extraneous” or “completely unrelated” threshold, remain good law and continue to inform the review of the vires of subordinate legislation. As I will explain, the significant sea change brought about by Vavilov in favour of a presumption of reasonableness as a basis for review erodes the rationale for the “irrelevant”, “extraneous” or “completely unrelated” threshold, and maintaining this threshold would perpetuate uncertainty in the law. Accordingly, there is sound basis for a narrow departure from Katz Group.^[32] Otherwise, Katz Group continues to “provide valuable guidance on the application of the reasonableness standard.”^[33] To the extent that the principles in Katz Group do not conflict with Vavilov, they “are to form part of the application of the reasonableness standard.”^[34]

…

To summarize, unless the legislature has indicated otherwise or if a matter invokes an issue pertaining to the rule of law which would require a review on the basis of correctness, the vires of subordinate legislation are to be reviewed on the reasonableness standard regardless of the delegate who enacted it, their proximity to the legislative branch or the process by which the subordinate legislation was enacted. Introducing these distinctions into the standard of review framework would be “contrary to the Vavilovian purposes of simplification and clarity.”^[35]

I would also note that the first principle was not retained in its entirety in Auer. The word “requires” used in Katz suggested that this was an exclusive basis on which regulations could be challenged. However, in Auer, this principle is reframed: inconsistency with statutory objectives or scope is a basis on which to attack regulations, as they must be “must be consistent both with specific provisions of the enabling statute and with its overriding purpose or object”^[36]but this is not said to be an exclusive basis for challenge. Similarly, some of Vavilov’s legal constraints — the statutory scheme, common law principles and the rules of statutory interpretation — will be “particularly relevant” in reviewing regulations^[37] but clearly, in appropriate cases other constraints might be important and, indeed, the regulations might not follow a coherent chain of reasoning.^[38]

As to the second principle, Justice Côté noted the criticism that had been levelled at it but nonetheless saw it as consistent with Vavilov. For one thing, Vavilov also puts the burden on the applicant to demonstrate substantive unreasonableness.^[39] For another, the corollary of the presumption of validity that regulations should be interpreted to conform to the statutory scheme authorizing them does not impose any heavier a burden than Vavilov, because “to overcome the presumption of validity, challengers must demonstrate that the subordinate legislation does not fall within a reasonable interpretation of the delegate’s statutory authority.”^[40]

Here, I confess to having some sympathy for the contrary view advanced by the Federal Court of Appeal. As Justice Stratas explained in Innovative Medicines, “under Vavilov, the challenger does not have to overcome a presumption the decision is reasonable.”^[41] The applicant has a burden and so, in a de facto sense, a decision is reasonable until proven otherwise. But there is no de jure presumption of validity. The more modest (and I suggest better) way to think about this issue is that, on judicial review, a court must always characterize the decision at issue. Vavilov suggests that the characterization should, generally, be in favour of the decision-maker,^[42] explaining the need to read administrative decisions “with sensitivity to the institutional setting and in light of the record.”^[43]

Retaining the presumption from Katz is a step too far, in my view, if it means that a judge must, as a preliminary matter, undertake an interpretive exercise designed to bring a regulation into conformity with the governing statutory scheme. Giving a regulation a fair characterization for the purposes of reasonableness review (just as is done for other administrative decisions) is one thing and would accord with the third Katz principle on broad and purposive interpretation but requiring preliminary interpretive gymnastics would be quite another. Of course, it is possible that I am making too much of the de facto/de jure distinction, especially given Justice Côté’s insistence on the primacy of the Vavilov framework, her rejection of a special carve-out for regulations, her finding that the “very high degree of deference” required by the fifth Katz principle is inconsistent with Vavilovian reasonableness review^[44] and her comments on the fourth principle from Katz, which I turn to now.

As far as the fourth Katz principle is concerned, it is clear that reasonableness review of regulations, no more than reasonableness review of any other type of administrative decision, does not permit a court to second-guess the merits of a determination made by an administrative decision-maker. There is, therefore, no violation of the separation of powers by applying the reasonableness standard to regulations.^[45] Although the point was not before the Supreme Court in Auer, the various statutes that purport to insulate municipal bylaws from challenges based on “unreasonableness” could be understood as simply emphasizing the point that merits review is verboten.^[46]

Quoting Professor Mancini, Justice Côté emphasized that the court must be “mindful” that it plays only a reviewing role when assessing the reasonableness of regulations:

Importantly courts must organize these various sources properly to preserve the focus on the limiting statutory language. Again, the reasonableness review should not focus on the content of the inputs into the process or the policy merits of those inputs. Rather, courts must key these sources to the analysis of whether the subordinate instrument is consistent with the enabling statute’s text, context, and purpose. For example, Regulatory Impact Analysis Statements can inform a court as to the link between an enabling statute’s purpose and a regulatory aim, much like Hansard evidence. These analyses can help show how the effects of a regulation which, at first blush appear unreasonable, are enabled by the primary legislation.^[47]

This is closer to what I have in mind as far as the presumption of validity goes: treat it as de facto rather than de jure and characterize the administrative action at issue fairly.

With Katz put back in the bag, Justice Côté turned to the salient constraints here. Ultimately, the appellant’s case foundered on Justice Côté’s interpretation of the authority granted by s 26.1 of the Divorce Act^[48]. The general regulation-making power (s 26.1(1)) granted “extremely broad authority” to the Governor in Council.^[49] This general power is limited by s 26.1(2), imposing the “principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation” but this too, Justice Côté held, was “expressed in broad terms.”^[50] Accordingly, on the various issues identified by the appellant with the substantive reasonableness of the Guidelines relating to lines drawn (or not drawn) by the Governor in Council, there was no basis for judicial intervention:

The GIC was entitled to choose an approach to calculating child support that (1) does not take into account the recipient parent’s income; (2) assumes that parents spend the same linear percentage of income on their children regardless of the parents’ levels of income and the children’s ages; (3) does not take into account government child benefits paid to recipient parents; (4) does not take into account direct spending on the child by the payer parent when that parent exercises less than 40 percent of annual parenting time; and (5) risks double counting certain special or extraordinary expenses. Each of these decisions fell squarely within the scope of the authority delegated to the GIC under the Divorce Act.^[51]

With the framework now clarified, it will be interesting to observe how future challenges to the reasonableness of regulations will be framed. The elimination of the special carve-out for regulations is certainly welcome (and, to my eye at least) inevitable in light of Vavilov. As ever, though, there are aspects of the Supreme Court’s analysis that will require close examination in future cases to determine the extent to which challengers to regulations are likely to prevail.

B) Some Unanswered Questions

Any foray by the Supreme Court into an area of controversy will invariably leave some questions unanswered. That is the case with Auer as well. Three jump out at me.

First, as already mentioned, the requirements of the presumption of validity are unclear. There is a plausible case for saying that the ‘presumption’ does no more than restate the basic administrative law principles that the challenger on judicial review bears the onus of demonstrating unlawfulness and that a regulation — like any decision — should be read fairly with a view to its purpose rather than stingily. Again, as long as the presumption has only a de facto quality, rather than a de jure quality, it should not create too much difficulty.

Second, the extent to which the consequences of a regulation may be considered by a reviewing court is unclear. The view taken by the Supreme Court was as follows:

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.^[52]

In its negative sense — what a court cannot look at — this passage is clear enough: consequences are not to be taken into account where the applicant seeks to put necessity, desirability or wisdom in issue. In its positive sense — what a court can properly look at — this passage is rather less clear. There may be a useful analogy to make with federalism jurisprudence, where the legal effects of a statutory provision are relevant to determining its pith and substance for classification purposes, and it is legitimate to consider “how the law will operate and how it will affect Canadians.”^[53] But this prompts another question: how does the court get the information necessary to identify the consequences?

Third, however, the content of the record on judicial review of regulations remains unclear. The Supreme Court suggests that regulatory impact assessment documents can be considered as part of the judicial review exercise (albeit the suggestion is that they will help a court to understand why a regulation was adopted and, thus, form part of the case for upholding the regulation). Beyond this, the situation is murky.

To begin with, there is sometimes debate over what constitutes the record when a regulation is reviewed: is the court entitled only to look at the information before the regulation-maker when the regulation was made (which might simply be the text of the regulation itself and any relevant impact assessment documents) or might a wider range of information appropriate based on the grounds of judicial review? The emerging view is that a relatively broad range of information can be considered, as long as it was before the regulation-maker and relates to a ground of judicial review pleaded by the applicant.^[54] There is also debate about the extent to which a regulation-maker can be forced to disclose information that was before it, as this might sometimes be protected by privilege,^[55] albeit that claims of privilege might backfire by causing a court to draw an adverse inference against the regulation-maker.^[56]

Further, there is debate about extrinsic evidence that can be placed in the record. In Sobeys West Inc. v College of Pharmacists of British Columbia,^[57] ‘big box’ pharmacies challenged a regulation which, they argued, unjustifiably favoured the interests of the members of the College over those of the public. At first instance, they succeeded, largely on the basis of extrinsic evidence considered by the reviewing court. But the Court of Appeal reversed, holding that the extrinsic evidence did not form part of the record. It was enough, for Justice Newbury, that there was “some evidence — anecdotal though it may have been in whole or in part — to support [the College’s] concerns.”^[58] In Auer, the applicant placed extensive expert evidence before the courts to attempt to demonstrate how the Guidelines operated in an inequitable manner in a large number of cases. The Supreme Court did not need to take a position on the legitimacy of this exercise as it held that the applicant had not made out his case. But if “consequences” are a legitimate consideration in at least some instances, then presumably expert and other extrinsic evidence will be admissible to demonstrate that a regulation has effects beyond those reasonably authorized by statute.

Given that Auer jettisons Katz and thereby expands the scope of judicial review of the reasonableness of regulations, it is natural to expect that the record will expand accordingly. Ultimately, future cases will tell us about the potential availability (subject to privilege claims) of information before the regulation-maker, as well as extrinsic evidence. To my mind, however, the trend is towards more extensive, expansive records for the purposes of judicial review of regulations.

C) Discriminatory Regulations

Auer had a companion decision on discriminatory regulations: TransAlta Generation Partnership v Alberta,^[59] a decision dealing with the treatment for municipal tax purposes of obsolescent assets used by utility companies. It is, therefore, a decision on an important issue for actors in the energy sector: how to treat stranded assets. In this section, I will outline the framework set out in TransAlta and illustrate it by reference to a series of recent appellate decisions on discriminatory regulations.

Discrimination in the administrative law sense is different from the notion of discrimination set out in human rights statutes or the jurisprudence on the Charter^[60] right to equality, and is of much longer standing. In the classic case of Kruse v Johnson,^[61] Chief Justice Lord Russell of Killowen set out a test of unreasonableness for municipal by-laws. One basis for invalidity, under the broad heading of unreasonableness, was where the by-law in question was “found to be partial and unequal in [its] operation as between different classes.”^[62]

The leading Canadian case is Montréal v Arcade Amusements Inc.,^[63] where a municipal by-law preventing those under 18 from entering amusement arcades was held to be unlawful discrimination on the basis of age. Justice Beetz provided^[64] a long list of cases in which discrimination had been held to be unlawful:

—a distinction between residents and non-residents in the granting of permits: Jonas v Gilbert (1881); Rex v Paulowich, cited in Montréal v Arcade Amusements Inc. by L.-P. Pigeon; Re Ottawa Electric Railway Co. and Town of Eastview (1924); Rex ex rel. St-Jean v Knott;^[65]

—a distinction in respect of closing hours between mariners whose ships were in port and other customers of a dealer: Regina v. Flory (1889);^[66]

—a distinction between dogs weighing over thirty-five pounds and those weighing less for purposes of muzzling or putting on a chain: Phaneuf v. Corporation du Village de St-Hugues (1936), 61 Que. K.B. 83; in this case the unauthorized distinction was aggravated by the intention to affect one person in particular, but the general principles of a distinction unauthorized by law were cited with approval by Chouinard J., speaking for this Court, in City of Montreal v. Civic Parking Center Ltd.;^[67]

—a distinction between businesses of the same class for the purposes, inter alia, of setting closing hours: Forst v. City of Toronto (1923); S.S. Kresge Co. v. City of Windsor (1957); City of Calgary v. S.S. Kresge Co. (1965); Regina v. Varga (1979); Entreprises Anicet Gauthier Inc. v. Ville de Sept-Îles.^[68]

Discrimination in the administrative law sense can be authorized by statute. The problem in Arcade Amusements was not the discriminatory by-law per se but, rather, the absence of statutory authorization for age-based discrimination. The City of Montreal had argued that the breadth of its powers to enact by-laws supported its regulation of amusement arcades. But Justice Beetz rejected that argument:

However, as can be seen on the face of these provisions, none of them expressly empowers the City to make distinctions based on age. It may well be that an authorization to make distinctions based on the age of children and adolescents would be useful to the City in exercising its general powers, and especially in exercising its power to adopt policing By-laws; but however useful or convenient such an authorization might be, I am not persuaded that it is so absolutely necessary to the exercise of those powers that it would have to be found in the enabling provisions, by necessary inference or implicit delegation.^[69]

Justice McLachlin (as she then was and in dissent but not on this point) explained how discrimination functions as a legal concept in the context of municipal by-laws in Shell Canada Products Ltd v Vancouver (City):

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.^[70]

In TransAlta, the Supreme Court clarified the relationship between the non-discrimination principle and reasonableness review.

First, when it is alleged that regulations discriminate, the matter will be reviewed on the reasonableness standard. Second, at the risk of stating the obvious, discriminatory treatment must be identified: this is discrimination in the administrative law sense — drawing distinctions between persons or classes — rather than the constitutional law sense. Third, this will involve an application of the principles of statutory interpretation to determine whether (a) the discrimination was expressly authorized or (b) authorized by necessary implication; if not, the regulations will be unlawful. Fourth, the court must go on to determine whether the regulations respect the relevant legal constraints set out in Vavilov.

TransAlta owns coal-fired electricity generation facilities in Alberta. Government policy in the province is to phase out coal-fired generation of electricity. Accordingly, in 2016, TransAlta and the provincial government entered into an agreement (an “Off-Coal Agreement”) that involved TransAlta ceasing to use those facilities by 2030 in exchange for “transition payments.” But then another question arose. TransAlta has to pay municipal taxes on its properties, including the coal-fired electricity generation facilities. These are defined as “linear property” under section 284(1)(k) of the Municipal Government Act.^[71]

However, these properties are depreciating rapidly as coal-fired plants are being phased out. Is TransAlta therefore entitled to accelerate the depreciation of these facilities? The upshot would be that the assessed value of TransAlta’s facilities would be much lower for municipal taxation purposes.

Normally, a property owner can apply to an assessor for relief in these circumstances. But the Minister for Municipal Affairs had issued regulations under the MGA that specifically excluded properties subject to an Off-Coal Agreement from being able to claim additional depreciation. Was this lawful? Ultimately, yes, the Supreme Court held, affirming the unanimous view of the lower courts.

i. The Standard of Review

For a unanimous Supreme Court, Justice Côté applied the reasonableness standard, as presaged by Auer,^[72] emphasizing that applying the standard to the lawfulness of regulations is “fundamentally an exercise of statutory interpretation to ensure that the delegate has acted within the scope of their lawful authority under the enabling statute.”^[73]

ii. Identifying Discrimination

Justice Côté held that TransAlta had been discriminated against. The Court of Appeal had concluded that there was no discrimination between “similarly situated” persons, as the regulations at issue “apply to all coal-fired electrical power generation facilities in the province that are subject to off-coal agreements or legislation requiring the reduction or cessation of coal-fired emissions.”^[74] Justice Côté disagreed. The relevant class was owners of linear property: in that class, those who had entered into off-coal agreements were singled out. But for the regulations, TransAlta would have been able to apply to have the additional depreciation considered by a municipal assessor:

The Linear Guidelines discriminate against TransAlta and other parties to offcoal agreements by singling them out as being ineligible to claim additional depreciation on the basis of the offcoal agreements and to have the assessor consider that claim (see ss. 1.003(d) and 2.004(e)). Owners of linear property who are not parties to offcoal agreements are eligible to make claims for additional depreciation and to have those claims considered by the assessor without exclusion.

…

The fact that the Linear Guidelines treat all parties to offcoal agreements in the same way does not mean that they are not discriminatory. The Linear Guidelines treat all parties to offcoal agreements in the same discriminatory way, as compared with owners of linear property who are not parties to offcoal agreements. As explained, administrative discrimination arises when subordinate legislation expressly distinguishes among the persons to whom its enabling legislation applies (Keyes, at pp. 370–71). The Linear Guidelines expressly distinguish between owners of linear property who are parties to offcoal agreements and those who are not parties to such agreements, though both are subject to the MGA.^[75]

This is a useful reminder that the threshold for a finding of administrative law discrimination is relatively low. Differential treatment within a class will be sufficient.

iii. Authorization to Discriminate

Sometimes there will be express authority to discriminate. Consider GSI Global Shelters Developments Ltd. v Rural Municipality of Last Mountain Valley No. 250,^[76] where a by-law was upheld against challenge on numerous grounds, including discrimination between holders of developed and undeveloped lots in a resort.

In GSI, the central issue was the imposition of a minimum tax, which was controversial because of the particularities of the municipality. The municipality in question features a park, a hamlet, three resort areas and farmland. Most of the permanent residents of the municipality are farmers. There are many ratepayers who are not permanent residents but, rather, use lots in the resort during the summer. GSI owns 78 such lots. But many of the ratepayers have not erected any residence on their lots — rather, they visit in their luxury RVs during the summer months. Historically, ratepayers who had not erected residences on their lots paid much less in municipal tax than those who had: the rateable value of their lot was much lower. When the municipality imposed a minimum tax of $1,200, this had a significant effect on ratepayers with no residence on their lots and, especially on GSI as the owner of multiple lots.

Was the discrimination between developed and undeveloped lots authorized by statute? Justice Caldwell held that it was:

I also acknowledge GSI’s submission that the Bylaw discriminates between properties on the basis of whether they are developed or undeveloped and that this has a disproportionate economic effect on GSI, due to its ownership of many vacant residential lots. However, as noted, The Municipalities Act expressly authorises municipalities to impose different levies on different classes of property and to impose different minimum taxes on different classes of properties. The Bylaw does not on its face single out GSI or anyone else, and it does not affect GSI’s residential properties any differently than any other residential properties in the RM (other than those expressly excluded from its operation). The Municipalities Act permits a municipality to lawfully discriminate or differentiate between properties of the same general class in the way this bylaw does.^[77]

This was a case of express authorization, according to Justice Caldwell. Sure enough, section 289(2)(b) provides that “different amounts of minimum tax or different methods of calculating minimum tax for different classes of property…” Therefore, a distinction between undeveloped and developed lots was perfectly tenable, on the basis that these are different classes of property. It should also be noted that discrimination may legitimately be authorized in a general interpretation statute, as in Ontario,^[78] thereby eliminating discrimination as a ground of challenge to regulations.^[79]

In TransAlta, there was no express provision authorizing discrimination. But Justice Côté held that the Minister was implicitly authorized to discriminate against TransAlta and other parties to off-coal agreements. To begin with, “the Minister has broad authority to make regulations establishing valuation standards for linear property, respecting the assessment of linear property, respecting the processes and procedures for preparing assessments and respecting any matter considered necessary to carry out the intent of the MGA”.^[80] Furthermore:

In establishing a valuation standard for linear property, the Minister is authorized to make regulations “respecting designated industrial property, including, without limitation, regulations respecting the specifications and characteristics of designated industrial property”(MGA, s. 322(1)(d.3)). The “specifications and characteristics” that the Minister sets out must be taken into account by the assessor when assessing the value of the property for taxation purposes (s. 292(2)(b)). This grant of authority is articulated in very broad terms — “without limitation” — and specifically empowers the Minister to identify and make regulations respecting the “specifications and characteristics” of industrial property. It is not possible to construe s. 322(1)(d.3) without contemplating the drawing of distinctions between types of properties on the basis of their specifications and characteristics.^[81]

Indeed, the raison d’être of the statutory scheme is to ensure that valuations are current, fair and equitable. This implies that the Minister must be able to discriminate because, otherwise, there is a risk that assessments will be “inappropriate.”^[82] Line drawing is inevitable and discrimination thus inherent in the statutory scheme: “where appropriate, the Minister must have authority to pronounce that certain specifications and characteristics are not relevant to an assessment, as he did in this case.”^[83] In most taxing regimes, it would seem, discrimination will inevitably be implicitly authorized, as differentiation is part and parcel of a functioning taxation program.

However, the Alberta Court of Appeal arguably took a different view in Canadian Natural Resources Limited v Fishing Lake Metis Settlement,^[84] a tax policy (functionally equivalent to a by-law) discriminating between Settlement members and non-members was held to be unlawful, as there was no express authorization, nor was there necessarily implicit authorization. Justice Pentelechuk first explained the nature of the discrimination effected by the taxation policies adopted by the Metis Settlements General Council (not by-laws per se but similar instruments of a general nature carrying the force of law):

The result of these exemptions is that the business property of [Settlement non-member-owned corporations] will be subject to taxation while that held by Settlement member-owned corporations will not. This differs from the Original Policy, where the same property would be taxed regardless of whether or not the corporation was owned by a Settlement member. The General Council notes that the Original Policy already exempted from taxation “Settlement member owned property not used to carry on a business”. However, this created no unequal treatment as the Original Policy, having only dealt with business property, would have likewise “exempted” from taxation any non-Settlement member-owned property not used to carry on a business.^[85]

She also carefully explained that discrimination for the purposes of taxation need not be expressly authorized by statute. True, in an early Supreme Court case, Jonas v Gilbert,^[86] Chief Justice Ritchie held that “a power to discriminate must be expressly authorized.” But in more recent decisions (including Arcade Amusements, as noted above) the Supreme Court confirmed that necessary implication is sufficient.^[87] Justice Pentelechuk nonetheless accepted that “the application of the test will very much be coloured by the nature of the power at issue.”^[88]

These words were portentous. Justice Pentelechuk took the view, in light of Supreme Court jurisprudence,^[89] that discriminatory tax burdens could only be imposed where the ability to discriminate is necessary to the objectives of the taxation power itself:

In light of this guidance, it cannot be said that the ability to discriminate between Settlement members and non-Settlement members is absolutely necessary in order for the General Council (or by extension individual Métis Settlements) to exercise powers of taxation; the authority to adopt such policies cannot be implied or inferred from the MSA. Inferring the authority to discriminate is difficult in matters like taxation, and courts will be reluctant to do so. The characterization of the MSA as ameliorative is not sufficient to rebut the deeply rooted presumption of equality in matters of taxation.^[90]

In the absence of any express authorization to discriminate as between Settlement members and non-members, the taxation policy was unlawful.^[91]

Justice Pentelechuk also rejected the proposition (advanced by the first-instance judge) that the discrimination between Settlement members and non-members could be said to form part of an ameliorative programme adopted by an inherently governmental entity charged with supporting the life and culture of the Métis.^[92]

It seems to me that the gravamen of Justice of Appeal Pentelechuk’s complaint was that the discrimination here was between persons, based on attributes not relevant to the operation of the statutory scheme. Some form of differential treatment does seem to be inevitable in the taxation context, as TransAlta strongly suggests — but the relevant differences should not relate to a person’s attachment to a particular group; it would be strange for income tax or sales tax burdens to differ based on an individual’s religious beliefs, political affiliations or sexual orientation.

iv. Other Relevant Legal Constraints

Lastly, Justice Côté assessed the regulations against the relevant legal constraints: “the next question is whether [the Minister] exercised that authority in a manner that is consistent with the scheme and purposes of the MGA”.^[93] In this case, as in Auer^[94] the relevant constraints flowed from the statutory scheme. This is not to suggest that, in other cases, other Vavilovian constraints might not be relevant. Here, however, the argument made by TransAlta was that failing to account for additional depreciation frustrated the purpose of the MGA: the assessed value of the facilities would be inaccurate even though the scheme was designed to ensure precisely that, accuracy. This argument failed because the Off-Coal Agreement offset TransAlta’s losses:

The formula used to calculate the transition payments in the OffCoal Agreement accounts for at least some loss of value arising from the reduced life of TransAlta’s coalfired facilities. It does so by prorating the net book value of the facilities by the percentage of life remaining after 2030 (OffCoal Agreement, Sch. A). Even if the payments are characterized as compensation for loss of profits, because the payments promise additional revenues that run with the assets, their effect is to offset the decrease in value caused by the facilities’ reduced lifespan. To be current and correct, an assessment of TransAlta’s coalfired facilities must consider the fact that the transition payments mitigate at least some depreciation that would otherwise result from the early retirement of the facilities. Therefore, in light of the MGA’s purpose of ensuring that assessments are current and correct, it was reasonable for the Minister to interpret his statutory grant of power as authorizing him to deprive TransAlta of the ability to claim additional depreciation under the Linear Guidelines.^[95]

To deprive TransAlta of the ability to claim additional depreciation is also consistent with the MGA’s purpose of ensuring that assessments are fair and equitable. Since the transition payments already account for at least some loss of value resulting from the reduced life of TransAlta’s coalfired facilities, there would be a real risk of “double dipping” if TransAlta were able to receive additional depreciation for that same loss of value under the Linear Guidelines. That would not be fair or equitable.^[96]

Now, one might wonder whether the relevant legal constraints will ever be breached if the discrimination is implicitly authorized. For discrimination to be implicitly authorized, it must be consistent with the statutory scheme and it would be unusual for discrimination to be implicitly authorized (and thus consistent with the statutory scheme) but nonetheless undermine the purposes of the statute. I think it is possible for this to happen, but it is necessary to distinguish between discrimination in a general sense (interpretation) and a specific sense (application). Determining whether discrimination is authorized is a general question of interpretation: can the regulation-maker ever discriminate. Determining whether a particular type of discrimination caused by the application of the authority to discriminate is a specific question: has the regulation-maker reasonably discriminated in this instance? It does seem appropriate to observe, though, that consideration of whether discrimination is implicitly authorized will often overlap with consideration of whether a particular application of the authority to discriminate is justified. Indeed, it might be that the best way to understand Justice of Appeal Pentelchuk’s concerns in Fishing Lake is that the issue was the use of an authority to discriminate — targeting persons on the basis of criteria not relevant to the purpose of the statutory scheme — rather than its existence.

Two recent Quebec cases are helpful in illuminating the issue further. In Lauzon-Foresterie (Fiducie) c Municipalité de L’Ange-Gardien,^[97] the discrimination claim arose in respect of a new statutory provision empowering municipalities in Quebec to levy direct taxes.^[98] The provision contains restrictions (e.g. no taxes on income) and conditions (e.g. the subject of the tax and the tax rate must be clearly specified). It also makes clear that the municipality may make “exemptions from the tax.”

The municipality used the new power to create a tax on some vacant lots, any of 10 acres or more but exempting agricultural and resource-extraction land. This, the appellants claimed, created an arbitrary distinction between some types of lots considered vacant (such as those used for forestry) and agricultural and resource-extraction land (even though this land is often also forest and thus indistinguishable from the appellants’ lots). In essence, they argued that the municipality had to apply a uniform approach across all of its territory to the taxation of vacant lots. This generated two distinct grounds of attack on the lawfulness of the regulation: first that the municipality’s piecemeal approach was not authorized by the legislation and, second, that the approach was discriminatory.

The first ground failed, as Justice Lavallée found that the power to create “exemptions” could be applied to the whole of the municipality’s territory or simply a part,^[99] because the legislature had not sought to limit or condition this power in any way.^[100]

The second ground also failed. Justice Lavallée recognized that a power to discriminate must be provided expressly or by necessary implication and that any such power can only be used in a non-arbitrary way. Here, the power to create “exemptions” implicitly authorized discrimination, on condition that any such discrimination be rationally justifiable.^[101] The necessary justification was available.^[102] The municipality had engaged in a classic weighing of social and economic factors, seeking to give favourable treatment to the agricultural sector to promote growth and to not penalize a resource-extraction sector already required to pay taxes under a different regime:

the by-laws being challenged provide for a tax exemption that was rationally and reasonably argued by the respondent. The evidence demonstrates that the exemption by-laws are based on the wish that the vacant lands located in the extraction zones be developed without placing an additional fiscal burden on the quarries and sandpits, which are already subject to a fee on top of the property tax. Moreover, the evidence reviewed by the judge leads to the conclusion that the respondent was mindful of the will to revitalize the vacant agricultural land and, to that end, to avoid increasing the fiscal burden of farmers.^[103]

By contrast, in the Fishing Lake case, one might say, the singling out of non-Métis persons was not the result of a weighing of a variety of social and economic factors.

In Procureur général du Québec c Kanyinda^[104], the issue was the validity of the exclusion from Quebec’s subsidized childcare programme of refugee claimants who hold valid work permits. Claimants whose refugee status is recognized are eligible, but those whose claims are being processed are not. The practical — and very real — problem is that final decisions on refugee claims can take several years (3 in K’s case), during which time they are not eligible for the subsidized childcare programme.

The Educational Childcare Act^[105] establishes the programme, which involves the payment of reduced fees by parents for childcare services subsidized under the Educational Childcare Act: “The Government may, by regulation, set the amount of the contribution to be paid by a parent for childcare services for which the childcare provider is subsidized.”^[106] Certain parents may also be exempted from paying the contribution, in whole or in part:^[107] there is a dispute resolution mechanism for determining eligibility.^[108] The Educational Childcare Act in addition provides for a regulation-making power to “determine the terms and conditions for payment of the parental contribution set by the Government.”^[109]

Justice Dutil held that the ability to set terms and conditions was broad enough to empower the government to exclude asylum seekers by regulation:

By considering both the object of the ECA and that Act as a whole and its purpose, I am of the view that the government could determine the eligibility conditions prescribed in section 3 of the RCR. The ECA must be considered “in [the] entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of [the legislature]”.[30] By interpreting the ECA according to these teachings, the terms and conditions referred to in section 106(26) “for payment of the basic parental contribution set by the Government” include, in my opinion, the eligibility conditions that must be met to benefit from the reduced contribution and to which the legislature refers in sections 42(2) and 87 of the ECA. This is logical and consistent. Indeed, as the AGQ argues, it is difficult to claim that the government can, in a regulation, establish situations where a parent may be exempted from paying a reduced contribution but cannot determine the eligibility conditions^[110]

…

In this case, the legislature states that there are eligibility requirements for the reduced contribution. Since I have concluded that the government was empowered to determine these eligibility conditions by regulation, it thus had the discretion to make distinctions between certain categories of persons to determine which ones were eligible. This is consistent with the object of the ECA and does not make section 3 of the RCR discriminatory in the administrative law sense. I must nonetheless determine whether the distinction that excludes refugee claimants is consistent with the Charters, which I will do in the next section.^[111]

I am not entirely convinced here. The legislation effectively creates a right to subsidized childcare (subject to sufficient places being available). The only relevant terms and conditions relate to how much a parent must pay for the service and whether a parent is exempt from paying. The purpose of the regulation-making power does not seem to be to exclude categories of parent — the whole point of the legislation is to create a general scheme to which all children of working parents have access. In that context, I do not think it necessarily follows that a power to determine terms and conditions includes a power to exclude identified categories of parent.

I am put in mind of the decision of the Court of Appeal of England and Wales in R. v Secretary of State for Social Security, ex part Joint Council for the Welfare of Refugees.^[112] Now, the regulation there, which deprived certain categories of refugee claimant from social assistance payments, was much more severe in its effects than the regulation at issue in Kanyinda. It was also passed under a different statute than the one relating to refugee status. Nonetheless, the broad point seems strikingly similar to me: a general regulation-making power should not lightly be allowed to eliminate a specific right accorded by legislation. In short, Kanyinda does not seem to me to be an obvious case of implicit authorization. At the very least, any exclusion by regulation should be subject to careful scrutiny in circumstances like these.

Ultimately, in Kanyinda, the regulation was struck down because it violated the right to equality guaranteed by section 15 of the Charter of Rights and Freedoms^[113] and the violation was not saved by the proportionality test under section 1.

This analysis does raise another question, however. As noted above, discrimination must be authorized by legislation (expressly or by necessary implication) but must also satisfy the other relevant legal constraints. Even if one accepts that the exclusion of refugee claimants from the subsidized childcare programme was implicitly authorized by the legislation, there remains the question of whether this exclusion is reasonable.

Here, however, the exclusion could not be justified under section 1, as there was no rational connection between the objective of the regulation and the means used to achieve the objective. Quebec argued that the regulation sought to ensure that only parents with a sufficient connection to the province could benefit from subsidized childcare. But, Justice Dutil pointed out, several of those whom the regulation permits to benefit from the programme would only be in Quebec temporarily^[114]. She also found there was no minimal impairment and that the exclusion failed the balancing test: “The AGQ raises no benefit arising from this exclusion under section 3 of the RCR from the perspective of legislative policy or society as a whole. On the contrary, Ms. Kanyinda has clearly demonstrated the adverse effects suffered by refugee claimants, supported by scientific evidence”.^[115]

This all being so, however, how could one say that the exclusion was justified in an administrative law sense? To my eye, the absence of a rational connection, minimal impairment and evidence of harm to the public interest militate just as much in favour of a conclusion of administrative law unlawfulness as they do in favour of Justice Dutil’s conclusion under section 1. It would have been nice to see more discussion of this point, as the context of the regulation-making power here is very different to the municipal context, where the weighing of competing interests is an inherent part of the regulation-making process and the courts are understandably deferential.

In the end, it worked out better for Ms. Kanyinda that she won under the Charter,^[116] as Justice Dutil was able to read Ms. Kanyinda’s eligibility into the regulations^[117]. The Supreme Court will hear the Quebec government’s appeal in this case, though there was no cross-appeal by Ms. Kanyinda and so the administrative law issue will likely not be argued at the country’s highest court.

If I am right that a reviewing court must ask (1) was there discrimination; (2) was the discrimination authorized expressly or by necessary implication; and (3) was the discrimination otherwise reasonable, then there is a lingering question about TransAlta and Auer. The lingering question relates to the application of the authority to discriminate: at what point does the discrimination become so disproportionate that it is unreasonable?

It seems clear that TransAlta is not in exactly the same position it would have been but for the Off-Coal Agreement, so there appears to be a mismatch between what TransAlta received from the government and what it will ultimately have to pay in municipal taxes. For the Supreme Court, the fact that there was an offset appears to be enough. There was no consideration, however, of the proportionality of the offset. This could well be significant in dealing with stranded assets going forward.

Similarly, in Auer, the fact that the regulations drew lines between different persons and classes that result in various unusual, arbitrary or absurd outcomes was not sufficient to render the regulations unlawful, even if in some cases there would be a disproportionate economic impact on some individuals. More could perhaps have been said in both TransAlta and Auer on this particular point.

Nonetheless, the Supreme Court’s framework for assessing claims of regulatory discrimination under Vavilov is neat and tidy, requiring the court to ask three questions: was there discrimination; was it authorized and was the particular discrimination at issue consistent with the relevant legal constraints?

II. REASONABLENESS REVIEW

The Supreme Court of Canada’s most notable recent entry in its standard of review catalogue is Ontario (Attorney General) v Ontario (Information and Privacy Commissioner).^[118] This decision follows Mason v Canada (Citizenship and Immigration),^[119] in concluding that an administrative decision was unreasonable and, moreover, that there was only one reasonable interpretation of the provision at issue. I was relatively sanguine about the decision in Mason; I am less enamoured of the Mandate Letters case.

Here, the Commissioner had ordered that mandate letters issued by the Premier of Ontario to his cabinet ministers should be released under the Freedom of Information and Protection of Privacy Act.^[120] The government of the province had resisted disclosure on the basis of s 12(1) of the Act, which creates an exemption “where the disclosure would reveal the substance of deliberations” of the cabinet for a range of documents “including” (but not limited to) agendas, minutes or lists of policy options presented to cabinet. The basic premise of the Commissioner’s detailed reasons for decision was that mandate letters, which memorialize decisions that have already been taken, would not reveal the substance of deliberations.

Applying reasonableness review, Justice Karakatsanis concluded that the Commissioner’s decision was unreasonable. The key error was that the Commissioner had failed to have adequate regard to the constitutional context: “Because s. 12(1) was designed to preserve the secrecy of Cabinet’s deliberative process, the constitutional dimension of Cabinet secrecy was crucial context in interpreting s. 12(1).”^[121]This caused a loss of confidence in the outcome.^[122]

The Commissioner erred in two ways. First, he gave too narrow a scope to section 12(1). The Commissioner focused only on two rationales for cabinet confidentiality — promoting ministerial candour and preserving collective solidarity — to the exclusion of a third, efficient government. Failing to take this rationale into account caused him to ascribe too narrow a purpose to section 12(1) and to fail to respond to one of the government’s submissions:

First, had the IPC recognized that the fundamental focus of deliberative secrecy is effective government, the Commissioner could not have framed the purpose to focus only on “free and frank discussion among Cabinet members”^[123]. Rather, as Justice of Appeal Lauwers noted, a contextual interpretation of s. 12(1) instructs that the provision more broadly aims to establish the confidentiality necessary for the executive to function effectively (paras. 187 and 208).

Second, had the IPC framed the purpose of s 12(1) more broadly, he may not have rejected a central argument from Cabinet Office going to the scope of s 12(1). Cabinet Office argued that, along with ensuring ministerial candour and solidarity, Cabinet secrecy also helps to ensure the deliberative process runs efficiently by preserving the confidentiality of deliberations until a final decision has been made and announced (IPC reasons, at paras. 30–32; A.R., vol. III, at pp. 90, 101–2, 228 and 232).^[124]

As a result, the Commissioner also “did not acknowledge Cabinet Office’s submission that determining “when and how” to communicate policy priorities to the public and opposition parties is itself an important part of Cabinet’s deliberative process”^[125]. In particular, the Commissioner “concluded that “outcomes” of the deliberative process are not encompassed by the opening words of s 12(1), full stop, without acknowledging that an important part of Cabinet confidentiality is government’s prerogative to decide how and when to announce policy priorities (see para. 104)”.^[126]

Second, the Commissioner failed to have regard to constitutional conventions and traditions relating to the nature of cabinet decision-making and the premier’s role in the process:

The Letters on their face contain communications between the Premier and Cabinet ministers about policy priorities, many if not most of which would require decisions from Cabinet, both as to their substance and as to how they should be communicated to the public. Cabinet “formulates and carries out all executive policies,” and all major government policy matters are forwarded to Cabinet for decision (Hogg and Wright, at § 9:5; M. Schacter and P. Haid, Cabinet Decision-Making in Canada: Lessons and Practices (1999), at p. 1; see also Brooks, at p. 236). There is no basis in convention or past precedent to separate the Premier’s role in this process from the rest of Cabinet. Disclosure of the Premier’s initial priorities, when compared against later announcements of government policy and what government actually accomplished, would reveal the substance of what happened during Cabinet’s deliberative process. The IPC’s characterization of the Letters as “the end point of the Premier’s formulation of the policies and goals to be achieved by each Ministry”, or “the product of his deliberations” was thus beside the point, and an unreasonable basis upon which to deny protection under s. 12(1) (paras. 132 and 134 (emphasis added; see also para. 79).

Relatedly, to the extent the IPC required evidence linking the Letters to “actual Cabinet deliberations at a specific Cabinet meeting”, that approach was unreasonable. Such a requirement is far too narrow and does not account for the realities of the deliberative process, including the Premier’s priority-setting and supervisory functions, which are not necessarily performed at a specific Cabinet meeting and may occur throughout the continuum of Cabinet’s deliberative process. Accordingly, it would be unreasonable for the Commissioner to establish a heightened test for exemption from disclosure that would require evidence linking the record to “actual Cabinet deliberations at a specific Cabinet meeting”…

[The Commissioner’s] focus on actual deliberations at a specific Cabinet meeting underscored his finding that the fact that some policy priorities “may never return to Cabinet at all or…may be altered or amended in significant…ways” was a “deficiency” in Cabinet Office’s continuum argument and meant that the Letters could not be exempted in their entirety (para. 121). This determination was unreasonable because it did not account for the fact that disclosure of early policy priorities not acted on, or changed in significant ways before implementation, would be revealing of the substance of Cabinet deliberations — whether the decision to abandon or alter the priority was the decision of Cabinet, its committees, or the Premier.^[127]

These considerations led inexorably to the conclusion that the mandate letters were covered by section 12(1). Justice Karakatsanis refused to remit the matter to the Commissioner.

The methodology of reasonableness review is worthy of comment. Justice Karakatsanis refused to grapple with whether the appropriate standard of review was correctness or reasonableness, on the basis that the decision was unreasonable and thus could not survive under either standard.^[128] In substance rather than in form, however, the analysis looks very much like correctness review in the guise of reasonableness review.

The first difficulty here is that Justice Karakatsanis’s analysis of the Commissioner’s reasons focuses on two aspects of context even though the Commissioner conducted a wide-ranging analysis. As Justice Côté accurately observes:

The Commissioner relied on, among other things, the stated purposes of the legislation (see paras. 106–8); the principle that “exemptions from the right of access should be limited and specific” (s. 1(a)(ii) of the Act); our Court’s decisions in Babcock and Dagg v. Canada (Minister of Finance) [1997] 2 S.C.R. 403; appellate jurisprudence across the country, notably O’Connor; and a significant body of past administrative decisions. All of these factors lend support to his interpretation.^[129]

However, Justice Karakatsanis does not acknowledge the Commissioner’s reliance on these indicia of reasonableness, nor does she explain why the Commissioner’s decision is unreasonable because it fell short in two areas even though it could be defended on other grounds. This was an extensive decision where a loss in confidence in the outcome in one respect could, in theory at least, be offset by the strengths of the reasons in other respects.

Moreover, second, there is significant force to Justice Côté’s charge that in order to identify the shortfalls in the Commissioner’s decision, Justice Karakatsanis “conducts her own interpretation” of section 12 and “uses her conclusions as a yardstick” against which to measure the Commissioner’s interpretation:

For example, my colleague refers to three rationales for the convention of Cabinet confidentiality: “…candour, solidarity, and efficiency…(para. 30). She finds that the Commissioner considered the first two of these rationales but that he “did not engage with a core purpose of Cabinet secrecy to promote the efficiency of the collective decision making” or with the ultimate goal of effective government (para. 32). However, this third rationale of “efficiency”, while an important tenet of Cabinet privilege, has not been articulated by our Court as such. As a result, I do not agree that it was unreasonable for the Commissioner to not address a concept that is fully expressed only in scholarly authority (see Karakatsanis J.’s reasons, at paras. 30 and 36, citing Y. Campagnolo, “The Political Legitimacy of Cabinet Secrecy” (2017), 51 R.J.T.U.M. 51, at p. 68, and Y. Campagnolo, Behind Closed Doors: The Law and Politics of Cabinet Secrecy (2021), at p. 26).^[130]

It is worth repeating how Justice Karakatsanis herself framed the issue: “had the IPC framed the purpose of s. 12(1) more broadly, he may not have rejected a central argument from Cabinet Office going to the scope of s. 12(1).”^[131] This gets things backwards: the submission could only have been a “central argument” if the Commission had agreed that the “purpose” of section 12(1) should have been “framed…more broadly.” I have some difficulty appreciating how this can be described as “reasons-first” reasonableness review as Vavilov requires. There is an important difference between this case and the Supreme Court’s recent decision in Mason^[132], where the tribunal had simply failed to address a central argument for an unarticulated reason, not because of the purpose it ascribed to the provision.

Furthermore, and fundamentally, the choice of standard of review is of critical importance here. On reasonableness review, the Commissioner is in the interpretive driving seat. If deference is to mean anything it all, it must be up to the Commissioner to determine whether the law should be changed to incorporate an additional rationale as background context for section 12(1). As it was, the Commissioner gave multiple reasons in support of his interpretation and, ordinarily, on a deferential standard his refusal to change, extend or expand the law would be respected. On correctness review, by contrast, the courts have the last word (and, indeed, Justice Côté applying correctness review agreed that the law should be updated to incorporate this third rationale). This should have been an example — a pretty good one, I would have thought — of the standard of review making a difference. In my view, reasonableness was the appropriate standard, for reasons I developed^[133] and from which Justice Côté’s neatly-done argument at paragraphs 55-61 does not dissuade me, and an appropriately deferential approach would have led to the decision being upheld as reasonable.

The discussion of legal and factual constraints is also worthy of comment. Again, there is an important difference from Mason: there, the legally binding constraint of international law identified by the Supreme Court at least had the merit of being set out expressly in statute; but here, the conventions and traditions relied upon by the Supreme Court are entirely unwritten. This is different even from CSFTNO (discussed below), where the relevant Charter values had been expressed repeatedly in binding Supreme Court of Canada jurisprudence on the objectives of section 23 of the Charter.

Here, the conventions and traditions have not and arguably cannot be reduced to precise textual statements (and, of course, by their very nature are not binding law at all). Indeed, as political scientist Professor Emmett Macfarlane points out in a critical comment on the decision,^[134] these conventions and traditions shift over time, meaning that any administrative decision-maker required to consider them will be aiming at a moving target:

[T]he problem in this case is that convention is wholly silent on the place or relationship of mandate letters to cabinet deliberations. The Court rests its decision quite heavily on a discussion of convention that is largely irrelevant to the central issue.

In fact, the emergent practice of releasing mandate letters to the public (not only at the federal level but in Ontario under former Premier Kathleen Wynne) is precisely what led to this controversy in the first place! Stunningly, the Court pays no heed to this practice — a practice that was unlikely to emerge if those governments felt it would somehow constrain or impair cabinet confidentiality or effective decision-making. In this fundamental sense, recent political practice directly contradicts some of the Court’s conclusions about the effects releasing mandate letters might have on cabinet confidentiality.^[135]

Professor Macfarlane also notes that the Court gets quite far into the “weeds” of the operation of government; traditionally, of course, making findings of fact and drawing inferences based on a detailed record is a matter for the administrative decision-maker.

For these reasons, I am somewhat sceptical that the Court arrived at the correct conclusion in this case. Whereas in Mason and CSFTNO the legal and factual constraints identified by the Court stood on solid ground (and the decisions under review were silent on key aspects of the arguments and evidence), in Information Commissioner there is significant force to Justice Côté’s charge that the majority engaged in correctness review in substance if not in form. It will be necessary to read the next entries in the standard-of-review catalogue very carefully to see if the Court is sending a signal about the level of intensity of reasonableness review under the Vavilov framework.

In that regard, the recent decision of the Quebec Court of Appeal in Piché c Entreprises Y. Bouchard & Fils inc.,^[136] is very interesting. It suggests that the reasonableness standard set out in Vavilov,^[137] may indeed have become more robust. Nonetheless, whilst quashing the decision at issue for unreasonableness, the Court of Appeal refrained from imposing a solution even in circumstances where it had been asked to find that there is only one possible, acceptable interpretation.

The underlying issue is very interesting. There are two streams of authority in Quebec’s Tribunal administratif du travail (which has jurisdiction over workplace health and safety) about compensating workers who withdrew from the workplace during the COVID-19 pandemic. Both the appellant and the Commission des normes, de l’équité, de la santé et de la sécurité (Commission for Standards, Equity, Health, and Safety) urged the Court of Appeal to resolve two interpretive questions on which the Tribunal is divided.

Here, the applicant was working as a paramedic. His doctors recommended that he temporarily withdraw from the workplace for his own safety as he was taking medication that made him immunodeficient. In the end, he went back to work about nine months after the outbreak. For a three-month period, he received no pay. Under Quebec legislation, an employee who withdraws from work for preventative health reasons can claim an indemnity. But there are several conditions,^[138] one of which is that the source of the danger to health must come from a “contaminant.” In this case (though not in others!), the Tribunal held that COVID-19 was not a “contaminant” within the meaning of the legislation. The Tribunal also held, based on its analysis of the evidence of his immunodeficiency, that the second condition — danger to the worker — was not met either. The Tribunal did not go on to consider the third condition — alteration of the worker’s health.

The Court of Appeal (Justices Moore, Cournoyer and Bachand) held that the decision was unreasonable. Following Vavilov, the judges did not apply the correctness standard to resolve the split on the Tribunal but noted that a deficient statutory interpretation analysis by an administrative decision-maker would justify intervention on judicial review for unreasonableness.^[139] Indeed, they cited the Supreme Court’s decisions in Mason v Canada (Citizenship and Immigration),^[140] and Ontario (Attorney General) v Ontario (Information and Privacy Commissioner),^[141] as further support for this proposition:

Thus, in Mason, while the majority of the Supreme Court acknowledged that the decision-maker had applied several recognized techniques of statutory interpretation, it nonetheless found the decision unreasonable on the grounds that the decision-maker had failed to address two points of statutory context, the potentially broad consequences of the decision and the constraints imposed by international law.

Likewise, in Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), while the majority of the Supreme Court noted that the decision-maker had paid attention to the text, the general purpose of access to information legislation and two of the purposes of Cabinet secrecy, it nonetheless found the decision unreasonable on the grounds that the decision-maker failed to address a third purpose of Cabinet secrecy, which is the efficiency of the collective decision-making and certain constitutional conventions.^[142]

Here, the decision was unreasonable because, in the first place, the Tribunal fixated on an amendment to the statutory scheme made in 2015 and gave it a much broader scope than the legislature intended,^[143] without regard for other textual and contextual indicators about the meaning of “contaminant”.^[144] In addition, the Tribunal failed to have regard to the purpose of the legislature.^[145] In the result, the Court of Appeal held — bolstered by Mason and Information Commissioner — that the statutory interpretation exercise undertaken by the Tribunal in the instant case neglected key elements of text, context and purpose and was, thus, unreasonable.^[146]

Interestingly, the Court of Appeal did not conclude, however (unlike the Supreme Court in Mason and Information Commissioner) that there was only one reasonable interpretation. Rather, it left the matter to the Tribunal, albeit with a stern warning about the desirability of legal certainty^[147] and a reminder of the mechanisms available to achieve that certainty:

In this case, it is clear that there are at least three possible options: 1) COVID-19 is not a contaminant; 2) COVID-19 is a contaminant; and 3) COVID-19 is at times a contaminant, depending of the employer’s activities. Regarding the jurisprudential controversy within the Tribunal, in this case it does not suffice to justify having the Court decide in its stead. As noted by the Supreme Court, it should be left to the administrative decision-maker to resolve this point of contention based on its internal mechanisms, whether they be, in regard to the Tribunal, the establishment of a three-member group or participation by the members in the development of guidelines.^[148]

It said the same about the jurisprudential split on the third condition — the extent to which the “contaminant” has to affect the health of the worker.^[149]

On the question of danger (the second condition), there is an interesting discussion of the role of the Tribunal. Even though the Tribunal sits de novo and potentially has access to a wide range of materials, its role in assessing danger is held to be limited. In short, its role is to assess whether there was danger at the moment the worker withdrew based on the evidence available at the time. In other words, the Tribunal cannot retrospectively apply evidence that became available after the worker’s withdrawal to conclude, with the benefit of hindsight, that there was no danger.^[150] The Tribunal may only take a forward-looking view of the matter, with the right to withdraw dissolving only prospectively, from the point the Tribunal has new evidence at its disposal.^[151]

On the evidence here, there was no doubt in the Court of Appeal’s eyes that there was ample evidence of danger at the moment the worker withdrew.^[152] Either, therefore, the Tribunal disregarded a legal constraint by focusing on danger retrospectively rather than prospectively or disregarded factual constraints by fundamentally misapprehending the evidence: unreasonableness was the inevitable conclusion.^[153] Again, the matter was returned to the Tribunal to determine the point at which the worker would have been able to safely reintegrate the workplace.^[154]

Overall, this decision indicates that Vavilov certainly does furnish the tools for a robust reasonableness review of administrative decisions. The Supreme Court’s recent decisions applying Vavilov are cited as further support for this proposition. Even if the Court of Appeal did send back the interpretive question about the first issue — “contaminant” — its analysis strongly favoured one of the streams of jurisprudence. Nonetheless, the Court of Appeal here did not go as far as the Supreme Court went in Mason and Information Commissioner, insisting instead that the matter should be returned to the Tribunal for the identification of a definitive answer albeit with a fairly stern warning that the Tribunal should find a way to resolve its internal jurisprudential conflict in short order.

III. CORRECTNESS REVIEW

In Société des casinos du Québec inc. v Association des cadres de la Société des casinos du Québec,^[155] the Supreme Court of Canada dealt with a number of important issues that are significant for the law of judicial review of administrative action and for regulation more broadly. Most significantly, the Court gave guidance on the resolution of mixed questions of law and fact arising in the correctness categories established by Vavilov. A clear marker has been laid down: on constitutional questions and other issues requiring correctness review, there is no deference to the decision-maker’s application of law to fact. This is highly salient in the energy law area, where questions about the borderline between federal and provincial authority arise quite often. Going forward, such questions will be reviewed on a correctness basis, with no deference to the decision-maker.

The case involved a claim for certification by casino managers based in Quebec. Certification would allow them to bargain as a group with their employer. But managers are excluded from the provincial collective bargaining legislation. So, the managers invoked section 2(d) of the Charter of Rights and Freedoms^[156], which protects freedom of association. Applying the context-sensitive Charter test to the facts, the expert tribunal concluded that the exclusion of the managers represented a “substantial interference” with their freedom of association. The remedy was that the legislative exclusion was inoperable as applied to the managers who, accordingly, were entitled to go ahead with their claim for certification. This conclusion was, ultimately, upheld by the Court of Appeal albeit that the effects of the decision were suspended for 12 months to allow for legislative intervention.

However, the Supreme Court allowed the appeal, an outcome on which the seven judges who heard the case were agreed, concluding unanimously that there was no “substantial interference” with associative freedom. In doing so, they addressed: (1) the standard of review for mixed questions of fact and law in the ‘constitutional questions’ category of correctness review; (2) whether there are distinct tests or standards applicable to Charter claims where a positive or negative right is being asserted; and (3) the jurisdiction of administrative tribunals to grant remedies relating to the inoperability of legislation. The third question was addressed only by Justice Côté  in her concurring reasons but the others were treated by all seven (Justice Jamal for the majority and Justice Rowe concurring separately).

A) Confirming Correctness on Mixed Questions

The Court of was unanimous on standard of review. Justice Côté addressed the point in detail and the others agreed with her analysis.^[157] That analysis is brief and to the point. Here is what she said:

In this case, determining whether the exclusion from the L.C. regime constitutes substantial interference with the freedom of association of the Association’s members is not a simple question of fact. Such an inquiry involves weighing “the constitutional significance” of the findings of fact made on the basis of the members’ situation by reference to freedom of association (Westcoast Energy, at para. 39). To some extent, this amounts to defining the constitutional standard of “substantial interference”.

The definition of this standard requires a determinate and final answer (Vavilov, at paras. 53 and 55). In Westcoast Energy, cited with approval in Vavilov, at para 55, our Court noted that no deference is owed in respect of questions of mixed fact and law that arise in connection with a constitutional question because it is important that constitutional questions be answered correctly (paras. 39–40).

It follows that the Superior Court did not owe deference to the ALT’s findings of law and findings of mixed fact and law, but only to the findings of fact made by that tribunal.

A reviewing court must show deference to findings of pure fact that can be isolated from the constitutional analysis (Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters, 2009 SCC 53, [2009] 3 S.C.R. 407, at para. 26). Such deference to findings of this kind is based on considerations related to “judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker” (Vavilov, at para. 125). The rule of law does not require that there be a determinate and final answer to questions of pure fact, as they will vary from case to case.^[158]

The parties agreed^[159] that this case fell into the ‘constitutional question’ category set out in Vavilov: the question was the Charter compliance of the legislative exclusion of the managers and so, indeed, the correctness standard properly applied, as the answer to this question should be given definitively by the courts. Evidently, however, the parties did not agree on what exactly the correctness standard should apply to.

The question was how much deference, if any, is due to the tribunal in this instance. The standard of review of constitutional questions, such as the consistency of the statutory exclusion with the Charter, is correctness. But what about the factual determinations underpinning the tribunal’s analysis? And, in any event, can the tribunal’s interpretation of the statutory exclusion and the Charter be separated from its factual analysis?

The Supreme Court’s prior jurisprudence had not been especially clear on this point. On the ‘no deference’ side of the ledger is Westcoast Energy Inc. v Canada (National Energy Board),^[160] a case about whether a pipeline and related facilities constituted a federal undertaking. Justices Iacobucci and Major were skeptical about whether deference would be appropriate on the Board’s application of law to the facts before it:

even questions of mixed law and fact are to be accorded some measure of deference, but this is not so in every case. It would be particularly inappropriate to defer to a tribunal like the Board, the expertise of which lies completely outside the realm of legal analysis, on a question of constitutional interpretation. Questions of this type must be answered correctly and are subject to overriding by the courts. It seems reasonable to accept the proposition that courts are in a better position than administrative tribunals to adjudicate constitutional questions. It is interesting to note that this particular panel’s professional training was not in law. So, although the question here was one of mixed law and fact, it follows that the Board was not entitled to deference because of the nature of the legal question to be answered.^[161]

However, Justices Iacobucci and Majorwent on to observe that the case turned not on the “Board’s conclusions as to the different activities carried on by Westcoast” but on the “constitutional effect” of the conclusions^[162]. In other words, there was no attack on the Board’s findings of fact. And when it came to apply the law to those findings, the correctness standard was appropriate. Accordingly, it is difficult to say that Westcoast resolves the deference question one way or another.

In Northern Regional Health Authority v Horrocks,^[163] albeit addressing the ‘overlapping jurisdiction’ category of correctness review rather ‘constitutional questions’, Justice Brown was clear that the decision-maker had to be “correct” on the factually suffused question of characterizing the essential character of the dispute between the parties (as relating to labour relations or human rights adjudication). This led me to comment^[164] that “when determining whether or not a decision about competing jurisdictional boundaries was lawful, the decision-maker must be correct and the reviewing court must satisfy itself, based on the record, that the decision-maker came to the correct conclusion.”^[165]

The most prominent entry on the ‘deference’ side of the ledger is Mouvement laïque québécois v Saguenay (City),^[166] where Justice Gascon commented at paragraph 46 that deference is appropriate “where the Tribunal acts within its specialized area of expertise, interprets the Quebec Charter and applies that charter’s provisions to the facts to determine whether a complainant has been discriminated against”.^[167] But the emphasis on expertise means that the authority of this statement has been weakened by the downgrading of expertise in Vavilov.

Consider also Consolidated Fastfrate Inc. v Western Canada Council of Teamsters.^[168] Here, the issue was whether a company was subject to provincial or federal regulation. A provincial labour relations board held that the company was an interprovincial undertaking subject to federal labour relations legislation. Justice Rothstein observed that the board’s “constitutional analysis rested on its factual findings”: “Where it is possible to treat the constitutional analysis separately from the factual findings that underlie it, curial deference is owed to the initial findings of fact”.^[169] At first glance, this might appear to be a pro-deference proposition, but on closer inspection, it appears that deference is only appropriate where the constitutional question is can be separated from the underlying factual findings: deference on facts in constitutional cases, but only as long as deference does not influence legal determinations as to constitutionality.

This issue was also discussed in Toussaint v Canada (Attorney General),^[170] in the context of appellate review rather than judicial review. Whilst deference is appropriate on “factual findings and exercises of discretion that are heavily suffused with facts,”^[171] correctness review is often applied in constitutional cases “probably…because of the centrality of the legal issues in such appeals, and the fact that questions of constitutional law are often extricable from the questions of mixed fact and law that arise.”^[172]

In Société des casinos, the Supreme Court was clear: when applying the correctness standard, a reviewing court must take the findings of fact made by the decision-maker as they are (as long as they are reasonable), but it is for the court to determine for itself the legal effects of those findings of fact. Put another way, the legal characterization of the facts as found by the decision-maker is a matter for the court.

Whatever about my scepticism of the law/fact distinction,^[173] this is now definitively the law. And, to be fair, in its post-Vavilov case law applying the correctness categories, this has certainly been the Supreme Court’s approach. I noted Northern Regional Health Authority v Horrocks,^[174] above and would now add Sharp v Autorité des marchés financiers, (a constitutional question case):^[175] there, the decision-maker had made findings of fact about a ‘pump and dump’ scheme run by out-of-province actors but the application of a context-sensitive legal standard to those facts was done without any deference to the decision-maker’s conclusion. In the correctness categories, then, pure findings of fact — the who, what, when, where and why of adjudication — get deference but everything else is ultimately for the court.

Of course, it is always open to a reviewing court to adopt the analysis of the decision-maker (and perhaps this is now the best way to understand the decision in Law Society of Saskatchewan v Abrametz^[176]) but the judge retains the final word on whether the legal standard has been met based on the facts as found.

B) Tribunals and Remedies

The only member of the Supreme Court to address the remedial jurisdiction of the decision-maker (here, the Quebec Administrative Labour Tribunal) was Justice Côté.

She noted that the managers had decided to bring a claim for certification rather than to seek a declaration of unconstitutionality in superior court and suggested that “[p]roceeding before a superior court is preferable insofar as such a court has the power to make a formal declaration of unconstitutionality and to suspend the declaration in order to give the legislature all the latitude it needs to enact a particular regime that meets the minimum constitutional requirements of s. 2(d).”^[177]

In fairness to the managers, they may well have brought the claim in the tribunal to avoid being met in superior court by the counter-argument that they should first have sought a remedy from the tribunal.^[178] And there is surely no doubt that the Supreme Court’s consideration of the issues was enriched by the tribunal’s detailed analysis of the facts.^[179]

It is true that the tribunal could not suspend any declaration of inoperability,^[180] but it did not seek to do so. It was the courts that suspended the effect of the tribunal’s decision, on the theory that on the standard of correctness the judges were stepping into the shoes of the tribunal.^[181] I remain sceptical: the advantage of the decision could only apply to the particular managers who brought the certification application so the need for broad legislative consideration of the regulatory regime (the usual justification for suspending a declaration of unconstitutionality) is not particularly keenly felt. Justice Côté correctly noted this point, but I do not think it can mean that the tribunal should not have been seized of the matter in the first place.

For my part, I have sympathy for the managers’ choice of forum and, given the need for extensive fact-finding, I suspect the fact that they first went to the tribunal ultimately facilitated the Supreme Court’s comprehensive analysis of the important freedom of association issues.

In the end then, this is an important decision on standard of review and regulatory design, with interesting points made too about forum choice in cases arising at the intersection of administrative law and constitutional law.

IV. CONSTITUTIONAL FOUNDATIONS OF JUDICIAL REVIEW

This year, the Supreme Court of Canada handed down its much-anticipated decision in Yatar v TD Insurance Meloche Monnex.^[182] As expected (by me at any rate), the Court reversed the approach below and (correctly, in my view) described the role of discretion in judicial review proceedings. The main takeaway from the case is that judicial review applications can be brought even where there is a limited right of statutory appeal. In the energy field as in many others, questions about the co-existence of appeals and judicial review regularly arise.^[183]

In reasons written by Justice Rowe, the Court thereby confirmed that the fact that a right of appeal is limited to questions of law does not prevent an individual from judicially reviewing factual and other issues that would not fall within the scope of the right of appeal. Moreover, although the Court did not grapple with some of the other issues related to limited rights of appeal, such as privative clauses, its overall analysis gives me the impression that, when confronted with these issues, the justices will favour judicial review.

At root, Yatar is a case about accident benefits. There is a right of appeal on questions of law from decisions of the Licence Appeal Tribunal. But Yatar wanted to raise an issue of fact or mixed fact and law. Accordingly, she sought judicial review. Readers will recall that the Court of Appeal (and the Divisional Court) held that given the existence of a limited right of appeal, and the evident desirability of efficient resolution of accident benefits claims, judicial review should only be permitted in rare cases.

This was the central issue on appeal to the Supreme Court of Canada, which resoundingly restated the importance of judicial review. One of the “first principles” of Canadian public law^[184] is the “importance” of judicial review.^[185] Accordingly, “[w]hile there is discretion to hear the application on the merits and deny relief, this discretion does not extend to decline to consider the application for judicial review.”^[186] Judicial review is always available:

When an applicant brings an application for judicial review, a judge must consider the application: that is, at a minimum, the judge must determine whether judicial review is appropriate. If, in considering the application, the judge determines that one of the discretionary bases for refusing a remedy is present, they may decline to consider the merits of the judicial review application (Strickland, at paras. 1, 38 and 40; Matsqui, at para. 31). The judge also has the discretion to refuse to grant a remedy, even if they find that the decision under review is unreasonable (Khosa, at para. 135; Strickland, at para. 37, quoting Minister of Energy, Mines and Resources, at p. 90).^[187]

An interesting question here is whether some grounds for the exercise of discretion might preclude consideration of the merits of a judicial review application.^[188] Justice Rowe’s analysis would suggest not, though there may be some cases where it is plain and obvious that a remedy could not possibly be available.

Beyond this, a limited right of appeal does not, on its own, communicate any legislative intention to restrict access to the courts:

The Court of Appeal erred by holding that the limited right of appeal reflected an intention to restrict recourse to the courts on other questions arising from the administrative decision, and that judicial review should thus be rare. The legislative decision to provide for a right of appeal on questions of law only denotes an intention to subject LAT decisions on questions of law to correctness review. The idea that the LAT should not be subject to judicial review as to questions of facts and mixed facts and law cannot be inferred from this.^[189]

This is very much in keeping with the narrow approach to legislative intent (under the rubric of “institutional design”) in Vavilov. Where a legislature uses certain magic words, like “appeal”, or “patent unreasonableness”, courts must give effect to them in the way prescribed by Vavilov. But more thoroughgoing contextual analyses of legislative intent are forbidden^[190]

Justice Rowe accepted that, where there is an adequate alternative remedy, a judge may exercise discretion to refuse to grant relief in judicial review proceedings. For judicial review to be ousted, however, there must be “an appropriate alternative forum or remedy.”^[191] Here, there was no such appropriate alternative. The right of appeal was limited to questions of law, making it impossible for Yatar to put in issue the factual questions and mixed questions of fact and law she wished to put in issue. And the possibility of an internal reconsideration was not an alternative either:

The access to internal reconsideration cannot be an adequate alternative remedy, as the reconsideration decision itself is the subject of the review. Alternatives do exist where internal review processes have not been exhausted or where there is a statutory right to appeal that is not restricted, such that questions of law, fact, and mixed fact and law could be considered on appeal. But, that is not so here.^[192]

This is, surely, absolutely right. A final decision is always reviewable regardless of the quality or quantity of internal processes of reconsideration or review (albeit, of course, that when these function well they might weed out unreasonable or procedurally unfair decisions).

To the argument that judicial economy provided a good reason for exercising discretion not to entertain applications for judicial review except in rare cases, Justice Rowe had a firm response:

Judicial economy is a legitimate concern. However, the countervailing consideration is to ensure that those whose interests are being decided by a statutory delegate have a meaningful and adequate means to challenge decisions that they consider to be unreasonable having regard to their substance and justification, or were taken in a way that was procedurally unfair.^[193]

The thread running through this analysis and culminating in the passage just quoted is that judicial review is a constitutional fundamental. It is critically important that individuals have the ability to challenge administrative decisions that are alleged to be unreasonable or procedurally unfair.

Now, the Court left for another day the proposition that a privative clause might, in combination with a limited right of appeal, preclude judicial review. But the emphasis on judicial review as a fundamental feature of the Canadian public law landscape suggests that the presence of a privative clause — unconstitutional, let us not forget, per the Court’s decision in Crevier v A.G. (Québec) et al.^[194]— will not change the analysis in any meaningful way. As I demonstrated in last year’s paper, privative clauses were no absolute bar to judicial review historically^[195] and there is no reason today to deviate from tradition or the first principles asserted in Crevier. Moreover, the fact that Justice Rowe poured cold water on the judicial economy rationale for restricting judicial review would strongly suggest that the concerns underlying the enactment of privative clauses should not sway Canadian courts either.

For similar reasons, I would suggest that the Court’s analysis bodes ill for other restrictions on judicial review, like section 18.5 of the Federal Courts Act.^[196] This provision has been invoked in the context of economic regulation of telecommunications and transportation but might now also bar access to judicial review to judges disciplined by the Canadian Judicial Council.^[197] The question there will be the extent to which the Federal Court of Appeal’s important decision in Canadian National Railway Company v Scott, 2018 FCA 148 is consistent with Vavilov and Yatar.^[198]

On the merits, the decision was unreasonable and the matter remitted to the Tribunal:

However, the LAT adjudicator failed to have regard to the effect of the reinstatement of the IRBs between February and September. The LAT adjudicator did not consider earlier tribunal decisions, some of which had held that when an applicant’s benefits are reinstated, the limitation period can only be triggered when they are validly terminated again (see Veldhuizen v. Coseco Insurance Co., 1995 ONICDRG 144 (CanLII); Rudnicki v. Certas Direct Insurance Co., 2001 ONFSCDRS 60 (CanLII)).

It is not in question that Ms. Yatar initiated mediation in September 2012. The mediation took place between June 18, 2013 and January 14, 2014. On January 14, 2014, the mediator released his report. However, s. 281.1(2)(b) of the Insurance Act and s. 51(2) of the SABS (as they existed at the time) do not trigger a 90-day limitation period from the release of the mediator’s report. Rather, they provide for an extension of the two-year limitation period from the mediator’s report. In other words, it is arguable that there still needed to be a valid denial of the IRBs to start the clock running. I do not purport to decide this question; it is one properly to be decided by the LAT.^[199]

Justice Rowe described this as a breach of “legal constraints,”^[200] which might prompt one to wonder whether the matter should have been treated as falling within the appeal clause in any event. For my part I do not think anything turns on whether Vavilov’s contextual constraints are described as legal or factual (other than to facilitate analysis): the key point here was that the adjudicator’s decision lacked justification, intelligibility and transparency on factually suffused questions.

The privative clause issue left unresolved in Yatar was the subject of a thoughtful set of reasons in Democracy Watch v Canada,^[201] Chief Justice de Montigny engaged extensively with my writings on the subject but took a very different view from me. I do not propose to attempt to produce a comprehensive response (or maybe it is a reply or sur-reply at this stage!), as I know from my incoming correspondence that you are all well able to make up your own minds when issues have been fully argued on both sides. Please do read Chief Justice de Montigny’s reasons, especially paragraphs 58-78, regardless of the fact that they are obiter.^[202]

It is worth highlighting a couple of points, however, as these go to the core of the disagreement between those with competing views of the constitutional core minimum of judicial review of administrative action.

Consider, first, the permissible scope of legislative intervention to limit judicial review. Chief Justice de Montigny is of the view that legislation could eliminate reasonableness review in its entirety:

This is not only consistent with the various dicta of the Supreme Court with respect to the role of judicial review (most explicitly in Crevier and Dunsmuir) and with its insistence on respect for institutional design choices in Vavilov. It is also aligned with the underlying rationale for judicial review in a parliamentary democracy, which is that all exercises of delegated authority by the executive branch must find their source in the law and be respectful of the Constitution.^[203]

He goes on to ask, “As long as courts have the ability to intervene in cases where an administrative decision-maker steps out of bounds and impermissibly oversteps its lawful authority, how can it be said that the rule of law is threatened by the insertion of a privative clause in a statute?” But this question begs the question. Given the significant changes wrought by Vavilov, how can one say that a court can determine when a decision-maker has ‘stepped out of bounds’ or ‘overstepped its lawful authority’ without applying the reasonableness standard? Indeed, in Vavilov, the majority of the Supreme Court remarked that “proper application of the reasonableness standard will enable courts to fulfill their constitutional duty to ensure that administrative bodies have acted within the scope of their lawful authority…”^[204] To my mind, this passage ties lawful authority to reasonableness review.

Second, there is the issue of respecting legislative intention. Chief Justice de Montigny also sees the downgrading of privative clauses in Vavilov as problematic because it fails to give sufficient weight to parliamentary supremacy:

[P]rivative clauses are downgraded from an important factor in determining the applicable standard of review (as in Dunsmuir) to a mere contextual factor in determining the parameters of a reasonable decision. In light of the high degree of deference to which administrative decision makers are entitled when their decisions are subject to the reasonableness standard, it is not readily apparent what extra protection from judicial scrutiny a privative clause would confer.^[205]

As I have suggested previously,^[206] the answer is that a privative clause — full or partial — forms part of the ‘governing statutory scheme’ envisaged by Vavilov. As the majority of the Supreme Court noted there, “where the legislature chooses to use broad, open-ended or highly qualitative language — for example, “in the public interest” — it clearly contemplates that the decision maker is to have greater flexibility in interpreting the meaning of such language.”^[207] A privative clause would be an indication that “greater flexibility” is appropriate, with a partial privative clause carrying less weight and a full privative clause weighing heavily in the balance. This could be particularly significant in a situation where an administrative decision-maker has been tasked with interpreting “precise and narrow language”:^[208] in such circumstances, a privative clause would instruct the court to give “greater flexibility” in applying the reasonableness standard even though the language being interpreted is precise and narrow.

And now to the facts of the case! Alleging errors of fact and errors of law, the applicant sought judicial review of a report of the Conflict of Interest and Ethics Commissioner concluding that the Prime Minister had not violated conflict of interest legislation by participating in two decisions involving a controversial charitable organization. For Chief of Justice de Montigny, the partial privative clause excluding judicial review for errors of law and errors of fact meant that the application was doomed to failure; but the concurring judges disagreed, given that previous panels of the Federal Court of Appeal had taken a different view on the constitutional core minimum of judicial review.^[209]

All three judges agreed, however, that political oversight can be an adequate alternative remedy to judicial review. Chief Justice de Montigny noted that the Ethics Commissioner is “an independent Officer of Parliament, and the position he occupies is firmly within the legislative branch of government.”^[210] In addition, he found that the statutory scheme suggests that Parliament intended political oversight of the Ethics Commissioner to be a central feature:

It is very clear from subsections 44(7), 44(8), 45(3) and 45(4) of the COIA, which require the Commissioner to provide his reports to the Prime Minister, that it is for the Prime Minister to decide how to give effect to the Commissioner’s determination, and for the House of Commons to hold the government to account. The sanction is meant to be political, not judicial. This conclusion is reinforced by the fact that the report of the Commissioner is to be made available to the public, and that its conclusions are not determinative of the measures to be taken (s. 47 of COIA).^[211]

There are “dual supervisory roles,”^[212] but the courts’ task is limited by the partial privative clause to ensuring the Commissioner respects their jurisdiction, grants procedural fairness to affected parties and does not act fraudulently. Furthermore, for Chief Justice de Montigny, “Courts should be loath to perceive judicial remedies as the only effective recourse in every instance where an aggrieved party raises an alleged illegality.”^[213] Ultimately, “courts should not be drawn in disputes raising purely legal or factual issues within the jurisdiction of the Ethics Commissioner.”^[214]

As Chief Justice de Montigny notes, this approach is consistent with that taken in provincial superior courts where judicial review has been sought of decisions of officers of the legislative assembly: McIver v Alberta (Ethics Commissioner); Democracy Watch v British Columbia (Conflict of Interest Commissioner).^[215]

For my part, I have always been wary of these decisions. If an officer of a legislative assembly occupies a statutory office, with powers and functions accorded by law and — by definition — subject to limitations set out in its parent statute, to my mind it does not obviously follow that the officer’s decisions are non-justiciable.

I appreciate that if someone seeks to raise a political issue before the courts arising from an officer’s decision judicial intervention might very well not be appropriate. However, if as here the issue is whether the officer correctly or reasonably interpreted statutory concepts, excluding judicial review seems quite strange as it means that the legislator has the final word on the interpretation of its own statutes. After all, “[j]udicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority.”^[216] Why would it be any different when an officer of the legislature is administering a statutory scheme?

In that regard, it is notable that the partial privative clause at issue in Democracy Watch expressly preserves judicial review on ‘jurisdictional’ issues: but at what point does an error of law or fact become a potential jurisdictional issue? I would say that the difficulty of drawing this line is, in and of itself, a good reason to take a broad view of the constitutional core minimum of judicial review.

In all events, this is a very interesting decision of which both obiter and ratio will repay careful reading both on the constitutional foundations of judicial review and the adequacy of political oversight as a remedy.

V. REGULATORY ISSUES

In this section, I address a broad range of regulatory issues which have been considered by several appellate courts in the last year: regulator-stakeholder meetings, the presence of counsel during investigations and the desirability of transparency in the regulatory sphere. Each of these decisions from lower courts provides helpful guidance for those charged with advising regulated entities in the energy sector and elsewhere.

A) Meetings with Regulators

Teksavvy Solutions Inc. v Bell Canada,^[217] concerned an appeal from a rate-setting decision by the CRTC relating to the rates payable to owners of telecommunications infrastructure. Here, B is an owner and T wishes to access its infrastructure. In T’s view, the CRTC set the rates too high. One issue that arose related to bias. T alleged bias on two grounds.

First, the Chair of the CRTC had made public comments about the importance of facilities-based competition. There was, Justice Stratas held, nothing objectionable about this:

The Chair was doing nothing more than setting out the longstanding and frequently expressed policy position of the CRTC in general terms. As the Chair of a high-profile regulatory body, it was appropriate for him to communicate the policies of the regulator, as had been adopted in CRTC decisions and notices. Such communication can be constructive and in the public interest: Zündel v. Canada (Attorney General), 1999 CanLII 9357 (FC), [1999] 4 F.C. 289, 175 D.L.R. (4^th) 512 (T.D.) at paras. 28-30, aff’d (2000), 2000 CanLII 16731 (FCA), 195 D.L.R. (4^th) 394, 30 Admin. L.R. (3d) 82 (C.A.) at para. 3. By no means was the Chair expressing a preference for the specific positions taken by parties in a specific file before the CRTC, nor was he communicating a permanent, irrevocable policy preference.^[218]

Second, during the decision-making process, the Chair had held a meeting with a senior Bell representative. Justice Stratas held that T had not raised this bias objection in a timely manner and was thus precluding from pursuing it.^[219] Nonetheless, he appreciated that the meeting was potentially problematic and offered the following observations:

Meetings between regulators and regulatees outside of the hearing room are a tricky area.

At one end of the spectrum are meetings that are in the public interest, particularly where the regulator has a policy-making mandate and the regulator and the regulatee are in a long term relationship. Regulators need to understand the industry they regulate and the parties in it, their challenges, needs, aspirations, and plans. And regulatees need to understand the motivations of regulators, their view of the public interest and their need to protect it. It is evident from the register maintained under the Lobbying Act, most regulatees in sectors such as this engage in these meetings. It is accepted that they are part of doing business. For good measure, the preamble to the Lobbying Act has declared lobbying to be a “legitimate activity”. And the CRTC’s Code of Conduct correctly recognizes that “[f]ormal and informal contacts with parties with an interest in the communications industry are essential to maintaining and enhancing our expertise and knowledge”.

At the other end of the spectrum are meetings to discuss live issues coming before the regulator or already before the regulator for hearing and decision. In effect, these meetings are means by which secret submissions can be offered outside of the hearing room, away from the eyes and ears of other parties to the hearing and the public. This subverts fairness and should not happen.

Somewhere in the middle are social gatherings. The CRTC’s Code of Conduct permits attendance at social events and other meetings between CRTC members and industry representatives as long as CRTC members do not discuss matters before the CRTC during the events. But this can still invite unwelcome questions that can multiply, with mounting risk.

Looking at this case as an example, why were the two together? What was discussed? Why were just the two of them there without any witnesses? Quite simply, meetings between two people, one a regulator and one a regulatee, without any independent witnesses or other evidence to substantiate why the meeting happened and what was discussed can be a recipe for trouble.

In the evidentiary record before us is a CRTC policy that offers good practical guidance on this issue. It recognizes the benefits of regulator-regulatee meetings. But it also flags the risks and offers some ways the risks can be mitigated. For example, among other things, the policy suggests that a senior Commission staff person be present at such meetings. It also suggests that the purposes of the meeting be confirmed in writing.^[220]

This is excellent advice, with the helpful notion of a spectrum between the general and specific particularly useful for regulators seeking to strike a balance between public engagement and impartiality.

B) Counsel in Regulatory Investigations

In Neustaedter v Alberta (Labour Relations Board),^[221] the issue was the ability of a regulated entity to insist on the presence of counsel during a regulatory investigation. Generally speaking, regulatory statutes provide for wide investigative powers in respect of regulated activities (here, occupational health and safety), including the ability to enter on premises and interview staff.

Here, the regulatee objected to interviews with staff being conducted in the absence of counsel. This objection was rejected by the occupational health and safety officer assigned to the matter and by the Board. The Court of Appeal was of the same view:

[T]he appellants argue, on a proper interpretation, OHS officers did not have authority to compel interviews. The OHS officer came to a different conclusion. He noted section 51(j) of the OHSA expressly gave officers the authority to interview and obtain statements for the purposes of the Act (“For the purposes of this Act, an officer may…interview and obtain statements…”), section 53(2) mandated that witnesses comply with an OHS officer’s request for information (“shall, on the request of an officer, provide to the officer any information respecting the injury or incident that the officer requests”), and section 54 required witnesses to cooperate (“No person shall interfere with or in any manner hinder an occupational health and safety officer…who is exercising powers or performing duties or functions under this Act.”). He also noted, with reference to Ebsworth, that OHS had the authority to determine its own procedure as necessary to carry out its legislated function. He concluded from the foregoing that the OHSA gave “an OHS Officer the power to compel a witness to attend an interview for the purpose of requesting information pursuant to section 53(2)”. The ALRB characterized the officer’s reasoning in this regard as “coherent, rational and justified”: ALRB Decision at para 54. We agree.^[222]

Before the chambers judge, the appellant advanced a variation of this argument by submitting OHS officers have no authority to compel a person to provide information. At paragraph 105 of the Substantive Decision, the chambers judge held the appellant’s interpretation “would render the OHSA essentially toothless. If a request for information regarding a workplace incident can be ignored with impunity, OHS’s mandate to protect worker safety would be rendered nugatory. This cannot have been the Legislature’s intention.” We agree and extend this reasoning to the argument before us.^[223]

The appellant had raised the Charter in support of the argument that interviews could not be conducted in the absence of counsel but this was to no avail. The Charter simply does not apply with significant force in respect of regulated activities.^[224]

C) Reviewability of Guidance

Two recent Canadian cases have dealt with the reviewability of soft law instruments and, in both instances, the courts came out against judicial review.

In Harold the Mortgage Closer Inc. v Ontario (Financial Services Regulatory Authority, Chief Executive Officer),^[225] the applicants challenged guidance issued by the Authority. Under the guidance, the Authority publishes details of enforcement action on its website. A licensee subject to enforcement action may resist the action in a de novo hearing before the Financial Services Tribunal. Here, the applicants complained, first, that publication of the notice of enforcement action caused reputational harm and, second, that the Authority should have posted the licensees’ response on its website.

Justice Backhouse held that the guidance was not justiciable. The Authority was not exercising a statutory power of decision in adopting the guidance and the guidance did not affect any of the applicants’ legal rights and obligations:

FSRA is not specifically required or empowered by statute to issue the Transparency Guidance or publish the NOP. In this case, the Decisions were to provide a non-binding guidance document on FSRA’s administrative processes and to publish (or not publish) documents on FSRA’s website. Section 3 of the FSRA Act provides FSRA’s statutory objects: the goals FSRA strives to achieve. Section 3 does not confer any jurisdiction, authority, or a statutory power of decision upon FSRA. Section 6 provides FSRA’s natural person powers, empowers FSRA to administer and enforce legislation, and prohibits FSRA from establishing, acquiring, or dissolving subsidiary corporations. While the Transparency Guidance states that the policy achieves FSRA’s statutory objects, neither ss. 3 nor 6 confer any authority or obligation on FSRA to publish NOPs and FSRA does not rely on either section to do so.

…

Although the applicants have an interest in their reputation, the publication of allegations by the regulator does not give rise to a right to judicial review. The Decisions here do not affect the legal rights, interests, property, privileges, or liberty of the applicants. The Transparency Guidance issued by FSRA simply describes when and how FSRA will publish documents related to its enforcement proceedings. Reputational damage in the circumstances of this case does not give rise to a right of judicial review.^[226]

Note that I provided some consultancy services to the Authority in respect of this matter.

The Federal Court of Appeal arrived at the same conclusion in Air Passenger Rights v Canada (Attorney General).^[227] The issue here related to the publication by the Canadian Transportation Agency of a statement on its website at the outset of the COVID-19 pandemic. There was a wave of flight cancellations and significant concern in the airline industry about the economic consequences of shutting down international travel. In relevant part, the statement read:

While any specific situation brought before the CTA will be examined on its merits, the CTA believes that, generally speaking, an appropriate approach in the current context could be for airlines to provide affected passengers with vouchers or credits for future travel, as long as these vouchers or credits do not expire in an unreasonably short period of time (24 months would be considered reasonable in most cases).^[228]

The applicant here recognized that the statement was not a “decision” but nonetheless argued that judicial review was appropriate because “(a) the Statement is a pre-judgment by the CTA of air passengers’ rights to refunds for cancelled flights, and (b) the CTA acted in response to improper third-party influence in formulating and posting the Statement contrary to its Code of Conduct, giving rise to reasonable apprehension of bias.”^[229]

Justice Walker held that judicial review was unavailable. She distinguished the statement from cases addressing the lawfulness of guidelines that, though notionally non-binding, had a mandatory character^[230] and held that the statement itself did not cause any affect on rights and obligations. First, it was the actions of third parties, such as credit card companies, that affected passengers’ rights and obligations:

At its core, APR’s argument that the Statement is justiciable is based on the premise that the actions of third parties (airlines and credit card companies) taken in reliance on the Statement prejudicially affected air passengers’ rights and access to refunds for cancelled flights in circumstances where refunds should arguably have been available to them. APR insists that the Statement had the practical effect of facilitating the airlines’ retention of passengers’ money without providing services.

APR’s evidence and arguments are not persuasive. The actions of third parties are not the actions of the CTA, nor is the CTA responsible for the decisions taken by airlines and credit card companies. APR’s evidence demonstrates only that third parties used the Statement to justify refund and credit card chargeback refusals. The prejudicial effects asserted by APR flow not from the Statement or the conduct of the CTA but from the interpretation and use of the Statement by third parties. APR asks the Court to consider the Statement from the public’s perspective but there is little evidence in the record of that perspective outside of a limited number of email chains in which frustrated air travellers vented their dissatisfaction with the Statement. In any event, the public’s possible interpretation of the Statement does not establish prejudicial effect or justiciability.^[231]

Second, the statement itself was non-binding:

Third-parties’ mischaracterization of the Statement, whether as a ruling or approval, was not endorsed by the CTA and does not transform the Statement into a mandatory pronouncement. The Statement is written in simple language and conveys a possible way forward in unprecedented circumstances, subject to the adjudication of each case on its own merits. It is drafted using permissive language and addresses one topic. It does not purport to provide a detailed overview of the state of Canadian legislation and jurisprudence regarding the right to refunds, nor does the Statement alter an air passenger’s legal entitlement to a refund for certain cancelled flights. Although APR asserts that the Statement misinforms the travelling public about their refund rights, it has pointed to no requirement that the CTA reference the relevant refund legislation, tariff and case law when issuing an interim statement that makes clear reference to travellers’ ability to file a complaint despite the guidance in the Statement.^[232]

The analysis here is strikingly similar to that of Justice Backhouse in the Ontario case.

However, the applicant had another string to its bow, in the form of an argument that judicial review is always available where procedural fairness is put in issue, especially where a reasonable apprehension of bias is alleged. This too was rejected by Justice Walker:

This Court does not have plenary jurisdiction to intervene in the conduct of a federal board, commission or tribunal based on allegations of misconduct or perception of bias absent a matter in respect of which a remedy is available. Essentially, APR is asking the Court to censure the CTA regardless of the legal effects of its conduct. This is not the Court’s role. At the admitted risk of repetition, for a remedy to be available a matter must “affect legal rights, impose legal obligations, or cause prejudicial effects”. The Statement does not do so and it is not otherwise amenable to judicial review.^[233]

There is something to be said for the applicant’s argument on this point. Allegations of bias have sometimes been given special treatment as far as reviewability is concerned.^[234] This point merits further consideration. However, if an artful pleader were able to allege a reasonable apprehension of bias in order to circumvent the well-established principles set out by Justice Backhouse and Justice Walker, I am not sure this would be a desirable development in the law of judicial review.

D) The Desirability of Transparency

Consider, also, the significant decision of the Ontario Divisional Court in Harold the Mortgage Closer Inc. v Ontario (Financial Services Regulatory Authority, Chief Executive Officer).^[235]

This was a challenge to guidance (“Transparency Guidance”) issued by the Authority pursuant to which details of enforcement action are published on the Authority’s website. The applicants claimed that posting details of the enforcement action taken against them was unreasonable and damaged their reputation.

The claim was held to be non-justiciable (as I will explain in a separate post) but Justice Backhouse also helpfully laid out the rationale for the Transparency Guidance and confirmed its reasonableness:

The Transparency Guidance states that its purpose is to “increase public awareness of misconduct and of the sanctions taken to improve consumer protection and deter future misconduct in the regulated sectors.” It sets out under “Rational and principle” that “Greater transparency of Enforcement Action achieves FSRA’s statutory objects” which include (relevant here)

• • • • To protect the rights and interests of consumers
      • To regulate and generally supervise the regulated sectors
      • To promote high standards of business conduct in the financial services sectors
      • To contribute to public confidence in the regulated sector
      • To deter deceptive or fraudulent conduct, practices, and activities by the regulated sectors.

The Transparency Guidance also states that “a clear and consistent approach to transparency of Enforcement Action also ensures that non-compliant related entities and individuals are treated evenly and know in advance when and how FSRA will inform the public that it is taking action for non-compliant activity.” The Transparency Guidance sets out that FSRA ensures greater awareness of its Enforcement Action by making Enforcement Information publicly available on the enforcement section of the FSRA web site and through news releases. It states that FSRA issues a news release when Enforcement Action is taken and that the combination of a news release and public posting of the Enforcement Information (here, the NOP) on FSRA’s web site promotes public awareness and reduces risk to consumers.

…

FSRA’s publication decisions are consistent with the practice of many other regulators which also publish their enforcement actions before an adjudication of the merits by a disciplinary tribunal. FSRA indicates in the published NOP that the document contains allegations that may be subject to proof at a hearing.

The issuance of the Transparency Guidance is reasonable — as was the process by which it was developed — and it serves the public interest.^[236]

This is a very strong judicial statement in favour of transparency. Ensuring that the public has access to information about how public power is being exercised, and about potential breaches of industry standards, is entirely reasonable and, indeed, salutary. This is standard regulatory practice (or should be) and it is very helpful that the Divisional Court both recognized and endorsed it.

CONCLUSION

This has been a busy year for the Supreme Court of Canada in the administrative law field and adjacent areas. Energy lawyers should certainly take note of recent developments on standard of review of regulations (Part I), reasonableness review (Part II), correctness review (Part III) and the constitutional foundations of judicial review (Part IV), which will bear directly on their practice even if most of the recent cases have not involved energy law per se. And there has also been a good smattering of cases from around Canada relevant to the exercise of regulatory powers (Part V).

To return to where I began, we are at the 5-year mark post-Vavilov. Not every possible question has been answered — how could it?! — but it seems fair to say that Vavilov is doing much better than its predecessor Dunsmuir at this point in its life cycle.

 

• * University Research Chair in Administrative Law & Governance, University of Ottawa.
• ¹ Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov].
• ² Dunsmuir v New Brunswick, 2008 SCC 9.
• ³ David Mullan, “Unresolved Issues on Standard of Review in Canadian Judicial Review of Administrative Action- The Top Fifteen!” (2013), 42:1 Advocates’ Q 1.
• ⁴ Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
• ⁵ Paul Daly, “Unresolved Issues after Vavilov” (2022) 85:1 Saskatchewan L Rev 89.
• ⁶ Paul Daly, A Culture of Justification: Vavilov and the Future of Canadian Administrative Law (Vancouver: UBC Press, 2023), at 145–49.
• ⁷ Law Society of Saskatchewan v Abrametz, 2022 SCC 29.
• ⁸ Auer v Auer, 2024 SCC 36 [Auer].
• ⁹ Commission scolaire francophone des Territoires du Nord-Ouest v Northwest Territories (Education, Culture and Employment), 2023 SCC 31 [CSFTNO]; York Region District School Board v Elementary Teachers’ Federation of Ontario, 2024 SCC 22.
• ¹⁰ Yatar v TD Insurance Meloche Monnex, 2024 SCC 8 [Yatar].
• ¹¹ Wastech Services Ltd. v Greater Vancouver Sewerage and Drainage District, 2021 SCC 7.
• ¹² See Ontario (Attorney General) v Ontario (Information and Privacy Commissioner), 2024 SCC 4 [Mandate Letters].
• ¹³ Auer, supra, note 8.
• ¹⁴ Federal Child Support Guidelines, SOR/97-175.
• ¹⁵ Katz Group Canada Inc. v Ontario (Health and LongTerm Care), 2013 SCC 64, [Katz].
• ¹⁶ Ibid at para 28.
• ¹⁷ Portnov v Canada (Attorney General), 2021 FCA 171, at para 19.
• ¹⁸ British Columbia (Attorney General) v Le, 2023 BCCA 200, at para 93.
• ¹⁹ Auer, supra note 8, at paras 47–63.
• ²⁰ Ibid at para 21.
• ²¹ Ibid at para 32.
• ²² Ibid at para 19.
• ²³ Ibid at para 22.
• ²⁴ Ibid at para 26.
• ²⁵ Katz, supra note 15 at para 24.
• ²⁶ Ibid at para 25 (emphasis deleted).
• ²⁷ Ibid at para 26, quoting United Taxi Drivers’ Fellowship of Southern Alberta v Calgary (City), 2004 SCC 19, at para 8.
• ²⁸ Ibid at para 27, quoting Jafari v Canada (Minister of Employment and Immigration), 1995 CanLII 3592 (FCA), [1995] 2 FC 595 (CA), at 604.
• ²⁹ Ibid at para 28, quoting Thorne’s Hardware Ltd. v The Queen, 1983 CanLII 20 (SCC), [1983] 1 SCR 106, at 112–13.
• ³⁰ Ibid.
• ³¹ Supra note 17 at para 20.
• ³² See Canada (Attorney General) v Power, 2024 SCC 26, at paras 98, 209; R. v Kirkpatrick, 2022 SCC 33, at para 202, per Justices Côté, Brown and Rowe, concurring.
• ³³ Supra note 6 at 148.
• ³⁴ Auer, supra note 8 at para 32; See also ibid at 149.
• ³⁵ Paul Daly, “Resisting which Siren’s Call? Auer v Auer, 2022 ABCA 375 and TransAlta Generation Partnership v Alberta (Minister of Municipal Affairs), 2022 ABCA 381”(24 November 2022), online (blog): <www.administrativelawmatters.com/blog/2022/11/24/resisting-which-sirens-call-auer-v-auer-2022-abca-375-and-transalta-generation-partnership-v-alberta-minister-of-municipal-affairs-2022-abca-381>; Supra note 6 at 147; Auer, supra note 8 at para 44.
• ³⁶ Auer, supra note 8 at para 33, citing References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, at para 87.
• ³⁷ Ibid at para 60.
• ³⁸ Ibid at para 51; See especially at paras 52–54.
• ³⁹ Ibid at para 38, citing Vavilov, supra note 1 at para 100.
• ⁴⁰ Ibid at para 39.
• ⁴¹ Innovative Medicines Canada v Canada (Attorney General), 2022 CanLII 210 (FCA) at para 30.
• ⁴² Vavilov, supra note 1 at paras 91–94.
• ⁴³ Ibid at para 96.
• ⁴⁴ Auer, supra note 8 at para 46.
• ⁴⁵ Ibid at paras 55–56.
• ⁴⁶ GSI Global Shelters Developments Ltd. v Rural Municipality of Last Mountain Valley No. 250, 2024 CanLII 30 (SKCA) at para 23; Koebisch v Rocky View (County), 2021 CanLII 265 (ABCA) at para 42.
• ⁴⁷ Auer, supra note 8 at para 57.
• ⁴⁸ Divorce Act, RSC 1985, c 3 (2^nd Supp).
• ⁴⁹ Auer, supra note 8 at para 75.
• ⁵⁰ Ibid at para 79.
• ⁵¹ Ibid at para 116.
• ⁵² Ibid at para 58.
• ⁵³ Reference re Firearms Act (Can.), 2000 SCC 31 at para 18.
• ⁵⁴ See Canadian Constitution Foundation v Canada (Attorney General), 2022 FC 1233, at paras 62–64; British Columbia (Lieutenant Governor in Council) v Canada Mink Breeders Association, 2023 BCCA 310, at paras 66–74 [Mink Breeders].
• ⁵⁵ See e.g. Mink Breeders, ibid at para 76.
• ⁵⁶ Supra  note 17 at para 51.
• ⁵⁷ Sobeys West Inc. v College of Pharmacists of British Columbia, 2016 BCCA 41.
• ⁵⁸ Auer, supra note 8 at para 70.
• ⁵⁹ TransAlta Generation Partnership v Alberta, 2024 SCC 37 [TransAlta].
• ⁶⁰ Charter, supra note 4.
• ⁶¹ Kruse v Johnson, [1898] 2 QB 91.
• ⁶² Auer, supra note 8 at 99.
• ⁶³ Montréal v Arcade Amusements Inc., 1985 CanLII 97 (SCC).
• ⁶⁴ Ibid at para 407.
• ⁶⁵ Jonas v Gilbert, 1881 CanLII 36 (SCC); Rex v Paulowich, cited in Montréal v Arcade Amusements Inc. by L.-P. Pigeon; Re Ottawa Electric Railway Co. and Town of Eastview (1924), 1924 CanLII 386 (ON SC); Rex Ex Rel. St. Jean v Knott, 1944 CanLII 365 (ON SC).
• ⁶⁶ Regina v Flory (1889), 17 O.R. 715.
• ⁶⁷ City of Montreal v Civic Parking Center Ltd.,  1981 CanLII 214 (SCC), at p 559.
• ⁶⁸ Forst v City of Toronto (1923), 54 OLR 256; S.S. Kresge Co. v City of Windsor, Bartlet, MacDonald & Gow Ltd. et al. v. City of Windsor, 1957 CanLII 365 (ON CA); City of Calgary v S.S. Kresge Co., 1965 CanLII 508 (AB KB); Regina v Varga (1979), 1979 CanLII 1715 (ON CA); Entreprises Anicet Gauthier Inc. v Ville de Sept-Îles, [1983] CS 709.
• ⁶⁹ Supra note 63 at 414.
• ⁷⁰ Shell Canada Products Ltd v Vancouver (City), 1994 CanLII 115 (SCC) at 259.
• ⁷¹ Municipal Government Act, RSA 2000, c M-26 [MGA].
• ⁷² Auer, supra note 8 at paras 14–18.
• ⁷³ Ibid at para 59; See also Canadian Natural Resources Limited v. Fishing Lake Metis Settlement, 2024 CanLII 131 (ABCA), at paras 29-30; See also Restaurants Canada c Ville de Montréal, 2021 CanLII 1639 (QCCA) at para 24.
• ⁷⁴ TransAlta Generation Partnership v Alberta (Minister of Municipal Affairs), 2022 ABCA 381, at para 86.
• ⁷⁵ TransAlta Generation Partnership v Alberta, 2024 SCC 37 at paras 46, 48.
• ⁷⁶ GSI Global Shelters Developments Ltd. v Rural Municipality of Last Mountain Valley No. 250, 2024 CanLII 30 (SKCA) [GSI].
• ⁷⁷ Ibid at para 62.
• ⁷⁸ Legislation Act, 2006, SO 2006, c 21, Schedule F, s 82(2).
• ⁷⁹ Katz, supra note 15 at para 48.
• ⁸⁰ Supra note 75 at para 52.
• ⁸¹ Ibid at para 53.
• ⁸² Ibid at para 54.
• ⁸³ Ibid.
• ⁸⁴ Canadian Natural Resources Limited v Fishing Lake Metis Settlement, 2024 CanLII 131 (ABCA).
• ⁸⁵ Ibid at para 15.
• ⁸⁶ Jonas v Gilbert, 1881 CanLII 36 (SCC).
• ⁸⁷ Supra note 84 at paras 35–40.
• ⁸⁸ Ibid at para 45.
• ⁸⁹ R. v Greenbaum, 1993 CanLII 166 (SCC) at 695; 114957 Canada Ltée (Spraytech, Société d’arrosage) v Hudson (Town), 2001 SCC 40 at para 29.
• ⁹⁰ Supra note 84 at para 68.
• ⁹¹ Cf Indian Act, RSC 1985, c I-5, s 87; Canadian Pacific Ltd v Matsqui Indian Band, 2000 1 FC 325.
• ⁹² Supra note 84 at para 59.
• ⁹³ Supra note 75 at para 55.
• ⁹⁴ See Paul Daly, “Standard of Review of Regulations: Auer v. Auer, 2024 SCC 36” (8 November 2024), online (blog): <www.administrativelawmatters.com/blog/2024/11/08/6563>.
• ⁹⁵ Supra note 75 at para 58.
• ⁹⁶ Ibid at paras 58–59.
• ⁹⁷ Lauzon-Foresterie (Fiducie) c Municipalité de L’Ange-Gardien, 2024 CanLII 506 (QCCA).
• ⁹⁸ Municipal Code of Québec, CQLR c C-27.1, s 1000.1.
• ⁹⁹ Supra note 97 at para 62.
• ¹⁰⁰ Ibid at para 61.
• ¹⁰¹ Ibid at para 72.
• ¹⁰² Ibid at para 76.
• ¹⁰³ Ibid at para 75.
• ¹⁰⁴ Procureur général du Québec c Kanyinda, 2024 CanLII 144 (QCCA) [Kanyinda].
• ¹⁰⁵ Educational Childcare Act, SQ 2005, c 47 [Educational Childcare Act].
• ¹⁰⁶ Ibid s 82.
• ¹⁰⁷ Ibid s 84.
• ¹⁰⁸ Ibid s 87.
• ¹⁰⁹ Ibid s 106(26); See also s 42(4).
• ¹¹⁰ Kanyinda, supra note 104 at para 55.
• ¹¹¹ Ibid at para 75.
• ¹¹² R. v Secretary of State for Social Security, ex part Joint Council for the Welfare of Refugees, 1996 EWCA Civ 1293.
• ¹¹³ Charter, supra note 4.
• ¹¹⁴ Kanyinda, supra note 104 at para 111.
• ¹¹⁵ Ibid at para 115.
• ¹¹⁶ Charter, supra note 4.
• ¹¹⁷ Kanyinda, supra note 104 at paras 117–20.
• ¹¹⁸ Mandate Letters, supra note 12.
• ¹¹⁹ Mason v Canada (Citizenship and Immigration), 2023 SCC 21 [Mason].
• ¹²⁰ Freedom of Information and Protection of Privacy Act, RSO 1990, c F.31.
• ¹²¹ Mandate Letters, supra note 12. at para 27.
• ¹²² Ibid at para 23.
• ¹²³ Ibid at para 34.
• ¹²⁴ Ibid at paras 34–35.
• ¹²⁵ Ibid at para 37 (emphasis in original).
• ¹²⁶ Ibid at para 39.
• ¹²⁷ Ibid at paras 53–55.
• ¹²⁸ Ibid at para 16.
• ¹²⁹ Ibid at para 81.
• ¹³⁰ Ibid at para 76.
• ¹³¹ Ibid at para 35 [emphasis added].
• ¹³² See Paul Daly, “Context, Reasonableness Review and Statutory Interpretation: Mason v. Canada (Citizenship and Immigration), 2023 SCC 21” (28 September 2023), online (blog): <www.administrativelawmatters.com/blog/2023/09/28/context-reasonableness-review-and-statutory-interpretation-mason-v-canada-citizenship-and-immigration-2023-scc-21>.
• ¹³³ Paul Daly, “Correctness, Conventions, Cabinet Confidence: Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2022 ONCA 74” (24 April 2023), online (blog): <www.administrativelawmatters.com/blog/2023/04/24/correctness-conventions-cabinet-confidence-ontario-attorney-general-v-ontario-information-and-privacy-commissioner-2022-onca-74>.
• ¹³⁴ Emmett Macfarlane, “The influence of conventions in the SCC’s decision re: Ford’s ministerial mandate letters” (4 February 2024) online (blog): <emmettmacfarlane.substack.com/p/the-influence-of-conventions-in-the>.
• ¹³⁵ Ibid.
• ¹³⁶ Piché c Entreprises Y. Bouchard & Fils inc., 2024 CanLII 1374 (QCCA).
• ¹³⁷ Vavilov, supra note 1.
• ¹³⁸ Supra note 136 at para 14.
• ¹³⁹ Ibid at para 35.
• ¹⁴⁰ Mason, supra note 119.
• ¹⁴¹ Mandate Letters, supra note 12.
• ¹⁴² Supra note 136 at paras 36–37.
• ¹⁴³ Ibid at para 40.
• ¹⁴⁴ Ibid at paras 42–44.
• ¹⁴⁵ Ibid at paras 45–47.
• ¹⁴⁶ Ibid at para 48.
• ¹⁴⁷ Ibid at para 51.
• ¹⁴⁸ Ibid at para 50.
• ¹⁴⁹ Ibid at paras 66–70.
• ¹⁵⁰ Ibid at para 55.
• ¹⁵¹ Ibid at para 56.
• ¹⁵² Ibid at para 57.
• ¹⁵³ Ibid at para 64.
• ¹⁵⁴ Ibid at para 65.
• ¹⁵⁵ Société des casinos du Québec inc. v Association des cadres de la Société des casinos du Québec, 2024 SCC 13 [Société des casinos].
• ¹⁵⁶ Charter, supra note 4 s 2(d).
• ¹⁵⁷ Ibid at paras 45, 199.
• ¹⁵⁸ Société des casinos, supra note 155 at paras 94–97.
• ¹⁵⁹ Ibid at para 93.
• ¹⁶⁰ Westcoast Energy Inc. v Canada (National Energy Board), 1998 CanLII 813 (SCC), [1998] 1 SCR 322.
• ¹⁶¹ Ibid at para 40.
• ¹⁶² Ibid at para 42.
• ¹⁶³ Northern Regional Health Authority v Horrocks, 2021 SCC 42, at para 9.
• ¹⁶⁴ Paul Daly, “Steady as She Goes: Northern Regional Health Authority v. Horrocks, 2021 SCC 42” (22 October 2021), online (blog): <www.administrativelawmatters.com/blog/2021/10/22/steady-as-she-goes-northern-regional-health-authority-v-horrocks-2021-scc-42>.
• ¹⁶⁵ Ibid.
• ¹⁶⁶ Mouvement laïque québécois v Saguenay (City), 2015 SCC 16.
• ¹⁶⁷ See Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11.
• ¹⁶⁸ Consolidated Fastfrate Inc. v Western Canada Council of Teamsters, 2009 SCC 53.
• ¹⁶⁹ Ibid at para 26.
• ¹⁷⁰ Toussaint v Canada (Attorney General), 2011 FCA 213.
• ¹⁷¹ Ibid at para 54.
• ¹⁷² Ibid at para 55.
• ¹⁷³ See Paul Daly, Jurisdiction, questions of law and secretion. In: A Theory of Deference in Administrative Law: Basis, Application and Scope. (Cambridge: University Press, 2012) at 220.
• ¹⁷⁴ Northern Regional Health Authority v Horrocks, 2021 SCC 42.
• ¹⁷⁵ Sharp v Autorité des marchés financiers, 2023 SCC 29.
• ¹⁷⁶ Law Society of Saskatchewan v Abrametz, 2022 SCC 29.
• ¹⁷⁷ Société des casinos, supra note 155 at para 156.
• ¹⁷⁸ Okwuobi v Lester B. Pearson School Board, 2005 SCC 16 at paras 38–45.
• ¹⁷⁹ See Forest Ethics Advocacy Association v Canada (National Energy Board), 2014 FCA 245 at paras 42–47; See also Denton v British Columbia (Workers’ Compensation Appeal Tribunal), 2017 BCCA 403 at paras 51–52; See also Campisi v Ontario, 2017 ONSC 2884 at para 13.
• ¹⁸⁰ Société des casinos, supra note 155 at para 157.
• ¹⁸¹ Cf supra note 178 at para 45.
• ¹⁸² Yatar, supra note 10.
• ¹⁸³ See e.g. Stoney Nakoda Nations v His Majesty the King In Right of Alberta As Represented by the Minister of Aboriginal Relations (Aboriginal Consultation Office), 2023 ABKB 700.
• ¹⁸⁴ Yatar, supra note 10 at para 45.
• ¹⁸⁵ Ibid at para 46.
• ¹⁸⁶ Ibid at para 49.
• ¹⁸⁷ Ibid at para 54.
• ¹⁸⁸ See Budlakoti v Canada (Citizenship and Immigration), 2015 FCA 139, at para 28(1).
• ¹⁸⁹ Yatar, supra note 10 at para 58.
• ¹⁹⁰ See also as discussed in Mason, supra note 119.
• ¹⁹¹ Yatar, supra note 10 at para 61.
• ¹⁹² Ibid at para 63.
• ¹⁹³ Ibid at para 65.
• ¹⁹⁴ Crevier v A.G. (Québec) et al., [1981] 2 SCR 220.
• ¹⁹⁵ Paul Daly, “Limited Rights of Appeal: Constitutional Traditionalists” (14 March 2024) online (blog): <www.administrativelawmatters.com/blog/2024/03/14/limited-rights-of-appeal-constitutional-traditionalists>.
• ¹⁹⁶ Federal Courts Act, RSC 1985, c F-7.
• ¹⁹⁷ See Paul Daly, “Judicial Oversight and Open Justice in Administrative Proceedings” (18 May 2023), online (blog): <www.administrativelawmatters.com/blog/2023/05/18/judicial-oversight-and-open-justice-in-administrative-proceedings>.
• ¹⁹⁸ Note that my client in Yatar took the position that section 18.5 does have to be revisited in light of Vavilov.
• ¹⁹⁹ Yatar, supra note 10 at paras 74–75.
• ²⁰⁰ Ibid at para 76.
• ²⁰¹ Democracy Watch v Canada (Attorney General), 2024 FCA 158.
• ²⁰² See ibid the concurring judges at para 96.
• ²⁰³ Ibid at para 73.
• ²⁰⁴ Vavilov, supra note 1 at para 67; See also Vavilov, supra note 1 at para 109.
• ²⁰⁵ Supra note 201 at para 66.
• ²⁰⁶ See Koebisch v Rocky View (County), 2021 CanLII 265 (ABCA) at para 24.
• ²⁰⁷ Vavilov, supra note 1 at para 110.
• ²⁰⁸ Ibid.
• ²⁰⁹ Supra note 201 at para 96.
• ²¹⁰ Ibid at para 80.
• ²¹¹ Ibid at para 81.
• ²¹² Ibid at para 82.
• ²¹³ Ibid at para 84, citing Canada (Auditor General) v Canada (Minister of Energy, Mines and Resources), [1989] 2 SCR 49.
• ²¹⁴ Ibid at para 88.
• ²¹⁵ McIver v Alberta (Ethics Commissioner), 2018 CanLII 240 (ABQB) at paras 70–77; Democracy Watch v British Columbia (Conflict of Interest Commissioner), 2017 CanLII 123 (BSC) at paras 35–37.
• ²¹⁶ Supra note 2 at para 28.
• ²¹⁷ Teksavvy Solutions Inc. v Bell Canada, 2024 FCA 121.
• ²¹⁸ Ibid at para 52.
• ²¹⁹ Ibid at paras 57–58.
• ²²⁰ Ibid at paras 65–70.
• ²²¹ Neustaedter v Alberta (Labour Relations Board), 2024 CanLII 238 (ABCA).
• ²²² Ibid at para 16.
• ²²³ Ibid at paras 16–17.
• ²²⁴ See e.g Paul Daly, “Regulation and the Constitution: Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46” (21 October 2015), online (blog): <www.administrativelawmatters.com/blog/2015/10/21/regulation-and-the-constitution-goodwin-v-british-columbia-superintendent-of-motor-vehicles-2015-scc-46>.
• ²²⁵ Harold the Mortgage Closer Inc. v Ontario (Financial Services Regulatory Authority, Chief Executive Officer), 2024 CanLII 4464 (ONSC).
• ²²⁶ Ibid at paras 70, 75.
• ²²⁷ Air Passenger Rights v Canada (Attorney General), 2024 CanLII 128 (FCA).
• ²²⁸ Ibid at para 3.
• ²²⁹ Ibid at para 14.
• ²²⁰ Ibid at para 23.
• ²³¹ Ibid at paras 29–30.
• ²³² Ibid at paras 31–32.
• ²³³ Ibid at para 44.
• ²³⁴ See e.g. Fundy Linen Service Inc. v Workplace Health, Safety and Compensation Commission, 2009 NBCA 13.
• ²³⁵ Harold the Mortgage Closer Inc. v Ontario (Financial Services Regulatory Authority, Chief Executive Officer), 2024 CanLII 4464 (ONSC) (note that the author have a long-standing solicitor-client relationship with the Authority, including in relation to this matter).
• ²³⁶ Ibid at paras 84–87.