Resisting which Siren’s Call? Auer v Auer, 2022 ABCA 375 and TransAlta Generation Partnership v Alberta (Minister of Municipal Affairs), 2022 ABCA 381

In a pair of decisions this week the Alberta Court of Appeal has tackled the question of the framework for judicial review of regulations: Auer v. Auer, 2022 ABCA 375 and TransAlta Generation Partnership v. Alberta (Minister of Municipal Affairs), 2022 ABCA 381. In both instances — Governor-in-Council regulations on support payments in Auer, ministerial regulations about property taxation assessment in TransAlta — the Court applied the framework set out in Katz Group Canada Inc. v. Ontario (Health and Long‑Term Care), 2013 SCC 64, [2013] 3 SCR 810 rather than the reasonableness standard from Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653.

In Auer, Feehan JA has brief concurring reasons. I entirely agree with his statement, at para. 120: “A determination of the vires, the powers granted or limited, of delegated legislation including regulations is a form of judicial review contemplated in Vavilov,paras 66, 111, 137; see Portnov v Canada (Attorney General), 2021 FCA 171, paras 49-52; John Mark Keyes, “Judicial Review of Delegated Legislation: The Long and Winding Road to Vavilov”, 2020 CanLIIDocs 3679, pp 7-9, <ssrn.com/abstract=3630636>”.

I came to the same conclusion as Feehan JA in my detailed analysis of this issue (see here). Without rehashing this analysis, I would offer the following observations on the decisions in Auer and TransAlta.

First, the Alberta Court of Appeal has sought to create a regulation carve out from the Vavilov framework. The argument advanced by Pentelchuk JA in Auer is that Governor-in-Council regulations are not administrative decisions subject to the Vavilov framework:

Governor in Council regulations, however, are not examples of “administrative decision-making”; in this context, enacting regulations involves the creation of the law. Enacting a regulation is not a “decision” in the Vavilov sense. The various expressions in Vavilov that it intends to unify the standard of review analysis in all cases do not apply to legislative acts (at para. 79).

But, with respect, Pentelchuk JA makes no attempt (as far as I can see) to ground this carve out in the language of Vavilov itself. She adds instead a gloss to Vavilov: it does not apply to the creation of “law”. Leaving aside the proposition that regulations are “law” and the references to a series of cases dealing with judicial review of legislation rather than delegated legislation (at paras. 47-53), the fact of the matter is that there is no basis in Vavilov to draw this new distinction. It would also be contrary to the Vavilovian purposes of simplification and clarity to introduce any new distinction into the standard of review framework.

Now, one possible Vavilov-based argument would be that the presumption of reasonableness review does not apply because the legislation in issue did not “create” the Governor-in-Council (Vavilov, at para. 24). However, this argument would not be persuasive in any event. When empowered by statute to make regulations, or Orders in Council, the Governor-in-Council is acting pursuant to statutory authority and subject to the principles of the common law just like any other administrative decision-maker. Of course, in Vavilov the majority of the Supreme Court did not provide a list of all the “administrative decisions” subject to its new framework: the majority referred repeatedly to “administrative decisions” and “administrative decision-makers” to denote the phenomenon with which the majority was concerned, namely, judicial control of decision-makers empowered by statute. Indeed, as Feehan JA observes, the majority reasons in Vavilov proceed on the assumption that regulations are a type of administrative decision: where regulations or case law about regulations are mentioned, they are mentioned in the context of the Vavilov framework, with no suggestion that there is a bespoke regime or carve out for regulations. This is entirely sensible, because whilst regulations will sometimes have the general character they had in Auer they will sometimes target a specific individual or group and may be indistinguishable from individualized administrative decisions.

Accordingly, if the presumption of reasonableness review is to be rebutted or escaped from, regulations must fall into one of the correctness categories either because the rule of law or institutional design is engaged. Tellingly, Pentelchuk JA makes no attempt to fit regulations into a correctness category. She opts instead for a carve out which is difficult to reconcile with the letter and spirit of the Vavilov framework.

Now, it is true that the majority of the Supreme Court did not “explicitly” state that regulations are subject to the Vavilov framework (TransAlta, at para. 47). But the majority of the Supreme Court “explicitly” said that procedural fairness was not covered by the Vavilov framework, only to apply the framework to procedural fairness at the first opportunity, in Law Society of Saskatchewan v. Abrametz, 2022 SCC 29. Abrametz underscores the extent to which Vavilov is a general framework for judicial review, thereby undermining any proposition that a failure to mention a particular type of decision in Vavilov means that the framework does not apply to a particular type of decision.

Second, given Pentelchuk JA’s reliance on the proposition that regulations involve law-making and are therefore subject to less intrusive judicial review for separation of powers reasons, it is only fair to point out that regulations are executive action, not legislative action. Indeed, she acknowledges as much: “Regulations, on the other hand, are generated internally by the executive branch of government… The regulations are therefore generated by the government to flesh out the policy set by the statute” (at para. 67). Exactly! Regulations are executive (i.e. administrative) action, not legislative action. They might take legislative form, but they are not actually legislative. They flesh legislation out but they are not legislation. The same is true of all types of administrative action.

Third, the TransAlta decision represents a significant extension of the logic in Auer. There Pentelchuk JA was greatly impressed by the fact that regulations are subject to parliamentary scrutiny, suggesting that this is the “singular distinction” between “true” regulations and municipal bylaws, law society rules and so on which are subject to the Vavilov framework (at para. 34). But in TransAlta, the regulations were made by a minister — not the cabinet — under a statute which specifically exempts the regulations from the scrutiny provisions of the provincial Regulations Act: Municipal Government Act, s. 322(3). The logic of Auer was taken to extend beyond the Governor-in-Council and to another type of executive action that takes legislative form. That logic surely extends further still, to any law-like administrative action, such as municipal bylaws, law society rules and so on. But if so, there is a problem because, as Feehan JA points out (Auer, at para. 122), the application of reasonableness review by the Supreme Court to those types of administrative decision pre-dates Vavilov.

Fourth, much of the analysis in Auer and TransAlta is based (with respect) on what I think is a false premise, namely that reasonableness review invites review of the merits of governmental policy decisions:

A true Vavilov approach can only be accomplished by the reviewing court descending into a consideration of the merits of the policy decisions underlying the regulation and formulating its own reasons why the regulation was a reasonable policy choice. Thus, a reasonableness review of Governor in Council regulations under Vavilov becomes a Rorschach test that is vulnerable to a reviewing court’s particular view on the merits of the policy choices underlying the regulation and a prognostication of the regulation’s likely effect. (Auer, at para. 75, see also at para. 58).

It is sufficient for our purposes to say, as this Court said in Auer at paras 47-63, that a court reviewing regulations must take care to avoid examining the merits of an authorized policy choice. To decide whether a valid regulation is, in outcome, “reasonable” is to judge the merits of the path chosen by the delegated lawmaker to achieve the objectives of the enabling statute. That is not the court’s role (TransAlta, at para. 50)

To be fair to the Alberta Court of Appeal, use of the term “merits” is apt to cause confusion. The majority of the Supreme Court certainly said in Vavilov (at para. 23) that its new framework was for the review of the “merits” of administrative decisions. But the majority was using “merits” in that context only to distinguish them from procedural review. Review of the “merits” in Vavilov is shorthand for substantive review, i.e. the grounds and intensity of review of the substance of administrative decisions. The reference to “merits” in Vavilov does not mean courts have a licence to second-guess administrative decisions. Indeed, much of the analysis in Vavilov is designed to prevent second-guessing (see e.g. at paras. 75, 93, 102).

Indeed, where the Governor-in-Council has made what Pentelchuk JA would describe as a “true” regulation, judicial review for reasonableness is likely to be relatively less searching, precisely because a reviewing court cannot question the merits of the regulation. But of course in situations where a regulation targets a particular individual or group, judicial review for reasonableness may be more searching: more may be required by way of justification. This flexibility is built into the Vavilov framework. It is precisely why Vavilov works as a general framework, adaptable to different situations and scenarios, as the relevant constellation of facts and law will vary according to circumstance.

True, commitment to flexibility means that judicial review of regulations will look somewhat different to judicial review of, say, adjudicative decisions. This is not to ‘gloss’ over difficulties in applying Vavilov to regulations (Auer, at para. 75). Rather, it represents contemporary recognition of the well-established appreciation of Canadian courts that reasons and records for decision sometimes come from unlikely sources: see especially Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, at para. 44 and more recently Canadian Centre for Bio-Ethical Reform v. Grande Prairie (City), 2018 ABCA 154, at paras. 40-42. Vavilovian reasonableness review might even create pressure to expand the record normally put before a court when reviewing cabinet decisions (see e.g. Canada Mink Breeders Association v. British Columbia, 2022 BCSC 1731) but again this phenomenon pre-dates Vavilov: see here.

Finally, Pentelchuk JA suggests that I and others — including (improbably!) the Federal Court of Appeal — have been “seduced” by judicial interventionism (Auer, at para. 61). I would caution that there are many sirens’ calls attracting those who navigate the deep seas of administrative law. In particular, there is a constant refrain from a chorus of sirens about the need for executive policy decisions to be immune from or protected from review, be it in administrative law, tort, contract or otherwise. I fear the Alberta Court of Appeal may too readily have heeded this call. For my part, I would say that Vavilov sets a course based on principles of clarity and simplicity. It is not the course I would have chosen, but I think it is likely to keep us on an even keel through choppy waters. Better then, in my view, to lash ourselves to the mast of simplicity and clarity so as not to succumb to the calls of the sirens.

This content has been updated on November 24, 2022 at 01:51.

Comments

5 commentaires pour “Resisting which Siren’s Call? Auer v Auer, 2022 ABCA 375 and TransAlta Generation Partnership v Alberta (Minister of Municipal Affairs), 2022 ABCA 381”

DB

November 24, 2022 at 15:22

Great article but I was struck by your characterization of regulations as “not legislative action.” As you know, regulations are delegated legislation from Parliament or a provincial/territorial legislature. They are indeed circumscribed in their scope and often subject to many statutory checks and balances, but I would caution that their legislative nature is not somehow “diluted” or “diminished” by the act of delegation.

Jamie Cockburn

November 24, 2022 at 22:54

Great article. Similar to the above poster, I also was struck by your characterization of regulations as “not legislative action.” This was the highlight of my thinking while reading the decision.

Along that vein, I found it odd that Pentelchuk JA cited to Karakatsanis J.’s commentary in Mikisew Cree 2. Especially when Karakatsanis J. expressly highlighted this distinction:

[51] Finally, my conclusions respecting the duty to consult do not apply to the process by which subordinate legislation (such as regulations or rules) is adopted, as such conduct is clearly executive rather than parliamentary (see N. Bankes, “The Duty to Consult and the Legislative Process: But What About Reconciliation?” (2016) (online), at p. 5).

Moldaver would also go on to expressly state that his concurring commentary did not contemplate a form of executive legislation, being those laws enacted by subordinate territorial legislatures:

[160] In order to understand the consequences of imposing a duty to consult on the process of preparing legislation for consideration by Parliament and by provincial legislatures, one needs to begin by understanding the many steps involved in this process. (I make no comment on territorial legislatures, as they operate with notable differences from Parliament and provincial legislatures.)

Paul Daly

November 25, 2022 at 15:29

Thanks to you both. I was juxtaposing “legislative action” with “executive action”, my point being that the Court of Appeal in Auer treats delegated/executive/subordinated legislation as if it were primary legislation. It is not! It takes legislative form, of course, is “law” for certain purposes (e.g. s. 1 of the Charter; s. 52 of the Constitution Act 1982) and may sometimes be subject to legislative scrutiny. But it is nonetheless not “legislation” and cases such as Authorson, Mikisew and the CAP Reference are simply not as authoritative as the Court of Appeal suggested they are.

    PhD

    November 26, 2022 at 00:43

    Prof Daly, thank you for your constant efforts in this field. I’m asking here for my own personal understanding. Don’t you think the the discussion on what is legislation – its nature – should go beyond its formal aspect or theory of source (i.e. whether it’s formally delegated, whether it’s primary or not, whether there is scrutiny, consultation, etc.)? If that was the case, why the SCC would have asked the province of Manitoba to translate to French all of its “regulations” (for official languages, true, not for vires analysis)? Were they not regulations, too? My reading of that 1992 decision is that regulation are not only characterized by “form” or connection to primary law-maker, but also by their “content” and “effect”. For instance, is that not a criteria for the application of the regulatory process at the federal level? Moreover, was that process – and characterization as “legislative” in nature – not enacted by Parliament? It seems that confusion is growing around the theorical nature of what is legislation and what is administration, a subject that I’m now studying at your Faculty. Maybe the overlap between administrative law and constitutional law should be better studied before throwing out the champagne with the cork?

John Mark Keyes

November 25, 2022 at 16:55

I agree with Professor Daly that the Auer decision is difficult to reconcile with Vavilov in so far as it reverts to the era before the development of the standards of review and does not acknowledge how the Supreme Court has merged the grounds of review from that era with the standards of review of our era. Vavilov clearly did not overrule Katz Group. But it also did not recognize it as carving out an exception to the standard of review analysis.
The Trans Alta decision (at para 49) understandably notes the recent Supreme Court decisions on delegated legislation are “confusing”, but it also appears to accept that a merger has taken place and that Vavilov incorporated the grounds of review outlined in Katz Group (and in the thousands of other cases dealing with the vires of delegated legislation) into the application of the reasonableness standard of review. The standard of review is the benchmark for determining whether the grounds of review have been met (in other words, whether delegated legislative action is ultra vires).
The decision in Vavilov encompasses delegated legislation as a form of administrative action. The references to four cases on delegated legislation (Catalyst Paper, Green, West Fraser and Katz Group itself) make this clear.
However, applying the reasonableness standard to all forms of delegated legislation does not mean they are all treated the same way. Context matters. This provides some support for the generally more deferential approach courts have demonstrated (both before and after the standard of review era) to reviewing delegated legislation made by Executive bodies, particularly vice-regal ones like the Governor in Council and the Lieutenant Governor in Council.
This deference has often been overstated in so far as it relies on a connection between primary legislative bodies (Parliament and the Legislatures) and the vice-regal bodies. The constitutional principle of parliamentary sovereignty protects primary legislative bodies from review of their functioning (as the Mikisew Cree decision has recently demonstrated), but this sovereignty does not extend to its delegates, including those in the Executive. Judicial review extends only to the product of primary legislative action: legislation, and then only in terms of interpreting it and deciding whether it is valid. Assimilating Executive action to Parliamentary action is a serious error, albeit one the popular media constantly make when they report that a premier has made or repealed legislation enacted by the Legislature.
Executive legislation is largely the product of governmental bodies and generally receives little input from primary legislative bodies. The parliamentary review of executive legislation in Canada lags far behind that in the UK, Australia and New Zealand with only two active parliamentary committees reviewing it (Federal and Ontario). However, the Child Support Guidelines considered in the Auer case are exceptional in this regard.
Unlike the vast majority of other executive legislation, the Guidelines reflect substantial parliamentary input when the enabling legislation (Bill C-41) was being considered, as well as extensive consultation subsequently with the judiciary, provincial and territorial governments and the legal profession (see the Regulatory Impact Analysis Statement attached to SOR/97-175). This context clearly strengthens the deference due the Guidelines on judicial review and makes it more difficult to argue they do not reflect a reasonable exercise of the enabling powers.
It is far less clear that the Guidelines in the Trans Alta case enjoy the same contextual support. They were made by a single minister, although presumably with the support of the rest of the Cabinet. They were also exempt from publication in the Alberta Gazette and are unlikely to have been subject to review by the Alberta Legislative Assembly, which does not have a committee to review government regulations. There is little in the Trans Alta decisions about what, if any consideration was given to drafting the guidelines when the Assembly considered the enabling provisions.
The vast majority of executive legislation (like the Trans Alta guidelines) largely escapes any meaningful parliamentary review. This is entirely understandable given its bulk and complexity. The point of delegating legislative authority is to relieve parliamentary bodies of some of the burdens of law-making. However, it should not also relieve courts of their responsibility for ensuring legislative authority is exercised within the limits and in the manner contemplated by the enabling legislation. Diminished legislative oversight of the exercise of legislative authority is a factor to be taken into consideration on judicial review.
In addition, the presumption of validity deserves more critical attention in the standard of review era. Although it may be a necessary starting point for review (governments should not be required to justify the validity of their actions unless there is some basis for questioning its validity), its strength should not be overstated when the standard of review provides a far more substantial analytical framework for determining deference to executive action.

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