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| Sara Blake |
The court has clarified the standard of review applied to determine whether a regulation is consistent with its enabling statute. This question is to be determined on the “robust reasonableness” standard of review, with deference to the regulator’s statutory interpretation, which must be supported by analysis of the statute’s text, context and purposes.
The court confirmed that every regulation benefits from a presumption of validity and that the onus is on the challenger to rebut this presumption. As part of this presumption, a regulation is to be interpreted in a manner that renders it consistent with the statute. The court ruled that the Federal Court of Appeal was mistaken in its criticism that this presumption was inconsistent with Canada (Minister of Citizenship and Immigration) v. Vavilov, [2019] S.C.J. No. 65.
Application of the robust reasonableness standard of review requires a deferential review of a regulator’s reasons for decision. However, reasons are rarely given for the making of a regulation. I note that, when reasons for a regulation are provided, the primary focus is typically on the policy rationale for the regulation, which is not reviewable. On occasion, a specific statutory provision is cited as authority for a regulation, but a full analysis of the statutory text, context and purposes is not provided.
The court ruled that the absence of reasons does not matter because the standard of review requires an assessment of the reasonableness of the regulation‑making authority’s interpretation of its statutory power to make the regulation. Judicial review does not inquire into the underlying political, economic, social or partisan considerations that motivated the making of the regulation.
The court ruled that the focus of analysis must be on the regulator’s statutory interpretation, which, I presume, may be provided in the regulator’s factum delivered in response to the judicial review. Does the regulator’s interpretation of the statutory text, context and purposes meet the standard of review of robust reasonableness? On the one hand, this is a more deferential standard than previously applied, by which a court did its own statutory analysis without deference to the regulator’s analysis. On the other hand, it narrows the scope of justification to pure statutory analysis. A regulator may not justify a regulation simply as good policy, without a full statutory analysis to demonstrate that it is authorized. The policy may be reviewed only to determine if it is consistent with statutory purposes, which is the third part of the analysis, subordinate to the analysis of the statutory text and context.
The court dispensed with one ground for review that it had previously established: that the regulations must be “irrelevant,” “extraneous” or “completely unrelated” to the statutory purpose. They ruled that maintaining this threshold would perpetuate uncertainty in the law and that removing it was necessary to simplify the standard of review. I agree. I never understood what this ground meant in practice. The court confirmed that it is not part of the established principles of statutory interpretation by which a robust reasonableness standard of review assesses validity by analysis of the statutory text, context and purposes.
In dispensing with this ground for review, the court ruled that the nature of the regulator is no longer relevant to the application of principles of statutory interpretation. The interpretation of the statute must meet the standard of robust reasonableness regardless of whether the regulation was made by Cabinet or a subordinate regulator. The majority of the Alberta Court of Appeal had relied on this established precedent to focus on the differences between Cabinet and subordinate regulators. The Supreme Court of Canada does not criticize their analysis of the differences, which I regard as correct. Rather, the court ruled that the differences do not matter because the only issue is whether the regulation is authorized by statute.
I welcome the court’s focus on the importance of good statutory interpretation to justify everything done pursuant to statute. Under the pre-Vavilov standard of review, policy decisions were upheld as reasonable on the basis of the expertise of the regulator in the practical realities of the regulatory field, with only cursory mention of their statutory authority. The dissent in Vavilov clung to this approach. Post-Vavilov, the statute governs, as it should.
Sara Blake is the author of Administrative Law in Canada, 7th edition, LexisNexis Canada. Her practice is restricted to clients who exercise statutory and regulatory powers.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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