Issue #82: March 19, 2023
Issue #82: March 19, 2023
Exhaustion of remedies, non-delegation, regulations, more.
Viaguard Accu-Metrics Laboratory v Standards Council of Canada, 2023 FCA 63 (March 16, 2023)
Category: Preliminary objections (exhaustion)
Context: Among other things, the Federal Court decided that, on the facts, the appellant had to exhaust internal administrative remedies and that the application was therefore premature. The appellant challenged the Federal Court’s order to this effect.
Issue: Does the doctrine of exhaustion apply?
Holding: Yes. The Court confirms the rule in the Federal Courts that “there is little room for flexibility in the enforcement of this bar” which precludes applications for judicial review until internal remedies are exhausted” [4].
Analysis: The bar is indeed high in the Federal Courts for exhaustion. Here, because “[w]e cannot say with certainty that the appellant would be unable to raise[…]any of the issues raised in its notice of application or that there would be no room for reasonable debate before the administrative decision-maker” [6], the bar applies. In other words, there would have to be certainty that a particular issue factually could not be raised in an internal proceeding before deciding that the proceeding is not an adequate remedy (see the reasons of Favel J in the Federal Court, at para 21: “Without availing itself of that process one cannot determine if the process will lead to an effective remedy”).
Sul v The Rural Municipality of St Andrews, Manitoba et al, 2023 MBCA 25 (March 10, 2023)
Category: Selection of standard of review (regulations)
Context and Holding: From the case:
This case concerns judicial review of the vires of legislative action taken by a municipal council in passing by-laws. A majority of the council members for the Rural Municipality of St. Andrews, Manitoba (the RM) (council) purported to remove the duty of the mayor, the elected head of council for the RM, to preside over council meetings through the enactment of a by-law and a resolution appointing another member of council as chair of its meetings.
[2] The applicant asserts that the by-law and the resolution are ultra vires on the basis that council did not have the authority to enact the by-law or pass the resolution. For the reasons below, I agree.
Issue: What is the standard of review?
Analysis: The Court very tentatively finds that the application judge did not err in choosing to apply the reasonableness standard [37]. It goes further and says, at any rate, that the result is the same on “either the standard of review of correctness or that of reasonableness…” It explains the ongoing debate over standard of review of regulations [31-35].
For what it’s worth, this case shows that applying the reasonableness standard to legislative instruments is not an impossibility. Here, the bylaw was invalid because it was not justified by the enabling statute [64-65]. This appeared to turn on a pure question of law, as many cases of this kind do.
Additionally, this case appears to represent some confusion about the standards of review. As I have noted before (Issue #73) some courts and judges have referred to the normal standard of review on regulations—the ultra vires standard, represented in Katz Group v Ontario, 2013 SCC 64—as akin to correctness review. I have suggested that when this occurred in International Air Transport Association v Transportation Agency, 2022 FCA 211, it may have been because the debate over standard of review took place in a right of appeal. But similar comments have arisen even in Supreme Court opinions: see the opinion of Côté J in West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22 at para 56. Needless to say, the standard of review for regulations pre-Vavilov should probably not be described as correctness—the debate post-Vavilov is different.
Turp c. Procureur général du Québec, 2023 QCCS 698 (March 10, 2023)
Category: Constitutional challenge
Context: This is a constitutional challenge to a provision of the Public Health Act that delegates power to the government to declare a public health emergency and assume certain powers. The operative provision permits the government to declare an emergency for a maximum period of 10 days, after which it may be renewed for another 10 days, or with the consent of the National Assembly, for up to 30 days. The claimaint argues that this provision is an unconstitutional delegation of legislative power that is inadequately limited and violates the fundamental structure of the Constitution [22-24]. The claimant urged the Court to reconsider the seminal decision in In Re George Edwin Gray, (1918) 57 SCR 150, which endorsed a broad constitutional authority for legislatures to delegate power so long as it does not “abdicate” its functions.
Issue: Does the provision in question constitute an unconstitutional delegation of power?
Holding: The delegation is constitutional [130].
Analysis: This is a really interesting case about limits on delegation in the Canadian context. Readers will know that the contours of the limits on delegation have been recently controversial: see particularly Côté J’s decision in the GHG Reference, 2021 SCC 11 at para 266, questioning the constitutionality of Henry VIII clauses, which permit the delegatee to amend the primary law; see also Lorne Neudorf, here, who questions the vitality of precedents like Gray.
The Court here somewhat sidesteps the Gray question in ruling the delegation constitutional. For one, here there was no Henry VIII clause [60]. Moreover, the delegation was appropriately limited in its text [112]; and the delegation is time-limited, with “ex post controls” that permit the National Assembly to control the delegated power [117-119].
For what it’s worth, I agree with this legal conclusion. The Court cites my article on delegation at para 56, for the proposition that authors have expressed concerns about the scope of delegation in Gray. And it is true: taken alone, as a matter of law, Gray has been taken to endorse any amount of delegation whatsoever (putting aside concerns I have with the policy merits of the unbounded delegations that often occur in Canada). But I hold to the view that Gray also contains an important limit: the limit that legislatures cannot abdicate their power. This, to my mind, means that legislatures can delegate a broad scope of power, so long as it retains ex post control, in some way, over the delegatee. Here, the Court’s decision is somewhat consistent with this argument. The holding here is, in part, based on the fact that the National Assembly does retain meaningful ex post control. While the Court doesn’t accept the invitation to question Henry VIII clauses (given that there was no such clause on these facts), it does suggest that these ex post limitations are important.
Curry v The Nova Scotia Board of Registration of Embalmers and Funeral Directors, 2023 NSSC 95 (March 15, 2023)
Category: Reasons on right of appeal
Context: A truly odd case. Curry, a funeral director, was accused of committing a “wrongful cremation”—cremating the wrong body. The allegation was that Curry committed professional misconduct by failing to verify the identity of the body prior to cremation [3]. The Board of Registration of Embalmers and Funeral Directors found Curry guilty of misconduct and that his licence should be revoked.
Issue: Is there a statutory duty to verify the body before cremation? Was the decision to revoke the licence reasoned?
Holding: No; and no.
Analysis: This case came via right of appeal [5]. The Court finds, first, that there is no duty on the cremator to verify the body. It says that there is no express textual requirement of this [34]. Further, the consequences of this interpretation would be absurd—how does a cremator actually do this to the satisfaction of this purported duty [42-43]?
Curry also raised issues of evidence and fact. The Court concludes that the Board either committed a palpable and overriding error in ignoring evidence “and/or was procedurally unfair by failing to provide reasons for key findings of fact, and/or providing reasons which are so vague that they frustrate judicial review” [90]. There is some interesting mixing here of the different heads of review. For example, it appears the reasons were simply inadequate, and the Court cites Vavilov to say so [69-70]. It is interesting that Vavilov’s standards are informing rights of appeal. Moreover, this case also presents—to some extent—the tricky distinction between the "existence” of reasons (procedural fairness) and the adequacy of reasons (substantive review). It appears that reasons were provided, and so the issue—on the orthodox authorities—do not appear to raise issues of procedural fairness. But the line between existence and adequacy is increasingly thin: see Toutsaint v Investigation Committee of the Saskatchewan Registered Nurses’ Association, 2023 SKCA 11 (Issue #74).
Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own.