Hi SEAR readers,
There will be no SEAR next week as I will be travelling for conferences. I will recap any missed cases the following week.
I had the opportunity to meet many SEAR readers at the Society of Ontario Adjudicators and Regulators (SOAR) conference in Toronto last week. It was an excellent conference, and SOAR is a wonderful organization that advances administrative justice through education and advocacy. For more on SOAR, go to to their website.
Parker v Canada (Attorney General), 2023 FC 1419 (October 30, 2023)
Category: Judicial review of regulations.
Context: Via regulations adopted by the Governor in Council under delegated authority (s. 117.15(2) of the Criminal Code), additional types of firearms and related devices were prohibited. According to the Court, the regulations carve out prohibitions according to nine firearm “families” and by “two physical characteristics”—firearms with a bore diameter that is 20mm or greater; and firearms with the capacity to discharge a projectile with a muzzle energy greater than 10 000 joules [31-33]. They list “approximately 1500 firearms that are either variants of the nine families or have the two characteristics noted above” [34]. The regulations capture “any variants or modified versions” of the firearms. These include “unnamed variants” of the firearms that arise after the promulgation of the Regulations [58].
Issues: I do not address several constitutional issues raised by the applicants, and instead concentrate on the purely administrative law issues: (1) What is the standard of review, and are the regulations ultra vires the enabling authority in s. 117.15(2) of the Criminal Code?; (2) In promulgating the regulations, did the Governor in Council unlawfully subdelegate authority?; (3) Was there a breach of the duty of fairness in the promulgation of the regulations “without notice to firearm owners or a review mechanism”?
Holding: (1) The regulations are not ultra vires; (2) The Governor in Council did not unlawfully subdelegate authority; (3) There was no breach of the duty of procedural fairness as that duty does not apply to the legislative process.
Analysis: This is a long case, with several applicants and several overlapping arguments. I can only scratch the surface, so some detail will inevitably be missed. I recommend reading the case.
(1) The ultra vires argument was not necessarily far-fetched, but as we shall see, some of the applicants’ arguments under this heading sounded in contesting the policy approach and means of implementation chosen by the Governor in Council. The first issue is the standard of review. Readers will know that the way courts review regulations is currently in flux, with courts split between, on one hand, the approach adopted in Katz Group Canada Inc v Ontario (Health and Long-Term Care), 2013 SCC 64 and the general approach to judicial review announced in Vavilov. This issue will be addressed in the Supreme Court’s TransAlta case, in which it granted leave. As I explored in Issue #68, the Federal Courts have—for various reasons—adopted the Vavilov approach, whereas the Alberta courts have adopted Katz. The difference matters. Katz is a more deferential standard of review, premised on an assumption that the Governor in Council is owed more deference than any other administrative decision-maker because of its constitutionally-recognized role. The Vavilov approach of reasonableness is a single standard of review that attaches to the scope of delegating authority. For this reason, it will not always provide a fixed scope of deference to the Governor in Council, and the range of maneuver the Governor in Council will have will depend on the statutory language.
Here, the government argued that while Vavilov generally governs, some aspects of Katz still remain, relying on the Supreme Court’s apparent “confirmation” of Katz in the Greenhouse Gas Reference, 2021 SCC 11. But the Court rightly rebuffs this attempt, and relies on the Federal Court of Appeal’s adoption of Vavilov. The Greenhouse Gas Reference did not at all endorse Katz as the governing approach, merely concluding that any regulation must be consistent “both with specific provisions of the enabling statute and with its overriding purpose or object” [186]. This is just a statement of the obvious, not an endorsement of a particular approach. And at any rate, if it was an endorsement, I’d say it points to Vavilov. This is because Vavilov envisions a court holding an administrator—including the Governor General in Council—to the ordinary principles of interpretation: text, context, and purpose. Katz only asks whether a regulation is “completely unrelated” to a statutory purpose, potentially glossing over the textual grant of authority. This is no small difference.
The Court, applying Vavilov, concludes that the regulations are not ultra vires, and that the regulations are a reasonable exercise of authority under the reasonableness standard. At issue was a so-called “condition precedent” in the Criminal Code’s grant of authority. The Court begins the analysis—as it should, under Vavilov—with the language of the provision. Here, the language of the Criminal Code is “broad and highly qualitative” which implies a wide scope of deference [301]. In order to proscribe certain firearms, the Governor in Council must “form an opinion that the firearm is not reasonable for use in Canada for hunting and sporting purposes.” Under Vavilovian reasonableness, the basis of that legal conclusion, broad as the authority is, must be reasonable. There is no unlimited administrative authority.
There is a challenge in cases like this, one that has motivated some (including the Alberta courts) to conclude that Vavilov cannot apply here. The challenge is that the Governor in Council does not provide contemporaneous administrative “reasons.” But, as the Court says, regulations at the federal level are accompanied by a “regulatory impact analysis statement” [RIAS] that can shed light on the basis of the regulation. These statements outline the justification for regulations, anticipated impacts, and choice of means. Given the “reasons revolution” that Vavilov enacted, courts are more likely to look at these accompanying regulatory materials to enrich the bare text of the regulatory instrument. So long as this is done with an eye to discerning whether the regulations fit in the broader primary statute, and not for the purpose of supplementing the regulatory text, I see no reason in principle to exclude these sorts of analyses. The line is thin, but it does exist.
In this case, the RIAS shed light on the legal basis of the regulations. As the Court notes, the RIAS “repeatedly makes the connection between prohibiting certain firearms, described as ‘assault style’ for use by civilians in hunting and sport because of the inherent danger and the threat these firearms pose to public safety” [327]. This “connection” is sufficient to support the legality of the regulations—it connects to the basis of the Governor in Council’s reasoned opinion, and the overall purpose of the instrument to foster public safety. Under judicial review of regulations according to Vavilov, it is important to note that deference does not disappear. In other words, given the broad and qualitative language of the provision, it is not for the court to demand a tight or causal connection between the prohibition and the purpose of public safety. So long as this connection appears plausible in the regulatory text and materials, deference demands that the Court stays its hand. Here is an area where the applicants arguments appeared to question the efficacy or wisdom of the policy choice.
(2) The second issue involved subdelegation. Under the legal regime, only the Governor in Council has authority to make regulations [415]. But the Applicants argued that the regulatory regime provided something else. As the Court explains, the RCMP administers the Canadian Firearms Program. Within that program, there is the Specialized Firearms Support Service [SFSS]. The SFSS “is composed of firearm technicians who collect and assess technical information to classify firearms for the purposes of firearms registration, import/export control…” etc [56]. The SFSS maintains an online firearms database, called the Firearms Reference Table [FRT], which classifies firearms, including unnamed variants. Law enforcement relies on the FRT, which—again—depends on the SFSS’ classifications. The applicants argued that the SFSS, which assists in classifying new variants of these weapons as prohibited, was actually exercising legislative power that it was not explicitly delegated [383].
This, again, is not a far-fetched argument, but as the Court holds, it does overlook some key controls on the SFSS’ classification power which makes it ultimately limited in the law. The legal source of the prohibition of unnamed variants is not the SFSS’ classification; that source is found in the regulations themselves. Those regulations confer considerable discretion, but this is—unfortunately, in many cases—a fact of life in the modern administrative state. Moreover, the applicants are right to say that law enforcement can rely on the SFSS, which may erroneously classify firearms and subject individuals to liability they wouldn’t otherwise have under the law. But the Court focuses on the role of courts in preventing this situation. As it notes, courts have previously found that unnamed variants listed as prohibited under the FRT were not actually variants [436]. In other words, the FRT is non-binding, an administrative tool, and not the source of the prohibition. In adjudicating cases based on this regime, the FRT is and cannot be the final word.
(3) The final issue—a comparatively easy one—relates to the law of procedural fairness. It’s important to note that the applicants did not challenge specific classifications of variants. Rather, they challenged the regulations themselves. In the former case, and since the decision would be individualized and particularized, one might find a duty of procedural fairness. But in this case, the form of the Governor in Council’s policy choice was expressed in the form of a legislative instrument. This means that there is no generalized duty of procedural fairness as there would be in a purely adjudicative context.
Overall, there may very well be policy distortions and administrative bloat in this regime. But these are ultimately political choices for which Cabinet is responsible. While review of regulations under Vavilov may be less deferential than under Katz, it does not entitle courts to fashion policy choices for themselves.
Kaur v Canada (Citizenship and Immigration), 2023 FC 1454 (October 31, 2023)
Category: Application of the reasonableness standard
Context: Kaur seeks judicial review of a decision of the Immigration Division [ID] of the Immigration and Refugee Board of Canada. The decision held that Kaur had “indirectly made a material misrepresentation in her study permit application package…[s]pecifcally, the immigration consultant she retained included a fraudulent letter of acceptance from Loyalist College in that package” [5]. Kaur argued that her misrepresentation was innocent, but the ID decided that this exception to a finding of misrepresentation was not available in the case [6].
Issue: Was the ID’s decision that Kaur could not avail herself of the “innocent misrepresentation” exception unreasonable?
Holding: No.
Analysis: This is an unfortunate case, occasioned by the ongoing allegations of fraud sometimes associated with letters of admission in the immigration consultancy industry. In situations like this, the applicant is at the mercy of an unscrupulous consultant who prepared immigration packages with false documents. In cases where the applicant can prove that they were unaware of the fraud, she can rely on an exception of “innocent misrepresentation.”
In this case—and despite the facts—the Court concludes that the ID’s decision was not unreasonable. While the ID accepted that Kaur “honestly believed that she was not making a misrepresentation when the Consultant submitted her application package…” the Court holds Kaur to a higher standard to ensure the accuracy of her materials [33]. Given that the entire basis of Kaur’s application was based on the letter from Loyalist College, that misrepresentation was central to the application [30]. And at any rate, the Court says that Kaur did not take appropriate steps to review the documents before submission to ensure their accuracy [35]. The Court goes as far to say—as the ID did—that Kaur “could have contacted Loyalist College in advance of sending her application to immigration officials…” [39].
There are two takeaways from the Court’s conclusion in this case. First, putting the onus completely on applicants to ensure the accuracy of their applications—even when they put trust in a consultant— “can have harsh consequences” [42]. Even in a case like this, where all agree that the applicant did not have a malicious intent, will result in those consequences. This is because the Court sees “no practical way of holding foreign-based consultants accountable for such information” [42]. Applied across the immigration system, failing to hold applicants to a full accounting of their materials could “weak[en] the integrity of that system.” A fair concern at a systemic level, but in individual cases, our intuitions may lead us to results that we simply do not like.
To ameliorate this situation, the Court encourages immigration officials to add new language to application forms [43]. This would “make it clear that applicants must verify the truthfulness and accuracy of any documentation or other information included with their application, including any material prepared or obtained by a third party, such as a consultant” [43]. This might help in some cases, but one senses that the larger problem of fraud in the immigration consultancy industry might require a deeper solution.
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.