Western Canada Wilderness Committee v Canada (Environment and Climate Change), 2024 FC 167 (February 1, 2024)
Category: Application of the reasonableness standard.
Context: This judicial review concerns the Minister’s amended Protection Statement for migratory birds under the Species at Risk Act. The statement interprets the relevant provision of the Species At Risk Act as follows:
This statement therefore applies to those portions of critical habitat of migratory birds listed as endangered, threatened, or extirpated on Schedule 1 of SARA that are protected under the Migratory Birds Convention Act, 1994 [MABA], for which the critical habitat description includes a nest. For clarity, the language “habitat to which that Act applies” refers to the nest only.
Issue: Is the Minister’s specification of the SARA as applying to “nests” reasonable?
Holding: The Court (per Crampton CJ) concludes that the interpretation of the relevant provision of the SARA is unreasonably narrow, and that the decision was not sufficiently justified by certain submissions made to the Minister and the relevant factual constraints [3].
Analysis: This is a long case with many moving parts, some of which I do not address. Between the Emergencies Act case (Issue #122), and the plastics case (Issue #114), federal government regulatory action has not fared well recently in the Federal Courts (though see the firearms case at Issue #113). For the most part, I thought the decisions in all of these cases—including the firearms case—presented a good reflection of Vavilovian reasonableness review. Here, too, this case is similarly justified on the current state of the law.
The interpretive question here concerned whether the Minister’s implied interpretation of the SARA was unreasonably narrow. SARA, s.58(1) prohibits the destruction of any part of the “critical habitat” of listed endangered species. This prohibition is qualified by another statute, the Migratory Birds Convention Act [MBCA], designed to implement the 1994 Migratory Birds Convention. Under the SARA, the s.58(1) prohibition “applies only to those portions of the critical habitat that are habitat to which [the MBCA] applies” (s.58(5.1), s.58(5.2)).
The case turned, in part, on how this phrase is understood in the context of the MBCA and SARA scheme. The Minister argued that the phrase only applies to nests. But reading the scheme closely and as a whole, Crampton CJ points out that “a number of provisions in the MBCA plainly indicate that it applies to migratory bird habitat that extends beyond ‘nests’”(his emphasis) [66]. For this reason, “the Minister’s narrower interpretation, pursuant to which the only migratory bird ‘habitat’ to which the MBCA applies is ‘nests,’ does not fit comfortably within the overall scheme of the MBCA” [75].
For those interested in statutory interpretation, and whether you agree or not with the disposition of the case, it presents an excellent example of “scheme analysis.” Scheme analysis views the statute as a comprehensive scheme of regulation; one that more or less reads cohesively together at a functional level. Schematic considerations have been central to the recent regulatory cases in the Federal Courts—most notably the Emergencies Act. Here, the case largely turned on scheme analysis. The Minister attempted to present a theory of the statute that supported the Minister’s interpretation [85]. But on close analysis, Crampton CJ sees this theory as flawed; it would render part of the statutory scheme duplicative [89].
One short note on applying the reasonableness standard. Perhaps this is a function of the way the case was argued, but Crampton CJ sees the application of the reasonableness standard in this case as falling into two “categories”: (1) the question of law; and (2) whether the Minister adequately considered the Applicants’ submissions and the relevant factual constraints. This seems to divide the reasonableness standard—a single standard—into methodologically separate parts. The history of the law of judicial review seems to support this distinction, but as I see it, Vavilov seems to suggest that we must evaluate the Minister’s interpretation holistically—(ie) asking whether the Minister’s interpretaiton is justified in light of the principles of interpretation, the parties’ arguments, etc. This is a slight but important difference.
Vancouver (City) v Pender Lodge Holdings Ltd, 2024 BCCA 37 (February 2, 2023)
Category: Application of the reasonableness standard.
Context: From the Court’s summary:
In December 2021, the City of Vancouver adopted bylaws that sought to control rent increases between tenancies in privately-owned residential units designated as single room accommodation [SRA]. The bylaws were adopted using the City’s business licensing and regulatory powers. The respondents own and operate buildings in Vancouver that house single room units. They challenged the bylaws, alleging that the City does not have legislative authority to implement rent control. The respondents are landlords within the meaning of the Residential Tenancy Act and already subject to rent control. Relying on s. 272(1)(f) of the Vancouver Charter, the respondents argued that the bylaws exceeded the City’s delegated authority because they resulted in the respondents being twice-regulated in respect of the same subject matter. It was the respondents’ position that s. 272(1)(f) precludes duplicate regulation of this nature. A Supreme Court judge agreed. She found the City’s decision to adopt the bylaws unreasonable and the bylaws were quashed. The City appealed.
Issue: Are the bylaws reasonable?
Holding: “…the City does not have legislative authority to regulate rent increases between tenancies for residential units” [11].
Analysis: Another case of applying Vavilovian reasonableness to a municipal bylaw. In my view, the move attempted by the City in this case runs up against the close attention to the legislative scheme required by Vavilovian reasonableness. The move is one that is sometimes attempted by authorities seeking to justify administrative action: rely on broad statutory authority, in another area of regulatory endeavour, to justify regulation in a related but different area.
Here, the City sought to design a regulatory scheme that implemented rent control “between” tenancies—in other words, to implement “vacancy control,” rent control that prevents the displacement of existing tenants with a significant escalation in rent at turnover. In order to do this, it relied on powers under the Residential Tenancies Act to regulate business licences—private SRA landlords. Those powers allow regulation “…except to the extent that [the businesses] are subject to regulation by some other Statute” (Vancouver Charter, s.272(1)(f)). The problem in this case is that SRAs are already subject to rent control, but those controls apply not between tenancies, but existing ones [10]. The question is whether the regulatory choice to regulate rents between tenancies is precluded by the existing regulation within tenancies.
In my view, the Court (per Dewitt-Van Oosten JA) rightly concludes that the attempt to regulate between tenancies runs up against s.272(1)(f). For the Court, what this provision prevents is duplicate regulation for the same predominant purpose [134]. The provision directly invites a division of powers or “pith and substance” analysis [151]. Here, “the fundamental nature of what the City sought to do” was to regulate rents, even though the City framed the bylaws as dealing with vacancies [141]. Understood this way, the bylaws are attempting to regulate an area already subject to regulation under the RTA. Indeed, “the provincial regime reflects an intentional choice to tie rent to the renter, rather than the unit'“ [142]. This policy choice clearly sits in tension with the City’s chosen approach, even if there is no impossibility of compliance. But admittedly, this is a close call. Whether it is duplicative for the City to regulate a different aspect of “rent control” (between vs within tenancies) is not necessarily obvious.
But, in general, I think the Court’s analysis also follows from a purposive understanding of the interlocking legislative schemes. The RTA already “covers the field” of regulation in this area. For the City to enter this field, it needed authority. It found it in its business licencing regime. But to permit the use of the licencing regime for this purpose would not only tread on the RTA, but would arguably tread beyond “the perspective” in which the City’s jurisdiction operates (I rely here on Roncarelli v Duplessis, [1959] SCR 121).
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.