Happy Easter!
**edit for typo, April 20**
Piekut v Canada (National Revenue), 2025 SCC 13 (April 17, 2025)
Category: Statutory interpretation.
Context and Analysis: This is a bankruptcy case, which is not strictly relevant to administrative law. However, it is the Supreme Court’s most recent statement on statutory interpretation, which is—of course—highly relevant for administrative law. Piekut follows up on the Supreme Court’s unanimous, important decision in CISSS A, 2024 SCC 43 (see here), which emphasized the text of the statute as the “anchor” in statutory interpretation.
Here is an important paragraph from Jamal J’s majority decision. The interpretive problem here, generally speaking, involved the circumstances in which the “fresh start principle,” as a general principle of the Bankruptcy Act should be used to resolve the interpretive dispute in the case:
[110] By contrast, courts adopting the multiple-date approach have incorrectly begun the interpretive process by applying the presumption of restrictive interpretation to s. 178(1)(g), rather than applying it as a residual presumption only if ambiguity remains after applying the modern principle (see Hildebrand, at para. 34; Mortimer, at para. 18; Collins, at para. 17; St. Dennis, at para. 18). These courts have also given undue priority to the fresh start principle as a general purpose of the BIA, rather than considering the specific purposes of s. 178(1)(g), which operates as a deliberate exception to the fresh start principle (see MediaQMI inc. v. Kamel, 2021 SCC 23, [2021] 1 S.C.R. 899, at para. 39; Sullivan, at § 9.02; M. Mancini, “The Purpose Error in the Modern Approach to Statutory Interpretation” (2022), 59 Alta. L. Rev. 919, at pp. 920-22 and 926-31). As this Court has noted, “the overarching purpose of a legislative scheme informs, but need not be the decisive factor in the interpretation of a particular provision within that scheme (R. v. Rafilovich, 2019 SCC 51, [2019] 3 S.C.R. 838, at para. 30 (emphasis in original)).
Jamal J wrote for a majority of six. In dissent, Karakatsanis J (Martin and Moreau JJ concurring) viewed the interpretive task differently. For her, “the correct interpretation reconciles the language with both the purpose of the provision…and the rehabilitative purpose of the BIA” [128]. As I have previously suggested, and though these opinions are similar in many respects, there appears to be a distinction in methodology in how the Supreme Court conducts statutory interpretation, with one batch of judges favouring an approach that views the text as a control on the interpretive task, and another batch that views statutory interpretation as a normatively-inflected task involving the reconciliation of competing purposes. For now, the former camp—represented in Piekut and CISSS A—carries the day.
Canadian Coalition for Firearm Rights v Canada (Attorney General), 2025 FCA 82 (April 15, 2025)
Category: Reasonableness review.
Context: This is an appeal of a decision of the Federal Court dismissing six applications for judicial review of regulations prohibiting certain additional types of firearms and related devices (see Parker v Canada (Attorney General), 2023 FC 1419 (Issue #113). At issue is a provision of the Criminal Code which provides that in making regulations, the Governor in Council [GIC] may not prescribe anything if it is “reasonable for use in Canada for hunting or sporting purposes” (s.117.15(2)).
Issue: There are several issues raised on this appeal, including constitutional arguments. I address the question of whether the Federal Court erred in finding the regulations intra vires the Criminal Code?
Holding: The appeal is dismissed.
Analysis:
In this case, the Court (per de Montigny CJ) test runs—in a major case—the standard of review for regulations inaugurated in Auer v Auer, 2024 SCC 36 (Issue #158). As we know, that standard provides that Vavilov reasonableness review—particularly its legal constraints—apply to the review of subordinate legislative instruments (see the explanation of these principles at paras 25-29 of de Montigny CJ’s opinion).
On the question of whether the regulations are reasonable, some of the appellants—rightly so—focused their argument on the language of the Criminal Code under s.117.15(2)). They argued that the GIC “did not form the opinion that the newly banned firearms are ‘not reasonable for use in Canada for hunting or sporting purposes’ and, therefore, failed to comply with the requirement of s.117.15(2) of the Code” [42]. Pointing to the record, some of the appellants suggested that the GIC focused inordinately on public safety and the dangers that certain firearms will pose, but did not relate that danger to an opinion on reasonableness for sporting/hunting [44, 47].
Auer makes a difference in these circumstances. Under the previous Katz standard, the appellants arguments might have been dead in the water. The government would have only been required to show that the regulation was not completely unrelated to the enabling provision’s purpose, which—in this case—might be framed broadly as “public safety.” Instead, under Auer, this is not enough. As de Montigny CJ points out, now the regulation “must be consistent with the overall purpose of public safety as well as with the more specific enabling provision…” [50]. So far, so good.
However, even on this elevated standard, de Montigny CJ does not find the regulation unreasonable. In so doing, he offers an excellent example of how to conduct reasonableness review under Auer:
He begins with the text of the enactment, as required by the Supreme Court’s precedents on statutory interpretation. He finds that the statutory context is, overall, quite broad—for example, the Criminal Code provides that GIC wide-ranging regulation-making power in broad language [54]. The only legal restriction on this power is the requirement that the GIC not prescribe any firearm that is reasonable for hunting or sporting use [55].
That broad language—including the language of the restriction in the enabling provision—does not clearly preclude the GIC from considering the “inherent danger that some firearms pose to public safety…in determining whether their use is reasonable for hunting and sporting purposes” [58].
For that reason, reading the text, context, and purpose of the enabling statute in light of the regulatory text and record, it would unduly fetter the GIC’s broad policy-making role to say that it cannot consider public safety considerations in its consideration of sporting/hunting use
This is a plausible interpretation. I can understand why some might find the focus on “public safety” to transcend the specific enabling language. However, it is important to note the importance of (1) in de Montigny CJ’s reasoning. That initial step of determining the relative breadth of the enabling statutory language is important. That initial determination then sets up the extent to which it is appropriate for the GIC to consider statutory purpose. Where the language is narrower, any use of statutory purpose must conform to the specific formula in the enabling language. It is a legislative choice, in these circumstances, to grant the GIC such broad authority. Perhaps it should not be so. But this is fundamentally a political choice.
Ramizi v College of Immigration and Citizenship Consultants, 2025 FC 692 (April 15, 2025)
Category: Preliminary objections.
Context: This is a judicial review of a decision of the College of Immigration and Citizenship Consultants [CICC]. The applicant failed the qualifying exam administered by the college to become a regulated immigration consultant four times. After the most recent attempt, he asked the CICC to permit a re-write of the test “based on alleged procedural deficiencies he experienced in the examination writing process.” The CICC denied that request, giving rise to this judicial review.
Issue: The Court (per Battista J) reviews the decision-making process for its fairness and the decision for its substantive reasonableness. However, there is an interesting preliminary issue: even if the applicant is successful, would the matter be moot or any remedy be futile?
Holding: The application for judicial review is dismissed.
Analysis: The mootness/futility issue arises because even if the application for judicial review is granted, “it would be pointless to remit the matter for redetermination because Mr. Ramizi would still be blocked from writing the examination due to the fact that his educational credential…is more than three years old” [20].
In addressing this argument, Battista J draws a distinction between mootness and futility of remedy. I think this distinction makes sense. Mootness arises when there is no longer any live controversy between the parties. On the other hand, an ineffective or futile remedy “does not involve the disappearance of a dispute, and therefore does not relieve a court from resolving disputed issues in a judicial review application prior to considering the distinct issue of remedy” [35]. In other words, mootness and futility arise at different conceptual stages of judicial review, a point Battista J makes with reference to Stratas JA’s excellent description of the judicial review process [36] in Budlakoti v Canada (Citizenship and Immigration), 2015 FCA 319. Mootness is a preliminary objection to hearing a judicial review at all; if a matter is moot, there is discretion in the court not to hear the judicial review at all. On the other hand, the futility of a remedy “does not relieve a court from resolving disputed issues in a judicial review application prior to considering the distinct issue of remedy” [35]. This means that the ineffectiveness of a remedy does not render a matter moot.
In the result, Battista J concludes that the ineffectiveness of the remedy does not arise in this case: the decision was reached in a procedurally fair manner and it was reasonable [65].
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