Mercer v Yukon (Government of), 2025 YKCA 5 (June 16, 2025)
Category: Constitutional challenge to delegation.
Context: Mercer and six others challenged the constitutionality of the Civil Emergency Measures Act, which authorized a declaration of civil emergency in the Yukon during the pandemic. Before a judge of the Superior Court, and broadly speaking, the challengers argued (1) that CEMA authorizes an unconstitutionally broad delegation of power to the executive to declare an emergency, in violation of the Yukon Act; and (2) CEMA unconstitutionally ousts the jurisdiction of the superior courts by limiting the liability of public officials upon the declaration of an emergency. The judge at first instance rejected these arguments.
Issue: On appeal, the appellants emphasized that the judge failed to appreciate that the practical operation of CEMA was a complete shift of legislative power from the legislature to the executive.
Holding: The Court, per Butler JA, rejects the appellants’ arguments.
Analysis: The longstanding Canadian allergy to limits on delegation continues.
In one sense, the result in this case is unsurprising. As is well-known, Canadian courts have generally refused to declare unconstitutional broad and unstructured grants of power to the executive: see para 26 of this case which recites these authorities. This is even so in the case of so-called Henry VIII clauses: this was a key takeaway from the Greenhouse Gas Reference. For what it’s worth, I agree that there are few constitutional hurdles as a matter of positive law to these potentially broad delegations of power. However, the cases do suggest a requirement that the legislatures do not abdicate their powers. This requirement, abstract and largely unhelpful as it may seem, I find interesting. I’ve argued that one interpretation of the rule requires the legislature to retain control over independent agencies with distance from the executive.
This case stands out for two reasons. First, CEMA does authorize potentially arbitrary action. It contains something resembling a Henry VIII clause that provides where an emergency has been declared, and “[d]espite any other Act,” the Minister “may do all things considered advisable for the purpose of dealing with the emergency.” The provision then lists various grants of authority that do not limit the broad transfer of power to the executive during the emergency.
I say that this resembles a Henry VIII clause because one reading of the clause is that it does not permit amendment of positive law, but only action contrary to that law. Of course, there are good policy reasons to disfavour Henry VIII clauses (or Henry VIII-like clauses). And in this case, those reasons speak loudly. This is not just a Henry VIII clause—it is a clause that permits the Minister to do anything, under an emergency declaration, despite any other law. Most Henry VIII clauses permit amendment contrary to the particular enabling statute; this clause seems to apply to the whole statute book. This sort of legislative device should push us to think harder about the content of the “non-abdication” principle.
Second, the Yukon Act contains an express reference to “responsible government,” which does not appear so expressly in the Constitution Act, 1867. This, for the appellants, suggested that there was a textual anchor by which consideration of unwritten constitutional principles—like parliamentary sovereignty and the rule of law—should be used to articulate limits on delegatory power (see City of Toronto, 2021 SCC 34).
Here, however, Butler JA concludes that nothing in CEMA facilitates an abdication of power. First, the entry point to this argument required consideration of unwritten constitutional principles a la City of Toronto. However, Butler JA found the textual connection (“responsible government” in the Yukon Act) insufficiently strong to warrant the use of unwritten constitutional principles, under City of Toronto [49-51]. Second, Butler JA notes that there are sufficient safeguards built into CEMA to ensure that the legislature does not abdicate its authority [59-61].
As a matter of hornbook law, this case merely reflects the most prominent view of the SCC authority on this matter. It would have been interesting to see greater reflection by the Court in this case on when Henry VIII clauses (or Henry VIII-like clauses) can go too far—can the executive really exempt itself from all existing positive law? This is not, as it happens, a theoretical question (see my article with Leonid Sirota on the BC government’s attempt, earlier this year, to entrench a similar legislative device in provincial law).
Clearview AI Inc v Alberta (Information and Privacy Commissioner), 2025 ABKB 287 (May 8, 2025)
Category: Reasonableness review/Charter values.
Context: From para 1 of the Court’s (per Feasby J) decision:
[1] The Applicant, Clearview AI Inc (“Clearview”) applies to judicially review a decision of the Information and Privacy Commissioner (the “Commissioner”) and challenges the constitutionality of certain aspects of Alberta’s privacy regulatory regime. Broadly speaking, this case concerns whether the Commissioner may limit a foreign corporation from collecting images of Albertans for use in facial recognition software that is marketed to law enforcement agencies.
The Commissioner’s order followed on a joint report of the privacy commissions of Alberta, BC, Quebec, and Canada, finding that Clearview’s activities breached privacy legislation in each jurisdiction. In Alberta, Clearview sought judicial review of the Commissioner’s order on the grounds that the Commissioner adopted an unreasonable interpretation of the Personal Information Protection Act [PIPA] and, among other things, argued that the Commissioner’s interpretation of the statute and regulations is unconstitutional, contrary to s.2(b) of the Charter.
Issues: I will address two issues arising out of this decision (1) Feasby J’s statutory interpretation analysis; and (2) his analysis of Clearview’s Charter values argument. There are other issues in the case, as well.
Holding: Feasby J concludes that the Commissioner’s interpretation of the statute is reasonable, but finds various provisions of the PIPA and its regulations unconstitutional. However, the reasonableness of the Commissioner’s interpretation is not affected by the unconstitutionality of specific provisions [184].
Analysis:
Feasby J’s opinion bears reading in full. It is an exceptional articulation of how to conduct reasonableness review on statutory interpretation matters, among other things. And it follows on Shergill J’s excellent decision on the Clearview matter in relation to BC’s privacy legislation: see Clearview AI Inc v Information and Privacy Commissioner for British Columbia, 2024 BCSC 2311 (Issue #163).
To start, the statutory interpretation analysis in this case centred around the meaning of “publicly available” under PIPA and the regulations. Generally speaking, under the privacy regime, “…consent must be obtained to collect and use ‘personal information’ unless certain exceptions apply” [70]. One of these exceptions arises where the information is “publicly available.” The PIPA regulation defines publicly available information as including information contained in a “publication, including, but not limited to, a magazine, book or newspaper, whether in printed or electronic form,” but only where it is available to the public and reasonably assumed to be provided by the person to whom the information pertains. The bolded language becomes important.
Reasonableness review begins with the reasons provided by the decision-maker, and here, this is where Feasby J properly begins. The Commissioner interpreted the provision as not including social media; Clearview suggested that information on social media constituted publicly available information [71-72]. In resolving this dispute, Feasby J articulates some important, recent developments in the law of statutory interpretation. First, he interestingly—and properly, in my view—emphasizes the distinction between internal and external context. Sometimes, Canadian courts say statutory interpretation must proceed on the basis of the “entire relevant context.” But this is not quite right—or at least it is mischievously unclear. As Feasby J explains, the internal context of the statute—the statutory scheme actually adopted by the legislature, as opposed to “external” aids—has pride of place:
[67] The distinction between context internal to a statute and context external to a statute is important but sometimes overlooked in Canada. The idea that citizens with the aid of legal advisors should be able to know the law by looking at a statute without resort to sources of meaning beyond the statute is essential to the concept of the rule of law. This is because the law must be accessible and clear so that it may guide the conduct of those charged with enforcing the law and the public alike: Adams v Alberta (Director of SafeRoads), 2024 ABKB 275 at para 38.
Second, Feasby J notes the recent Supreme Court cases emphasizing the proper place of statutory purpose in the analysis. Courts must ensure that so-called “secondary purposes”—the textual, “institutional design choices” adopted by the legislature—are not overcome by notions of broad purpose or liberal interpretation: “Courts should not use an abstract primary purpose to disregard secondary purposes evident in the structure and text of a statute” [68].
Applying these insights, Feasby J finds the interpretation reasonable. To resolve the question, Feasby J had to mediate convincing arguments on both sides. Clearview argued that the Commissioner’s elimination of social media from the equation was inconsistent with the wording of the provision, which provides the words “including, but not limited to…” This would mean the list is non-exhaustive, and could include social media [75]. This language was not identified by the Commissioner or in the Joint Report [83]. On the other hand, the Commissioner/Joint Report argued (1) that the exceptions to the consent requirement should be interpreted “narrowly” because of the quasi-constitutional nature of the rights protected under the legislation [81]; and (2) social media platforms “differ substantially” from the listed examples (books, magazines, etc). This, as Feasby J says, can be seen as an application of the ejusdem generis canon, which provides that “where there is a non-exhaustive list of items in a statute…additional items added to the list through interpretation must be of the same kind…” [82].
This is a case of duelling canons, not an uncommon problem. Clearview may be on to something when it points out the Commissioner’s failure to consider the specific language of the statute, and the reliance on the canard of “broad and liberal interpretation”—both moves could serve to undermine the design of the statute. However, this is not correctness review. Feasby J is right to say that “[t]he reasons would have been better had the different language been addressed, but the standard is reasonableness, not perfection” [83]. On a reasonableness standard, Feasby J is right that the decision can survive, especially because the Commissioners reasoned about the text through an ejusdem generis-type analysis.
On Charter values, one of the interpretive problems under PIPA in the case concerned whether Clearview’s use of the information was for a reasonable purpose [150]. Clearview tried to argue that the interpretation of this question should have hinged on the “Charter value of freedom of expression” [165]. It seemed that Clearview failed to raise the issue before during the joint investigation. On the authority of CSFTNO, 2023 SCC 31 (Issue #117), this might not have been fatal: the case permits the judicial review judge to determine whether there is a link between the matter and a potential Charter value, regardless of whether that link is argued.
Some courts have rebuffed attempts to bootstrap Charter values on judicial review, or otherwise change the fundamental posture of courts on judicial review: see e.g. Sullivan v Canada (Attorney General), 2024 FCA 7 at para 8 per Stratas JA (Issue #120); New Blue Ontario Fund v Ontario (CEO), 2024 ONSC 1048 (Issue #126). In Clearview BC, Shergill J did the same. And here, Feasby J does the same, though recognizes the exceptional discretion to hear new arguments on judicial review [169]. Expressly agreeing with Shergill J [171], Feasby J says that hearing the Charter values argument on judicial review would be inappropriate because (1) Clearview could have raised the argument before the Commissioners; and (2) the Commissioners failed to have an opportunity to pass over the issue [172]. This reasoning reflects the excellent comments made in Sullivan by Stratas JA, emphasizing the need for a rich evidentiary record to bolster Charter adjudication.
Universal Ostrich Farms Inc v Canada (Food Inspection Agency), 2025 FC 878 (May 13, 2025)
Context: Universal Ostrich Farms challenges two decisions of the Canadian Food Inspection Agency [CFIA]. The first decision ordered the destruction of all of the applicant’s ostriches because they were infected with an avian influenza. The second decision denied the applicant an exemption on the basis that the ostriches were a “distinct epidemiological unit” with “rare and valuable poultry genetics” [1].
Issues: The questions include whether the decisions were reasonable and procedurally fair. I will address the reasonableness arguments, in general.
Holding: The Court (per Zinn J) dismissed the applicant’s applications for judicial review.
Analysis: This case, long as it is, offers several important clarifications about the conduct of reasonableness review. It also challenges my commitment to providing fair and unbalanced coverage of the case law in this newsletter. I am an animal lover and the result of this case does not sit well with me. But, when it comes to the methodology, I should put my feelings aside and say that the decision is sound.
First, Zinn J explains how reasonableness review should be conducted of “policymaking decisions” that comprise substantial policy-making or scientific content. He starts by noting—for the first time, by my lights—that the Supreme Court’s decision in Auer v Auer, 2024 SCC 36 applies to policy instruments that are not, strictly speaking, “regulations.” He neatly summarizes the key question under Auer: “The central question for reviewing courts is whether the impugned instrument can plausibly be located within the purpose, text, and overall architecture of the enabling statute” [74]. Well-said.
Second, Zinn J helpfully puts limits on the conduct of reasonableness review in cases where there is a great deal of policy or scientific content to an impugned decision. He notes that reasonableness review is not about substantive policy rationality: “…courts should serve as guardians of legality, not arbiters of the wisdom of policy” [79]. This is sound, and follows on important statements by the Federal Court of Appeal making the same point. As the ABCA has held, reasonableness review is not about whether the decision is “reasonable” in a broad sense: it is “reasonableness within legal constraints” (McCargar v Metis Settlements General Council, 2025 ABCA 33, Issue #166).
This brings home the holding, in Vavilov and Auer, that the statutory context of a decision is the most relevant constraint . So, we get the familiar statements: decisions with “tight statutory language” will leave relatively less room for a decision-maker to operate; whereas broad grants of authority that leave room for decision-makers to evaluate evidence and apply expertise will generally authorize a broad array of potential decisions.
Finally, Zinn J spends some time discussing the constraint, in Vavilov, that particularly harsh decisions with consequences to the individual must be explained. For Zinn J, “[r]easons must not only be coherent with legal interpretation and institutional logic, but must also reflect meaningful, humane engagement with the lived realities and consequences for those whose rights, livelihoods, liberty, or dignity are at stake” [262]. Since the Supreme Court’s decision in Vavilov, Zinn J says, “there has been an increased emphasis on engaging with the perspective of the individuals affected by administrative decisions” [262].
Zinn J is undoubtedly right that Vavilov shifted the focus of administrative law away from the decision-maker (their expertise, their place in the legal ecosystem, etc) to the individual. However, I caution against a broad reading of para 262 of Zinn J’s opinion. An assessment of consequences does not exist at large, nor does it exist aside from an interpretation of the statute’s text. Rather, and again, the institutional design choices made by the legislature condition the extent to which consequences must be considered. This is the import of Vavilov’s statement that decision-makers must explain why the intention of the legislature permits harsh consequences. This is not a free-standing recognition of the rights of the applicant, but rather a rule of interpretation that requires the administrator to explain how the law authorizes particular results. I take this to be the point of recent cases in the Federal Court of Appeal that have, appropriately, limited free-standing resort to consequences as a tool of interpretation: see Canadian National Railway Company v Halton (Regional Municipality), 2024 FCA 160. (Issue #155).
With these principles in mind, Zinn J’s application of the reasonableness standard to this case is appropriately restrained to the statutory context. Here, he starts with the architecture of the statute, noting that Parliament has conferred broad discretion on the Minister and their delegates “to protect public health and preserve the health of humans and animals in Canada as well as Canada’s international trade status by proactively preventing and controlling animal disease outbreaks and reducing the risk of zoonotic transmission” [157]. In this case, CFIA did so through the adoption of an international protocol—the Stamping Out Policy—that guided its discretion in the exercise of its broad statutory mandate. For Zinn J, “The Stamping-Out Policy represents a legitimate policy-level exercise of this discretion” [157]. Because the Policy clearly fit within the architecture of the statute, Zinn J could easily dispatch certain of the applicant’s arguments, many of which invited the court to wade into resolving policy questions about, for example, whether CFIA’s adoption of the Stamping Out Policy has “failed to achieve its legislative objectives” on apparently flawed scientific data [159]. He holds similarly on the exemption decision---reasonableness does not require nitpicking of evidence [253]. In general, here is a good paragraph to save:
[162] I cannot accept the Applicant’s positions. Both of the Applicant’s core policy-level criticisms invite this Court to engage in precisely the kind of assessment that Vavilov, Entertainment Software, South Shore, Kohl, and Auer say reviewing courts must not do: arbitrating scientific disputes, reassessing social and economic trade-offs, and pronouncing on the empirical effectiveness of broad public-interest policies. Those are tasks that are better left to the agencies like the CFIA that wield administrative and technical expertise. This Court’s role, by contrast, is confined to determining whether the CFIA’s Stamping-Out Policy fits rationally within the Act’s text, scheme, and purpose, given the legal and factual constraints that bear on the Minister and their delegates. It is not to decide whether the CFIA’s chosen balance of virology, trade protection, public-health precaution and animal-health logistics is the best or the most up-to-date, or whether the Applicant’s proposed policy changes are the better or more up-to-date ones.
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