Issue #191: September 7, 2025
Charter values NB case, statutory interpretation, firearm regulation
Minister of Justice and Public Safety v Forum des maires de Péninsule acadienne Inc., 2025 NBCA 99 (September 4, 2025)
Category: Charter values.
Context: I profiled the application judge’s decision in this matter in Issue #139. From my summary in that issue:
This is an application for judicial review challenging a decision of the Minister of Justice and Public Safety making changes to “court services in the Judicial District of Bathurst, namely the closure of the Caraquet courthouse, the conversion of the Tracadie courthouse into a satellite court and the transfer of two judges to Bathurst and Miramichi…” [1]. The applicant suggested that closing a courthouse in a mainly Francophone region is “contrary to the rights guaranteed under the Charter as well as to the quasi-constitutional rights protected under [New Brunswick legislation]” [32]. The applicant argues that the Minister “should have considered the impact of his decision on the Francophone community, not in terms of access to services in French, but rather in terms of fulfilling his obligation to promote the cultural, economic, educational, and social development of the Francophone minority” [18].
The application judge, applying Charter values, concluded that the Minister’s decision was unreasonable.
Issue: Should the government’s appeal be allowed?
Holding: The Court (per LeBlanc JA) concludes that the appeal should be allowed, because “the Forum has not established that the impugned decision infringes the rights guaranteed by s.16.1 of the Charter or the values it embodies.”
Analysis: As I wrote in my analysis of the application judge’s decision, the notion that Charter values could be deployed to impose a duty on the Minister in these circumstances was specious. LeBlanc JA explains why. This decision, importantly, is not a wholesale repudiation of the Charter values framework, nor (necessarily) a rejection of the application judge’s use of CSFTNO, 2023 SCC 31 (Issue #117). But it does represent, in my view, a tightening of that framework.
The basis of LeBlanc JA’s decision concerns the specific text of 16.1 of the Charter. The Forum’s argument, in short, was that the Minister failed to consider the consequences of his decision on “the government’s obligation to promote the cultural, economic, educational, and social development of the Francophone minority.” The question, then, is whether the application judge is right that the Minister’s failure to conceive of the effect on s.16.1 is proper.
Section 16.1 is a New Brunswick-specific provision of the Charter. Section 16.1(1) concerns the equality of status and rights of the French and English linguistic communities in New Brunswick, including the right to distinct educational and cultural institutions necessary for the preservation and promotion of the linguistic communities. LeBlanc JA notes that, though language rights are given a liberal interpretation (a consideration that, in my view, likely motivated the result in CSFTNO), “the judge had to begin her analysis of the rights asserted by the Forum by examining the wording of the provision.”
This is a useful corrective to the vibes-based analysis endorsed by CSFTNO. Rather than asking whether a decision could impact abstract values (the definition of which are unclear), it is useful to begin by asking how the purported values are entrenched in the text of the provision. As it turns out, in this case, this makes all the difference.
LeBlanc JA faults the application judge for failing to explain how there was a “link between the rights guaranteed by [s.16.1] and the allegations made by the Forum.” As readers will recall, CSFTNO imposes a duty of consideration in cases where there is a link between the matter and the right at issue. LeBlanc JA seems to suggest, here, that the distinct institutions protected by s.16.1 do not include courthouses. Indeed, the Forum’s argument served to expand the Charter beyond its natural limits. As LeBlanc JA says, “the value expressed in s.16.1 is precisely that of equality of rights, privileges, and status between the French and English communities through the distinct institutions referred to therein.” In other words, the text of the Charter is constitutive of the values it protects. Here, because of that text, “[t]he Charter does not guarantee the absence of geographical obstacles, nor unlimited access to local judicial services at all times.” In a particularly important passage, relying on Stratas JA’s decision in Singh Brar v Canada (Public Safety and Emergency Preparedness), 2024 FCA 114, LeBlanc JA concludes that “[e]xtending the scope of s.16.1 by way of values that exceed those expressed therein would constitute an inadmissible change to this provision.”
This is a good, common-sense decision that pares back some of the worst of CSFTNO. Most notably, it seems to confirm that when determining whether there is a link between a matter and a right will be influenced by the text of the relevant right. That is good news.
Rogers v Director of Maintenance Enforcement Program, 2025 YKCA 12 (September 5, 2025)
Category: Review of regulations.
Context: From the Court’s summary:
Section 22(1) of the Maintenance Enforcement Act, R.S.Y. 2002, c. 145 [Act], contemplates the Maintenance Enforcement Program (MEP) allowing payors to retain a minimum income “prescribed by the Commissioner in Executive Council”. However, no regulation establishing a prescribed minimum has been enacted. The appellant was concerned the MEP would retain the entirety of his income and sought an order requiring the Commissioner to enact regulations. The chambers judge dismissed the appellant’s petition, concluding that she could not make such an order and that the decision whether to enact regulations was purely political.
Issue: Is the Commissioner’s inaction justiciable?
Holding: Yes.
Analysis: I highlight this case because it presents a unique situation. In the normal course, it makes sense that courts would and should hesitate before seeking to correct a failure to make regulations [45]. The situation is arguably different “where a regulation is necessary to give meaning to a particular statutory provision…” [44]. In such cases, where there are no subsequent regulations that are required to give effect to the primary law, the primary law may have no legal effect; in turn, this may frustrate the intent of the legislature [60].
In analyzing the problem in this case, the Court first determined the proper analytical framework. It concludes that the gist of Vavilov and Auer is that if Vavilov should “be applied broadly to the review of executive action, the corollary is that Vavilov must also apply to the review of executive regulation-making inaction” [69]. The bottom line, then, is fundamentally an issue of statutory interpretation. When reviewing subordinate legislation for its validity, the question under Auer is whether the legislation is authorized by the primary statute. When dealing with inaction, the Court frames the issue in the same way: “…a decision not to carry out a regulatory function called for in legislation must be justified in relation to the enabling statute” [73].
Operationalizing Vavilov’s instruction, the Court found fault with the decision below holding that the matter was not justiciable. The decision below characterized the Cabinet’s function in this case as legislative, equating it to review of a proposal for legislation [76-77]. However, this is a mischaracterization—under the relevant legislation, “…the Commissioner in Executive Council is implementing the will of the legislature and therefore acting in an executive capacity” [76].
Following the general trend of modern administrative law, the Court concludes that this sort of executive inaction is justiciable, but that the issue is not justiciability per se. Rather, the degree to which courts will instruct he executive to implement regulations will depend on the text of the statute and the breadth of the delegated power. Where it is broad, there will be less warrant for the court to exercise oversight [79].
On the facts of this case, after holding that the matter is justiciable, the Court concludes that the mandatory nature of the delegated power tells the whole story. Here, the Commissioner is mandated by s.22(1) to set a minimum payor income. Following Vavilov’s instruction, “[t]his is a case in which the Legislature has used precise and narrow language to delineate that power in detail, signalling a tightly constrained delegation of authority” [89]. Where there has been no setting of an income in this circumstances, the court can enforce the precise duty at issue.
Vancouver (City) v Canada (Attorney General), 2025 FC 1456
Category: Application of the reasonableness standard (statutory interpretation)
Context: This is a judicial review of a decision of the chair of the dispute advisory panel (DAP) established under the Payments in Lieu of Taxes Act. This statute “provides a framework for voluntary payments to be made by the federal government to taxing authorities—often municipalities—in lieu of (municipal) taxes” [5]. Vancouver applied under the statute to review payments in lieu of taxes paid to the city by the Canada Mortgage and Housing Corporation vis a vis CMHC properties located on Granville Island [2]. The DAP concluded that the city’s application was not within its legislative mandate [26].
Issue: Vancouver raised several arguments, including on procedural fairness. However, I will focus on the reasonableness of the DAP decision.
Holding: The decision is reasonable.
Analysis: The Court (per Little J) ultimately concludes that the DAP decision is reasonable. One of the core issues on reasonableness was the statutory limitations on the DAP’s power. Little J’s statutory interpretation analysis is a proper elucidation of the Supreme Court’s recent statutory interpretation cases.
The regulatory regime in this case is complex. Vancouver argued that the DAP decision revealed a reviewable error because it failed to adequately reflect the purpose of the statute [98].
But Little J is wary about this argument, in light of the Supreme Court’s precedents. In this case, citing CISSS A, 2024 SCC 43 at para 24 (among other cases), Little J properly notes that “[a]s a matter of law, the text of the PILT Act and the CCP Regulations is the anchor for statutory interpretation [105]. The City’s argument, starting from purpose, ignores that “[t]he DAP’s decision was constrained by the precise language in the statute….” [106]. Whenever a decision-maker or party seeks to rely on statutory purpose, they should explain how that purpose is rooted in the precise text enabling the decision-maker. On this question, the Federal Court has been sound: see, also Régimbald J in Canada (National Revenue) v Shopify Inc, 2025 FC 969 (Issue #182).
Little J also notes that the City’s argument on statutory purpose is misconceived. The City’s argument amounts to an invitation, Little J says, to commit a reviewable error by enlarging the statutory scheme beyond its boundaries, through reliance on statutory purpose. Little J calls this a “purpose error,” as I do in my work [107]. In his words, “[a]n administrative decision maker does not make a reviewable error by failing to make an error of law.” [107].
Toronto Revolver Club v Chief Firearms Officer, 2025 ONSC 4833 (August 25, 2025)
Category: Jurisdiction
Context: The Toronto Revolver Club operates the last shooting range in Toronto. In 2024, the Chief Firearms Officer for Ontario [CFO] issued a new shooting range approval for the Club, containing a number of conditions—one of which required the closure of two of the Club’s firing lanes for safety regions, another which stipulated that the Club range can be inspected at the CFO’s discretion.
Issue: The main issue is whether the CFO has an implied power to issue conditions on a shooting range approval.
Holding: The Court (per Nakatsuru J) concludes that there is no such implied power.
Analysis: This case turned on whether the CFO had an implied power to issue conditions. There was no explicit power provided in the relevant statute. So, the question is whether the CFO’s power to issue conditions is “necessarily incidental” to the exercise of powers conferred by the statute. As Nakatsuru J properly notes, the issue is not whether it would be better, more coherent, or more desirable to find an implicit power [14]. It is whether, without this implicit power, the regulatory body would not be able to discharge its duties.
Here, Nakatsuru J (properly, I think) concludes that “the power to attach conditions is not necessary to give effect to the objectives” [25]. It is not enough, as the respondent submits, to rely on provisions of the Interpretation Act providing for liberal interpretation or the absurdity doctrine to avoid this conclusion [25-27]. Indeed, as Nakatsuru J says, “[t]he Regulations provide a framework to achieve [its] objectives. While a refusal to grant or a revocation of a shooting range approval may be less flexible and convenient than a conditional approval, this could well reflect Parliament’s choice to ensure that all requirements for approval be taken most seriously” [27].
Indeed, this is the very issue when parties try to argue that there is a “gap” in a regulatory scheme warranting judicial correction. As Nakatsuru J says, the fact that a judge can identify a “gap” in a legislative scheme does not confer a power to fill that gap. This is particularly so because legislation inevitably balances goods against each other in an imperfect way. Gaps are a reality in human law-making.
In reading Nakatsuru J’s decision, I am reminded of one of my favourite passages in legal theory, from Lon Fuller’s the Speluncean Explorers:
The process of judicial reform requires three steps. The first of these is to divine some single “purpose” which the statute serves. This is done although not one statute in a hundred has any such single purpose, and although the objectives of nearly every statute are differently interpreted by the different classes of its sponsors. The second step is to discover that a mythical being called “the legislator,” in the pursuit of this imagined “purpose,” overlooked something or left some gap or imperfection in his work. Then comes the final and most refreshing part of the task, which is, of course, to fill in the blank thus created. Quod erat faciendum.
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.