Issue 204: June 2026
Interpretation, mandamus, Charter values.
Dear readers,
I am working on a statutory interpretation primer for the benefit of practicing lawyers and administrative decision-makers. The primer is not a textbook or treatise. It is a much smaller and more usable how-to guide that I will update from time to time. It will be a detailed guide for how to navigate the confusion in this important area. The primer will be freely available.
If you have suggestions for thorny interpretive problems the primer should address, I am all ears. Your suggestions are always welcome: mmancini@tru.ca.
Statute Interpretation: Henriksen Estate (Re), 2026 BCSC 1058
Context: Readers will know that statutory interpretation in Canada is a mess. It isn’t a mess because we don’t know what the approach should be. We know that we look to text, context, and purpose. But how these elements interact—and even what they mean taken individually—are obscure, at best. We see divergent Supreme Court opinions, written by different judges, emphasizing different elements of the approach. Some of us seem to be missing that the modern approach calls for a harmonious reading of statutes—contrary to the impetus, among some judges of the Court, to emphasize purpose at all costs.
In a recent case in the BCSC, Morley J builds on an excellent opinion from Stratas JA in Hunt v Canada, 2026 FCA 88 (see “The Mushiness of the Supreme Court”). Morley J tells us how the modern approach can and should be committed to the text without devolving into literalism. He also notes why the text is an important constraint in statutory interpretation. I reproduce Morley J’s comments in full:
[24] In any interpretative exercise, the court must look at the statute’s text, its context and its purpose. That all three are part of the interpretative enterprise is universally acknowledged and is sometimes referred to as the “modern approach” to statutory interpretation, although it was arguably well-known to Pufendorf, Coke and Blackstone. But while the importance of all three is undisputed, exactly how they relate has become something of a controversy recently: see Hunt v. Canada, 2026 FCA 88 at paras. 10–13.
[25] As Justice Stratas argues, it is important to recognize that when judges are interpreting a statute — as opposed to developing the common law or considering the statute’s constitutionality — text must be the “anchor of the interpretative enterprise”: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A, 2024 SCC 43 at para. 24. That is because it is of the very nature of interpretation, as opposed to legislating, that it is about figuring out what the text means. Any discussion of what the law should be that is not anchored to the text is something other than interpretation.
[26] That does not imply that courts should take a literal approach to statutes that purports not to refer to the context in which the words appear or the purposes for which it could plausibly be said to have been enacted. Realistically, when humans try to understand what another person has said or written, they always use the context in which the speech or writing occurs and they always do so making assumptions of what the speaker or writer wanted to accomplish. The modern principle’s injunction to always consider context and purpose just makes this process conscious and explicit.
[27] Since a legislature is always trying to accomplish some public policy goal, it is therefore perfectly appropriate to consider what those policy goals might have been in trying to make sense of the words on the page. However, in doing this, the judge is not trying to figure out what they think would best promote those goals, but what the legislature did for that purpose. And it is important to bear in mind that any actual legislation is a compromise between competing purposes [citations omitted].
An excellent set of reflections.
Charter and Subordinate Legislation: Fox v Victoria (City), 2026 BCSC 1076 (June 11, 2026)
Context: The challengers seek to quash two bylaws enacted by Victoria. The petitioners are “persons who have engaged in temporary overnight sheltering in City parks at various times.” The bylaws the petitioners challenge regulate temporary overnight sheltering. Among other things, the claimants advanced a somewhat interesting proposition: that review of a bylaw for its vires under Auer v Auer, 2024 SCC 36 requires the consideration and balancing of Charter values with the enabling statute’s purpose. The Court (per Hughes J), properly concludes that Charter values do not attach to the exercise of a delegated power to promulgate bylaws.
There were two competing characterizations put forward of the bylaws. The petitioners said the bylaws were administrative, and thus attracted review as a typical administrative decision. This meant that the City might have been under a burden to consider Charter values. Their argument was facially attractive: the City’s failure to consider common law constraints on its power, in this case Charter values, represented “an unreasonable application” of the Charter because “it failed to consider the availability of washrooms, in and proximity to services of, the parks remaining available for overnight sheltering” [26]. The City argued that the bylaws were legislative in nature, and thus required a fresh constitutional challenge to the bylaw, not merely as an incident of vires review under Auer. But, even if the bylaws are legislative in nature, the claimants nonetheless argued that Charter values could act as constraints on the promulgation of the bylaw.
There is an argument that the petitioners were onto something, but that argument rests on a fundamental misapprehension of what Auer did. So, too, do comments that Auer licenses “judicial activism” or the consideration of the policy wisdom or consequences of a bylaw, expanding the judicial remit. The argument is something like this: because Auer says that Vavilov reasonableness review applies to the review of subordinate legislation, subordinate legislation should be treated like any administrative decision. Any administrative decision must be consistent with the Charter, its rights and values. So, the City might have been under an obligation to consider Charter values.
As a matter of coherence in the law, there is an attraction here. I argued prior to Auer that we need not complicate matters: review of subordinate legislation could be treated like review of an administrative decision under Vavilov, because both are products of the exercise of delegated power. But pure coherence should never come at the price of workability or an ill-fit with the scaffolding of the law of judicial review. There were simply too many roadblocks that would have had to be rammed over to assent to the petitioners’ argument.
First, and perhaps most fundamentally, Vavilov is contextual in nature. It takes on the character of the instrument under review and its connection to an enabling statute. When we review the exercise of a delegated power that results in the creation of a legislative instrument, we can use reasonableness review as a set of tools to assess whether the legislative instrument fits with the enabling statute as a matter of law. Here, as Auer says, the constraints from reasonableness review that will always be relevant include the scope of the enabling statute and the principles of statutory interpretation. It is fundamentally—almost exclusively—a legal question of statute interpretation rather than a free-standing assessment of Charter compliance (see Auer, at para 53). In other words, we do not review the policy merits and consequences, nor question the wisdom of the law—hence why claims that Auer licenses judicial activism, or a free-standing assessment of the Charter consequences, miss some basic points about how administrative law works. To the extent the petitioners wanted the court to assess the consequences of the law themselves for being Charter compliant, that ask is not supported by Auer review [69, see also Auer at para 56).
Second, and as Hughes J points out, a constitutional challenge to a legislative instrument—even if reviewed for reasonableness in normal administrative law settings—cannot be haphazardly attached to an existing administrative law challenge. Constitutional challenges require a record, evidence, and the like. As Hughes J says, “[t]he petitioners cannot avoid the procedural and evidentiary demands of a Charter claim by recasting constitutional limits as legal constraints on legislative decision-making” [72, see also 83]. Incidentally, this is a related problem in the Charter values jurisprudence more generally.
Finally, the existing scaffolding of the law of judicial review cautions against a full merge of administrative and constitutional review. There is a longstanding distinction between a challenge to the constitutionality of legislation and a challenge to an administrative decision, including for standard of review purposes. For the purposes of the Constitution, a bylaw is still a legislative instrument, even when it is challenged on the basis of reasonableness review in a normal administrative law context. That narrow conclusion cannot justify the breakdown of this longstanding distinction, which is also relevant for standard of review: after all, a direct constitutional challenge should be evaluated without any deference, at least not as a going-in presumption (though, as we know, the Oakes test contemplates deference).
For another case like this, see Shrieves v British Columbia (Attorney General), 2025 BCSC 1792.
Mandamus: Kia v Canada (Citizenship and Immigration), 2026 FC 780 (June 11, 2026)
Context: In this case, the applicant sought an order of mandamus requiring a decision on his study permit application.
I highlight this case for two reasons:
First, it offers comments on Benison v Canada (Royal Canadian Mounted Police External Review Committee), 2026 FCA 53 (see Issue 201). Benison cleaned up the structure of mandamus by bifurcating the eight factors from Apotex v Canada (Attorney General), 1993 CanLII 3004 (FCA): the first four factors must be shown by the applicant, while the remaining four factors provide “an opportunity for the respondent to demonstrate that the remedy should be withheld” [3]. In this case, the government argued that Benison had limited relevance because (1) “it only applies to situations in which no explanation has been provided for a delay…” and (2) Benison does not apply to cases, like this one, where “immigration levels are set by target categories” [4].
Battista J rightly rejects these arguments. For those who have read Benison, and as Battista J says, nothing in it is restrictive in the manner the government suggests. Rather, Benison is binding appellate authority that sets out a revised template for the conduct of mandamus applications.
Secondly, and perhaps most importantly, Battista J answers an important question: on an application for mandamus, how does one evaluate whether an explanation for the delay is adequate? His answer to this question is bold: because “[m]andamus is a species of remedy, not a species of judicial review,” it can remedy both delays that are substantively unreasonable (via an application of Vavilovian reasonableness) or unfair as an abuse of process [23-25]. In other words, “[i]nordinate delay is simply another form of administrative unreasonableness or fairness, remedied by the specifically tailored relief of mandamus” [25].
As I wrote in relation to Benison, cases like Kia represent the general trend of Canadian administrative law: a move away from a consideration of the technical requirements of the prerogative writs, and into an articulation of general principles that guide review. For the most part, this development is salutary: it leads to a simplification of the law. But we should be cautious and careful if the trend is to merge forms of relief under the ambit of general principles. Here, incrementalism will be our friend.
This was the point registered by Côté and Rowe JJ (joined by Jamal J) in Dorsey v Canada (Attorney General), 2025 SCC 38. In holding that the writ of habeas corpus could be used to attack a decision that otherwise should have been challenged on reasonableness review, they worried that habeas corpus was being broadened “beyond its purpose,” transforming it into “an alternative venue to challenge decisions of correctional administrators, undermining both the integrity of the writ and the orderly administration of the correctional system” [163]. They worried about the practical consequences of such a move: it would mean that habeas corpus applications, in which time is of the essence, would leapfrog the entire legal framework of correctional administration and judicial review in the Federal Court.
With mandamus, there are not as many complications: for one, the Dorsey majority’s conclusion relating to habeas corpus threatens the jurisdictional boundary between provincial and federal courts by allowing habeas corpus relief in provincial superior courts over matters generally subject to review in the Federal Court. But at the same time, the Dorsey dissent’s worries might have some force in mandamus. Mandamus should not become easier to obtain merely because it can be framed as a remedy for any form of unreasonable administrative action. The strictures of the test in Benison should mean that mandamus is best suited to very specific forms of administrative error. And as the case law develops in this area, we should not rush to cohere the law without thinking through the practical consequences. I take this to be the point of the Dorsey dissent.
General Judicial Review: Benson v Canada (Public Safety and Emergency Preparedness), 2026 FC 839
Context: The Applicant is a Nigerian citizen who sought Canada’s protection based on his fears of persecution. He claimed to be at risk as a gay man. However, a Pre-Removal Risk Assessment (PRRA) Officer refused his application due to the insufficiency of his evidence, without conducting an oral hearing. The respondent argued that the application for judicial review should be dismissed without an examination of the merits because of the doctrine of “clean hands”: “the Applicant’s misconduct in failing to appear for removal should disqualify him from judicial review of the refusal of his PRRA application.”
Battista J concludes that the doctrine of clean hands has no applicability in this case, despite the applicant’s evasion of removal. More particularly, Battista J provides some clarifications on the place of an equitable doctrine like clean hands in the conceptual structure of judicial review: see Budlakoti v Canada (Citizenship and Immigration), 2015 FCA 139.
Budlakoti is a useful case because it sets out a conceptual structure for the law of judicial review. In that case, Stratas JA says that judicial review can be contained in three boxes: (1) preliminary objections to judicial review; (2) review for substance and procedure; (3) remedies. Sometimes, because of the development of judicial review, (1) and (3) are mixed. For example, preliminary objections to judicial review might include the existence of an adequate forum, but from time to time some have said this is a reason to deny a remedy, when it is more appropriately and specifically a reason not to engage in judicial review in the first place. The loose language around boxes 1 and 3 can be confusing for judges and lawyers.
Battista J helps clarify the boxes when it comes to clean hands. He says, first of all, that “clean hands” has almost always been described as a reason to deny a remedy, not a reason to forego review in the first place (see the opinion of Rothstein J in Khosa, 2009 SCC 12 at para 131). In other words, courts will not forego review simply because it has been shown the applicant does not have clean hands.
Battista J advances several reasons for this. First, he notes that most of the preliminary objections to judicial review have to do with judicial economy: adequate alternative remedy and mootness, for example. In the specific case of adequate alternative remedy, I would also add that Parliament has quite clearly contemplated review in another forum. To conduct judicial review in a court would disrespect Parliament’s design choice, and is a good reason not to conduct review at all.
Clean hands is a different matter. The issue is not so much judicial economy, or Parliament’s design choice, but the conduct of the applicant seeking relief. This has nothing to do with the institutional design choices of Parliament or the conservation of resources: in fact, the doctrine of clean hands requires a balance between the misconduct and the administrative unlawfulness at issue. As Battista J says, the structure of the inquiry is flexible and guided by legal discretion, which is similar to how a remedy is crafted in the normal course.
If Battista J is right that the preliminary objections are of a certain kind, clean hands is properly a matter of remedy, after the administrative decision has been assessed in the normal course of judicial review. As someone who appreciates clear and simple rules, I find the effort in Benson notable.
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.