The Supreme Court of Canada clarifies the standard of review for challenges to subordinate legislation

The Supreme Court of Canada clarifies that the standard of review for challenges to subordinate legislation is the reasonableness standard set out in Vavilov. Applying Vavilov’s framework, the Court confirmed that (1) subordinate legislation must be consistent with specific provisions of the enabling statute; (2) it benefits from a presumption of validity; (3) it must be interpreted using a broad and purposive approach to statutory interpretation; and (4) is subject to challenge based on legality or validity.

Administrative law – Judicial review – Appeal – Standard of review – Reasonableness – Legislation – Validity

Auer v. Auer, [2024] S.C.J. No. 36, Supreme Court of Canada, November 8, 2024, R. Wagner C.J. and A. Karakatsanis, S. Côté, M. Rowe, S.L. Martin, N. Kasirer, M. Jamal, M. O’Bonsawin and M.T. Moreau JJ.

The appellant brought an appeal from a judgment of the Court of Appeal of Alberta which upheld a judgment concluding that the Federal Child Support Guidelines (the “Guidelines”) were validly enacted by the Governor in Council (the “GIC”). The appellant argued that the GIC exceeded its authority under ss. 26.1(1) and (2) of the Divorce Act (the “Act”) when enacting the Guidelines. The appellant initially brought an application for judicial review to have the Guidelines declared ultra vires the Act, but the chambers judge held that the Act conferred to the GIC an extremely broad grant of authority and that the Guidelines were validly enacted. The appellant appealed the Chamber’s judgement. The Court of Appeal unanimously dismissed the appeal but were divided on the standard of review applicable to a review of the vires of subordinate legislation.

The Supreme Court of Canada denied the appellant’s appeal and clarified the analytical framework for challenging regulations. The Court concluded that the reasonableness standard as set out in Vavilov presumptively applied when reviewing the vires of subordinate legislation. The Court held that the legislature had not indicated that the GIC’s decision to establish the Guidelines had to be reviewed on a standard other than reasonableness, nor did the rule of law require that questions of vires be reviewed for correctness.

Applying the Vavilov framework, the Court confirmed that subordinate legislation:

1. must be consistent with specific provisions of the enabling statute and its overriding purpose or object
2. benefits from a presumption of validity, meaning that: (a) the burden is on the challenger to demonstrate the invalidity of the subordinate legislation; and (b) where possible, the subordinate legislation should be construed in a manner that renders it valid
3. must be interpreted using a broad and purposive approach to statutory interpretation consistent with the Court’s approach to statutory interpretation generally
4. is subject to challenge based on legality or validity, but the reviewing court is not permitted to assess the policy merits of the subordinate legislation

Further, for subordinate legislation to be found ultra vires on the basis that it was inconsistent with the purpose of the enabling statute, the Court confirmed that it is not necessary for the challenger to show that the subordinate legislation is “irrelevant”, “extraneous” or “completely unrelated” to the purpose of the enabling legislation. The Court states that continuing to maintain this threshold would be inconsistent with the robust reasonableness review detailed in Vavilov and would undermine Vavilov’s promise of simplicity, predictability and coherence.

In applying the reasonableness standard to review the vires of the Guidelines, the Court concluded that they were within the GIC’s scope of authority and were therefore intra vires.

This case was digested by Eric Mo of Harper Grey LLP and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please feel free to contact him directly at [email protected].