MESSAGE TO MEMBERS
14 November 2024

SCC delivered reasons on Friday 8 November 2024 in the companion cases of Auer v. Auer, 2024 SCC 36 (https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20730/index.do) and TransAlta v. Alberta, 2024 SCC 37 (https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20731/index.do).

TLABC had intervened on these cases with Aubin Calvert and Devin Eeg of Hunter Litigation as our pro bono counsel. Devin has provided an update.

“One of the questions left open by Vavilov was whether the new framework, with its presumption of reasonableness review, applied to the judicial review of regulations. In the years before that decision, courts had applied a framework derived from the 2013 decision in Katz Group, under which regulations could only be set aside if they were “irrelevant”, “extraneous”, or “completely unrelated” to the purpose of the enabling statute. That set a much higher standard than Vavilov. And in recent years, courts increasingly questioned whether it had been overtaken. With its decisions in Auer and TransAlta, the Supreme Court has now confirmed that Vavilov applies to the judicial review of regulations. While Katz continues to inform the analysis, regulations are now presumptively reviewable on a standard of reasonableness.

The Trial Lawyers Association of British Columbia intervened to address one part of the Katz framework. In the past, courts had often drawn a hard line between permissible “legal” arguments and impermissible “policy” arguments. This distinction inspired courts and parties to cast arguments about the substance, effects, or consequences of regulations as “policy” arguments that were off-limits to reviewing courts. TLABC argued that concerns animating the law/policy distinction were better addressed through the doctrine of justiciability. Even if the subject-matter of a judicial review overlapped with policy considerations, it argued, courts should simply decide the justiciable questions placed before it. Put differently, if claims about the substance, effects, or consequences of a regulation were framed as justiciable questions, those questions should be decided.

The Court did not address the doctrine of justiciability and retained the law/policy distinction. But it recognized that the “potential or actual consequences” of a regulation can play a role in assessing whether that regulation is authorized, without invariably raising issues of policy (para. 58). While debates about whether consequence-based arguments amount to “policy” are likely to continue, it can no longer be said that a regulation’s actual or potential consequences are off-limits in judicial reviews. This is an important development, whose implications, particularly for the admissibility of “extra-record evidence”, will have to be worked out. What is clear, however, is that it expands the tools available to litigants for holding delegated decision-makers to account.

The Auer and TransAlta decisions are welcome developments to this area of the law. They reaffirm “Vavilov’s promise of simplicity, predictability and coherence” (para. 114), while discarding a standard, under Katz, that had unduly shielded regulations from scrutiny. They will, we believe, enhance the ability of individuals to challenge adverse government decisions, and in turn enhance the ability of TLABC members to fulfil the organization’s mandate."

The decision is a big win for an ongoing role for judicial review / some bulwark against government by regulation. As Aubin has said: “Why does this all matter? This matters because when the work of governing is being done outside of the legislative process – whether in closed-door Cabinet meetings or the offices of regulators – that work is a step removed from ordinary mechanisms of democratic transparency and accountability. Yet these actors make decisions with immense impacts on people’s lives and livelihoods. It is important that courts have the tools to ensure that all delegated decision-makers are subject to appropriate oversight. At the same time, the extent of that oversight must respect the separation of powers. Articulating a framework for judicial review that strikes that balance is an incredibly difficult task, but also an incredibly important one.”

TLABC sincerely thanks Aubin & Devin for all their work on behalf of the organization; it makes a real difference.