The Supreme Court of Canada recently clarified the analytical framework for challenging regulations in Auer v. Auer, 2024 SCC 36, and its companion case, TransAlta Generation Partnership v. Alberta, 2024 SCC 37.1 These decisions resolve a split among appellate courts that we wrote about in December 2022.2 Some courts applied a "hyper-deferential" standard that permitted minimal scope for judicial interference, whereas others applied the same flexible standard used for other types of government decision making.
The Supreme Court unanimously endorsed the latter, holding that the approach for reviewing administrative decisions set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, applies to challenges to regulations. The Court rejected a "hyper-deferential" standard as inconsistent with Vavilov's promise for "robust" review of governmental decisions.3 In rejecting the "hyper-deferential" approach, 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.
Applying the Vavilov framework, the Court confirmed that subordinate legislation
- must be consistent with specific provisions of the enabling statute and its overriding purpose or object
- 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...
