On November 8, 2024, the Supreme Court of Canada ruled thatVavilovreasonableness applies where regulations and bylaws are challenged.
In Auer v Auer, 2024 SCC 36 and TransAlta Generation Partnership v Alberta, 2024 SCC 37, the Supreme Court of Canada held that subordinate legislation is to be reviewed on a standard of reasonableness. Subordinate legislation typically refers to regulations, bylaws or other legally binding rules that are not made by Parliament or a provincial legislature. They are instead enacted by another entity using the authority granted to it by Parliament or a provincial legislature.
Both appeals concerned whether the reasonableness standard of review established in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 applied to subordinate legislation - or whether the more deferential standard established in Katz Group Canada Inc. v Ontario (Health and Long‑Term Care), 2013 SCC 64 continues to govern. The Auer and TransAlta decisions confirm Vavilov's application and provide guidance to litigants on how to challenge (or defend challenges to) this type of instrument.
Background
In 2019, the Supreme Court of Canada recalibrated and clarified the law respecting standard of review in Vavilov. After years of confusion and inconsistency, the Supreme Court...
