\n<\/p>\n
What standard of review applies when reviewing the vires<\/em> of subordinate legislation? In the post-Vavilov<\/em> era, this question has been the subject of conflicting appellate guidance. The Alberta Court of Appeal in this case followed the \u201chyper-deferential\u201d standard that the Supreme Court (\u201cSCC\u201d) set in Katz Group Canada Inc. v. Ontario (Health and Long\u2011Term Care)<\/em> 2013 SCC 64<\/a> [Katz<\/em>]. By contrast, the Federal Court of Appeal, in the recent case of Portnov v. Canada (Attorney General)<\/em> 2021 FCA 171<\/a>, applied the Vavilov<\/em> framework when reviewing subordinate legislation.<\/p>\n In Auer v Auer<\/em> 2024 SCC 36<\/a> [Auer<\/em>], the Supreme Court has now resolved this question in favour of Vavilov<\/em> 2019 SCC 6<\/a>, determining that reasonableness presumptively applies when reviewing the vires<\/em> of subordinate legislation: the \u201cirrelevant,\u201d \u201cextraneous\u201d or \u201ccompletely unrelated\u201d Katz<\/em> threshold no longer applies (Auer<\/em>, para 4). The other Katz <\/em>principles, however, may continue to provide courts guidance in exercising reasonableness review (Auer<\/em>, para 3).<\/p>\n Facts <\/strong><\/p>\n The appellant Roland Auer and the respondent Aysel Auer were married in 2004. Together they had one child and divorced in 2008. The child resides with Ms. Auer. Mr. Auer has paid both child support and spousal support to Ms. Auer (Auer<\/em>, para 7).<\/p>\n Mr. Auer brought an application for judicial review challenging the vires<\/em> of the Federal Child Support Guidelines<\/em>, SOR\/97\u2011175<\/a> (\u201cthe Guidelines<\/em>\u201d), arguing that the Governor in Council (\u201cGIC\u201d) exceeded its authority under s. 26.1(1) and (2) of the Divorce Act, <\/em>R.S.C. 1985, c.\u00a03 (2nd Supp.)<\/a> when enacting the Guidelines<\/em> (para 8).<\/p>\n Specifically, Mr. Auer relied on s. 26.1(2), which imposes constraints on the GIC\u2019s regulation-making authority. Section 26.1(2) provides that the Guidelines<\/em> \u201cshall be based on the principle that spouses have joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation.\u201d Mr. Auer argued that the Guidelines <\/em>violate this constraint because they require a payer parent to provide a greater share of the child-related costs than the recipient parent (Auer<\/em>, para 12).<\/p>\n The chambers judge dismissed the application, holding that the constraint in s. 26.1(2) must be weighed against the GIC\u2019s broad grant of authority in s. 26.1(1) (Auer<\/em>, para 13). The Alberta Court of Appeal unanimously dismissed the appeal. The Court was divided, however, on the applicable standard of review (Auer<\/em>, para 14). The majority held that Vavilov<\/em> did not overtake Katz<\/em>, and that the Guidelines<\/em> did not meet the high Katz <\/em>threshold. By contrast, Feehan J, concurring in the result, held that the Vavilov<\/em> applies and employed reasonableness review (Auer<\/em>, para 17).<\/p>\n \u00a0Issue<\/strong><\/p>\n What standard of review applies to reviewing the vires<\/em> of subordinate legislation?<\/p>\n Decision<\/strong><\/p>\n The SCC Affirmed the <\/em><\/strong>Vavilov Framework<\/em><\/strong><\/p>\n \u00a0C\u00f4t\u00e9 J, writing for a unanimous court, affirmed that Vavilov <\/em>established a comprehensive framework for determining the standard of review that applies to any substantive review of administrative decisions, including the review of subordinate legislation (Auer<\/em>, para 21). While Vavilov<\/em> was not itself concerned subordinate legislation, it contemplated questions of vires<\/em> with respect to delegated legislation (Auer<\/em>, para 23).<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Vavilov<\/em> framework established a presumption of reasonableness review with limited exceptions in cases where the legislature has indicated that it intended a different standard to apply, or where the rule of law requires that correctness apply (Auer<\/em>, para 24). No such recognized exception applied in this case. Vavilov<\/em> ceased to recognize jurisdictional questions \u2013 also referred to as true questions of jurisdiction or vires<\/em> \u2013 as a distinct category requiring correctness review (Auer<\/em>, para 22). The question here is simply whether the statutory delegate acted within the scope of their lawful authority. Reasonable review is sufficient to address this question (Auer<\/em>, para 26). Exceptional cases of vires<\/em> review may require correctness (for example, a case where the validity of the subordinate legislation is challenged on the basis that it fails to respect the division of powers).<\/p>\n Katz Continues to Inform <\/em>Vavilov Reasonableness Review <\/em><\/strong><\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 While the SCC dismissed what Paul Daly called the \u201chyper-deferential\u201d Katz<\/em> threshold \u2014 \u201cirrelevant,\u201d \u201cextraneous\u201d or \u201ccompletely unrelated\u201d \u2014 for review of subordinate legislation, the Court did not entirely dismiss their precedent (\u201cRegulations and Reasonableness Review\u201d\u00a0in\u00a0Administrative Law Matters\u00a0<\/a><\/em>(29 January 2021)). Instead, they determined that all other Katz<\/em> principles continue to inform the reasonableness analysis under the Vavilov<\/em> framework (Auer<\/em>, para 32). These principles include: (1) subordinate legislation should be consistent with the specific provisions of the enabling statute and with its overriding purpose, (2) the challenged subordinate legislation and the enabling statute are to be interpreted using a broad purposive approach to statutory interpretation, (3) vires <\/em>review of subordinate legislation does not involve assessing policy merits, and (4) regulations benefit from the presumption of validity (Katz<\/em>, paras 24-26).<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The presumption of validity has been criticized by scholars and courts as inconsistent with Vavilov<\/em>. In the Court\u2019s estimation, however, this criticism is mistaken (Auer<\/em>, para 36). According to Katz<\/em>, this presumption has two aspects: (1) it places the burden on the challenger to demonstrate invalidity, and (2) \u201cit favours an interpretive approach that reconciles the [subordinate legislation] with its enabling statute so that, where possible, the [subordinate legislation] is construed in a manner which renders it intra vires\u201d (Katz<\/em>, para 25 (emphasis in original)). In Auer<\/em>, C\u00f4t\u00e9 J explains that the first aspect \u2013 that the burden is on the challenger \u2013 is uncontroversial while the second aspect \u2013 that, where possible, subordinate legislation should be construed in a manner that renders it intra vires<\/em> \u2013 does not heighten the Vavilov<\/em> framework. Rather, depending on the applicable standard, to overcome the presumption of validity, the challenger must either demonstrate that the subordinate legislation is does not fall within a\u00a0reasonable<\/em>\u00a0interpretation of the delegate\u2019s statutory authority, or does not fall within the\u00a0correct<\/em>\u00a0interpretation of the delegate\u2019s statutory authority (Auer<\/em>, para 39). According to this parsing, it is unclear what the presumption of validity adds to the analysis, but it is not inconsistent with Vavilov<\/em>.<\/p>\n Reasonableness Review is Possible in the Absence of Formal Reasons<\/em><\/strong><\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 C\u00f4t\u00e9 J observes that formal reasons are often not provided for the enactment of subordinate legislation (Auer<\/em>, para 52, citing Vavilov<\/em> at para 137). However, Vavilov<\/em> contemplated this problem. C\u00f4t\u00e9 J therefore provided some guidance on how to deduce the reasoning process from a variety of sources (Auer<\/em>, para 52). For example, the rationale behind municipal bylaws may be deduced from \u201cdebates, deliberations and the statements of policy that give rise to the bylaw\u201d (Catalyst Paper Corp. v. North Cowichan (District)<\/em> 2012 SCC 2<\/a>, at para 29). At the federal level, regulations are often accompanied by Regulatory Impact Analysis Statements outlining the reasons for regulations and their anticipated impacts. In many cases, it will be possible to deduce rationale even where formal reasons do not exist (Auer<\/em>, para 53).<\/p>\n Application <\/strong><\/p>\n Applying the Vavilov <\/em>framework informed by the Katz<\/em> principles, the SCC finds that the Child Support Guidelines<\/em> are within the GIC\u2019s grant of authority and dismissed the appeal. That authority to establish guidelines as provided in s. 26.1(1) of the Divorce Act<\/em> is \u201cextremely broad\u201d but not without constraint. The mandatory constraint in s. 26.1(2) requires that both spouses have \u201ca joint financial obligation to maintain the children of the marriage.\u201d Mr. Auer\u2019s interpretation that this language means that both parents must contribute equally is not supported by a plain reading of s.26.1(2) (Auer<\/em>, para 79). C\u00f4t\u00e9 J observes that Mr. Auer\u2019s submissions are premised on a \u201cneeds based approach\u201d to child support that the Guidelines<\/em> have eschewed (Auer<\/em>, paras 108-109). Mr. Auer therefore did not meet his burden to demonstrate that the Guidelines<\/em> represent an unreasonable interpretation of the authority granted to the GIC under the Divorce Act<\/em> (Auer<\/em>, para 113).<\/p>\n Analysis <\/strong><\/p>\n In Auer<\/em>, the Supreme Court concluded the debate over what standard of review applies to regulations and subordinate legislation. In affirming the Vavilov<\/em> framework as the starting point for the review of any administrative decision, the SCC continues to bring certainty, coherence, and predictability to administrative law. Equally, in dismissing the hyper-deferential Katz<\/em> threshold, the SCC has meaningfully enabled challenges to subordinated legislation.<\/p>\n Katz<\/em>, decided in 2013, provided an effective bar to substantive review of subordinate legislation. In restricting review to \u201cirrelevant,\u201d \u201cextraneous\u201d or \u201ccompletely unrelated\u201d decisions, Katz<\/em> essentially limited judicial review of delegated legislation to questions of legality and not rationality and substance. This approach is inconsistent with the \u201csea change\u201d brought about by Vavilov<\/em> in favour of the presumption of reasonableness and justification (Auer<\/em>, para 32). \u00a0<\/p>\n Despite dismissing the Katz<\/em> threshold, the SCC was at pains to uphold stare decisis<\/em> and affirmed the continuing relevance of many of Katz<\/em>\u2019s principles. These principles are largely uncontroversial. However, some have criticized the presumption of validity as inconsistent with Vavilov<\/em> (see e.g.<\/em> Paul Daly, \u201cStandard of Review of Regulations: Auer v. Auer, 2024 SCC 36\u201d in Administrative Law Matters<\/a> (November 8, 2024)). While it is possible that this presumption \u201cgoes a step too far,\u201d as Daly suggests, C\u00f4t\u00e9 J\u2019s explication of this presumption may render these concerns merely academic: the challenger already bears the burden under Vavilov<\/em> to demonstrate that the impugned decision falls outside the bounds of reasonability or correctness.<\/p>\n \u00a0Perhaps that most significant question that remains is whether the SCC might be too optimistic about a reviewing court\u2019s capacity to determine reasonableness in the absence of formal reasons. The SCC explained in Vavilov<\/em> that \u201cjustification, transparency and intelligibility\u201d are the \u201challmarks\u201d of reasonability (para 99), but formal reasons are often not provided for the enactment of subordinate legislation. Where the challenged instrument is a municipal by-law or a federal regulation, there may be publicly available sources from which to discern the reasoning process, but there are likely to be instances where delegated legislation lacks such sources. For example, Cabinet decision-making is generally protected by confidentially and it may be difficult to determine the reasonableness of such decisions if the sources of the decision-making are unavailable.<\/p>\n Auer <\/em>does not resolve this problem, but it has provided welcome clarity to the review of subordinate legislation.<\/p>\n \t\t\t\t\t\t\t\t\t\t\t\t\t<\/div>\n