Judicial Review of Delegated Legislation: Whatever Happened to the Standard of Review?

Abstract

This article addresses a gap in the application of the Administrative Law standard of review analysis to delegated legislation (municipal bylaws and Executive regulations). There is confusion in a series of recent Supreme Court of Canada decisions about whether this analysis applies, and, if it does, what the standard of review should be. The Court in Catalyst Paper conducted the analysis in relation to a municipal bylaw, concluding and applying the reasonableness standard. This decision appears to contradict the Court's previous application of the correctness standard and questions of authority to make municipal bylaws as examples of questions of "true jurisdiction". The extension of this approach in other case law to executive forms of delegated legislation complicates that issue further. In 2 other recent decisions involving executive regulations (Broadcasting Reference and Katz Group and CN Railway), the Supreme Court did not discuss, much less apply, the standard of review analysis, although in a 3rd decision (CN Railway), the Court obiter suggested without explanation that this analysis did not apply to such regulations.

This confusion in the Supreme Court case law deserves comment. This paper argues that there are compelling reasons for applying the standard of review analysis to delegated legislation in order to bring more coherence to Canadian Administrative Law. The alternative is to consign the judicial review of this form of law to the past and leave it behind as the rest of Administrative Law develops. Delegated legislation is a pervasive form of law in Canada which, despite this, has been neglected in academic commentary. This article aims to make some progress in redressing this.

Keywords: judicial review, standards of review, delegated legislation, municipal bylaws, executive regulations