Delegated Legislation: The Tangled World of Grounds and Standards of Review

34 Pages Posted: 28 Jul 2017 Last revised: 7 May 2018

See all articles by John Mark Keyes

John Mark Keyes

University of Ottawa - Faculty of Law

Date Written: July 25, 2017

Abstract

This paper considers the current state of judicial review of delegated legislation in Canada as it has been most recently articulated in a series of decisions of the Supreme Court of Canada. The paper begins by considering the application of the standard of review analysis – or not – to the judicial review of delegated legislation and the inconsistent treatment of municipal by-laws and professional regulations, on the one hand, and regulations of the executive branch, on the other. It then considers how the three interpretive principles that the Supreme Court in its decision in Katz Group outlined as the cornerstones for the judicial review of delegated legislation have been applied in recent cases. Finally, it argues for the application of the standard of review analysis to all delegated legislation, including the potential for applying a reasonableness standard that amalgamates the traditional grounds of review into this standard, as the Court has already done in relation to municipal by-laws and professional regulations.

Keywords: administrative law, judicial review, delegated legislation, municipal by-laws, executive regulations

Suggested Citation

Keyes, John Mark, Delegated Legislation: The Tangled World of Grounds and Standards of Review (July 25, 2017). Ottawa Faculty of Law Working Paper No. 2018-11. Available at SSRN: https://ssrn.com/abstract=3008796 or http://dx.doi.org/10.2139/ssrn.3008796

John Mark Keyes (Contact Author)

University of Ottawa - Faculty of Law ( email )

57 Louis Pasteur Street
Ottawa, Ontario K1N 6N5
Canada

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