Delegated Legislation: The Tangled World of Grounds and Standards of Review
34 Pages Posted: 28 Jul 2017 Last revised: 7 May 2018
Date Written: July 25, 2017
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
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