Rethinking Judicial Review of Delegated Legislation

Abstract

The judicial review of delegated legislation in Canada has become somewhat confused in the past decade. This confusion largely results from the development of the standard of review analysis that has transformed judicial review in Canada in recent years. This article examines how that analysis has, and has not, been applied in the judicial review of delegated legislation, and how the traditional grounds for reviewing delegated legislation continue to have vitality. The article argues that the standard of review analysis should be applied to the review of all forms of delegated legislation and that, which the standard of reasonableness is usually appropriate, there are situations justifying correctness. It also notes the tension between purposive and textualist approaches in recent Supreme Court of Canada decisions determining the scope of statutory authority for making delegated legislation.

Keywords: Delegated legislation, judicial review, interpretation of enabling provisions

JEL Classification: K20