Delegated Legislation
In relation to Operation and effect of statutes
Compiled by Eric B. Appleby (2007):
Overview
The law of the land includes, in addition to the common law and statute law, a great deal of subordinate or delegated legislation. Subordinate or delegated legislation comprises orders, rules, regulations, by-laws, etc., made under statutory powers. Such delegation has become a normal feature of law- making in Canada. Chapter 2.2 above refers to the limited authority of the courts to canvass the validity of statutes. Unlike statutes, the courts will canvass the validity of delegated legislation to ensure that all the conditions precedent to the validity of the rule, regulation, etc., have been fulfilled.
In the case of Sutherland et al. v. Canada (Attorney General) et al. (2002), 170 B.C.A.C. 233; 279 W.A.C. 233 (C.A.), the British Columbia Court of Appeal stated at paras. 69 to 73: “[69] Driedger refers to ‘subsidiary laws’, known by a variety of expressions including regulations, rules, orders, bylaws, and ordinances or, collectively, as ‘subordinate or delegated legislation’. He then divides subsidiary laws into categories, including Orders-in-Council in the first category, which includes ‘laws made by the executive or by some body or person that is subject to some degree of control by the executive’. He says that, although it is not identical to a statute, ‘all subordinate legislation constitutes law’. Accordingly, to the extent that the Order-in- Council was within the authority granted in the over-arching legislation, its validity cannot be questioned: E.A. Driedger, The Construction of Statutes, Appendix IV, Subordinate Legislation, pp. 274-²77.
“[70] It is clear that statutory authority may be conferred by subordinate legislation. In Reference Re Validity of Regulations in Relation to Chemicals, [1943] S.C.R. 1, Chief Justice Duff said: ‘One observation of a general character remains. It is possible that in what has been said above it has not been sufficiently emphasized that every order in council, every regulation, every rule, every order, whether emanating immediately from His Excellency the Governor General in Council or from some subordinate agency, derives its legal force solely from the War Measures Act, or some other Act of Parliament. All such instruments derive their validity from the statute which creates the power, and not from the executive body by which they are made. (The Zamora [1916] 2 A.C. 77 at 90 … .)’
“[71] Orders-in-Council are also considered Regulations under the Interpretation Act, R.S.C. 1985, c. I-21. Section 2(1) defines ‘regulation’ as including an ‘order … made or established … (a) in the execution of a power conferred by or under the authority of an Act, or (b) by or under the authority of the Governor in Council’.
“[72] Orders-in-Counsel are ‘official Cabinet decisions, signed by Her Majesty’s representative and usually made pursuant to a power granted by statute’. They are instruments through which ‘specific responsibilities conferred upon the government under [an] Act are carried out’; they may be the means by which the government passes, approves or adopts a regulation, or may be the means by which the government confers jurisdiction upon an authority to exercise particular powers: L. Dussault & L. Borgeat, Administrative Law, A Treatise (2nd Ed. 1985), vol. 1, p. 268. Indeed, Proudfoot, J., as she then was, stated that Orders-in- Council are ‘the general medium by which … many statutory powers conferred on the [Governor] in Council are exercised’ in Coyle v. British Columbia (Minister of Education), [1978] 6 W.W.R. 279 (B.C.S.C.), at p. 286.
“[73] Halsbury’s Laws of England (4th Ed., Reissued 1995), vol. 44(1), paras. 1499-1500, also recognizes Orders-in-Council as a type of subordinate legislation which has ‘the full force and effect of an Act’.”
Sub-delegation
In the case of Peralta et al. v. Ontario (1985), 7 O.A.C. 283 (C.A.), the Ontario Court of Appeal stated at paras. 35 and 36: “[35] When courts have considered whether delegation of ministerial powers was intended considerable weight has been given to ‘administrative necessity’, that is, it could not have been expected that the Minister (in this case the Governor in Council) would exercise all the administrative powers given to him. Further, in such cases the suitability of the delegate has been a material factor in determining whether such delegation is intended and lawful. See Lanham, ‘Delegation and the Alter Ego Principle’ (1984), 100 Law. Q. Rev. 587.
“[36] ‘There is no rule or presumption for or against sub-delegation’: Driedger, ‘Subordinate Legislation’ (1960), 38 Can. B. Rev. 2 at p. 22. The language of the statute must be interpreted in light of what the statute is seeking to achieve. As Professor Willis pointed out, the maxim ‘delegatus non potest delegare’ does not state a rule of law; it is ‘at most a rule of construction’ and in applying it to a statute ‘there, of course, must be a consideration of the language of the whole enactment and of its purposes and objects’. Willis, ‘Delegatus Non Potest Delegare’ (1943), 21 Can. B. Rev. 257.”
Extent of delegation
In the case of Berteit v. Carlisle (1987), 80 N.B.R.(2d) 153; 202 A.P.R. 153 (T.D.), the headnote stated: “Delegated legislation – Prohibition against including substantive law – The Legislature authorized the Lieutenant-Governor in Council to make regulations under the New Brunswick Police Act – The New Brunswick Court of Queen’s Bench, Trial Division, stated that such a delegation does not include the power to provide substantive rules which should have been included in the statute (see paragraph 14).”
What constitutes a regulation
In the case of Michaels et al. v. Red Deer College (1975), 5 N.R. 99 (S.C.C.), about Alberta Regulations Act, s. 2(2) – The Supreme Court of Canada stated that an appointment of a teacher to a position at the Red Deer College pursuant to an order in council did not constitute a regulation subject to the filing provisions of the Regulations Act – See paragraphs 14 and 15.”
Conflict with common law
In the case of Saskatchewan Insurance, Office and Professional Employees’ Union, Local 397 v. Saskatchewan Government Insurance (1984), 34 Sask.R. 2 (Q.B.), about Validity of Regulations – Conflict with common law – On a certiorari application, Queen’s Bench Rule 669 required the tribunal to return to the court the ‘conviction, order, decision and reasons therefore together with the process commencing the proceeding, and all other things touching the proceeding’ – The Saskatchewan Court of Queen’s Bench held that the rule was ultra vires to the extent that it altered or expanded the common law definition of ‘the record’.”
Ultra vires
In the case of Pacific Pilotage Authority v. Alaska Trainship Corp. (1979), 35 N.R. 271 (S.C.C.), about Whether purpose of regulation authorized by empowering statute – Ss. 9(2) and 10(1) of the Pacific Pilotage Regulations made compulsory pilotage conditional upon place of registration of ships – The Pilotage Act, S.C. 1970-71-72, c. 52, s. 12, stipulated that the primary object of the Pacific Pilotage Authority was safety and s. 14 empowered the Authority to make regulations to that end – The Supreme Court of Canada affirmed the decision of the Federal Court of Appeal that the condition in the Regulations respecting place of registration was invalid, where it did not relate to safety and was in the circumstances an irrelevant consideration – See paragraphs 20 to 24.”
Validity, vagueness
In the case of Canadian Pacific Ltd. v. Canadian Transport Commission (1988), 86 N.R. 360 (F.C.A.), about Validity and Vagueness or lack of particularity – The Canadian Transport Commission issued an order adopting by reference a Uniform Classification of Accounts for railways – A few weeks later it sent a letter to interested parties containing a copy of relevant revisions to make its previous order meaningful – The Federal Court of Appeal held that the order was invalid for vagueness, which was not cured by the subsequent explanatory letter – See paragraphs 12 to 16.”
Repeal of empowering statute
In the case of Diamond Motel Ltd. v. Jasper School Board (1977), 2 A.R. 586 (T.D.), about Effect of the repeal of empowering statute – Preservation of validity of order – Interpretation Act, s. 24(1) – The Jasper School District Board of Trustees was empowered to impose and collect taxes pursuant to an order of the Minister of Education, dated September 5, 1956, made pursuant to the School Act 1952, s. 304 – The order dated September 5, 1956, was not replaced when successive statutes, containing sections similar to s. 304, were enacted in substitution of the School Act 1952 – A taxpayer challenged the authority of the Jasper School District to impose and collect taxes for year 1973 – The Alberta Supreme Court, Trial Division, held that the order of September 5, 1956, remained valid by virtue of s. 24(1) of the Alberta Interpretation Act – S. 24(1) stated that regulations or orders, made under a repealed statute, remain in force where ‘other provisions are substituted by way of amendment, revision or consolidation’ – See paragraphs 10 to 42.”
Orders-in-council, validity
In the case of Templeton Place Ltd. v. Delano (1985), 69 N.S.R.(2d) 211; 163 A.P.R. 211 (C.A.), the Nova Scotia Court of Appeal stated that ‘Orders-in-council exclusively of a legislative nature, where the Governor in Council purports to exercise a power specifically delegated to him by the Legislature by statute, are not challengeable by certiorari any more than are the statutes themselves’ – See paragraph 27.”
Directives, Orders, etc. made pursuant to regulations
In the case of Weatherall v. Canada; Conway v. R.; Spearman v. Collins Bay Penitentiary Disciplinary Tribunal (1987), 11 F.T.R. 279 (T.D.), about Directives made pursuant to regulations and its Nature and effect, the Federal Court of Canada, Trial Division, stated that an infringement of a penitentiary commissioner’s directive may give rise to disciplinary action within the institution but the directive creates no legal rights or obligations – See paragraph 63.”
Paragraph [63] stated: “[63] In particular, as I have indicated at various points earlier, the Commissioner’s Directives cannot be regarded as ‘law’ within the meaning of section 1. There is persuasive jurisprudence to this effect, based on the rationale that Commissioner’s Directives are designed for the internal management of prison institutions. Their infringement may give rise to disciplinary action within the institution, but they create no legal rights or obligations. [See footnote 45]. Counsel for the defendants and respondent cited to me decisions of the Federal Court of Appeal which he contended refuted this jurisprudence. On examination I am satisfied these decisions [See footnote 46] do no such thing and in fact expressly distinguish the situations dealt with there from the leading decision of four judges of the Supreme Court in Martineau to the effect that Commissioner’s Directives are not law.”
In the case of Mohammad v. Minister of Employment and Immigration (1988), 91 N.R. 121 (F.C.A.), about Orders or directives made pursuant to regulations and its Nature and effect, the Federal Court of Appeal held that the Supreme Court of Canada in Martineau and Butters v. Matsqui Institution Disciplinary Board, 14 N.R. 284, established that policy directives, whether made pursuant to regulatory authority or general administrative capacity, are no more than directions and are unenforceable by members of the public – See paragraph 14.”
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