On January 23, I attended a program organized by the Administrative Law Section of the Canadian Bar Association British Columbia. Hosted by counsel for several different intervenors in Auer v. Auer, 2024 SCC 36, the program discussed the impacts and unresolved issues of the case. Although I am only a few weeks into my administrative law course, the discussion enhanced my understanding of course material and referred to cases and concepts that I learned about in previous courses.
The Supreme Court of Canada’s decision in Auer confirmed that the reasonableness standard from Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, applies presumptively on judicial review of the legality of subordinate legislation, such as regulations, municipal by-laws, and rules. In my first-year civil procedure course, we had a brief introduction to Vavilov and the reasonableness standard, so it was interesting to learn how the Court reaffirmed and applied Vavilov in Auer. In an earlier case (Katz Group Canada Inc. v. Ontario, 2013 SCC 64), the Court had adopted an extremely deferential standard of review for subordinate legislation. Even though the Court rejected this standard in Auer in light of Vavilov, it held that several key principles from Katz still apply and should inform the reasonableness review of subordinate legislation.
This reminded me of my second week in administrative law when we learned how to determine what kinds of decisions are subject to administrative law. In Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, the Court clarified the two criteria that must be met for a decision to be subject to judicial review. Until Wall, the leading case on the matter was Air Canada v. Toronto Port Authority, 2011 FCA 347. Similarly to how the Court in Auer decided that several principles from Katz are still applicable, in the cases post-Wall, relevant Air Canada factors can still help to determine whether an exercise of state authority is of a sufficiently public character, but they are not determinative.
As part of the discussion about policy and legality, the speakers referred to the sections in Auer where the Court discussed its decision in Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2. I learned about this case in my municipal law course last semester within the context of the extent of municipal authority and the various ways to attack a by-law. The Court in Auer reiterated Chief Justice McLachlin’s statement in Catalyst Paper that the reasons behind subordinate legislation are traditionally deduced from a variety of sources, such as debates and policy statements, since statutory delegates often do not provide formal reasons. The speakers expressed uncertainty about the scope of the record; that is, the extent to which the potential or actual consequences of subordinate legislation may be properly considered by a court. One challenge post-Auer will be determining the admissibility of evidence that would allow the courts to identify these consequences.
By the end of the program, I felt that I had meaningfully engaged with my administrative law course material by not only learning about a recent Supreme Court decision and its implications but also making connections to content from my previous courses. It was valuable to hear the perspectives of counsel for various intervenors in Auer since they raised different points and questions about the implications of the decision. I will be looking for opportunities to apply the knowledge I gained from this program as I progress through my administrative law course, and I look forward to hearing about how Auer will be applied in future cases.
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