Simon's Megalomaniacal Legal Resources

Delegated Legislation - Sub-Delegation

. Canadian Coalition for Firearm Rights v. Canada (Attorney General)

In Canadian Coalition for Firearm Rights v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed four consolidated appeals, here from dismissals from "six applications for judicial review of the Regulations Amending the Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited, Restricted or Non-Restricted, SOR/2020-96 (the Regulations)".

Here the court considers a related sub-delegation issue:

C. Did the GIC unlawfully subdelegate its authority to the RCMP to prescribe firearms as prohibited?

[66] Much as they did before the Federal Court, the Eichenberg appellants argue that the GIC impermissibly subdelegated its criminal law-making authority to the RCMP. In support of that proposition, they rely on a number of assertions that the Federal Court dismissed. First, they claim that section 117.15 of the Code provides that only the GIC can make regulations prescribing firearms as prohibited. Yet, by employing the term "“variant or modified version”" in the Regulations, the GIC is impermissibly subdelegating its prescribing ability to the RCMP, which (through its SFSS) lists variants of prohibited firearms in the FRT. Not only is there no authority in the Code to prescribe unnamed variants as prohibited firearms, even if such a power can be inferred it should be exercised by the GIC itself and not subdelegated to the RCMP.

[67] The Federal Court rejected this argument, and rightly so in my view. Under subsection 117.15(1) of the Code, the GIC is authorized to make regulations prescribing "“anything that by this Part is to be or may be prescribed”". This provision allows the GIC, in the exercise of its discretion, to prescribe any variants or modified versions (named and unnamed) of the firearms identified as "“designs commonly known as [the heads of family]”". Indeed, similar wording was used in previous regulations (see for example, the Restricted Weapons Order, SOR/92-467 at s. 3, and the Prohibited Weapons Order, No. 13, SOR/94-741 at s. 2) and there is no doubt that the source of the prohibition of variants is the Regulations, whether they named them or not. This is clearly not a case where someone other than the original delegate has exercised authority to determine what firearms are prohibited.

[68] The decision of this Court in Actton Transport Ltd. v. Steeves, 2004 FCA 182 [Actton], provides a helpful analogy. In this case, Actton, the appellant, sought judicial review of a decision by an official of the Minister of Labour to grant one of its employees overtime to which he claimed he was entitled. Because Actton was federally regulated, the employee’s entitlement depended upon the Motor Vehicle Operators Hours of Work Regulations, C.R.C. 1978, c. 990, which distinguished between a city motor vehicle operator and a highway motor vehicle operator for the purposes of overtime. The Regulations provided that one of the criteria to determine whether a driver was one or the other was the prevailing industry practice in the relevant geographical area where the driver is employed. Actton unsuccessfully argued that the payment order should be set aside because the GIC, by leaving it to an official to determine the "“prevailing industry practice”", had transformed a legislative power into an administrative one and therefore subdelegated its power. This Court found that there was no delegation of legislative power to an administrative decision-maker, let alone an impermissible delegation. The Canada Labour Code, R.S.C. 1985, c. L-2 (the Labour Code) authorized the GIC to define standard hours of work for employees engaged in industries where the application of general rules for standard work hours found in the Labour Code would be harmful to the interests of either employees or employers. This is precisely what the Regulations did by withdrawing the employment of motor vehicle operators from the general scheme and providing for different rules for city and highway motor vehicle operators on the basis of an objective criterion (10-mile radius from the operator’s home terminal) or prevailing industry practice. The official who ascertains the prevailing practice in a given case is not legislating, but merely engaging in fact-finding and applying the Regulations. As the Court stated:

22. The principle established in these cases is that where a delegated decision-maker is authorized to decide certain questions by regulation, the regulations which it promulgates in the exercise of that power must actually decide the questions. They cannot simply confer upon the delegated decision-maker the power to decide administratively that which the legislation requires it to decide legislatively. […]

23. Here, the requirement that the Governor in Council proceed by regulation was satisfied when the Governor in Council specified, by regulation, that the distinction between a city and a highway motor vehicle operator is to be drawn according to the prevailing industry practice. Unlike Brant Dairy Co., […], this does not confer on the administration the unregulated right to decide which classes of employees will be exempted from sections 169 and 171 of the Code. The exempted classes are specified in the Regulations. Nor do the Regulations allow officials to decide the basis on which city motor vehicle operators will be distinguished from highway motor vehicle operators. The basis of the distinction is set out in the Regulations. The official’s function is to identify and then apply the prevailing practice as it exists in the geographical area.

[69] The same can be said here. The Regulations prescribe nine types of firearms by make and model as well as firearms based on two characteristics. They also prohibit variants and modified versions of these types of firearms. Much as in Actton, the decision to prescribe variants and modified versions of prohibited firearms is that of the GIC. That the language used requires interpretation for its implementation by law enforcement officers and various other officials does not detract from the fact that the GIC did exercise its delegated power to determine which firearms are prohibited. Whether a particular firearm is or is not an unnamed variant or modification of the firearms listed in the Regulations is a purely administrative decision of a factual nature.

....

[72] The Federal Court could rely on the evidence given by Mr. Murray Smith, a forensic scientist, Manager of the SFSS who, in that capacity, was responsible for the FRT’s maintenance. In his testimony, he explained that the FRT is a database developed to assist law enforcement officers and other officials with the identification and classification of firearms. In his words, "“[i]t is intended to be a non-binding administrative tool”" (Decision at para. 423). This is consistent with the legal disclaimer found in the FRT, where it is stated:

The Firearms Reference Table (FRT) is not a legal instrument. The FRT is an administrative document created by the RCMP’s firearms experts who have, based on the definitions set out in the [Code] and the types of firearms prescribed in the [Regulations] and the [Firearms Act], conducted technical assessments of firearms to assist law enforcement officers, customs officers, and officials responsible for the regulation of firearms with the identification and classification of firearms. The aforementioned Act and Regulations are the prevailing legal authority with respect to firearm classification.

(Appeal Book, vol. 5, Hipwell Affidavit, Exhibit “E”, p. 1268)

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[74] The Eichenberg appellants also contend that the Federal Court erred in relying on a decision of the Ontario Court of Justice (R v. Henderson, 2009 ONCJ 363) in support of its conclusion that the FRT is merely an administrative tool. This case was a referral (pursuant to ss. 74(1) of the Firearms Act) of a decision made by the Registrar of Firearms in which it refused Mr. Henderson’s application to register his Armi Jager AP80 because it was an unnamed variant of the prohibited AK-47. The Court concluded that the Registrar’s decision was unreasonable and directed him to issue a registration certificate for Mr. Henderson’s firearm. In its reasons, the Court made it clear that it did not consider itself bound by the listing of the firearm on the FRT:

[...] there has been no delegation by Parliament to the [CFC], which keeps the FRT, to decide which firearms are considered to be unnamed variants of the AK-47. The fact that at some point in time, perhaps even very recently, the Armi Jager AP80 data was added to the FRT, does not provide it with any legal effect. The courts have been left with the responsibility to decide, in cases such as Mr. Henderson’s, what is a variant and what is not.

[75] While it is true, as the Federal Court noted, that on appeal, the Ontario Superior Court of Justice and then the Ontario Court of Appeal restored the Registrar’s decision, the lower court’s finding that there was no delegation of authority to the RCMP and that the ultimate decision as to which firearms constituted unnamed variants rested with the courts was left undisturbed. Indeed, the Court of Appeal confirmed the Ontario Superior Court’s decision to grant the appeal on the basis that the Provincial Court erred in law in its interpretation of the Order in Council. In other words, the Court of Appeal did not restore the Registrar’s decision because it relied on the FRT, but on the basis of its own interpretation of the Regulations then in force, as can be seen from the penultimate paragraph of its analysis:

46. This Order in Council [SOR/98-462] prescribes in its Schedule firearms that are prohibited for the purposes of the Criminal Code. Section 64 of the Schedule prescribes the AK-47 rifle and “any variant or modified version of it”, including the Mitchell AK-22. In other words, the Governor General in Council has declared the AK-22 to be a variant of the AK-47. If, as is clear, the legislative intent is that the AK-22 is a variant of the AK-47, the same must be true of a weapon which is the same as the AK-22, namely the AP-80. The correct interpretation of the Order in Council is therefore that the AP80 is a variant of the AK-47. In finding otherwise, the Provincial Court erred in law.

[76] Finally, it is not accurate to claim, as do the Eichenberg appellants, that the classification of a firearm in the FRT as an unnamed variant of a prohibited model is immune from review unless an individual is charged with a criminal offence. As the Federal Court noted (at para. 449), the evidence is to the effect that the SFSS may reconsider its assessment of a firearm’s classification in the FRT if a request is made, with supporting justification and documentation. In fact, FRT entries have been downgraded or upgraded in their classification before, based on requests for review from individuals or law enforcement. More importantly, any decision having legally binding effect on an individual, whether supported by the FRT or not, can be judicially reviewed. For example, any nullification letters sent by the Registrar to firearms owners involving unnamed variants are subject to judicial review, and the decision of the Registrar would be reviewable on the reasonableness standard.

[77] For all these reasons, I am of the view that the Federal Court’s conclusion that there was no improper subdelegation of authority to the RCMP resulting from the use of the words "“variant or modified version”" should stand. The same is true of the Court’s findings concerning the evidence about the nature and use of the FRT. These are respectively issues of mixed fact and law and of pure fact, subject to the standard of palpable and overriding error. The appellants demonstrated no such errors.

. Sanis Health Inc. v. British Columbia

In Sanis Health Inc. v. British Columbia (SCC, 2024) the Supreme Court of Canada dismissed an appeal, that against a BCCA decision dismissing an appeal, that of a dismissal by the BC Superior Court of an application by the corporate defendants in a consumer opioid damages class action, who sought an interlocutory division-of-powers ultra vires declaration against a class-action-supporting BC statutory provision [the 'Opioid Damages and Health Care Costs Recovery Act, s.11'].

Here the Court states the principle that a legislature may not delegate it's legislative authority:

[96] As I have explained, the appellants’ concerns about the binding effects on another province’s litigation autonomy does not undermine its sovereignty. Litigation involves consequences and those consequences may be inescapable, especially when they occur in jurisdictions beyond the control of a government’s legislature. There is no constitutional principle against this. The appellants’ arguments blur the distinction between legislative and executive authority. The legislature of one level of government cannot transfer its primary authority to legislate to another level of government (Reference re Pan-Canadian Securities Regulation, at paras. 75-76). However, no such rule applies to the executive delegation of litigation conduct.

. Canada (Attorney General) v. Ibrahim

In Canada (Attorney General) v. Ibrahim (Fed CA, 2023) the Federal Court of Appeal considered a Crown JR of a decision by the Social Security Tribunal (Appeal Division) that upheld the respondent's eligibility for a CPP-disability pension.

In these quotes the court considers the extent to which a regulation can 'change law' (ie. statute law):

[33] The applicant submits that the Appeal Division’s conclusion was based on the flawed premise that regulations do not change existing laws (Reasons at para. 92). Regulations can change existing laws, consistent with the specific provisions of the enabling statute and its overriding purpose. I do not accept the applicant’s submission about the impact of the Appeal Division’s misstatement; it did not affect its reasoning or conclusions.

. Doe v. the University of Windsor

In Doe v. the University of Windsor (Div Ct, 2021) the Divisional Court considered an issue of improper delegation in a judicial review application:

[24] When an appeal is taken from a decision of the AVP respecting a complaint of student non-academic conduct, the Procedures give the power to determine the appeal exclusively to an Adjudicator. The Procedures provide that the Adjudicator, who is the Provost or the Provost’s designate, “has final and binding jurisdiction over appeals of Decisions of the Associate Vice-President, Student Experience (or designate)”. Nowhere in the Procedures is there any authority for an Adjudicator to delegate their decision-making authority.

[25] It has been consistently and authoritatively determined that administrative decision-makers cannot delegate their decision-making authority to another body in the absence of clear and express authorization by the statutory scheme. (See, for example, Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11 at para. 65. While Courts today avoid making the law obscure by the use of Latin maxims, the maxim delegatus non potest delegare (literally, a delegate cannot delegate) is hallowed by long use and is applicable here.

[26] The Adjudicator’s effective abdication of his power to determine the outcome of the appeal to the court hearing a related criminal trial is simply not authorized by the enabling instrument. The decision of the Adjudicator to do so was unreasonable. This is one of those rare cases where the language of the source of his decision-making authority necessarily limits the number of reasonable interpretations open to the decision maker to one: he and he alone must decide the appeal.

. 30 Bay ORC Holdings Inc. et al. v. City of Toronto

In 30 Bay ORC Holdings Inc. et al. v. City of Toronto (Div Ct, 2021) the Divisional Court considered the application of the doctrine against improper sub-delegation:

Administrative vs. Legislative Decision-Making

[90] The Applicants also argue that, by purporting to retain discretionary criteria to decide grant applications, the City has engaged in impermissible sub-delegation, citing cases such as Brant Dairy Co. v. Milk Commission of Ontario, 1972 CanLII 11 (SCC), [1973] S.C.R. 131 and Air Canada v. City of Dorval, 1985 CanLII 40 (SCC), [1985] 1 S.C.R. 861.

[91] The sub-delegation cases, in my view, have no application to the circumstances of this case. Unlike those and similar sub-delegation cases, the 2012 By-law does not simply repeat the power granting words of s. 28(7) of the Planning Act. The 2012 By-law is a 28-page document setting out, in great detail, the basis upon which eligible projects may receive IMIT grants.

[92] The principle against improper sub-delegation does not necessarily result in the total neutralization of otherwise legitimate discretion conferred upon the decision-maker.

[93] The Applicants’ real complaint comes back to the core issue discussed above – does the language of the 2012 By-law limit the factors that may be considered in approving a grant application to only the specified eligibility criteria, such that if those criteria are met, the grant must be approved? For the reasons already stated, I would hold that it does not.