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Delegated Legislation - Ultra Vires Regulations (4). Biogenie Canada Inc. c. Canada (Food Inspection Agency)
In Biogenie Canada Inc. c. Canada (Food Inspection Agency) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, here from an order "dismissing the appellant’s application for judicial review of the seizure and detention of two soil products (Englobe Environment Inc. v. Canada (Canadian Food Inspection Agency)".
The court considered a delegated legislation issue, here ultra vires regulation authority:[15] Englobe also challenged the validity of the regulatory framework on the basis of administrative law principles, arguing that section 2.1 of the Regulations illegally subdelegates to the CFIA’s employees the exercise of the regulatory power that was conferred on the Governor in Council to establish standards for the maximum concentration of substances. According to Englobe, the Memorandum is therefore a disguised regulation.
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[21] The trial judge upheld the validity of the regulatory framework and rejected the appellant’s argument that section 2.1 of the Regulations constituted an illegal subdelegation or abdication of power. After analyzing the relevant case law on this issue, he carefully reviewed the wording of the Act’s enabling provision (section 5) and found that the fact that section 2.1 of the Regulations reproduces the substance of section 3.1 (with some clarifications) without setting out any exceptions in no way impedes the application of the Act. As for whether section 3.1 of the Act can be contravened in the absence of regulatory provisions governing the evaluation of a fertilizer or supplement, in his view, there was nothing to prevent it. Although subparagraph 5(1)(f.1)(iii) allows for regulations to be adopted on this matter, he found that the risk of harm to human, animal or plant health or the environment referred to in section 3.1 is an intelligible standard that can be applied independently of any regulations. With regard to the Memorandum, it cannot be characterized as a disguised regulation in that it does not impose a standard of conduct and is not binding on the administrative decision maker. Its purpose is merely to explain how the CFIA intends to apply section 3.1 of the Act and section 2.1 of the Regulations.
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D. Did the Federal Court err in finding that section 2.1 of the Regulations does not constitute an illegal subdelegation or abdication of power?
[69] At trial, the appellant submitted that section 2.1 of the Regulations was invalid because it merely reproduces the substance of section 3.1 of the Act and that, consequently, the exercise of the Governor in Council’s regulatory power was abdicated and essentially subdelegated to the CFIA’s employees, thereby violating settled case law establishing that a body exercising delegated powers cannot delegate those same powers in turn.
[70] The trial judge rejected this argument, stating that the principles established in Attorney General of Canada v. Brent, 1956 CanLII 5 (SCC), [1956] S.C.R. 318 [Brent], Brant Dairy Co. v. Milk Commission of Ontario, 1972 CanLII 11 (SCC), [1973] S.C.R. 131 [Brant Dairy] and Canadian Institute of Public Real Estate Companies v. Toronto, 1979 CanLII 30 (SCC), [1979] 2 S.C.R. 2 [Canadian Institute] do not apply in the context of this regulatory scheme. The principle arising from those decisions is that a body on which a regulatory power is conferred cannot transform a legislative power into an administrative one. When the legislature confers a regulatory authority on a body, that body must adopt general standards in the matters over which it exercises its power, rather than make decisions on a case-by-case and discretionary basis. Chief Justice Laskin, for the majority in Brant Dairy, correctly identified this principle of legislative interpretation in the following passage (at 132–133):A statutory body which is empowered to do something by regulation does not act within its authority by simply repeating the power in a regulation in the words in which it was conferred. That evades exercise of the power and, indeed, turns a legislative power into an administrative one. It amounts to a redelegation by the Board to itself in a form different from that originally authorized; and that this is illegal is evident from the judgment of this Court in [Brent]. [71] It is interesting to note that the subdelegation in Brent had been carried out for the benefit of a third party. The Governor in Council had been delegated the power to make regulations to define the reasons enumerated in the Immigration Act, R.S.C. 1952, c. 325, permitting it to prohibit or limit the admission of persons into Canada. Instead of setting out standards to guide immigration officers, the Governor in Council merely incorporated into the regulation the very terms of his enabling authority, thereby conferring on every immigration officer the task of determining a person’s admissibility on the basis of the criteria in the Act. This manner of proceeding was found to be an invalid subdelegation, inasmuch as the opinion of the Governor in Council that was supposed to be expressed in the form of a standard was replaced by the opinion of each immigration agent responsible for applying the law.
[72] In Brant Dairy, the Supreme Court found that the principle is the same when the body required to legislate by regulation gives itself random power to make decisions without any reference point in standards fixed by regulation. The Supreme Court came to the same conclusion in Canadian Institute, reiterating that an administrative body (in that case, a municipal council) to whom the power to enact regulations has been delegated may not merely repeat the power in a regulation in the words in which it was conferred and thus assign itself an entirely discretionary power.
[73] What distinguishes those three cases from the one before us, according to the trial judge, is that section 3.1 of the Act includes a prohibition that can apply independently from the exercise of the regulatory power. He arrives at this conclusion following an analysis of sections 3.1 and 5 of the Act and the intent of Parliament that emerges from those provisions.
[74] In his view, the "“manufacturing, sale, importation or exportation of any fertilizer or supplement”" that is harmful and the "“evaluation of the potential impact of the fertilizer or supplement … and the risk of harm posed by the fertilizer or supplement”" constitute two separate purposes of the regulatory power conferred on the Governor in Council. Therefore, the ways in which the Governor in Council has used that regulatory power must be examined separately.
[75] The trial judge went on to assert his view that the phrase "“in contravention of the regulations”" refers to the prohibition against manufacturing, selling, importing or exporting, not to whether a fertilizer or supplement poses a risk of harm. The enactment of a regulation under paragraph 5(1)(c.1) of the Act was therefore essential for there to be a contravention of section 3.1. This requirement is satisfied here, because a regulation was indeed enacted. The fact that section 2.1 of the Regulations essentially reproduces the substance of section 3.1 of the Act in no way hampers the application of the Act; although paragraph 5(1)(c.1) authorizes the Governor in Council to provide for exceptions to section 3.1, it is not mandatory to do so. Further, section 3.1 is worded in such a way that it may be applied despite the absence of regulations enacted under subparagraph 5(1)(f.1)(iii), since the risk of harm to human, animal or plant health or the environment is an intelligible standard, independent of any regulations.
[76] The appellant objects to this reading of the impugned provisions and submits that the trial judge erred in law in finding that section 2.1 of the Regulations does not constitute an abdication of power, an attempt to transform a regulatory power into administrative discretion or an illegal subdelegation of that power. Although it acknowledges that the judge correctly identified the applicable test—namely, that the Act must be examined to ascertain Parliament’s expectations regarding the exercise of the discretionary power—it alleges that he erred in his interpretation of sections 3.1 and 5 of the Act by reading them in isolation and not in the context of all the other provisions. More specifically, it alleges that the judge erred in considering paragraph 5(1)(c.1) and subparagraph 5(1)(f.1)(iii) separately and consequently inferring a duality between the manufacturing, sale, importation and exportation of fertilizers on the one hand, and the evaluation of the risk they represent on the other.
[77] The appellant also criticizes the trial judge for interpreting the phrase "“in contravention of the regulations”" as relating only to the prohibition against manufacturing, selling, importing or exporting in section 3.1, with the result that there can be no contravention of this provision in the absence of a regulation enacted under paragraph 5(1)(c.1), even though nothing requires the enactment of a regulation to govern the evaluation of the risk of harm of fertilizers and supplements. In the appellant’s view, section 3.1 must be read holistically, and the power to regulate does not have two distinct purposes but a single one, which is to set standards that apply to the manufacturing, sale, importation and exportation of fertilizer and supplements that present a risk of harm to human, animal or plant health or the environment.
[78] According to the appellant, these errors of interpretation led to three erroneous conclusions, namely, that the reproduction, with some clarifications, of the substance of section 3.1 of the Act in section 2.1 of the Regulations (1) does not impede the application of the Act, (2) does not represent an illegal subdelegation or abdication of power, and (3) does not have the effect of conferring a discretionary power on the respondent.
[79] Once again, I find that these arguments are without merit and that the trial judge was right to reject them. The appellant has not persuaded me that the judge erred in his interpretation of the Act and the Regulations, or that Brent, Brant Dairy and Canadian Institute can be distinguished from this case.
[80] This is not a situation where the regulatory authority, in this case the Governor in Council, conferred on a third party the power to adopt standards that Parliament had empowered the regulatory authority to prescribe under section 5 of the Act. The Regulations do not simply repeat the wording of paragraph 5(1)(c.1) of the Act and confer application to the CFIA, as was the case in Brent. On the contrary, the Regulations specify how to apply the prohibition in section 3.1 of the Act: the prohibition against the manufacturing, sale, exportation or importation of a fertilizer or supplement is triggered only if the product contains any substance or mixture of substances that presents a risk of harm when the fertilizer or substance is used according to its directions for use or in amounts not in excess of the amount that is necessary to be effective. Section 2.1 of the Regulations provides that the existence of a risk of harm to pests is not relevant to determining whether the prohibition in section 3.1 applies. This case therefore does not involve a prohibited subdelegation: the standard was indeed set out in the Regulations and the CFIA’s employees merely apply it.
[81] Although the case before us does not involve a formal or express subdelegation, the appellant appears to contend that the lack of precision in the Regulations as to the risk of harm makes them ultra vires inasmuch as they do not sufficiently circumscribe the CFIA’s power and essentially transform a normative power into an administrative one.
[82] Undeniably, the Governor in Council could have made regulations to further clarify what constitutes a risk of harm and even provided a list of substances and the concentration thresholds beyond which they would be considered harmful. Subparagraph 5(1)(f.1)(iii) provides for that possibility, in fact. The issue, however, is whether the Governor in Council was required to govern the notion of risk of harm and impose specific parameters to circumscribe it, and whether, in the absence of such an intervention, the power exercised by the CFIA is discretionary to such a point that it transforms the legislative power conferred on the Governor in Council into an administrative one.
[83] In my view, it was open to the trial judge to conclude, based on the wording of section 3.1 and its general scheme, that Parliament did not wish to make the contravention of this provision conditional on the enactment of a regulation governing the evaluation of the potential impact and the risk of harm of fertilizers and supplements. First, the placement of the expression "“in contravention of the regulations”" in section 3 in both the French and English versions clearly suggests that the terms qualify only the prohibition against the manufacturing, sale, importation, and exportation of fertilizer or supplements. Second, it seems self-evident that Parliament did not intend to prohibit all manufacturing, sale, importation or exportation of fertilizer or supplements as it simultaneously removed the obligation to register and made market access easier for low-risk fertilizers and supplements. It was therefore absolutely necessary for a regulation to be enacted to give effect to that intention.
[84] Conversely, it is entirely possible to ascertain whether a fertilizer or supplement presents a risk of harm to health or the environment in the absence of a regulation. This is an intelligible standard, which can be interpreted even if not quantified and defined according to certain indicators in a regulation. At a time where problems are increasingly complex and science is evolving ever more quickly, it is often inevitable, even necessary, for those responsible for applying legislative and regulatory standards to be allowed a degree of flexibility. There is without a doubt a certain connection between the prohibition against the subdelegation that takes place when a legislative power is transformed into a discretionary power and the doctrine of vagueness. I will not repeat what I wrote in paragraphs 65 to 68 of these reasons on this topic. I will simply reproduce here the remarks of Professors Issalys and Lemieux, who in my view accurately express the relationship between these two concepts:[translation]
The issue therefore is whether the contents of the regulation are sufficiently precise and defined for individualized decisions based on its provisions to truly apply the standard—through the interpretation of its terms, if needed—and not involve the creation of a new, specific standard through the exercise of a discretionary power. It must therefore be considered whether the contents of the regulation sufficiently develop the contents of the law by providing greater precision: we are therefore faced with a question of degree, which calls for nuanced answers.
P. Issalys & D. Lemieux, L’action gouvernementale : précis de droit des institutions administratives, 4th ed. (Montreal: Yvon Blais, 2020) at 682. [85] Like the trial judge, I find that section 2.1 of the Regulations does not confer an unallowable discretion on the CFIA in the exercise of the mandate it is assigned under the Act. Undeniably, the CFIA is afforded a certain margin of appreciation in applying the Regulations, but this is a far cry from the near-absolute discretion the courts condemned in Brent, Brant Dairy and Canadian Institute. Section 2.1 is also not analogous to the considerable power the council of the city of Montreal conferred on its director of police as in Vic Restaurant Inc. v. City of Montreal, 1958 CanLII 78 (SCC), [1959] S.C.R. 58. While the Charter of the City of Montreal conferred on the council the power to impose the conditions and formalities for the issuing of permits authorizing the operation of various businesses, the impugned by-law in that case subjected the issuing of a restaurant operating licence to the approval of the director of the police department, with no further guidance. The majority of the Supreme Court had no hesitation in finding that this portion of the by-law was "“fatally defective”" because the director of police was provided no standard rule or condition to guide the exercise of his discretion.
[86] In the case before us, the CFIA’s powers are circumscribed by a coherent and intelligible standard. The prohibition against manufacturing, selling, importing or exporting targets only fertilizers or supplements that contain any substance or mixture of substances "“in quantities that present a risk”" of harm to health or the environment when used according to its directions for use or in amounts not in excess of the amount that is necessary to achieve its intended purpose. As in Actton Transport Ltd. v. Steeves, 2004 FCA 182, Canadian Coalition for Firearm Rights v. Canada (Attorney General), 2025 FCA 82 [CCFR] and Commission des normes, de l’équité, de la santé et de la sécurité du travail c. Association des entrepreneurs spécialisés en procédé industriel du Québec, 2025 QCCA 587, the fact that the CFIA’s employees must rely on their judgment and assessment when exercising their discretion does not mean that they are exercising a legislative or regulatory power. It is now well established that officers of the State often have a critical role to play in implementing complex policies and programs that require constant adaptation to account for rapid changes in the circumstances in which they must be applied. This is recognized by the authors Garant, Garant and Garant, who write:[translation]
As previously discussed, what is officially prohibited is the attribution by regulation of a purely discretionary power. It is not prohibited, however, to allow the person who will have to apply the regulation to exercise a certain discretion, provided that sufficiently precise standards exist in the law and the regulation as a whole. There are sectors requiring the government’s intervention where it is practically impossible to set out in the laws and regulations with any great precision what standards will be applied to citizens. We must rely on the judgment of officers who, under the supervision of the higher authority, will have to exercise this measure of discretionary power. The courts may also intervene to review specific decisions alleged to be arbitrary, unreasonable and contrary to the purpose sought in the law or regulation.
Patrice Garant, with the collaboration of Philippe Garant & Jérôme Garant, Droit administratif, 7th ed. (Montréal: Yvon Blais, 2017) at 330. [87] Given that a review of the vires of a regulation is now subject to the standard of reasonableness and subordinate legislation benefits from a presumption of validity (Auer at para. 35; TransAlta at para. 15), I see no reason to intervene to reverse the trial judge’s conclusion that section 2.1 of the Regulations does not constitute an illegal subdelegation. It is not enough to simply contend that this conclusion is in error; the appellant must also show that the Regulations are unreasonable. The appellant has not discharged this onerous burden. . 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 regulation ultra vires issue:[50] To the extent that subordinate legislation "“must be consistent both with specific provisions of the enabling statute and with its overriding purpose or object”" (Katz at para. 24; Reference re Impact Assessment Act, 2023 SCC 23 at para. 283; Auer at para. 33), the appellants are correct to state that, to be reasonable, the Regulations must be consistent with the overall purpose of public safety as well as with the more specific enabling provision set out in section 117.15 of the Code.
[51] In assessing the validity of the Regulations, the Court must also be guided by the principle that subordinate legislation benefits from a presumption of validity (Katz at para. 25; Auer at paras. 33, 36-40). This presumption does not detract from the requirement that the subordinate legislation be reviewed against a standard of reasonableness. But it does mean that "“""where possible, subordinate legislation should be construed in a manner that renders it ""intra vires”" (Auer at para. 39). In exercising judicial review, it is also of the utmost importance to bear in mind that subordinate legislation must be properly interpreted, assessing only its legality as opposed to its merits from a policy perspective (Auer at para. 33; Katz at paras. 27-28).
[52] Therefore, within the confines of these principles, I will address the arguments submitted by the appellants and the interveners and review the Regulations for reasonableness.
[53] The first and most salient aspect of the legal context that is relevant when assessing the reasonableness of subordinate legislation is the governing statutory scheme. What is striking when looking at the key provisions of the Code is their breadth and open-endedness. First, subsection 84(1) sets out a very broad definition of a "“restricted firearm”" for the purpose of Part III of the Code dealing with firearms and other weapons. After referring to three specific types of firearms, the definition ends with the following catch-all category: "“a firearm of any other kind that is prescribed to be a restricted firearm”". It is difficult to think of a more comprehensive definition.
[54] Similarly, subsection 117.15(1) of the Code provides that the GIC may make regulations "“prescribing anything that by this Part is to be or may be prescribed”". Again, this is as broad an enabling language as can be. Accordingly, the only restriction to the all-encompassing delegated authority of the GIC is the restriction found in subsection 117.15(2) of the Code.
[55] As previously noted, the appellants collectively assert that the issue of public safety is only relevant at the first stage of the inquiry, that is, whether the Regulations are authorized by subsection 117.15(1) of the Code. Arguably, this is a possible interpretation of the legislative scheme designed to deal with the possession and use of firearms in Canada. However, the interpretation put forward by the AGC is no less compelling, and is consistent not only with the highly discretionary subjective constraint of subsection 117.15(2) of the Code but also with the context in which it was adopted, the policy role and the broader public interest the GIC has to consider, and the rationale set out in the RIAS. Ultimately, what matters and what must be assessed is the reasonableness of the interpretation given by the GIC to its enabling authority, not the one suggested by the appellants.
[56] I have not been persuaded that the GIC erred in considering public safety in assessing whether the prohibited firearms were reasonable for use in Canada for hunting and sport shooting. It may well be that, from the sole perspective of a sensible hunter or sportsman, it makes no sense to ban firearms that are well suited or even specifically designed for hunting or sport purposes. But the GIC, because of its broader public policy role, must also consider other factors such as public safety. As this Court stated more than once, Cabinet is the most senior policy-making body in government and, because of its role at the apex of the executive branch, is best situated to develop government policy and to assess the public interest: see, for example, League for Human Rights of B’nai Brith Canada v. Canada, 2010 FCA 307 at paras. 77-78; Roseau River First nation v. Canada (Attorney General), 2023 FCA 163 at para. 13; Portnov at para. 44. For that reason, factually suffused decisions made by Cabinet, based on wide considerations of public policy, will be relatively unconstrained and will not normally be second-guessed by courts.
[57] As noted by the Federal Court, public safety has always been the focus of all gun control laws: see Decision at para. 331, relying on Reference re Firearms Act, 2000 SCC 31 at para. 22. Indeed, public safety was very much on the Minister of Justice and Parliament’s minds when the current version of subsection 117.15(2) of the Code was adopted, as can be seen from parliamentary debates: see Minutes of Proceedings and Evidence, Standing Committee on Justice and Legal Affairs, respecting Bill C-68, No. 147 (19 May 1995), First Session of the Thirty-Fifth Parliament, 09:55, online: https://www.ourcommons.ca/Content/Archives/Committee/351/jula/evidence/147_95-05-19/jula147_blk-e.html#0.1.JULA147.000001.AA0955.A. See also: Brown Affidavit at paras. 104-107 (Appeal Book, vol. 5, AB7024-7025). And as further noted by the Court below, this concern for public safety was very much behind the rationale to use regulations rather than legislation to deal with the prohibition of firearms, because of their flexibility and clarity (Decision at paras. 39 and 44, relying on Brown Affidavit at paras. 90-91 (Appeal Book, vol. 5, p. 7019).
[58] In light of this context and the broad and subjective wording of subsection 117.15(2) of the Code, I fail to see how it can be unreasonable to consider the extensive harm that can be caused by prohibited firearms, and the availability of other less lethal firearms, when forming the opinion required by that subsection. Surely, the inherent danger that some firearms pose to public safety because of their lethality and their ability to injure or kill a large number of people in a short period of time, the fact that they have been used in mass shootings in Canada and abroad, the fact that they are disproportionate for civilian use, and the increasing demand for measures to address gun violence are all valid considerations in determining whether their use is reasonable for hunting and sporting purposes. To conclude otherwise would run counter to the text, context and purpose of section 117.15 of the Code and would be oblivious to the broad policy considerations that the GIC, in its role at the apex of the executive branch, must be attuned to in fulfilling its delegated authority.
[59] Therefore, I am of the view that the GIC formed the required opinion, as evidenced by the Order in Council which states: "“Whereas the Governor in Council is not of the opinion that anything prescribed to be a prohibited firearm or a prohibited device, in the Annexed Regulations, is reasonable for use in Canada for hunting or sporting purposes”". I am further of the view that the reasons provided to come to that conclusion, found in the RIAS, are also reasonable and supported by the record that was before the Federal Court.
[60] Contrary to the CCFR appellants’ submissions, the GIC did not rest its opinion only on the inherent deadliness of all firearms. As noted by the Court below, the RIAS refers to a number of particular characteristics of the firearms that are banned, such as the fact that they are (a) of tactical/military design, (b) quickly re-loadable, (c) capable of holding large-capacity magazines, (d) capable of semi-automatic action, and (e) present in large volumes in the marketplace. The RIAS also refers to recent mass shootings, both in Canada and in other countries, and notes that the deadliest ones are commonly perpetrated with assault-style firearms.
[61] Similarly, the fact that other less dangerous firearms remain available was certainly a factor that could legitimately be considered by the GIC in coming to its opinion as to whether the prohibited firearms were reasonable for hunting and sporting. It appears from the record that there are indeed numerous alternative firearms available on the market for these activities (see Baldwin Affidavit at paras. 12 and 43, Smith Affidavit at paras. 101-102 and Brown affidavit at paras. 147-148; Appeal Book, vol. 5, at pp. 8007 and 8014, 6649 and 7043-7045).
[62] Finally, the Amnesty Order does not undermine the reasonableness of the GIC’s opinion. That order is of a transitory nature and is only meant to protect lawful firearms owners who acted in good faith when they originally purchased their firearms. It only allows these owners to keep using their now prohibited firearms for sustenance hunting or to hunt in the exercise of a right recognized and affirmed by section 35 of the Constitution Act, 1982 until they are able to buy other firearms for that use.
[63] As for the arguments submitted by counsel for Alberta, they can be quickly disposed of. First of all, it is clear from a comprehensive reading of the definition of a prohibited firearm at subsection 84(1) of the Code that Parliament did not intend to prohibit only the small and automatic firearms that are specifically listed in paragraphs 84(1)(a)-(c) of the Code, but also any firearm to be prescribed by way of regulation (para. 84(1)(d) of the Code). To limit this last, open-ended paragraph the way Alberta suggests would severely hamper the GIC’s ability to prescribe firearms and would clearly negate Parliament’s intent.
[64] Alberta’s second submission based on the ejusdem generis interpretive principle is equally defective. First, an interpretative principle may or may not be directly applicable, depending on the context; it is in no way conclusive of Parliament’s intent (Ruth Sullivan, The Construction of Statutes, 7th ed. (Toronto: Lexis Nexis, 2022), at §8.07(9)). Moreover, the list of prohibited firearms Alberta relies on is contained in subsection 84(1) of the Code, not in section 117.15, and, therefore, has no application in the interpretation of the authority it enables. Nothing suggests that the open-ended nature of subsection 117.15(2) of the Code should be limited by the pre-existing list found in the subsection 84(1) definition of "“prohibited firearm”". As a result, the ejusdem generis principle that could be derived from subsection 84(1) cannot find application in the context of section 117.15 of the Code, particularly because Alberta failed to identify a common thread that would allow for its application. In any event, the interpretation suggested by Alberta is belied by the discretionary language Parliament used both in paragraph 84(1)(d) and subsection 117.15(2) of the Code.
[65] Therefore, for all these reasons, I would conclude that the appellants failed to rebut the presumption of validity of the Regulations. When read purposefully, subsection 117.15(2) of the Code allowed the GIC to adopt the Regulations. Not only did the enabling legislation allow the GIC to take public safety into consideration when forming the opinion that the prohibited firearms are not reasonable for use in Canada for hunting or sporting, but the reasons provided by the RIAS to form that opinion are supported by the record. . 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 the SOR for regulation ultra vires issues:[25] It is now well established that the standard of review on an appeal from a judicial review determination is set out in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 [Agraira]. In conducting its review, this Court must "“step into the shoes of the lower court”" and determine for itself whether the Court "“identified the appropriate standard of review and applied it correctly”": Agraira, paras. 45-46; Mason v. Canada (Citizenship and Immigration), 2023 SCC 21 at paras. 36 and 51. And as this Court has reiterated on a number of occasions, where the Federal Court’s reasons seem compelling, the appellants bear a tactical burden to show that these reasons in fact are flawed: see Bank of Montreal v. Canada (Attorney General), 2021 FCA 189 at para. 4, leave to appeal to SCC refused, 39899 (7 April 2022); Grewal v. Canada (Attorney General), 2022 FCA 114 at para. 11; Sun v. Canada (Attorney General), 2024 FCA 152 at para. 4; Kandasamy v. Canada (Attorney General), 2024 FCA 181 at para. 7; Power Workers’ Union v. Canada (Attorney General), 2024 FCA 182 at para. 181.
[26] For the most part, the appellants and the respondent (as well as one of the interveners, the Attorney General of Saskatchewan (Saskatchewan)) agree that the Federal Court correctly found that the applicable standard of review to the Regulations under challenge is reasonableness. At the time of the Decision, that question was still a source of debate, and it was not yet entirely clear whether Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 [Vavilov] had displaced the approach followed by the Supreme Court in Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64 [Katz]. Under Katz a regulation is presumed to be valid until the challenging party establishes that it is "“irrelevant”", "“extraneous”" or "“completely unrelated”" to the objectives of its governing statute. Nevertheless, the Federal Court followed the lead of this Court in Portnov v. Canada (Attorney General), 2021 FCA 171 [Portnov] and Innovative Medicines Canada v. Canada (Attorney General), 2022 FCA 210 [Innovative Medicines] and concluded that the principles set out in Vavilov govern the judicial review of the Regulations.
[27] Shortly before the hearing of this case before us, the Supreme Court released its decision in Auer v. Auer, 2024 SCC 36 [Auer] and put a definitive end to that debate. Writing for a unanimous court, Justice Côté firmly held that Vavilov’s reasonableness review is the presumptive standard for reviewing the vires of subordinate legislation. Unless the legislature indicates otherwise or the rule of law requires the application of a different standard, reasonableness should apply to regulations irrespective of the delegate who enacted it, the delegate’s proximity to the legislative branch or the process by which the regulations were enacted.
[28] This is not to say that all the principles enunciated in Katz should be discarded. Justice Côté explicitly stressed that Katz continues to provide "“valuable guidance”", and that Auer only marks a "“narrow departure”" from it. More particularly, a reasonableness review of the vires of subordinate legislation should still be informed by the following principles: 1) subordinate legislation must be consistent both with specific provisions of the enabling statute and with its overriding purpose or object; 2) subordinate legislation benefits from a presumption of validity; 3) the challenged subordinate legislation and the enabling statute should be interpreted using a broad and purposive approach to statutory interpretation; and 4) a vires review does not involve assessing the policy merits of the subordinate legislation to determine whether it is necessary, wise, or effective in practice.
[29] In other words, the "“irrelevant”", "“extraneous”" or "“completely unrelated”" language found in the jurisprudence preceding Vavilov may have been "“hyper-deferential”" (as characterized by Paul Daly in "“Regulations and Reasonableness Review”" in Administrative Law Matters (29 January 2021), www.administrativelawmatters.com/blog/2021/01/29/regulations-and-reasonableness-review/) or "“an artefact from a time long since passed”" (in the words of my colleague Justice Stratas in Portnov at para. 22). This is not to say, however, that the party challenging the vires of a regulation will be relieved from the burden of showing that it does not reasonably fall within the scope of the delegate’s authority. In making that assessment, the Court must determine whether the decision bears the hallmarks of reasonableness (justification, transparency and intelligibility), and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision (Vavilov at para. 99). . Thibault and Ramsay v. Attorney General of Ontario
In Thibault and Ramsay v. Attorney General of Ontario (Ont Divisional Ct, 2025) the Divisional Court dismissed a JR, this challenging part of an Ontario regulation [Towing and Storage Safety and Enforcement Act, 2021 (TSSEA, 2021), Reg. 167/23] on charter and ultra vires grounds. The regulation provision [Reg. 167/23, s.2(d)(i)] challenged disqualified a person from holding a "tow certificate, tow driver certificate or vehicle storage certificate" if "the person is subject to a court order, conditions of parole or an undertaking to a peace officer prohibiting him or her from, ... possessing a weapon".
Here the court conducts it's ultra vires analysis of this particular regulation, couched in classic Vavilov 'reasonableness' principles:(1) Vires of the Regulation
[42] The applicants submit that s. 2(d)(i) of the Regulation has both types of fundamental flaws that are recognized in Vavilov as rendering a decision unreasonable, at para. 101. They submit that there is a failure of rationality internal to the reasoning process, and the impugned provision is untenable in light of the factual and legal constraints that bear on it.
[43] The “governing statutory scheme, other applicable statutory or common law and the principles of statutory interpretation are particularly relevant constraints when reviewing the vires of subordinate legislation”: Auer, at para. 60. They are therefore an appropriate starting point.
[44] Section 64(1) of the Act provides the authority to make regulations. It is broadly worded. It gives authority to make regulations “respecting any matter necessary or advisable to effectively carry out the intent and purpose the Act”. That authority is not limited to the specific matters listed under s. 64(1), but the list includes anything regarding the following:(d) governing certificates and their issuance, renewal, suspension and cancellation, including, …
(iii) governing qualifications and requirements for a certificate, ... [45] The rest of the Act does not limit the types of qualifications and requirements that may be imposed, which is consistent with the broad scope of the authorization to make regulations about certification.
[46] The legislative history summarized above confirms and supports the conclusion that the Regulation is consistent with the Act’s purpose. Although Cabinet gave no reasons for its decision to promulgate the Regulation, we may have regard to the submissions to Cabinet as giving indications as to the purposes of the Act and the Regulation: Auer, at paras. 52-54. The submissions here indicated that the certification system was the core of the Act and the primary mechanism by which the Act would improve outcomes. The expected benefits included the reduction of violence and crime, a serious, long-recognized problem in the industry. The use of criminal records in the certification regime is amply supported by the record that led to the Cabinet decision.
[47] The applicants accept that public safety is one of the goals of the Act and the Regulation. However, they submit that s. 2(d)(i) and the related provisions in the Regulation do not rationally advance public safety (emphasizing that the applicants themselves do not pose a risk). They submit that they have the opposite effect, because they exclude drivers such as themselves who have a demonstrated record of safe and competent participation in the industry. They submit that they limit the number of tow truck drivers and therefore interfere with the demand for those services.
[48] These submissions relate to the effectiveness and wisdom of the Regulation, which is not the question. The “reasonableness standard does not assess the reasonableness of the rules promulgated by the regulation‑making authority; rather, it addresses the reasonableness of the regulation‑making authority’s interpretation of its statutory regulation‑making power”: Auer, at para. 56.
[49] Nor have the applicants established their submission that the government did not consider the matter in detail and misunderstood the implications of the weapon prohibition.
[50] Contrary to this submission, the express words of s. 2 of the Regulation show a detailed level of consideration regarding what should be disqualifying under the Act. Section 2 of the Regulation has four categories of things that are disqualifying:(1) subsection (a) lists over two dozen specific criminal offences;
(2) subsection (b) lists specific offences and groups of offences that, if convicted in the prior five years, are disqualifying;
(3) subsection (c) lists specific offences under the CDSA that, if convicted in the prior ten years, are disqualifying; and,
(4) subsection (d), quoted above, expressly refers to court orders prohibiting a person from “possessing a weapon” as well as orders regarding some other matters. [51] Under this detailed regime, it is plainly shown that specific offences, time limits and types of court orders were considered to prepare the draft regulation and that people with weapons prohibitions would be disqualified. Including a weapons prohibition is amply supported by the legislative purposes of the Act.
[52] The applicants seek to move from the general categories in the above section, to the specific consequences for them. They submit that it is irrational to exclude people who have worked lawfully in the industry because of twenty-year-old convictions. They submit that other people with more violent offences may become eligible for a certificate (since some of the other categories under s. 2 have time limits), where the weapons prohibition category does not. These are, again, policy choices. And the submission overlooks the prospect that the people with those more serious offences may also have a weapons prohibition and be disqualified for that reason.
[53] The decision to impose a weapons prohibition on the applicants was made under the Criminal Code. There may be consequences for them. As put in Auer, at para. 58, the “potential or actual consequences of the subordinate legislation are relevant only insofar as a reviewing court must determine whether the statutory delegate was reasonably authorized to enact subordinate legislation that would have such consequences. Whether those consequences are in themselves necessary, desirable or wise is not the appropriate inquiry.”
....
[59] We conclude that s. 2(d)(i) of the Regulation is reasonably within the scope of Cabinet’s authority to make regulations under s. 64(1) of Act. In other words, having considered all relevant factors in the reasonableness review of the vires of the part of the Regulation at issue, as set out in Auer and Vavilov, the applicants have not shown that s. 2(d)(i) or the related subsections of the Regulation are unreasonable.
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