CANADA Law and Practice Contributed by: Sujit Choudhry and Mani Kakkar, Circle Barristers
decisions are now increasingly the subject of judicial reviews and constitutional challenges. 3.2 Challenging Secondary Legislation Constitutional challenges to secondary legisla - tion can be brought on the same basis as to primary legislation. In addition, secondary leg - islation can be challenged for being ultra vires primary legislation. The basis for ultra vires chal - lenges to secondary legislation has evolved. Until recently, secondary legislation could only be challenged for being inconsistent with the purpose of the enabling statute, on the basis that they are irrelevant, extraneous or completely unrelated to that purpose. However, secondary legislation is now subject to reasonableness review, like other executive decisions (described further below). 3.3 Government Decisions Affecting Sole Individuals It is possible to challenge government decisions that only affect one person, on both constitution - al and administrative law grounds. The question is whether they have private standing (discussed further below). 3.4 Agreements Between Private Entities and Public Bodies Under Canadian law, the Crown has the capac - ity to enter into contracts under common law. Moreover, statutes confer on many public insti - tutions the power to enter into contracts. Execu - tive bodies are liable in contract at common law, including for damages. There is no separate public law of contracts; the private law of contract at common law applies to contracts with public entities. However, the pro - cess of government contracting – for example, bid and tender processes in public procurement schemes – is often regulated by statute, which
must be complied with. While contracts cannot fetter legislative sovereignty, a statute must use specific and unambiguous language to do so. Government contracts are also subject to con - stitutional constraints under the Canadian Char - ter of Rights and Freedoms. Contract terms that restrict Charter rights are subject to constitution - al challenge on the same basis as legislation. 3.5 Challenging Decisions Without Legal Effect Soft law instruments can, in certain circumstanc - es, be judicially reviewed for compliance with enabling legislation in a manner identical to sec - ondary legislation. The question is whether they meet the standard of reasonableness. In addi - tion, a soft law instrument may be struck down for fettering statutory discretion. The threshold question is whether the instrument purports to have binding effect and affects legal rights or has prejudicial effects. Soft law instruments are also subject to constitutional review under the Canadian Charter of Rights and Freedoms, in cases where they have been held to have law- like effects akin to legislation. 4. Nature of the Decision-Maker 4.1 Judicial Review of Commercial and Non-Governmental Decisions In narrow circumstances, the decisions of a pri - vate, voluntary association can be subject to judicial review for procedural fairness, where they affect underlying legal rights – for exam - ple, contractual or property rights. In addition, courts have treated the constitutions of volun - tary associations as creating a web of contrac - tual relations among their members, which are enforceable through an ordinary civil proceed - ing (as opposed to an application for judicial
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