CANADA Trends and Developments Contributed by: Sujit Choudhry and Mani Kakkar, Circle Barristers
Circle Barristers Suite 200, 325 Front Street West
Toronto Ontario M5V 2Y1 Canada Tel: +1 416 436 3679 Email: sujit.choudhry@circlebarristers.com Web: www.circlebarristers.com
Introduction Many important developments were witnessed in Canadian public law in 2024. Four decisions warrant special attention: • the standard of review for secondary legisla - tion, in Auer v Auer, 2024 SCC 36; • the legal framework for damages under the Canadian Charter of Rights and Freedoms in Canada (Attorney General) v Power, 2024 SCC 26; • the constitutionality of partial privative claus - es in Democracy Watch v Attorney General of Canada, 2024 FCA 158; and • the Federal Court’s decision on the federal Cabinet’s invocation of the Emergencies Act in February 2022, in Canadian Front Line Nurses et al v AGC, 2024 FC 42. Auer v Auer, 2024 SCC 36 One of the year’s most closely watched deci - sions was Auer, which concerned the standard of review for the vires of secondary legislation. Prior to Auer, the prevailing standard had been set down by the Supreme Court of Canada in Katz v Ontario (Health and Long-Term Care), 2013 SCC 64. Vires review under Katz was very
deferential: whether the regulations were “irrel- evant” , “extraneous” or “completely unrelated” to the statutory purpose. In Vavilov v Canada (Citizenship and Immigra - tion), 2019 SCC 65, the Supreme Court deter - mined that reasonableness would be the pre - sumptive standard of review for administrative decisions. The Court in Vavilov explained that “a reasonable decision is one that is based on an internally coherent and rational chain of analysis that is justified in relation to the facts and law that constrain the decision-maker” . This is a much more demanding standard of review than Katz. In the wake of Vavilov, courts of appeal divided on whether Vavilov’s reasonableness standard should replace Katz. In Auer, the Supreme Court held that the “robust” reasonableness standard in Vavilov applies to secondary legislation and discarded what it termed the “very high degree of deference” of Katz. However, it retained four elements of Katz. Secondary legislation: • must be consistent with the provisions and overall purpose of enabling legislation;
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