CANADA Trends and Developments Contributed by: Sujit Choudhry and Mani Kakkar, Circle Barristers
• benefits from a presumption of validity; • must be interpreted using a broad and purpo - sive approach, along with its enabling legisla - tion; and • must be assessed without reference to its policy merits, including either its wisdom or efficacy. Moreover, Vavilov required significant adapta - tion. Vavilov orients judicial review around the reasons of the decision-maker. However, formal reasons are uncommon for secondary legisla - tion. Auer acknowledged this problem, and held that the reasons could include debate, deliber - ations and public statements surrounding the enactment of secondary legislation, as well as regulatory impact statements. In addition, Auer held that inputs that were before the decision- maker – eg, industry submissions – might also be part of the record. However, this is a difficult issue. The courts will have to adjust the scope of record before the decision-maker that must be disclosed to parties challenging secondary leg - islation to align with the more stringent stand - ard of review. This will mark an important shift in Canadian administrative law, because it will require disclosure of more information regarding the policy process. Some of this information may be subject to various forms of privilege, such as public interest privilege under Section 37 of the Canada Evidence Act. Auer also renders explicit an important aspect of Vavilov which was implicit: that the standard of reasonableness applies regardless of identity of decision-maker, proximity to legislative branch, or process of enactment. This marks an impor - tant change in the law of judicial review. From the standpoint of Vavilov and Auer, the political status of a decision-maker – for example, the
Cabinet or a Minister – does not trigger greater deference on judicial review. Canada (Attorney General) v Power, 2024 SCC 26 Power was another important decision, on the legal principles governing Charter damages under Section 24(1). Prior to Power, the leading cases on Charter damages were Vancouver v Ward, 2010 SCC 27 and Mackin v New Brun - swick (Minister of Finance), 2002 SCC 13. Ward established a four-part test for awarding Charter damages. • Has the Charter been breached? • Would damages fulfil one or more of the related functions of compensation, vindica - tion or deterrence? • Do countervailing factors render damages inappropriate or unjust? • Assessment of the quantum of damages nec - essary to achieve a just result. Mackin had previously held that legislatures enjoyed a limited immunity in relation to law- making powers. The standard of liability in Mackin was negligence, bad faith or wilful blind - ness. Ward explained Mackin based on the third factor – the importance of not chilling legislative and policy-making functions. The specific issue in Power was the standard of liability for unconstitutional legislation. Power narrowed Mackin by allowing liability for legisla - tion that is “clearly unconstitutional” or whose enactment was “in bad faith or an abuse of power” . Gone is the possibility of liability for legislation that negligently violated the Charter. Moreover, wilful blindness has been recast as clearly unconstitutional.
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