How not to challenge validity of a regulation | Sara Blake

By Sara Blake

Law360 Canada (July 6, 2023, 3:17 PM EDT) --
Sara Blake
Sara Blake
The decision of the Supreme Court of Canada in Canadian Council for Refugees v. Canada (Citizenship and Immigration) [2023] S.C.J. No. 17, focuses mostly on Charter issues, which are discussed by other commentators.

I offer comments about the administrative law issues concerning judicial review of a regulation made under the Immigration and Refugee Protection Act.

The regulation designates the United States of America as a “safe third country.” A migrant who arrives in that country, prior to travelling to Canada, is generally expected to claim refugee status there, subject to discretionary exemptions in individual cases.

The applicants had passed though the United States before making refugee claims in Canada. Their claims were rejected as “ineligible.” They sought judicial review of the regulation, challenging its validity on administrative law and Charter grounds. They did not challenge the exercise of discretion in their individual cases.

The court ruled that the regulation is valid — it is authorized by the Act.

The applicants’ arguments focused on factors prescribed by the Act, which must be considered by the governor-in-council before making a regulation designating a country as a “safe third country.” The focus of the statutory factors is on the human rights record of the country. These are preconditions precedent that must be met before the regulation is made. Whether they were met is relevant to determining the validity of the regulation.

However, the applicants did not raise any issue of whether the prescribed factors were met prior to promulgation of the regulation. Rather, they argued that the factors were not met at the time they made their claims for refugee status in Canada, relying on the requirement in the Act for periodic review by the governor-in-council of whether the statutory factors for designation as a “safe third country” continue to be met. The flaw in this argument is that they did not seek judicial review of any periodic review decision made by the governor-in-council. The court dismissed this argument, ruling that the validity of a regulation does not turn on whether prescribed factors continue to be met after it was made.

The court confirmed that the validity of a regulation must be examined as at the time of promulgation and must be based on the statute, not on any act of the executive body by which it was made. The court confirmed that regulations benefit from a presumption of validity, citing Katz Group Canada Inc. v. Ontario (Health and Long-Term Care) [2013] 3 S.C.R. 810. The court noted at the outset that it “is not tasked with assessing the wisdom of Canadian immigration policy, a matter that courts are not institutionally designed to evaluate, much less reform.”

As the applicants focused their arguments on post-promulgation circumstances, rather than the circumstances as at the date of promulgation, their judicial review of the validity of the regulation was dismissed.

For this reason, the court declined to address their arguments as to the standard of review of a regulation. The appellants argued that the standard of review should be reasonableness, citing Portnov v. Canada (Attorney General) [2021] F.C.J. No. 898, and several decisions concerning judicial review of subordinate law made by municipalities and regulators. The factum of the Department of Justice accepted this argument. Neither party mentioned Auer v. Auer [2022] A.J. No. 1389, which I’ve discussed previously. If the Supreme Court grants leave to appeal in Auer, it will have an opportunity to settle the attempt by the Federal Court of Appeal, in Portnov, to lower the standard of review of regulations made by the governor-in-council.

Sara Blake is the author of Administrative Law in Canada, 7th edition, LexisNexis Canada. Her practice is restricted to clients who exercise statutory and regulatory powers.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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