Tuesday, 26 November 2013

Putting the Katz amongst the Pigeons

In Zenner v. Prince Edward Island College of Optometrists, [2005] 3 SCR 645, one of the conditions imposed by his professional body on an optometrist who had lost his licence was that he complete an accredited medical ethics or optometrist course. The problem was that, at the time, the College had not accredited any such course! The condition was impossible to fulfill. There being no rational basis for imposing an impossible condition, it was struck down.

Last week, in Katz Group Canada Inc. v. Ontario (Health and Long‑Term Care), 2013 SCC 64, in reviewing a regulation (rather than a decision), the Court indicated that the "policy merits" of regulations and their necessity, wisdom or effectiveness should not be considered by reviewing courts (para. 27).

Regulations may be struck down only if they are ultra vires. Anything intra vires (and substantively unreasonable) is beyond attack. And whether the regulations are ultra vires has nothing to do with whether they "will actually succeed at achieving the statutory objectives"; they must be irrelevant, extraneous or completely unrelated to the statutory purpose (para. 28).

In my view, this must mean that reviewing courts cannot consider the substantive unreasonableness -- including the absence of a rational basis -- of regulations. Spheres of authority are established. Once inside its sphere of authority (i.e. acting intra vires), the regulator has untrammeled power to do as it pleases (subject I suppose to constitutional limits).

Here is my question. If in Zenner the professional body had accomplished by regulation what it sought to accomplish by decision, could the regulation have been struck down? It appears not (subject to someone rooting out a vires case which turned on "impossibility"...).

One could try and shoehorn the hypothetical "impossible to satisfy" regulation into one of the limited categories recognized in Katz. With some creativity, it might be said to be vitiated by a failure to take into account relevant factors (but the non-existence of the course would not be a statutory relevant factor) or "completely unrelated" to the statutory purpose (but the prescription of a course would hardly be "completely unrelated" to the statutory purpose, even if it would not achieve it). Either of these would be an uncomfortable fit. And in any event, the Court also warns that such an argument will only succeed in an "egregious case".

Of course, determining whether a purpose is proper or a consideration is relevant may often necessitate a consideration of the effects of the regulation at issue (see here (at p. 10 and surrounds) for a good discussion). It may even shade into a consideration of whether there was a rational basis for the adoption of the regulation. But this is only an incidental effect of the framework established in Katz and it is doubtful that it is legitimate for reviewing courts to consider rational basis expressly.

This leads me to suggest that what could not be accomplished in Zenner could now be accomplished under the Katz framework.

I find that result, and the resurrection of a distinction between legality and policy, most unfortunate.

Requiring that regulations are substantively reasonable (including having a rational basis, as with the condition struck down in Zenner) would not greatly inhibit governmental action (for that concern, see here).

Any applicant for judicial review has to demonstrate that there is something legally inappropriate about a decision the applicant dislikes. It is not enough to say "I dislike the decision, your Honour, please quash it". Some aberration must be identified.

At that point, the court will have to consider whether the apparent aberration renders the decision unreasonable, in light of the record and reasons given by the decision-maker and arguments made by counsel.

This does not involve the shifting of a legal burden. It is more akin to a tactical burden placed on the decision-maker. Critically, in determining whether the decision is unreasonable, the court should be deferential to the decision-maker.

When it comes to regulations, the bar for judicial intervention should be set very high. Setting a high bar for substantive unreasonableness of regulations is better in my view than not setting a bar at all. Unfortunately, by resorting to an ultra vires/intra vires approach, the Court has effectively walled off important aspects of regulatory action from judicial oversight.


  1. Here's a hopeless argument: a regulation that is impossible to comply with is a violation of the principle of the Rule of Law (so Fuller); and the Rule of Law principle is one of the underlying constitutional principles capable of direct normative effects in Canadian law (so the Secession Reference); so that a regulation that is impossible to comply with is actually unconstitutional, and not merely unreasonable/ultra vires. But of course the Supreme Court thinks that the "amorphous" principle of the Rule of Law doesn't mean much of anything except the need for law of some kind (so Imperial Tobacco v BC), so my argument doesn't work.

  2. Heh, good one.

    But see here, pp. 324-326: http://www.press.uottawa.ca/sites/default/files/9780776620848_10.pdf