The Vires of Delegated Legislation: Reeves (A Minor) v Disabled Drivers Medical Board of Appeal  IESC 31
The vires of delegated legislation is a hot topic in Canadian administrative law. The Supreme Court of Canada recently granted leave to appeal in a pair of cases addressing the issue (I noted the appellate decisions here). Regular readers will know that Canadian courts have divided on the level of deference that is appropriate when reviewing regulations.
Sometimes, however, if not often, assessing whether regulations are within the scope of their parent statute will come down to a conventional exercise in statutory interpretation, considering text, context and purpose. As the Federal Court of Appeal observed in Innovative Medicines Canada v. Canada (Attorney General), 2022 FCA 210, at para. 40, “[t]he key is the limiting statutory language”.
A useful recent example comes from Ireland: Reeves (A Minor) v Disabled Drivers Medical Board of Appeal  IESC 31. The applicants here were children with severe disabilities. Their parents had sought tax concessions for vehicles necessary to transport the children. Section 92(1) of the Finance Act 1989 empowered the Minister to introduce a scheme for “severely and permanently disabled” drivers and passengers. Introducing a scheme triggered an obligation to make regulations pertaining to “the criteria for eligibility for the remission of the taxes specified in subsection (1), including such further medical criteria in relation to disabilities as may be considered necessary.”
In the regulations, the Minister had created a subset of persons with severe disabilities and the Board treated this subset as an exclusive list of eligible disabilities. Neither of the child applicants here fell within the disabilities set out in the regulations.
O’Malley J. noted that delegated legislation will be ultra vires if it goes beyond the principles and policies of the statute and, equally, that “the legislative purpose may be wrongfully thwarted if the intended scope of operation of the statute is curtailed by reason of a failure to fulfil the statutory principles and policies” (at para. 46).
This was a case of thwarting of legislative purpose: “the regulations exclude some persons who have a severe and permanent disability that greatly limits their mobility and that creates a need for the adaptation of a car used for their transport. Given the terms and intent of s.92, I cannot see that this result was within the contemplation of the legislature, or that it comes within the scope of the Minister’s power to formulate “necessary” criteria for the implementation of the section (at para. 68).
The use by the legislature of the term “necessary” did not create a general discretion in the Minister to narrow the eligibility of the “severely and permanently disabled” persons that the legislature intended would benefit from any scheme of concessions introduced under s. 92 (at para. 58). Ultimately, the Minister’s error was to have focused (seemingly) on drivers rather than passengers, even though both groups were entitled to benefit from any scheme (at para. 63). The result was a set of regulations that were ultra vires s. 92.
There is nothing especially complicated about this analysis and it is entirely compatible with first principles of Canadian administrative law. As Vavilov states, the principles of statutory interpretation form part of the analysis of the reasonableness of any administrative decision (at paras. 116-124). In addition, the relative scope of the delegation of authority will inform the reasonableness analysis (at paras. 108-110). This Irish case is a neat illustration of these principles: the regulation-making power was (once the Minister decided to exercise it) relatively constrained and the regulations adopted could not be reconciled with the text or purpose of the statute. In the Irish argot, the regulations were ultra vires and in Canada the result would be the same, albeit under the rubric of reasonableness rather than vires.
This content has been updated on November 17, 2023 at 09:39.