Delegated Legislation and Subordinate Regulations

Overview

Delegated legislation represents the primary vehicle through which the modern regulatory state implements statutory policy. In contemporary governance, primary legislation passed by Parliament or provincial legislatures establishes broad institutional architectures and policy mandates, leaving the technical articulation of detailed norms to executive delegates. These subordinate enactments can take the form of regulations, orders or by-laws. Their title alone does not determine their legal nature, and whether they bind the Crown depends on the applicable statute and public-law rules.

Because subordinate law-making bypasses direct parliamentary debate, public law imposes rigorous statutory and judicial constraints on its creation, enforcement, and validity. The principle of legality dictates that there is no delegated legislation without a valid statutory foundation: nullum regulamentum sine lege. Administrative delegates possess only those law-making powers explicitly or implicitly conferred by an enabling act, and their exercise remains subject to procedural safeguards including registration, pre-publication, and public consultation.

Judicial review reconciles executive flexibility with statutory and constitutional limits. Auer v. Auer, 2024 SCC 36, and TransAlta Generation Partnership v. Alberta, 2024 SCC 37, confirm presumptive Vavilov reasonableness review of the vires of subordinate legislation. They preserve several Katz Group principles while displacing its exceptionally deferential threshold. The appellate decision in Auer, 2022 ABCA 375, is part of the history, not the governing formulation.

Learning Objectives

• Distinguish delegated legislation from primary statutes, individualized administrative decisions, and non-binding administrative policies.
• Analyze the statutory procedures governing the regulatory life cycle at the federal level and in Quebec, including pre-publication and incorporation by reference.
• Evaluate the substantive grounds of regulatory invalidity under Vavilov as clarified by Auer and TransAlta, distinguishing retained from displaced Katz principles, identifying ultra vires regulations, Henry VIII clauses, and constitutional constraints.

Nature and Typology of Subordinate Norms

Definition of Regulation and the Enabling Power Requirement

A regulation is an enactment of general application adopted by a subordinate delegate pursuant to statutory authority. Subordinate legislation differs fundamentally from primary statutes: while Parliament and provincial legislatures possess sovereign, plenary legislative authority within their constitutional boundaries, administrative delegates possess only derivative authority.

Every subordinate enactment must trace its authority to the governing law. Federal Statutory Instruments Act subsection 2(1) includes statutory instruments made under delegated legislative power, instruments carrying a statutory penalty, procedural rules for federal judicial or quasi-judicial bodies, and instruments designated as regulations by another federal Act; its definitions and exclusions determine the Act’s scope. In Quebec, Regulations Act section 1 uses a substantive definition: a norm of general and impersonal application having legal force, made under an Act. A general rule made without the necessary authority is invalid. SIA, s. 2; Regulations Act, ss. 1–3.

Distinction from Statutes, Administrative Decisions, and Policy Instruments

Canadian administrative law strictly separates regulations from other normative instruments. Primary statutes represent supreme legislative acts immune from judicial review on common law administrative grounds, reviewable only for constitutional compliance. Subordinate regulations are subject to administrative law review for statutory unauthorized excess.

Regulations must also be distinguished from individual administrative decisions. An administrative decision resolves a concrete dispute or applies legal criteria to named individuals, creating particularized rights or duties. Conversely, a regulation establishes abstract, impersonal rules governing an indeterminate class of persons for the future.

Regulations must further be differentiated from soft law instruments, such as administrative guidelines, policy manuals, and interpretation bulletins. While administrative policies provide non-binding guidance, regulations create legally enforceable rights and duties. Where an agency attempts to enact mandatory prohibitions through an informal policy without statutory authority, the measure constitutes an unlawful attempt to legislate without complying with the formal regulatory enactment process.

Institutional Delegates: Government, Ministers, Municipalities, and Agencies

The legislature delegates regulation-making power across four institutional tiers. The primary delegate is the formal executive: the Governor in Council at the federal level, and the Government acting through the Lieutenant-Governor in Council provincially. These executive orders represent Cabinet decisions clothed in formal legal authority, frequently addressing broad economic, social, or public safety matters.

The second tier comprises individual ministers. Enabling statutes often empower ministers to issue technical regulations or Ministerial Orders governing routine administrative parameters within their portfolio. The third tier consists of municipal councils, which enact local by-laws under delegated provincial authority (Municipal Powers Act, RLRQ, c. C-47.1). Municipal by-laws represent an ancient form of decentralized delegated legislation, subject to unique procedural and judicial review rules.

The fourth tier includes arm's-length regulatory commissions and professional self-governing orders. Specialized bodies, such as the Canadian Radio-television and Telecommunications Commission (CRTC) or professional colleges under the Quebec Professional Code (RLRQ, c. C-26), exercise subordinate legislative authority to establish sector-specific technical standards, licensing requirements, and ethical codes.

The Regulatory Life Cycle and Statutory Formalities

Federal Regulatory Process under the Statutory Instruments Act

The Statutory Instruments Act (SIA) applies subject to its definitions and exemptions. Section 3 requires transmission of proposed regulations in both official languages to the Clerk of the Privy Council, who examines them in consultation with the Deputy Minister of Justice for statutory authority, unusual use of power, rights compliance and drafting quality. Failure to undergo that examination alone does not invalidate a regulation (s. 8).

Section 5 requires transmission within seven days after making the regulation; section 6 governs registration. Publication ordinarily follows within 23 days after registration under section 11(1). Section 9 generally prevents commencement before registration, but contains exceptions for expressly earlier commencement with timely registration and exempt classes; the enabling legislation and commencement clause must also be checked. SIA, ss. 3–11.

Non-publication alone does not invalidate a regulation. For conviction under an unpublished regulation, section 11(2) requires both an exemption from publication or an express pre-publication application clause, and proof that reasonable steps had brought its purport to the notice of affected persons before the alleged offence. Actual notice cannot by itself replace the first condition.

Quebec Regulatory Process under the Regulations Act

The Regulations Act applies to the authorities described in section 2, subject to the exclusions in section 3; it does not cover every public body's instrument. Municipal by-laws, for example, generally follow their own statutory adoption, approval and publication rules.

Section 15 requires publication in the Gazette officielle du Québec. Section 17 provides for commencement 15 days after publication, or on a later date specified in the regulation or enabling Act. Section 18 permits earlier commencement, no earlier than publication, for a reason provided by the enabling Act, urgency or fiscal norms; the reason must accompany the regulation. Section 19 limits convictions for offences during this accelerated interval unless affected persons could acquaint themselves with the rule beforehand. Regulations Act, ss. 2–3, 15–19.

Municipal by-laws require the formalities of their particular regime, including notice of motion and presentation of a draft where required, adoption by council, any required approvals and public notice. A simple administrative instruction does not substitute for enactment of a by-law.

Pre-Publication, Consultation, and Urgency Exceptions

For covered Quebec regulations, sections 8 and 10 require publication of the draft and a notice identifying the period before enactment or submission for approval, the possibility of comments and their recipient. Section 11 sets a minimum 45-day interval before enactment or submission for approval, or the longer period stated in the notice or enabling Act. This is distinct from the interval between final publication and commencement.

Section 12 permits a shorter interval or dispensing with draft publication for a reason provided by the enabling Act, urgency, or the establishment, amendment or repeal of fiscal norms. Under section 13, the reason for shortening the interval accompanies the draft; the reason for dispensing with publication accompanies the final regulation. Section 14 permits amendment of a published draft without a second publication, but this permission should not be treated as unrestricted. The supplied fascicule reports that the Court of Québec required republication for substantial changes in Gaspé Énergies inc. c. Ministre de l’Énergie et des Ressources naturelles, 2021 QCCQ 11747, paras. 247–341 (fasc. 4, para. 56, note 45). Compare the published proposal with the amended text and assess whether renewed publication is required. These provisions must not be confused with early commencement under section 18. Regulations Act, ss. 8–14.

Federal pre-publication in Canada Gazette Part I derives primarily from the Cabinet Directive on Regulation and sometimes from a specific statute. Identify whether the requirement is statutory or policy-based, and whether an exception applies, before attributing invalidity to non-compliance. Cabinet Directive, regulatory development.

Incorporation by Reference and Evidentiary Proof of Regulations

Regulatory drafting frequently relies on incorporation by reference, a technique whereby a regulation incorporates external documents, technical codes, or foreign standards without reproducing their text. Administrative law distinguishes between static incorporation, which incorporates an external standard as it existed on a specific date, and ambulatory (dynamic) incorporation, which incorporates an external standard as amended from time to time.

Ambulatory incorporation raises legal concerns regarding unlawful subdelegation of legislative power. If a regulation incorporates external industry guidelines as amended from time to time, the private body authoring those guidelines effectively amends domestic law. At the federal level, the Statutory Instruments Act was amended to add sections 18.1 through 18.7, expressly authorizing open and ambulatory incorporation by reference under specified conditions.

Courts take judicial notice of published federal statutory instruments under SIA section 16. In Quebec, article 2807 CCQ governs judicial notice of law, including regulatory texts published in the Gazette officielle du Québec or otherwise as prescribed by law; R-18.1 section 19 concerns early-commencement offences, not proof. For incorporated texts, also check accessibility and offence safeguards in SIA sections 18.3–18.6 and Quebec sections 9 and 16. CCQ, art. 2807.

Grounds of Regulatory Invalidity

The Presumption of Validity and the Katz Group Framework

Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64, remains relevant but must be read through Auer. The challenger bears the burden of showing invalidity; courts favour an interpretation reconciling regulation and statute where reasonably possible, interpret them broadly and purposively, and do not decide whether the policy was wise, necessary or effective.

What does not survive is the additional requirement that a regulation inconsistent with the statutory purpose be irrelevant, extraneous or completely unrelated to it. That threshold imposed excessive deference. Ordinary Vavilov reasonableness meaningfully enforces legal constraints; the presumption does not authorize rewriting the statute to save the regulation. Auer, paras. 28–41, 49.

Standard of Review under Vavilov and Auer

Auer v. Auer, 2024 SCC 36, holds that Vavilov presumptively governs vires review of all subordinate legislation, regardless of the delegate's identity. Statutory exceptions and correctness categories remain relevant, notably constitutional questions. The reviewing court examines the enabling provision's text, context and purpose and the other legal and factual constraints. Where formal reasons are not required, the record and statutory context may reveal the rationale; absence of reasons alone does not invalidate a regulation. Auer, paras. 3–4, 25–27, 50–58.

The companion decision, TransAlta Generation Partnership v. Alberta, 2024 SCC 37, applies this framework to assessment guidelines. It also confirms that administrative discrimination is a statutory-authority question: distinctions may be authorized expressly or by necessary implication. The Court upheld the distinction in that case after examining the statutory scheme; it did not treat every difference in treatment as forbidden. TransAlta, paras. 14–18, 40–43, 50–60.

Ultra Vires and Conflict with Statutory Purpose

The primary ground for invalidating delegated legislation is ultra vires: the regulation exceeds the substantive authority granted by the enabling act. Enabling provisions may grant specific regulation-making authority (e.g., establishing fees or setting technical thresholds) or broad general authority (e.g., empowering regulations necessary for carrying out the purposes of this Act).

Even broad basket clauses do not confer limitless regulatory discretion. In R. v. Greenbaum, [1993] 1 S.C.R. 674, and 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241, the Supreme Court confirmed that broad general powers to regulate for the general welfare must be interpreted in light of the text and purpose of the enabling statute. The executive cannot rely on a general regulation-making clause to create regulatory powers foreign to the legislative mandate or restrict civil rights without statutory foundation.

Furthermore, a regulation cannot contradict, restrict, or expand the primary statute. Under established administrative law principles, where a regulation conflicts directly with the enabling act or another primary statute, the regulation must yield to primary legislation under the principle of legislative hierarchy, as subordinate rules cannot amend or contradict the statute unless expressly authorized.

Henry VIII Clauses and Unauthorized Subdelegation

An exceptional regulatory mechanism is the Henry VIII clause, a statutory provision enabling the executive to amend or repeal primary statutory legislation through subordinate regulations. Named after King Henry VIII's historic use of executive proclamations, these clauses raise severe constitutional concerns regarding parliamentary sovereignty and executive overreach.

Because Henry VIII clauses invert the traditional hierarchy between primary statutes and subordinate regulations, Canadian courts interpret them with exceptional strictness. An administrative delegate cannot amend a statute by regulation unless the legislature has conferred that power through clear, express, and unmistakable statutory language.

The maxim delegatus non potest delegare raises a question of statutory interpretation: has the legislature authorized further delegation, expressly or by necessary implication? Regulatory subdelegation is not interchangeable with an official obtaining administrative assistance. Incorporation by reference must be assessed under its specific statutory framework. The absence of an express clause alone does not decide every case.

Impermissible Taxation and Penalties

Section 53 of the Constitution Act, 1867 requires tax bills to originate in the House of Commons; section 90 applies that rule to provincial legislatures. Delegated taxation requires clear legislative authorization. Constitution Act, ss. 53, 90.

An administrative delegate has no inherent authority to levy taxes. A regulation that imposes a tax without express, unambiguous statutory authorization is unconstitutional and ultra vires. In Eurig Estate (Re), [1998] 2 S.C.R. 565, the Supreme Court struck down provincial probate fees imposed by regulation, holding that because the fees exceeded the administrative cost of providing probate services and generated general state revenue, they constituted an unauthorized tax.

To determine whether a regulatory fee constitutes an impermissible tax, courts apply the regulatory charge test: the charge must bear a nexus or reasonable relationship to the regulatory scheme or the cost of providing the specific service (Westbank First Nation v. British Columbia Hydro and Power Authority, [1999] 3 S.C.R. 134). If the levy is unconnected to a regulatory scheme and raises general public revenues without statutory authority, the levy constitutes an unlawful tax. Similarly, regulations cannot create penal sanctions or authorize imprisonment unless explicitly authorized by the enabling act.

Retrospectivity, Discrimination, and Bad Faith

Retroactivity, retrospectivity and interference with vested rights must be distinguished. Identify the temporal effect actually imposed and the enabling authority required for it. A regulation cannot acquire retroactive effect merely because its maker prefers an earlier date: retroactive regulation requires clear, express authorization in the enabling Act (JurisClasseur, Droit administratif, fasc. 4, paras. 78–79). The ordinary presumptions against retroactivity and interference with vested rights must be applied to the particular statute.

Furthermore, regulations cannot practice unjustifiable discrimination among classes of regulated persons. At administrative law, regulatory discrimination occurs where a delegate draws distinctions among citizens or economic actors without statutory authority. In Montreal (City) v. Arcade Amusements Inc., [1985] 1 S.C.R. 368, the Supreme Court confirmed that an administrative delegate cannot establish discriminatory categories or prohibit activities for specific sub-groups (such as banning amusement halls for minors) absent clear legislative authorization.

Regulations may also be invalidated upon proof of bad faith or improper purpose. While proving bad faith against an institutional delegate is exceptionally difficult, a regulation enacted for a purpose completely foreign to the statutory mandate, or to improperly target a political adversary, constitutes an abuse of regulatory power that courts will set aside (Roncarelli v. Duplessis, [1959] S.C.R. 121).

Constitutional and Charter Constraints on Regulations

Constitutional validity, applicability and operability are different questions. Characterization and the division of powers determine validity. Interjurisdictional immunity may render otherwise valid provincial legislation inapplicable where it impairs a protected core of federal competence; federal paramountcy may render it inoperative to the extent of an operational conflict or frustration of federal purpose. An incidental impact on a federal matter does not automatically invalidate a provincial regulation.

Subordinate regulations must also comply with the Canadian Charter of Rights and Freedoms. Because a regulation constitutes government action under section 32, any regulatory limit on Charter rights must be demonstrably justified under section 1. In Greater Vancouver Transportation Authority v. Canadian Federation of Students, 2009 SCC 31, the Supreme Court confirmed that subordinate rules and policies that infringe Charter-protected freedoms cannot stand unless demonstrably justified.

Constitutional questions attract correctness review. Identify the particular guarantee, any applicable justification or constitutional exception, and the appropriate remedy; an infringement and the remedy’s temporal effect require distinct analysis.

Challenging Subordinate Legislation in Court

Direct Review via Declaratory Judgment and Judicial Review

A direct federal regulatory challenge ordinarily falls under Federal Courts Act sections 18 and 18.1 where it targets a federal board, commission or other tribunal. Check section 28: review of the listed bodies is assigned to the Federal Court of Appeal. Constitutional questions and the true nature of the relief may affect jurisdiction; not every challenge touching a federal regulation belongs exclusively to the Federal Court. Federal Courts Act, ss. 18, 28.

In Quebec, an application for judicial review is brought before the Superior Court under article 529 of the Code of Civil Procedure (CQLR, c. C-25.01). The applicant may seek an order in the nature of certiorari to quash the regulation, or an action for a declaratory judgment under article 142 CCP declaring the subordinate enactment ultra vires.

Article 529 CCP requires a reasonable time, assessed in context; it does not enact a 30-day presumption or safe harbour. Judicial guidance sometimes uses 30 days as a reference point for reviewing individual decisions, but regulatory challenges require attention to their nature and the remedy sought. Federally, section 18.1(2) gives 30 days from communication of a decision or order, subject to extension; do not assume that every ongoing regulatory challenge has the same triggering event. CCP, art. 529; Federal Courts Act, s. 18.1.

Collateral Attack in Enforcement Proceedings

Rather than initiating an immediate direct challenge upon regulatory enactment, an individual or enterprise may challenge the validity of a regulation through a collateral attack. A collateral attack arises when a person is prosecuted for an offence under a regulation and raises the invalidity of the regulation as a substantive defense to the charge.

A penal defendant may challenge the validity of the rule supporting the charge, subject to the applicable procedure. Distinguish a generally applicable regulation from an individual order for which a statute establishes a specialized challenge route: collateral attack can be barred by that scheme. The penal court may decline to apply an invalid rule and acquit; that does not confer a general power to quash regulations for everyone. R. v. Consolidated Maybrun Mines Ltd., [1998] 1 SCR 706, explains why the statutory scheme matters.

Notice to Attorneys General and Severability

Notice rules depend on the forum and ground. Federal Courts Act section 57 concerns constitutional validity, applicability or operability and requires notice to the Attorney General of Canada and each province, ordinarily at least ten days before argument unless the court orders otherwise. Quebec CCP articles 76–77 require notice to the Quebec Attorney General for the challenges they describe, including specified ultra vires claims; notice also goes to Canada for a federal rule and to the DPCP for a criminal or penal matter. Article 77 requires service as soon as possible and, ordinarily, at least 30 days before the case is ready for trial in civil matters or before trial in other matters; only the Attorney General may waive its notice period. An omission must be addressed under the applicable provision; it is not always an incurable defect. FCA, s. 57; CCP, arts. 76–77.

Where a court determines that a regulation contains ultra vires or unconstitutional provisions, it must consider the doctrine of severability. Rather than striking down the entire regulatory enactment, the court will attempt to sever the unlawful clauses, preserving the remainder of the text.

Where it is possible to correct the illegality contained in a regulation by severing the unlawful portions, the court exercises its discretion to preserve the lawful remainder, whether by severing an entire article or excising specific words (Montreal (City) v. Arcade Amusements Inc., [1985] 1 S.C.R. 368; Alaska Trainship Corp. v. Pacific Pilotage Authority, [1981] 1 S.C.R. 261).

Worked Example: Challenging a Subordinate Environmental Regulation

Factual Scenario

To understand how courts apply these principles to regulatory challenges, consider the following factual and procedural scenario.

A provincial legislature enacts an Environmental Protection Act empowering the Lieutenant-Governor in Council to make regulations defining hazardous waste, establishing emission monitoring procedures, and setting technical standards for industrial emissions. Exercising this authority, the provincial government enacts a new Subordinate Industrial Emissions Regulation. Section 12 of the regulation imposes an annual Clean Energy Infrastructure Surcharge of 25,000 dollars on all commercial manufacturing facilities. The enabling statute contains no mention of revenue generation, surcharges, or taxes. A regional manufacturing association files an application for judicial review in Superior Court seeking an order declaring section 12 ultra vires.

For this exercise, assume the surcharge finances general infrastructure and has no regulatory nexus.

Practice Checklist

• Identify the specific enabling act and review the precise wording of the regulation-making power, distinguishing narrow enumerations from general basket clauses.
• Verify whether the subordinate enactment complied with statutory formalities under the federal Statutory Instruments Act or Quebec Regulations Act, including legal examination, registration, and official gazette publication.
• Check whether mandatory pre-publication occurred and whether any invoked urgency exemption satisfies the strict statutory criteria and statement of reasons under sections 12–13 of the Regulations Act.
• Assess regulatory validity under the Vavilov, Auer, and Catalyst Paper reasonableness standard, applying the retained Katz principles while rejecting its displaced exceptional-deference threshold; analyze constitutional questions separately.
• Check whether the regulation attempts to levy unauthorized taxes or surcharges in violation of section 53 of the Constitution Act, 1867 and the distinction between service fees, regulatory charges and taxes in Eurig Estate and Westbank.
• Scrutinize the regulation for unauthorized subdelegation violating delegatus non potest delegare or unlawful amendments to primary legislation under Henry VIII clauses.
• Identify retroactivity, retrospectivity or effects on vested rights and the authority required for that effect; verify clear, express enabling authorization for retroactive regulation and authority for distinctions among classes.
• Identify the ground, forum, recipients, deadline and any permitted adjustment for notice under FCA section 57 or CCP articles 76–77.