Oct 19, 2020

Judicial Scrutiny of Delegated Regulation

Ontario (Attorney General) v. Bogaerts, 2019 ONCA 876 (CanLII)

The Ontario Court of Appeal has rejected the proposition that courts should closely scrutinize the general transparency, accountability and adequacy of funding of delegated regulators: Ontario (Attorney General) v Bogaerts, 2019 ONCA 876, http://canlii.ca/t/j3d8n. In particular, the Court overruled the creation of a novel constitutional principle expanding the scope of the review of delegated regulation under “fundamental justice” principles:

I have no doubt that it would be a good idea and sound public policy to make all law enforcement bodies subject to reasonable standards of transparency, accountability and adequate funding and that they be properly funded. But not all good ideas and sound public policies are constitutionally protected or mandated. Our task is not to decide what would be sound policy. We are charged with the more specific task of deciding what the Constitution requires ….

The Court concluded that none of the three requirements for establishing a novel constitutional principle requiring delegated regulators to be transparent, accountable and adequately funded were met in this case:

1. To be a legal principle it must provide meaningful content; and avoid the adjudication of policy matters;

2. It must be “vital or fundamental to our societal notion of justice”; and

3. It must be “capable of being identified with precision and applied to situations in a manner that yields predictable results”.

The Court also found that the specific provisions relating to entry onto premises to help animals in distress were constitutional under existing legal principles. In the regulatory context involving a pressing social need, the provisions relating to search and seizure were reasonable. In addition, the “interference with bodily integrity or serious state-imposed psychological stress” did not rise to the level where the constitutional protections of liberty and security of the person were engaged to create a broader judicial authority to review search and seizure provisions.

This decision reinforces the concept of judicial restraint preventing the courts from intervening in legislative policy decisions unless those decisions also infringe on established legal principles.