Oct 19, 2020

Deference Continues for Policy Decisions by Regulators

Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII)

Regulators continue to monitor how judicial review of its actions will change in light of the landmark decision of Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, http://canlii.ca/t/j46kb. A recent Alberta case suggests that policy decisions made by regulators will continue to be reviewed with deference. In Morris v Law Society of Alberta (Trust Safety Committee), 2020 ABQB 137, http://canlii.ca/t/j5d8l, a lawyer challenged a requirement to provide privileged client information to the regulator in his annual reports on his trust accounts.

He argued that the requirement involved a general principle of law (i.e., solicitor-client confidentiality) or, at least the interpretation of the regulator’s home statute, and thus should be reviewed by the court on a strict, correctness standard. He also argued that since the enabling statute explicitly overrode solicitor and client confidentiality in other contexts, such as conduct proceedings, but was silent about overriding the privilege for trust account reports, this implied the exclusion of the regulator’s authority require disclosure of client information in trust account reports.

The Court disagreed. The Court was of the view that Vavilov supported the more deferential standard of review of reasonableness when interpreting a broad authorizing provision for a regulator of professions. The Court said:

Given the breadth of the statutory authority, the Act must be construed such that the powers it confers “include not only those expressly granted but also, by implication, all powers which are practically necessary for the accomplishment of the object intended to be secured by the statutory regime created by the legislature …”.

Taking a purposive view of the legislation and the legitimate concerns about trust accounts being used to further fraudulent activity or money laundering, the regulator’s requirement to provide otherwise privileged client information as part of the annual reports was reasonable.

Should this approach to judicial review stand, regulators should take comfort in making policy decisions based on relevant considerations and on an articulated rationale.