Environmental Management Act, [S.B.C. 2003] c. 53

Minister's authority

5  The duties, powers and functions of the minister extend to any matter relating to the management, protection and enhancement of the environment including, but not limited to, the following matters:

(a) planning, research and investigation in relation to the environment;

(b) development of policies for the management, protection and use of the environment;

(c) planning, design, construction, operation and maintenance of works and undertakings for the management, protection or enhancement of the environment;

(d) providing information to the public about the quality and use of the environment;

(e) preparing and publishing policies, strategies, objectives, guidelines and standards for the protection and management of the environment;

(f) preparing and publishing environmental management plans for specific areas of British Columbia which may include, but need not be limited to, measures with respect to the following:

(i)  flood control, flood hazard management and development of land that is subject to flooding;

(ii)  drainage;

(iii)  soil conservation;

(iv)  water resource management;

(v)  fisheries and aquatic life management;

(vi)  wildlife management;

(vii)  waste management;

(viii)  air management.

Minister's regulations — codes of practice

22  (1) The minister may make regulations establishing codes of practice for industries, trades, businesses, activities or operations, or classes of industries, trades, businesses, activities or operations, for the purposes of section 138 (2) (s) [general authority to make regulations — exemptions].

            Powers of appeal board in deciding appeal

103 On an appeal under this Division, the appeal board may

(a) send the matter back to the person who made the decision, with directions,

(b) confirm, reverse or vary the decision being appealed, or

(c) make any decision that the person whose decision is appealed could have made, and that the appeal board considers appropriate in the circumstances.

1. Judicial Review of the delegation of authority to make decisions or take administrative actions:

The Queen v. Harrison, [1977] 1 S.C.R. 238

(S. 605(1) of the Criminal Code required a notice of appeal be signed by the provincial Attorney General or deputy Attorney General.)

[Page 245]

In my opinion there is implied authority in the Attorney General to delegate the power to instruct, in s. 605(1). I do not think that s. 605(1) requires the Attorney General personally to appeal or personally to instruct counsel to appeal in every case. Although there is a general rule of construc­tion in law that a person endowed with a discre­tionary power should exercise it personally (delegatus non potest delegare) that rule can be displaced by the language, scope or object of a particular administrative scheme. A power to dele­gate is often implicit in a scheme empowering a Minister to act. As Professor Willis remarked in "Delegatus Non Potest Delegare", (1943), 21 Can. Bar Rev. 257 at p. 264:

.. in their application of the maxim delegatus non potest delegare to modern governmental agencies the Courts have in most cases preferred to depart from the literal construction of the words of the statute which would require them to read in the word "personally" and to adopt such a construction as will best accord with the facts of modern government which, being carried on in theory by elected representatives but in practice by civil servants or local government officers, undoubtedly requires them to read in the words "or any person authorized by it".

See also S. A. DeSmith, Judicial Review of Administrative Action, 3d ed., at p. 271. Thus, where the exercise of a discretionary power is entrusted to a Minister of the Crown it may be presumed that the acts will be performed, not by the Minister in person, but by responsible officials in his department: Carltona, Ltd. v. Commissioners of Works. The tasks of a Minister of the Crown in modern times are so many and varied that it is unreasonable to expect them to be performed personally. It is to be supposed that the Minister will select deputies and departmental officials of experience and competence, and that such appointees, for whose conduct the Minister is accountable to the Legislature, will act on behalf [Page 246] of the Minister, within the bounds of their respec­tive grants of authority, in the discharge of minis­terial responsibilities. Any other approach would but lead to administrative chaos and inefficiency. It is true that in the present case there is no evidence that the Attorney General of British Columbia personally instructed Mr. McDiarmid to act on his behalf in appealing judgments or ver­dicts of acquittal of trial courts but it is reasonable to assume the "Director, Criminal Law" of the Province would have that authority to instruct.

I do not find anything in the Criminal Code which derogates from the thought that the duties imposed upon the Attorneys General are to be exercised under their authority by responsible offi­cials of their respective departments. "Attorney General", according to an amendment to s. 2 of the Code made in 1968-69, includes "the lawful deputy" of the said Attorney General or in the French version de “substitut légitime”. I do not read "lawful deputy" as confined to "Deputy Attorney General". The words comprehend all persons appointed to act on behalf of the Attorney General when acting within the scope of their authority.

...

I would allow the appeal, set aside the judgment of the Court of Appeal for British Columbia allow­ing the preliminary objection and direct that the appeal be proceeded with.

Edgar v. Canada (1999), 46 O.R. (3d) 294; 182 D.L.R. (4th) 419 (C.A.):

Section 3(1) of the Customs and Excise Award Payment Regulations authorized the payment of an award to an individual who "contributed substantially to the detection of a violation of the customs laws or the Excise Act". The Regulations further provided that "the Minister may, in his sole discretion, authorize payment of an award in an amount that he considers appropriate".

[24] There is in public law a principle known as "the Carltona principle". It takes its name from the famous decision of the English Court of Appeal in Carltona, Ltd. v. Commissioners of Works, [1943] 2 All E.R. 560 (C.A.), a wartime case dealing with the requisition by the government of a factory that manufactured food products. Carltona stands for the proposition that decisions entrusted by statute to a Minister of the Crown can also be made by the Minister's representatives or officials if properly authorized to do so. The reason for this is that in modern government there are simply so many decisions to be made that the wheels of government would grind to a halt if they all had to be made by the Minister personally. As expressed by Lord Greene, M.R., at p. 563:

In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them. To take the example of the present case no doubt there have been thousands of requisitions in this country by individual ministries. It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible.

[27] Neither s. 24(2) of the Interpretation Act nor the case law establishes the Carltona principle as an absolute rule. Thus, s. 3(1) of the Interpretation Act potentially qualifies s. 24(2):

3(1) Every provision of this Act applies, unless a contrary intention appears, to every enactment, whether enacted before or after the commencement of this Act.

(Emphasis added)

[28] With respect to the case law, the leading Canadian authorities establish that several factors must be considered before determining whether the general maxim delegatus non potest delegare, or the Carltona exception to this maxim, applies in a particular situation. In Harrison, supra, Dickson J. identified those factors as "the language, scope or object of a particular administrative scheme" (at p. 245)….

[29] With respect to the language of the statute, the pivotal words in s. 3(1) of the regulation are "the Minister may, in his sole discretion". There is no doubt that if s. 3(1) said simply "the Minister may", a decision could be made by the Minister and by the Deputy Minister. Both s. 24(2) of the Interpretation Act and the case law would support this result. However, s. 3(1) of the regulation employs the additional words "in his sole discretion". What do the words mean?

[42] In conclusion, the Interpretation Act provides that "Minister" includes "his or their deputy" (s. 24(2)). However, this is subject to a limitation: "unless a contrary intention appears" (s. 3(1)).

[43] The leading cases establish that a contrary intention does appear when Parliament uses language that modifies the basic words "the Minister may". In Ramawad v. Canada (Minister of Manpower of Immigration), supra, the Supreme Court of Canada held that the words "in the opinion of the Minister" require the Minister personally (or someone else specifically authorized by the statute) to make the decision. Those precise words are also present in s. 3(1) of the regulation in issue in the present appeal. In Quebec (Attorney General) v. Carrières Ste-Thérèse Ltée, supra, the court held that the word "himself" qualifying Minister meant "in person". It is difficult for me to see any logical difference between "himself" and "in his sole discretion" which is the second set of relevant words in s. 3(1). Both, in common parlance, suggest exclusivity.

[44] Accordingly, on the first issue my conclusion is that the trial judge did err in finding that s. 3(1) of the Customs and Excise Award Payment Regulations did not require the Minister himself to authorize or refuse a payment to the appellant.

Interpretation Act, [R.S.B.C. 1996] c. 238

Powers to act for ministers, deputy ministers and public officers

23  (1) Words in an enactment directing or empowering a minister of the government to do something, or otherwise applying to the minister by his or her name of office, include a minister designated to act in the office and the deputy or associate deputy of the minister.

(2) If a deputy minister is absent or unable to act, an assistant deputy minister, or some other official authorized by the minister, has the powers and must perform the duties of the deputy minister.

(3) Words in an enactment directing or empowering a public officer to do something, or otherwise applying to the public officer by his or her name of office, include a person acting for the public officer or appointed to act in the office and the deputy of the public officer.

(4) This section applies whether or not the office of a minister or public officer is vacant.

(5) Subsection (1) does not authorize a deputy or an associate deputy of a minister to exercise an authority conferred on the minister to enact a regulation as defined in the Regulations Act.

Thorne's Hardware Ltd. v. The Queen, [1983] 1 S.C.R. 106:

The mere fact that a statutory power is vested in the Governor in Council does not mean that it is beyond judicial review: Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735 at p. 748. I have no doubt as to the right of the courts to act in the event that statutorily prescribed conditions have not been met and where there is therefore fatal jurisdictional defect. Law and jurisdiction are within the ambit of judicial control and the courts are entitled to see that statutory procedures have been properly complied with: R. v. National Fish Co., [1931] Ex. C.R. 75; Minister of Health v. The King (on the Prosecution of Yaffe), [1931] A.C. 494 at p. 533. Decisions made by the Governor in Council in matters of public convenience and general policy are final and not reviewable in legal proceedings. Although, as I have indicated, the possibility of striking down an order in council on jurisdictional or other compelling grounds remains open, it would take an egregious case to warrant such action. This is not such a case.

I have referred to these several pieces of evidence, not for the purpose of canvassing the considerations which may have motivated the Governor in Council in passing the Order in Council but to show that the issue of harbour extension was one of economic policy and politics; and not one of jurisdiction or jurisprudence. The Governor in Council quite obviously believed that he had reasonable grounds for passing Order in Council P.C. 1977-2115 extending the boundaries of Saint John Harbour and we cannot enquire into the validity of those beliefs in order to determine the validity of the Order in Council.

Globalive Wireless Management Corp. v. Public Mobile Inc., 2011 FCA 194 (leave denied [2011] S.C.C.A. No. 349).

[9]        Subsection 16(1) of the Act lists the requirements for operating as a telecommunications common carrier (a broad term meaning “a person who owns or operates a transmission facility used by that person or another person to provide telecommunications services to the public for compensation”). The first requirement is that the carrier be Canadian-owned and controlled. According to subsection 16(3), Canadian ownership and control is defined by three requirements: (a) at least eighty percent of the corporation’s board members must be individual Canadians; (b) individual Canadians must beneficially own at least eighty percent of the corporation’s voting shares; and (c) the corporation must not otherwise be controlled by persons who are not Canadians (often referred to as the “control in fact” test):

[10]      Subsection 12(1) of the Act allows the Governor in Council to vary or rescind a decision of the CRTC within one year of the CRTC’s decision:

[27]      Counsel for the Attorney General argued that Orders in Council are immune from review, except for “jurisdictional error,” and only in “egregious circumstances.”  He relied in this respect on the Supreme Court’s decision in Canada (A.G.) v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735 [Inuit Tapirisat]. That case concerned an Order in Council made under section 64 of the National Transportation Act, R.S.C. 1970, chapter N-17, the predecessor of section 12 the Act. Writing for a unanimous court, Justice Estey held at page 756 that “the discretion of the Governor in Council is complete provided he observes the jurisdictional boundaries of section 64(1).”  Counsel also referred to Thorne’s Hardware v. The Queen, [1983] 1 S.C.R. 106 at 111, where Justice Dickson (as he then was) wrote that “although, as I have indicated, the possibility of striking down an Order in Council on jurisdictional or other compelling grounds remains open, it would take an egregious case to warrant such action.”

[30]           In addition, the Supreme Court made clear in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir], that the rule of law requires that all exercises of public authority be subject to scrutiny by courts. This principle is not limited to exercises of authority by recognized administrative tribunals. Though some decision-making is entitled to be reviewed on the standard of reasonableness, none is completely immunized from judicial review:

[45]      The question then becomes whether, having concluded without regard to policy that Globalive was not controlled in fact by a non-Canadian, it was proper for the Governor in Council to base its decision to vary the CRTC decision on policy considerations. Public Mobile and Telus did not argue that it was improper. In my view, it clearly was open to the Governor in Council, in deciding to vary the CRTC decision, to refer to policy considerations. By giving the variance power to a polycentric body such as the Governor in Council, Parliament signalled its intent that the decision to vary could incorporate broader policy concerns. As this Court has noted, again about the predecessor to section 12:

It provides a means whereby the executive branch of government may exercise some degree of control over the Canadian Transport Commission to ensure that the views of the government as to the public interest in a given case…can be expressed by the executive and such views are implemented by means of directions which it may see fit to give the tribunal, through the Governor in Council. It is a supervisory role, as I see it, not an appellate role. The Governor in Council does not concern himself with questions of law or jurisdiction which is the ambit of judicial responsibility. But he has the power to do what the Courts cannot do which is to substitute his views as to the public interest for that of the Commission (CSP Foods at 9-10).

[47]      The applications judge held (at paragraphs 115-117) that the Governor in Council made a reviewable error by also relying on an objective not enumerated in section 7, stating in recital 11 that “the Act…should be interpreted in a way that ensures that access to foreign capital, technology and experience is encouraged in a manner that supports all of the Canadian telecommunications policy objectives.” I respectfully disagree with the applications judge’s conclusion that this was improper. Like any decision-maker, the Governor in Council must exercise its power in accordance with the purpose of the relevant statute (Odynsky at paragraph 86). However, the promotion of access to foreign capital, technology, and experience can further a number of the policy objectives enumerated in section 7, including the provision of reliable, affordable, and accessible telecommunications services (paragraph 7(b)), enhancing efficiency and competitiveness (paragraph 7(c)), fostering increased reliance on market forces (paragraph 7(f)), stimulating research and development (paragraph 7(g)), and responding to the economic and social requirements of telecommunications users (paragraph 7(h)).

[48]      It also bears mentioning that the Governor in Council clearly recognized that any policies not enumerated in the Act have to operate within the limits of the objectives identified in section 7. It never purported to attach independent significance to the promotion of foreign investment. This is seen in recital 11, which states that access to foreign investment was to be encouraged “in a manner that supports all of the Canadian telecommunications policy objectives.” 

2. Judicial Review of the delegation of authority to make Regulations, Rules, Policy or other “soft law”.

Enbridge Gas Distribution Inc. v. Ontario (Energy Board) (2005), 74 O.R. (3d) 147 (C.A.):

Section 44(1) of the Ontario Energy Board Act gives the Board jurisdiction to make rules that have the force of law:

. . . . .

(b) governing the conduct of a gas distributor as such conduct relates to any person,

(i)  selling or offering to sell gas to a consumer,

. . . . .

(d) establishing conditions of access to transmission, distribution and storage services provided by a gas transmitter, gas distributor or storage company.

31     Thus, in my view the words of s. 44(1)(b) read in their grammatical and ordinary sense, confer ample jurisdiction on the Board to make the billing provisions of the GDAR. Moreover, such a reading is harmonious with the scheme and object of the Act and the intention of the legislature. The exercise of jurisdiction by the Board in making these provisions regulates an important part of the gas distribution business. This constitutes a manifestation of one of the fundamental purposes of the Act, namely the regulation by the Board of gas distribution in Ontario.

32     However, the appellants raise a number of additional arguments beyond simple statutory interpretation to buttress their position that s. 44(1)(b) does not provide the Board with the necessary jurisdiction.

Skyline Roofing Ltd. v. Alberta (Workers' Compensation Board), 2001 ABQB 624

Workers' Compensation Act, S.A. 1981, c. W-16:

3.1        The board of directors

(a)        shall

(i)        determine the Board’s compensation policy,

(ii)       review and approve the programs and operating policies of the Board, and

(iii)      consider and approve annual operating and capital budgets of the Board,

(iv)      repealed 1990 c39 s2. [hear appeals under section 117 from  decisions of the assessment review committee].

and

(b)       may enact by-laws and pass resolutions for the conduct of the business and affairs of the Board.

[59]      It is clear that the Appeals Commission, at least at the re-hearing, relied expressly on the 1997 policy which was not published until after Schemenauer’s accident. The Applicant argues that the retroactive application of the policy is not authorized by the statute.

[61]      It accordingly appears that the Workers’ Compensation Board and the Appeals Commission take the view that policies do have retroactive effect. The Board obviously believes that it can enact policies retroactively, as can be seen by the notation on policy 02-03 (supra, para.22) that the pooling of labour policy was in force as of January 1, 1982.

[62]      Because statutorily-authorized policies can have the force of law, there is a general presumption that such policies cannot be made to apply retroactively. Citizens are entitled to know what the law is as of the date they are making decisions about their conduct. Even the legislature rarely enacts regulations with retroactive effect, because of this constitutional principle. Accordingly, the power to make retroactive policies will not be inferred unless the statute requires it: Western Decalta Petroleum Ltd. v. Alberta (Public Utilities Board), (1978) 6 Alta. L.R. (2d) 1, 86 D.L.R. (3d) 600 (C.A.); Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; and N.W.T.T.A. v. Northwest Territories (Commissioner) (1997), 153 D.L.R. (4^th) 80. The statute need not expressly permit retroactivity if the context implies it: Paton v. The Queen, [1968] S.C.R. 341 at 358.

[63]      This presumption against the retroactive operation of subordinate legislation is reflected in the Regulations Act, R.S.A. 1980 c. R-13:

9(4) The various provisions of a revised regulation corresponding to and substituted for those of the enactment previously in force shall, when they are the same in effect as those of the previous enactment, operate retrospectively as well as prospectively and shall be deemed to have come into force on the day on which the corresponding previous enactment came into force.

(5) If on any point the provisions of a revised regulation are not the same in effect as those of the previous enactment for which they are substituted, then, with respect to any transaction, matter and thing on or subsequent to the day on which the revised regulation came into force, the provisions of the revised regulation prevail, but with respect to all earlier transactions, matters and things the provisions of the previous enactment prevail.

(emphasis added)

These provisions apply only to revised “regulations”, but they honour the general common-law assumption against retroactivity. It is unclear whether the “policies” of the Board are “regulations”. The Regulations Act defines a regulation to be “a regulation as defined in the Interpretation Act that is of a legislative nature.” The Interpretation Act defines regulation to mean “a regulation, order, rule, form, tariff of costs or fees, proclamation, bylaw or resolution” enacted under statutory authority. A “policy” is not specifically mentioned. If the policies of the Board are regulations, they are covered by the common-law presumption against retroactivity and the presumption in s. 9 of the Regulations Act. Even if they are not regulations, it is difficult to see why the policies would have a greater ability to operate retroactively than regulations themselves. (Section 149 of the Workers’ Compensation Act says that the orders, rulings, decisions or directions of the Board need not be published in the Alberta Gazette, but I do not read this section as stating that they are not otherwise covered by the Regulations Act.) Accordingly, absent a specific power to create retroactive policies, the common-law presumption would be that no such power was intended.

...

[67]      Based on the general presumption against the retroactivity of subordinate legislation, and based on the distinction that the statute appears to draw between various types of decision-making mechanisms, I am not satisfied that s. 149.2 authorizes the Board to pass policies retroactively. Parties such as the Applicant are entitled to know the law in force at the time that they make decisions about their business. Generally, they should be entitled to assume that the effect of decisions made by them will not be reversed retroactively by legislation, unless that is expressly authorized by the statute. This is particularly so with respect to the Board’s assessment policies. While the assessments are not a true tax, they are a compulsory statutory levy, and assessment policies should not be applied retroactively. It is unlikely that the Lieutenant Governor in Council has a general power to make retroactive regulations under s. 147, and it is unlikely that it was intended that for Board to have a wider power. I am accordingly not satisfied that the Board has any general authority to make retroactive policies....

Canadian Forest Products Ltd. v. British Columbia, 2009 BCSC 1040:

Amount of stumpage

103 (1)  Subject to sections 107, 108 and 142.7, if stumpage under section 104 or under an agreement entered into under this Act is payable to the government in respect of Crown timber, the amount payable must be calculated by multiplying the volume or quantity of the timber

(a)  reported in a scale made under Part 6, or

(b)  calculated under section 106 using information provided by a cruise of the timber by the sum of

(c)  the rate of stumpage applicable to the timber under section 105 when

(i)  the timber is scaled, or

(ii)  the volume or quantity is calculated under section 106, and

(d)  if applicable, the bonus bid offered in respect of the timber

Stumpage rate determined

105 (1)  ... if stumpage is payable to the government under an agreement entered into under this Act ..., the rates of stumpage must be determined, redetermined and varied

(a)  by an employee of the ministry, identified in the policies and procedures referred to in paragraph (c),

(b)  at the times specified by the minister, and

(c)  in accordance with the policies and procedures approved for the forest region by the minister

35     It is the interpretation of the relevant provisions of the Forest Act, and particularly the effect of s. 105, where the parties diverge. According to the respondent Province, the Commission's interpretation is correct in finding that s. 105 provides authority for the approval of new policies and procedures with retroactive effect. In the respondent's view, the provision permits stumpage rates to be redetermined and varied, which necessarily involves reopening rates which have already been established in accordance with approved policies and procedures, as set out in the Manual. The respondent submits that this interpretation reflects commercial reality, and serves what it characterizes as the statutory objective of commercial practicality.

36     Canfor's principal argument is that while s. 105 of the Forest Act provides for the redetermination of stumpage rates, it does not expressly or by necessary implication authorize the retroactive application of those rates. According to Canfor's interpretation, the language of s. 103, in particular the use of the present tense, and the broader scheme of the Forest Act, indicate that the legislature intended strictly prospective application of a redetermined rate - in accordance with a policy of finality and certainty in stumpage assessment, an important rationale underlying the Forest Act. Thus, in Canfor's submission, it follows that s. 2.4.1, insofar as it permits retroactive application of redetermined stumpage rates, is ultra vires the Minister's power under s. 105(1)(c).

38     There are two other presumptions regarding statutory interpretation that have been raised by the respondent Province's submissions. First, "it is presumed that the legislature does not intend to confer a power on subordinate authorities to make regulations or orders that are retroactive": Sullivan and Driedger on the Construction of Statutes, 4th ed. (Ottawa: LexisNexis, 2002) at 546. Secondly, it is presumed that the legislature will not interfere with vested rights: Dikranian v. Quebec (Attorney General), 2005 SCC 73, [2005] 3 S.C.R. 530 at para. 32.

39     I agree with the appellant that these presumptions are not directly engaged in the statutory interpretation analysis that the appellant's case relies on, and need not be considered in the subsequent analysis. As framed by Canfor, the question is not the temporal application of ss. 103 and 105 themselves, which is not in dispute, but rather the temporal application the Minister is authorized to give redetermined stumpage rates under s. 105. I agree that Canfor, in describing the redetermined stumpage rate as "retroactive" in its effect, uses the word as it is understood in the general, everyday sense, and does not intend to invoke these legal presumptions. The stumpage rate itself is not legislation, but simply a value determined administratively pursuant to subordinate legislation (the Manual). Simply, the central issue is whether s. 2.4.1(1), by virtue of the fact that it permits the retroactive redetermination of stumpage rates, conflicts with ss. 103 and 105.

46     Thus, reading ss. 103 and 105 as a coherent scheme, the fact that s. 105(1) allows for stumpage rates to be redetermined and varied cannot carry with it the implication that the Minister also has power to decide the temporal applicability of redetermined and varied rates. Temporal applicability is a separate question - to which s. 103(1)(c) provides the answer, insofar as it contemplates application of stumpage rates only on a going forward, prospective basis, to timber that has not yet been scaled.

57     If s. 105(1) of the Forest Act empowered the Minister to apply redetermined stumpage rates retroactively, as the Province contends, the extraordinary result would be a power of indefinite duration to reopen stumpage assessments under s. 103(1), in whatever circumstances the Minister might prescribe under s. 105(1)(c). Having paid the amount of stumpage owing for a given volume of Crown timber in accordance with s. 103(1), a licensee could never thereafter consider itself safe from reassessment.

Interaction of ss. 103 and 105 with the Manual

66     The Manual is subordinate legislation, setting out the law of stumpage in the province, as enabled under the Forest Act (see McMillan Bloedel at para. 68). As a form of subordinate legislation, it is presumed that the Manual is inoperative to the extent it conflicts with its enabling statute, the Forest Act: Oldman River Society.

67     As noted in Smith v. Chamberlain (1993), 81 B.C.L.R. (2d) 391 at para. 24 (S.C.), "the jurisprudence dealing with subordinate legislation clearly establishes that regulations made pursuant to, but in conflict with, an enabling statute are ultra vires ..."

68     Here, direct conflict is apparent between the amended version of s. 2.4.1(1) of the Manual and ss. 103 and 105 of the Forest Act. The constraint under the Forest Act that redetermined stumpage rates apply only prospectively, to timber that is scaled on or after the date of the redetermination, is not observed if "a reappraisal because of a changed circumstance [under s. 2.3.2.1(1)(a) or (b)] is effective on the day after the effective date of the most recent appraisal or reappraisal of the cutting authority prior to the changed circumstance reappraisal".

69     On the particular facts of this case, the conflict materialized decisively. By March 19, 2007, when the Ministry issued the reappraisal, the last of the timber in question had been scaled and invoiced to Canfor a year earlier. For the Ministry to apply the reappraisal retroactively, by providing that the redetermined stumpage rate was effective for timber scaled after January 16, 2005, was beyond its powers under ss. 103 and 105(1) of the Forest Act. Thus, s. 2.4.1(1) of the Manual, as amended, although made pursuant to s. 105, is in conflict with it and is therefore ultra vires the Forest Act.

Thamotharem v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198:

[1]        The Chairperson of the Immigration and Refugee Board (the Board) has broad statutory powers to issue both guidelines and rules. Rules have to be approved by the Governor in Council and laid before Parliament, but guidelines do not.       

[2]        This appeal concerns the validity of Guideline 7 Guidelines Issued by the Chairperson Pursuant to Section 159(1)(h) of the Immigration and Refugee Protection Act: Guideline 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division, issued in 2003 by the Chairperson of the Board pursuant to the statutory power to “issue guidelines . . . to assist members in carrying out their duties”: Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), paragraph 159(1 h). The key paragraphs of Guideline 7 provide as follows: “In a claim for refugee protection, the standard practice will be for the R[efugee] P[rotection] O[fficer] to start questioning the claimant” (paragraph 19), although the member of the Refugee Protection Division (RPD) hearing the claim “may vary the order of questioning in exceptional circumstances” (paragraph 23).

[3]        The validity of Guideline 7 is challenged on two principal grounds. First, it deprives refugee claimants of the right to a fair hearing by denying them the opportunity to be questioned first by their own counsel. Second, even if Guideline 7 does not prescribe a hearing that is in breach of the duty of fairness, the Chairperson should have introduced the new standard order of questioning as a rule of procedure under IRPA, paragraph 161(1)(a), not as a guideline under IRPA, paragraph 159(1)(h). Guideline 7 is not valid as a guideline because paragraphs 19 and 23 unlawfully fetter the discretion of members of the RPD to determine the appropriate order of questioning when hearing refugee protection claims.

Issue 3:     Is Guideline 7 unauthorized by paragraph 159(1)(h) because it is a fetter on RPD members’ exercise of discretion in the conduct of hearings?

[55]      Effective decision making by administrative agencies often involves striking a balance between general rules and the exercise of ad hoc discretion or, to put it another way, between the benefits of certainty and consistency on the one hand, and of flexibility and fact-specific solutions on the other. Legislative instruments (including such non-legally binding “soft law” documents as policy statements, guidelines, manuals, and handbooks) can assist members of the public to predict how an agency is likely to exercise its statutory discretion and to arrange their affairs accordingly, and enable an agency to deal with a problem comprehensively and proactively, rather than incrementally and reactively on a case-by-case basis.

[56]      Through the use of “soft law” an agency can communicate prospectively its thinking on an issue to agency members and staff, as well as to the public at large and to the agency’s “stakeholders” in particular. Because “soft law” instruments may be put in place relatively easily and adjusted in the light of day‑to‑day experience, they may be preferable to formal rules requiring external approval and, possibly, drafting appropriate for legislation. Indeed, an administrative agency does not require an express grant of statutory authority in order to issue guidelines and policies to structure the exercise of its discretion or the interpretation of its enabling legislation: Ainsley Financial Corp. v. Ontario Securities Commission (1994), 21 O.R. (3d) 104 (C.A.) at pages 108-109 (Ainsley).

(iii)   Is Guideline 7 invalid because it is a rule of procedure and should therefore have been issued under IRPA, paragraph 161(1)(a)?

[90]      On its face, the power granted by IRPA, paragraph 159(1)(h) to the Chairperson to issue guidelines in writing “to assist members in carrying out their duties” is broad enough to include a guideline issued in respect of the exercise of members’ discretion in procedural, evidential or substantive matters. Members’ “duties” include the conduct of hearings “as informally and quickly as the circumstances and the considerations of fairness and natural justice permit”: IRPA, subsection 162(2). In my view, structuring members’ discretion over the order of questioning is within the subject‑matter of the guidelines contemplated by section 159.