Case: Rogers v. Director of Maintenance Enforcement Program, 2025 YKCA 12 (CanLII)
Keywords: administrative law; jurisdiction; justiciability; failure to enact regulations
Synopsis:
The appellant, Mr. Carl Rogers, owes spousal support (approximately $461,295 in arrears). The support order is registered with the Yukon Maintenance Enforcement Program (“MEP”); the MEP takes enforcement proceedings against Mr. Rogers. (See para. 1). The appellant is on social assistance. MEP has a policy to not garnish social assistance income – therefore, no social assistance income is put towards his support payments or arrears. (See para. 2). Before turning 65, Mr. Rogers is told by Yukon Social Assistance that he is required to apply for Canada Pension Plan (“CPP”) and Old Age Security (“OAS”) benefits. The MEP does not have a policy against garnishing federal payments like CPP or OAS. As stated by the Court of Appeal, “[i]n those situations, it undertakes a case-by-case assessment.” (See para. 3).
Section 22(1) of the Maintenance Enforcement Act, R.S.Y. 2002, c. 145 contemplates the MEP allowing payors to retain a minimum income “prescribed by the Commissioner in Executive Council”. Importantly, however, no regulation establishing a prescribed minimum is enacted. This raises a practical concern for the appellant: once he begins receiving CPP and OAS, will the MEP retain the entirety of his income? (See para. 4). To address this concern, the appellant files a petition seeking:
- a stay of enforcement actions by MEP until such time as the Commissioner in Executive Council enacts regulations under s. 22(1),
- an order of mandamus requiring the Commissioner to enact regulations, and
- an assessment of the support orders based on actual earnings, including those of his former spouse. (See para. 5).
The Chambers Judge (Wenckebach J.) dismisses the petition, concluding she cannot make an order requiring the Commissioner to enact a regulation. The appellant appeals; the Court of Appeal (Marchand, Smallwood, and Voith JJ.A.*) concludes the Chambers Judge “erred in finding the court had no supervisory role to play in relation to the Commissioner’s failure to enact regulations”. (See para. 9). In the circumstances of this case, the Court of Appeal finds the Commissioner’s failure to enact regulations under s. 22 of the Act to be “unlawful”. (See paras. 10; 116).
Importance:
In finding the Commissioner’s failure to enact regulations was unlawful, the Court of Appeal set out the following three principles:
- “a decision not to carry out a regulatory function called for in legislation must be justified in relation to the enabling statute”;
- “[w]here regulatory inaction undermines (rather than fulfils) the purpose of the legislation and…frustrates (rather than operationalizes) the will of the legislature, the decision is unreasonable”; and
- “[t]his is so even if the power is itself discretionary”. (See para. 73).
These are largely groundbreaking findings – though, earlier this year, the Federal Court agreed that the decision to prorogue Parliament was a “justiciable” question, signalling a potential expansion of judicial intervention for executive decision-making. (See MacKinnon v. Canada (Attorney General), 2025 FC 422 (CanLII), at para. 7).
As noted by the Court of Appeal, “courts have been reluctant to recognize an obligation to make regulations” because “[t]he regulation-making function of the executive branch has typically been understood as being discretionary”. (See para. 27). A key barrier has often been the question of “justiciability” (i.e., whether a court has “the institutional capacity and legitimacy to adjudicate the matter”). (See paras. 28-29). The Court engaged in a detailed review of the relevant jurisprudence at paras. 27-42.
Ultimately, the Court of Appeal agreed that, “even historically, courts have not uniformly adopted a hands-off approach when dealing with a failure to enact subordinate legislation required by statute.” (See para. 43). The Court also found that:
- where a statutory provision requires a duty to be carried out “as prescribed”, but no prescription has been made, “the issue is typically justiciable, at the very least to determine the legal effect of the failure to regulate”;
- the jurisprudence suggests that “[t]he making of the regulation is a ‘condition precedent’ to imposing the duty”; and
- following RM (AP) v. The Scottish Ministers, 2012 UKSC 58, “the discretion whether to make…regulations, albeit wide, is not absolute. It cannot be exercised in such a way as to frustrate the intent of the legislature”; this is “a matter of statutory interpretation”. (See paras. 58-60).
Citing Auer v. Auer, 2024 SCC 36 (CanLII) at para. 47, the Court of Appeal indicated that, “where an administrative decision maker interprets the statute in a way that transgresses what the legislature intended, the court can step in to ensure the decision maker acts within the scope of its lawful authority”. (See para. 66). The Court of Appeal also agreed that the reasonableness standard put forward in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII) could be applied to a discretionary decision not to enact regulations:
Given the Court’s intention that Vavilov be applied broadly to the review of executive regulation-making action, the corollary is that Vavilov must also apply to the review of executive regulation-making inaction. In our view, the courts have a role to play where an executive decision not to enact regulations is alleged to be contrary to the purpose of the enabling statute. (See para. 69)(emphasis in original).
Applying these principles, the Court determined that “the decision not to prescribe an amount under s. 22(1)” is justiciable. (See para. 78). That finding allowed the Court to conclude that “the Commissioner has made a deliberate choice to not prescribe the minimum income required for the Act to function as intended” and this “thwarted the intention of the Legislature leaving the protections in s. 22 without legal effect” because “[i]nstead of a clear limit set by regulation…payors (and recipients) are subject to policy choices made by the Director”. (See para. 100). As to the appropriate remedy, the Court found it “sufficient to declare the Commissioner’s continued failure to enact regulations…to be unlawful” but noted that the appellant “can expect the Commissioner to promptly remedy the unlawfulness”. (See para. 114).
Counsel for the Appellant: Vincent Larochelle (Vincent Larochelle Barrister & Solicitor, Whitehorse)
Counsel for the Respondents: L. Banton
* Voith J.A. “did not participate in the final disposition of the judgment”.