From Delegatus to the Duty to Make Law
John Mark Keyes*
As the scope of government regulation has
increased, legislatures have found it conve-
nient and necessary to delegate the task of
legislating the details of regulatory schemes
to administrative bodies, which in turn have
their powers to inferior but
subdelegated
specialized agencies. The courts, however,
have often resisted the trend towards sub-
delegation by the primary delegate, invoking
the maxim delegatus non potest delegare. The
author notes that the maxim has long been
recognized as a presumption of statutory
interpretation rather than a strict rule of law,
but he argues that the content of that pre-
sumption has changed through time. Courts
had earlier confined themselves to balancing
the confidence principle (the presumption
that the legislature intended the named del-
egate to exercise its power personally) against
the fact of administrative necessity (which
permitted reater subdelegation). As the ad-
ministrative necessity argument has become
more persuasive, justifications derived from
the rule of law have been added in order to
restrict the scope of subdelegation. The au-
thor finds that the concern that regulations
be clear, fair, and equal in their application
has led the courts to impose a duty to make
law, that is, a duty to make explicit regula-
tions before delegating the implementation of
those regulations to inferior bodies. He con-
cedes that this vigilance is well-founded, but
argues that the inability to translate the broad
rule of law principles into specific guidelines
for determining the necessary content of del-
egated legislation may result in excessive ju-
dicial intervention. In many cases, the
determination of how much detail is required
prior to subdelegation should be considered
part of the delegated power. This is particu-
larly true when considering Provincial and
Federal administrative agencies, but may be
less persuasive in relation to municipal
councils.
Avec l’61argissement du champ de la r6gle-
mentation gouvernementale, les 16gislatures
ont jug6 qu’il 6tait n6cessaire et plus appro-
pri6 de d616guer la tfiche de fixer les d6tails
des projets de r6glementation A des organes
administratifs, qui ont A leur tour sous-
d616gu6 leurs pouvoirs A des agences inf’e-
rieures mais sp6cialis6es. Les tribunaux,
toutefois, ont souvent r6sist6 A cette tendance
A la sous-d616gation par un organe d616gu6,
en invoquant la maxime delegatus non potest
delegare. Uauteur indique que cette maxime
a longtemps W reconnue comme crrant une
pr6somption d’interpr6tation plutft qu’une
r~gle de droit stricte, mais il soutient que le
contenu de la pr6somption a chang6 avec le
temps. Au d6but, les tribunaux se sont con-
tent6s d’opposer le principe de la confiance
(la pr6somption que la 16gislature s’attendait
A ce que le corps d616gu6 exerce ses pouvoirs
personnellement) aux imp6ratifs administra-
tifs (qui permettaient une plus grande sous-
d616gation). Comme l’argument des imp6ra-
tifs administratifs est devenu plus important,
des justifications relatives A la r~gle de droit
se sont ajout6es, afin de restreindre la port6e
de la sous-d616gation. Uauteur juge que la
pr6occupation A l’effet que les r~glements
soient clairs, justes et d’application 6gale a
conduit les tribunaux A imposer une obliga-
tion de faire des lois, c’est-a-dire l’obligation
d’6dicter une r6glementation qui soit expli-
cite avant de d616guer sa mise en application
A des organes inferieurs. II concede qu’une
telle vigilance est bien fond6e mais soutient
que la difficult6 A traduire les grands princi-
pes de la r~gle de droit en des indications
sp~cifiques pour d6finir le contenu essentiel
d’une 16gislation d616gu6e peut mener A une
intervention judiciaire excessive. Dans plu-
sieurs cas, la d6finition du degr6 de pr6cision
n6cessaire avant d616gation devrait 8tre lais-
s6e au pouvoir d616gu6. Ceci est particuli6-
rement vrai lorsque l’on considre les agences
administratives f6d6rales et provinciales
mais peut tre moins convaincant quant aux
administrations municipales.
*LL.B., B.A. (Toronto), LL.M. (Ottawa). Of the Department of Justice, Legislation Section,
Ottawa. The author would like to thank Henry Molot of the Department of Justice for his
valuable comments on an earlier draft. The views expressed in this article are those of the
author personally, and do not necessarily represent those of the Department of Justice.
McGILL LAW JOURNAL
[Vol. 33
Synopsis
I.
II.
Introduction
Origin of the Maxim
Subdelegation in Municipal By-laws
Municipal By-Laws: Summary
III. Subdelegation in Non-Municipal Delegated Legislation
IV. Distinctions between Municipal and Non-Municipal Subdelegation
V.
The Duty to Make Law
VI. Conclusions
I.
Introduction
Delegatus non potest delegare is an ancient Latin maxim having sur-
prising vitality in modem administrative law. It is also the title of a pithy
article by Professor Willis’ that captured the essence of the maxim and is
still frequently cited. However, the plethora of cases on subdelegation since
his article was published in 1943 justifies re-evaluating the maxim’s appli-
cation and Professor Willis’s discussion of it.
Origin of the Maxim
The delegatus maxim has frequently been characterized as originating
in the law of agency, but it has an equally long pedigree in public law. In
the thirteenth century, Bracton appears to have enlarged a Roman law prin-
ciple that a procurator could not appoint someone to act on his behalf.2 He
‘3. Willis, “Delegatus Non Potest Delegare” (1943) 21 Can. Bar Rev. 257.
2H.P. Ehmke, ” ‘Delegata Potestas non Potest Delegari,’ a Maxim of American Constitutional
Law” (1961) 47 Cornell L.Q. 50 at 51; Willis, supra, note 1 at 260 characterizes this as the
“presumption of deliberate selection”.
1987]
DELEGATUS
applied it both to the delegation of powers by the King to his judges3 as
well as to attorneys acting on behalf of their clients. 4
The principle underlying Bracton’s enunciation of the maxim was that
a delegate was presumed to have been chosen to exercise powers or act on
another’s behalf because of the confidence inspired by the delegate’s personal
qualities. 5 Subdelegation effectively vitiated the delegator’s choice.
If this rationale accounts for the origin of the maxim, it does not explain
its development in the public law context. In Broom’s Legal Maxims, 6 one
finds a number of instances where it was applied in cases dealing with
statutory powers. In two of these, the reasons given for not permitting sub-
delegation had nothing to do with the confidence principle. Instead, the
courts were concerned with those affected by the exercise of power, and not
the delegator.7
When one considers legislative powers, the insufficiency of the confi-
dence principle becomes even more apparent. There abound numerous ex-
amples where subdelegation has been prohibited for reasons other than the
confidence that the delegator reposed in the delegate. In fact, the maxim
has been applied not only when delegated legislation is used by one authority
to confer power on another, but also when it is used by an authority to
confer power on itself.8 In terms of the maxim’s origin as a means of pro-
tecting the delegator’s choice of delegate, this extension suggests a funda-
mental change in rationale: the focus shifts from the delegator and the
delegate to third parties who may be affected by delegated legislation.
3G.E. Woodbine, ed., Bracton on the Laws and Customs of England, trans. S.E. Thorne
(Cambridge, Mass.: Belknap Press of Harvard University Press, 1968) at 308.
41bid. vol. IV at 104 and 145.
5Ehmke, supra, note 2 at 52.
6J.G. Pease & H. Chitty, A Selection of Legal Maxims, Classified and Illustrated by Herbert
Broom, 8th ed. (London: Sweet & Maxwell, 1911) at 653-56.
71n Wilson v. Thorpe (1840), 6 M. & W. 721 (Ex. Ct), a sheriff conducting a trial under the
Writ of Trial Act purported to refer the matter to an arbitrator. In setting aside the sheriff’s
verdict, Alderson B. stated:
It would be very inconvenient that a sheriff should have power to order a reference
of cases sent to be tried before him, when the object of sending cases to be so tried
is, that, where they are of a nature so simple and of so small an amount, the parties
ought not to be put to the expense of trying them before a judge at Nisi Prius, or
to the expense of a reference.
In the second case, Miles v. Bough (1842), 12 L.J. 74 (Q.B.), the court considered the validity
of a notice that, pursuant to An Act for building a bridge, was to be signed by three or more
trustees or their clerk. The notice was signed by a clerk of the trustees’ clerks and was considered
insufficient. Lord Denman stated:
The persons who are called on to pay money have a right to know that the call is
made by the proper authority. That is the object of sect. 109.
8See below, section 5: “The Duty to Make Law.”
REVUE DE DROIT DE McGILL
[Vol. 33
Modem writers attach little importance to the maxim’s roots in the law
of agency. Professor Willis maintained that “[t]he maxim does not state a
rule of law”; it is “at most a rule of construction”. 9 When a statute confers
a discretionary power, the power is prima facie intended to be exercised
“personally” by the person on whom the power is conferred. This pre-
sumption can be defeated either by express statutory language authorizing
subdelegation,10 or by demonstrating that subdelegation is necessary to carry
out the statute’s objectives effectively. As Willis noted:
To determine whether in place of the word “personally” the words “or any
person authorized by it” should be read into the statute and thus permit the
delegation, the court weighs the importance of maintaining in the particular
situation the policy of requiring the named authority to exercise the discretion
itself against the importance of maintaining in the particular situation the
established procedure followed by the authority, and of furthering the most
convenient method of achieving the object of the Act.”
This approach has since been endorsed by P.H. Thorp 12 who examined
the courts’ tendency to categorize powers as “administrative”, “legislative”
or “judicial” as a means of determining whether or not they may be sub-
delegated. He concluded that this approach should be abandoned and, like
Professor Willis, argued that the application of the maxim should turn solely
on the construction of the legislation from which the powers flow, depending
as much on the exigencies of administering the legislation as on the words
used to confer power.
As the passage quoted from Willis suggests,’ 3 the resolution of this
question requires the balancing of a number of considerations. These include
the confidence that the legislature has reposed in a particular person or body,
and the practical demands of the regulatory scheme that may require a large
bureaucracy for efficient implementation.
In the context of delegated legislation, the courts have identified three
further concerns: first, the scope of the subdelegated power to infringe on
common law rights of individuals; second, the degree to which a discre-
tionary power renders the application of the law less certain; third, the
potential for the law to be applied in a manner that will produce inequalities.
The latter two considerations are related to each other and form the basis
9Willis, supra, note 1 at 257.
‘0 See, e.g., City of Calgary v. Reid (1959), 17 D.L.R. (2d) 198, 27 W.W.R. 193 (Alta S.C.A.D.);
Re Taylor and City of Edmonton (1981), 33 A.R. 244, 132 D.L.R. (3d) 341, 17 M.P.L.R. I
(C.A.); Brown v. City of Vancouver (1986), 24 D.L.R. (4th) 434, 69 B.C.L.R. 308 (S.C.).
“IWillis, supra, note 1 at 264.
2″The Key to the Application of the Maxim ‘Delegatus Non Potest Delegare'” (1972) 2
Auckland U.L. Rev. 85.
“See supra, note 11 and accompanying text.
1987]
DELEGATUS
for a duty to use delegated legislative powers to make law. If the common
law rights are important, and if the subdelegated discretion is unduly broad,
the courts may require the subdelegator to define more precisely how and
under what circumstances the rights will be affected.
In this article, I propose to examine the development of the delegatus
maxim in the context of delegated legislation in Canada, particularly since
Professor Willis’s article. My objective is to test the validity of his argument
that the permissibility of subdelegation depends only on legislative language
and administrative exigencies.
Part II of the article examines subdelegation in municipal by-laws. This
examination suggests that, as an exercise in statutory interpretation, the
application of the delegatus maxim scarcely turns on the language of the
statute and involves rather more than a consideration of the administrative
exigencies. The courts tend to apply the maxim on the basis of not only the
confidence principle, but also principles derived from the rule of law, namely
equality and the notion that the law should be in a relatively accessible and
definite form. From these principles, the courts have developed a set of
factors for analysing subdelegation and determining whether it is authorized.
Although these factors include the administrative exigencies noted by Pro-
fessor Willis, they also focus on the nature of the subdelegated power and
the character of the subdelegate.
This development has not, however, eliminated doubts and inconsist-
encies in the application of the maxim. In Part III of the article, these become
readily apparent as attention shifts to non-municipal delegated legislation.
Although the same principles appear to be at work, the results in the various
cases are sometimes difficult to reconcile.
From the municipal and non-municipal case law a clear distinction
emerges: there is generally much greater scope for subdelegation in the latter
cases. Part IV analyses this distinction and the rise of the “alter ego” prin-
ciple in relation to subdelegation by a Minister of the Crown to departmental
officials. In this context, the confidence principle is indeed weak as a buttress
of the delegatus maxim. Thus, Part V pursues the ascendancy of the rule
of law as the primary rationale in modem administrative law. This Part
concludes with the emergence of a duty to make law embracing not only
subdelegation, but other forms of exercising statutory powers. Essentially,
this duty requires that delegated legislative powers be used to make law that
defines rights and obligations, rather than being used to confer discretionary
powers.
McGILL LAW JOURNAL
[Vol. 33
II. Subdelegation in Municipal By-laws
The legislative powers of municipalities flow exclusively from the pro-
vincial legislatures. 14 Municipalities are usually incorporated by a special
statute and find the bulk of their authority to make by-laws in a general
statute regulating and defining their powers and responsibilities. 5 In ad-
dition, they frequently receive powers under particular regulatory schemes
established by other statutes.
A considerable body of jurisprudence has developed on the extent to
which municipalities may subdelegate their regulatory powers. In earlier
cases, the courts focused on the confidence principle (the reliance by the
delegator on the particular capabilities of the delegate), and the possibility
of discrimination in dealing with common law rights. As the law has de-
veloped, however, the focus has shifted to the breadth of the discretion
conferred on the subdelegate. This in turn has led to the characterization
of powers as “administrative”, “legislative” or “judicial” –
a characteri-
zation that some consider unproductive.’ 6 As noted above, it is the issue
of discretion that is most closely related to a duty to make law.
Much of the case law has developed out of two decisions of the Supreme
Court of Canada: Bridge v. R. 17 and Vic Restaurant v. City of Montreal.18
In Bridge, a by-law made under a power to “provide for the issuing of
permits”19 prohibited service stations from remaining open between 7:00
P.M. and 7:00 A.M. without first obtaining an extension or emergency per-
mit. A limited number of these were to be issued by the city clerk on a
rotational basis to persons named on a list. However, the by-law also pro-
vided that the clerk could omit from the list persons who, “according to
evidence satisfactory to the city clerk,” failed to keep their shops open as
authorized. The Court held that the provision for omission from the list
was ultra vires. Cartwright J. stated:
It is within the powers of the Council to prescribe a state of facts the existence
of which shall render an occupier ineligible to receive a permit for a stated
time; but express words in the enabling Statute would be necessary to give the
Council power to confer on an individual the right to decide, on such evidence
as he might find sufficient, whether or not the prescribed state of facts exists
and there are no such words. 20
established by the Privy Council in Hodge v. R. (1883), 9 A.C. 117 (PC.).
‘ 4The capacity of provincial legislatures to delegate legislative powers to municipalities was
15See, e.g., the Cities and Towns Act, R.S.Q. c. C-19; the MunicipalAct, R.S.O. 1980, c.302.
16See Thorp, supra, note 12.
17[1953] 1 S.C.R. 8, [1953] 1 D.L.R. 305, 104 C.C.C. 170 [hereinafter Bridge cited to S.C.R.].
18[1959] S.C.R. 58, 17 D.L.R. (2d) 81 [hereinafter Vic Restaurant cited to S.C.R.].
19Factory, Shop and Office Building Act, R.S.O. 1937, c. 194, ss 82(3) and 82a.
20Bridge, supra, note 17 at 13.
1987]
DELEGATUS
As for the issue of permits under the provisions of the by-law, the Court,
with the exception of Rand J., considered the clerk’s powers to be “admin-
istrative” since the Council had “provided with sufficient particularity for
the issuing of the permits.” Although the court cited no case law2 l and gave
little indication of its rationale, the dissent of Rand J. makes it clear that
the potential for discrimination must have been considered. He dissented
on the basis that the rotational formula provided in the by-law was not
specific enough to ensure the equal treatment of all service station owners.
Six years later, in Vic Restaurant, the discrimination issue figured more
prominently. The majority judgements of Locke J. and Cartwright J. seized
upon it in considering a by-law made under a power to “license, regulate
or prohibit establishments where intoxicating liquors are sold” and to “fix
the amount, terms and manner of issuing licences.” 22 The by-law required
applicants to obtain the approval of the director of police before a licence
would be issued.
The Court went much further than it had in Bridge in outlining its
reasons for striking down the by-law. Locke J. found on the facts that
to say that before the Director of Finance may issue a licence, the Director of
Police, in his discretion, may prevent its issue by refusing approval is not to
fix the terms, but is rather an attempt to vest in the Chief of Police power to
prescribe the terms, or some of the terms, upon which the right to a licence
depends.2 3
He concluded “that the power was not exercised by the council but
delegated to someone else,”’24 and that this delegation was improper because
the legislature intended that the council itself exercise the power. This finding
was based on citations from a number of early cases, most of which were
decided in the nineteenth century, which suggested that the principal ques-
tion is whether the legislature had reposed special confidence in the council.
Typical of the passages cited was that of Bain J. in Re Elliott:
This, it seems to me, is a delegation of authority that cannot be justified; for
the council has really delegated to an official the judgment and discretion that
the Legislature intended and expected that it would exercise itself.25
21Note however, R. ex rel. Fletcher v. Joy Oil Co. [1950] O.R. 766, [1951] 1 D.L.R. 632 (C.A.)
dealing with another by-law under the same statute; this by-law established “a system for the
issuing of permits” and was found to be valid on the basis that the legislature had not intended
that the city council itself consider and issue the permits.
22Supra, note 18 at 73.
23Vic Restaurant, supra, note 18 at 82.
24Supra, note 18 at 83.
2 5Re Elliot (1896), I1 Man. R. 358 at 363, cited in Vic Restaurant, supra, note 18 at 79.
REVUE DE DROIT DE McGILL
[Vol. 33
This stress on the confidence principle, however, obscures a second
basis for striking down subdelegation. On close inspection, many of the
cases cited by Locke J. turned on interpretive presumptions against
discrimination 26 or interference with common law rights. 27
Cartwright J. concurred in the result, but based his decision on very
different reasons. He did not invoke the older case law, but relied on an
American text, McQuillan on Municipal Corporations.28 He considered the
central question to be whether the subdelegated power was legislative in
nature, or whether it was merely administrative. McQuillan on Municipal
Corporations stated that legislative power could never be delegated. If the
guidelines provided to a subdelegate for the exercise of a power were found
to be insufficiently precise, the power would be considered legislative, and
the delegation would be improper. Thus, he found that the by-law was
fatally defective in that no standard, rule or condition is prescribed for the
guidance of the Director of the Police Department in deciding whether to give
or withhold his approval. 29
Although this principle rested on the American constitutional guar-
antees of due process and equal protection of the law, 30 its application in
26For example, R. v. Webster (1888), 16 O.R. 187 (Ch. D.) involved a by-law that prohibited
the use of steam engines, except with the written consent ofthe owners ofneighbouring buildings
and the approval of the chairman of the local board of works. The by-law had been made
under a power “for preventing or regulating the carrying on of manufacturing or trades dan-
gerous in causing or promoting fire.” Ferguson J. concluded at 192 that the by-law was
unjustifiable on the ground that it delegates in part the exercise of judgment and
discretion that should be exercised by the enacting body alone, and does not place
all the inhabitants in the same position in regard to the matters affected by the
enactment.
27Merritt v. City of Toronto (1895), 22 O.A.R. 205 [hereinafter Merritt ] involved the question
of whether or not a city council was competent to regulate an activity through a discretionary
licensing scheme. Although it was empowered to make by-laws “for licensing, regulating and
governing auctioneers,” Osler J.A. held that this did not include the power to “prohibit” and
stressed that the by-law purported to limit the plaintiff’s “common law right” to undertake a
lawful calling. He then granted mandamus to compel the issue of the licence, emphasizing that
the powers of municipal corporations were to be strictly construed, particularly when they
affected common law rights.
28E. McQuillan, The Law of Municipal Corporations, 3d ed. (Willmette: Callaghan & Co.,
1950) at 138, 141 and 142.
29Vic Restaurant, supra, note 18 at 99.
30McQuillan, supra, note 28 at 140, citing Smith v. Hosford, 106 Kan. 363, 187 Pac. 685
(1920). The importance of these guarantees is clearly illustrated by one of the seminal cases
in the development of the principle: Yick Wo v. Hopkins, 118 U.S. 356 (1885). It concerned
an “order” of the city of San Francisco that prohibited a person from engaging in a laundry
business “without having first obtained the consent of the board of supervisors.” The order
was struck down by Mr Justice Matthews whose reasons at 369 were redolent of U.S. consti-
tutional law and history:
When we consider the nature and the theory of our institutions of government, the
1987]
DELEGATUS
1959 by Cartwright J. to Canadian law is not so startling as one might
imagine. The common law recognizes interpretive presumptions against
discrimination or interference with common law rights, and these pre-
sumptions parallel the American guarantees of due process and equal pro-
tection. The difference between them rests mainly in the constitutional
entrenchment of the latter.
Bridge and Vic Restaurant demonstrate that the courts have reached
no consensus as to the principles which underlie the delegatus maxim. The
maxim has been viewed by some judges as a reflection of the confidence
principle, and by others as a means of protecting common law rights. In
both cases the breadth of the delegated discretion is relevant, and in the
latter case the courts also consider the severity of the impact on the common
law rights. However, one finds little guidance to assist in determining what
breadth of discretion will suffice to invoke the maxim (thus nullifying the
delegated power), or how great the impact on the common law rights must
be.
Since the decision in Vic Restaurant, most Canadian cases dealing with
municipal by-laws that subdelegate power have focused on whether or not
the power is sufficiently narrow to be subdelegated. In some instances this
issue has been considered in terms of whether the subdelegated power is
“administrative” as opposed to “legislative” or “judicial”. If discretion is
limited, the power is characterized as administrative, and the subdelegation
is permitted without express statutory authority. However, this approach
has not been adopted in all cases and appears to be nothing more than a
particular way of formulating the question of whether or not too much
discretion has been subdelegated.
Two judgments of the Ontario Court of Appeal provide some guidance
as to the factors that a court is likely to take into account in answering this
principles upon which they are supposed to rest, and review the history of their
development, we are constrained to conclude that they do not mean to leave room
for the play and action of purely personal and arbitrary power.
[T]he fundamental rights to life, liberty and the pursuit of happiness, considered
as individual possessions, are secured by those maxims of constitutional law which
are the monuments showing the victorious progress of the race in securing to men
the blessings of civilization under the reign of just and equal laws, so that, in the
famous language of the Massachusetts Bill of Rights, the government of the
Commonwealth “may be a government of laws and not of men”. For, the very idea
that one man may be compelled to hold his life, or the means of living, or any
material right essential to the enjoyment of life, at the mere will of another, seems
to be intolerable in any country where freedom prevails, as being the essence of
slavery itself.
McGILL LAW JOURNAL
[Vol. 33
question. Both R. v. Joy Oil Co. 3′ and R. v. Sandier32 involved municipal
by-laws made under the same statutory authority dealing with fire preven-
tion. In the former, the by-law regulated bulk storage of flammable liquids,
requiring that storage facilities
be provided with foam fire-extinguishing equipment and such quantities of
foam-producing materials ready for immediate use as may be directed by the
Chief of the Fire Department.
In the latter case, the by-law empowered the Fire Chief to
inspect the fire protection equipment in any premises and to make such orders
for the installation, repair or replacement of fire protection equipment as he
deems necessary.
In neither case was there any express provision for the subdelegation
of powers to the Fire Chief. However, the court in Joy Oil adverted to the
administrative exigencies of the situation and proceeded on the assumption
that administrative powers were delegable. Without specifically considering
the terms of the enabling provision, Roach J.A. responded to the contention
that the by-law was ultra vires as follows:
I think the words “as may be directed by the Chief of the Fire Department”
qualify both the “foam fire extinguishing equipment” and the “quantities of
foam producing materials ready for immediate use”, but I also think that the
power of direction thereby conferred on the Fire Chief is an administrative
power only and it was competent for the council to delegate that power to him.
Legislatively the by-law is as specific as it could possibly be, having regard to
the great variety of conditions of hazards that might arise in the circumstances,
with respect to which the Council was exercising its legislative powers. It spec-
ifies that the equipment shall be “foam fire-extinguishing equipment” and the
materials shall be “foam-producing materials”. Accordingly there is no dis-
cretion vested in the Fire Chief as to the type of fire-extinguishing equipment
or the material to be used therein.
The capacity and location of that equipment and its efficiency and the
sufficiency of the materials will, of course, vary, and are matters that of sheer
necessity would have to be left to the decision of the Fire Chief as matters of
administration.33
In Sandler, Kelly J.A. examined the relationship between the enabling
legislation and the by-law more critically, noting that the provisions of the
31(1963), [1964] 1 O.R. 119, 41 C.R. 223, [1963] 3 C.C.C. 260, 41 D.L.R. (2d) 291 (C.A.)
[hereinafter Joy Oil cited to O.R.].
32[1971] 3 O.R. 614, 21 D.L.R. (3d) 286 (C.A.) [hereinafter Sandier cited to O.R.].
33Joy Oil, supra, note 31 at 121-22.
1987]
DELEGATUS
Municipal ACt 34 under which the by-law was made included a power that
was substantially broadened by a subjective test of validity. Despite this
breadth, he found the by-law to be ultra vires. The decision reflects both
the confidence principle and the rule of law principles. With respect to the
former, Kelly J.A. indicated that the character of the subdelegate was a factor
by concluding that the legislature
did not contemplate that any municipal council would attempt to evade its
responsibility for making regulations by substituting for its judgment that of
a non-elected official in its fire department. 35
Rule of law principles are reflected in Kelly J.A.’s finding that the sub-
delegated powers held great scope for discrimination and entailed penal
consequences for non-compliance with the orders made under them. In this
context, he noted a particular facet of the rule of law:
When a municipal council purports to legislate under the powers found in the
Municipal Act and thereby creates obligations to be observed by its citizens
the failure to observe which attracts punishment, it is to be expected that the
by-law creating such obligations will itself be so explicit that a well-intentioned
citizen seeking to observe the provisions of the by-law may, from a reading of
the by-law, without the enlargements of its requirement by the order of a
municipal servant, be able to satisfy himself that he has complied with its
requirements. When, as here, the by-law itself denies him that exposition of
his obligation and purports to make him liable for non-compliance with any
order the chief may make, even if that order applies solely to his particular
premises, I consider the by-law to be an unwarranted delegation of a legislative
power, the exercise of which was confined by the Legislature to the Municipal
Council itself.3 6
Although the court spoke in terms of the delegatus maxim, it was in
fact advancing a duty to make law by requiring that the by-law be more
explicit. Kelly J.A. also suggested a numbr of other factors to be used in
determining whether subdelegation would be permitted. He rejected the
contention that the fire chief’s powers were merely “administrative” and
distinguished Joy Oil on the basis that
34R.S.O. 1960, c. 249, s. 379(1):
By-laws may be passed by the councils of local municipalities:
38. For requiring buildings and yards to be put in a safe condition to guard against
fire or other dangerous risk or accident….
40. For authorizing appointed officers to enter at all reasonable times upon any
property in order to ascertain whether the provisions of the by-law are obeyed,
and to enforce or carry into effect the by-law….
43. For making such other regulations for preventing fires and the spread of fires
as the council may deem necessary.
35Sandler, supra, note 32 at 619.
361bid. at 620.
REVUE DE DROIT DE McGILL
[Vol. 33
(a) the property interests of a greater number of people were affected
more seriously; and
(b) in Joy Oil, the by-law contained a prescription of some standard or
guidance to direct the exercise of the power.37
These factors clearly reflect the rule of law principles underlying the
delegatus maxim. The first focuses on the degree to which common law
rights have been affected while the second assesses what legal safeguards
exist to protect those rights from abuse of discretion.
The interaction of the factors outlined in Sandier can be seen in nu-
merous cases. However, these demonstrate that the factors do not act as a
rigid formula for deciding questions of subdelegation. Although it seems
clear that subdelegation is usually permissible where the subdelegated pow-
ers are limited by standards or criteria governing their exercise, it is not
altogether clear how the courts decide whether the powers that are not so
limited can be subdelegated.
Examples of where standards or criteria were provided for the exercise
of subdelegated powers occur in the context of the licensing of massage
parlours, 38 maintenance requirements for hotels and public houses, 39 and
the regulation of meat processing plants.40
In each case, the subdelegated power involved the application of various
standards. The discretion was considered to be subject to judicial review,
leaving the courts with the last word on both the meaning and application
of the standards. Thus, in the hotel maintenance case, the court responded
to the contention that the vagueness of the standards effectively subdelegated
broad discretionary powers to the chief licence inspector by stating:
Of necessity standards of maintenance must be stated in general terms in a
by-law such as the one in question. Certainly the words “in good repair” or
“in a good workman-like manner” are used on a regular basis in commercial
contracts. At times there has to be a judicial determination of the meaning of
those words and whether there is compliance in a given case but that is a far
cry from saying that the words are so vague and uncertain as to be
unenforceable.
41
371bid. at 619-20.
38Re Moffat and City of Edmonton (1978), 84 D.L.R. (3d) 705 (Alta Dist. Ct).
39D & H Holdings Ltd v. City of Vancouver (1985), 15 Admin. L.R. 209 (B.C. Sup. Ct)
40Reggio Foods Inc. v. C.U.M. (1985), 21 Admin. L.R. 266 (Que. C.A.).
4 D & H Holdings Ltd, supra, note 39 at 221; but note Signcorp v. City of Vancouver (1986),
[hereinafter D & H Holdings Ltd].
35 M.PL.R. 16 (B.C. Sup. Ct.).
19871
DELEGATUS
Among the cases where no standards or criteria were prescribed, the
permissibility of subdelegation appears to depend largely on the Courts’
assessment of the importance or effect of the subdelegated powers.
In Re Figol and City ofEdmonton,42 C.R. Aggregate Sales Ltd v. District
of Squamish43 and Kirkpatrick v. District of Maple Ridge44 the courts sanc-
tioned the subdelegation of power to approve certain aspects of municipal
development and soil removal. Although there appears to have been no
specific guidance on the exercise of these powers, the activities in question
were generally regulated by the by-laws and the approvals were considered
to relate
only to certain phases of the construction of the proposed development which
would, it appears to me, normally be dealt with by the officials referred to
therein,
45
or to reflect
only reasonable requirements of administration, minor in nature, having to
do with the orderly and informed administration of the scheme.46
By the same token, the Supreme Court of Canada has held that the
power to make zoning by-laws, by its very nature as a device for controlling
land use and development in accordance with the demands of the com-
munity, permits some subdelegation to members of the community. In La-
moureux v. City of Beaconsfield,47 the court approved a by-law prohibiting
the issuance of a permit for a service station if two thirds of the neighbours
within 1,000 feet of the service station objected. Martland J. stated:
It is of the essence of zoning legislation that limitations are imposed upon the
right of a landowner to use his land in any manner which he chooses. The
limitations are imposed for the benefit of other landowners.
The by-law does not delegate … to them a general power of decision, as in the
Vic Restaurant case and the City of Verdun case, as to whether or not service
station permits shall issue. Instead the by-law takes into account, in each par-
ticular case, the wishes of adjacent landowners, who are the very people affected
by the proposed use, as one of the conditions precedent to the obtaining of a
42(1969), 8 D.L.R. (3d) 1, 71 W.W.R. 321 (Alta C.A.) [hereinafter Figol cited to D.L.R.].
43(1980), 115 D.L.R. (3d) 81 (B.C.S.C.) [hereinafter C.R. Aggregate].
44(1983), 49 B.C.L.R. 134, 8 D.L.R (4th) 66 (C.A.) [hereinafter cited to B.C.L.R.], rev’d on
other grounds [1986] 2 S.C.R. 124, [1986] 6 W.W.R. 97, 69 N.R. 100 [hereinafter cited to
S.C.R.].
45Figol, supra, note 42 at 16.
46C.R. Aggregate, supra, note 43 at 89; see also Beynon v. City of Victoria (1981), 28 B.C.L.R.
362 (S.C.) where the court stressed the fact that the subdelegation related to only “one element”
of the relevant regulatory function.
47(1976), [1978] 1 S.C.R. 134, 10 N.R. 413 [hereinafter Lamoureux cited to S.C.R.].
McGILL LAW JOURNAL
[Vol. 33
specific permit. In my opinion this is in accord with the principle of zoning
legislation and the provision was not ultra vires of the respondent
48
municipality.
When one turns to the cases where subdelegated powers were struck
down, the breadth of judicial discretion in applying the delegatus maxim
emerges quite clearly. At the outset it should be noted that there is a well-
established line of cases holding that the power to make by-laws “regulating”
a particular activity does not permit the subdelegation of any discretionary
powers.49 The rationale for this rule is that such powers could be used to
prohibit the activity and, if the legislature had intended to allow its pro-
hibition, a “prohibiting” power would have been conferred.
Apart from the regulating-prohibiting cases, it is difficult to establish
any clear guidelines on what sort of powers cannot be subdelegated without
standards or criteria to govern their exercise. For example, in R. v. Carland50
a provincial magistrate struck down a by-law that required used car dealers
to “keep in force a bond in the sum of $20,000, issued by the company and
in a form both to be approved by the City Solicitor indemnifying the city
… ” Although the magistrate considered that approval of the form was
permissible, he ruled otherwise with respect to the approval of the bond
company.
Madoc v. Quinlan5′ and Tiny v. Srenk 52 provide two further examples
in relation to the regulation of concerts and festivals. In Madoc, the judge-
ment does not indicate the nature of the subdelegated power, although it
appears to have entailed approval of health related aspects of a rock festival.
The court merely concluded that the municipal council had subdelegated
its powers “in a very vital respect to the medical officer of health. ‘ 53 In
Tiny, the by-law contained a number of requirements relating to the pay-
ment of licence fees, posting security and maintaining health and sanitation.
In each instance, power was subdelegated to determine the amounts of the
fees and security and to assess whether there was compliance with the health
and sanitation requirements.
Finally, in Kirkpatrick, discussed above, the by-law also subdelegated
to the city engineer ihe power to grant relief from a prohibition against the
48lbid. at 141-43.
49See, e.g., Re T W. Hand Fireworks Co. and City of Peterborough [1962] O.R. 794 (H.C.);
Merritt, supra, note 27; Township ofMadoc v. Quinlan (1971), 21 D.L.R. (3d) 136 (Ont. H.C.)
[hereinafter Madoc]; Tiny v. Srenk (1978), 6 M.P.L.R. 49 (Ont. H.C.) [hereinafter Tiny]; and
Willard G. Hallman Lumber Ltd v. County of Grey (1985), 15 Admin L.R. 224 (Ont. H.C.).
50(1962), 38 W.W.R. 439 (Sask. Mag. Ct) [hereinafter Carland].
51Madoc, supra, note 49.
52Tiny, supra, note 49.
53Madoc, supra, note 49 at 138.
1987]
DELEGATUS
removal of soil below the established street grade. While approving the
subdelegation of powers to assess compliance with the by-law and to de-
termine the volume of soil removed pursuant to a permit, Seaton J.A. struck
down the relieving power, stating:
The appellant says that the power given to the engineer is purely a matter
of engineering to ensure that further excavating will not endanger the street.
That may have been the intention of the municipality but it is not an intention
that I can discover in the by-law. It seems to me that the engineer is given an
unlimited discretion to permit whatever he sees fit for whatever reason he sees
fit.
54
Although the emphasis here is on the amount of discretion, it seems
clear that the scope of the power was an equally critical factor in striking
down the subdelegation of this power. Otherwise, the powers to assess com-
pliance with the by-law and determine soil volume would have been struck
down as well. As in Carland, Madoc, and Tiny, the Court appears to have
considered the relieving power to constitute an important or substantial
aspect of the regulatory scheme. Yet, one is left with little guidance on how
the courts came to this conclusion or, more generally, how the scope of the
power operates as a factor in applying the delegatus maxim. Conceivably,
their conclusions may have more to do with the way in which a particular
power was exercised in the cases before them than with its subdelegation.
Municipal By-laws: Summary
Although it is certainly correct to emphasize that the delegatus maxim
is essentially a rule of statutory construction, the cases examined above
indicate that most often the enabling statute provides very little guidance.
Instead, the maxim is applied on the basis of factors that reflect a number
of general principles, many of which are related only peripherally to ques-
tions of statutory interpretation.
The first factor may be described as the scope of the power. It entails
both the range of subjects affected by the exercise of the power as well as
the degree to which they are affected.
The second factor is the breadth of discretion that the exercise of the
power entails. It is characterized by the degree to which the exercise of the
power is determined by the person on whom it is conferred.
To a large extent the scope and breadth of discretion of a subdelegated
power are determined in relation to the power of the subdelegator. Where
the two powers are of similar scope, or where the subdelegated power con-
54Kirkpatrick, supra, note 44 at 138.
REVUE DE DROIT DE McGILL
[Vol. 33
stitutes a substantial part of the subdelegator’s power, it is unlikely that the
subdelegation will be permitted.
The third factor is the character of the subdelegate in relation to both
the delegator and the delegated power. In Sandier, Kelly J.A. mentioned
that the subdelegate was a non-elected official, suggesting that the powers
were such as the legislature had intended to place only in the hands of
elected officials. In Lamoureux, Martland J. asserted that subdelegation to
neighbouring residents of the service stations was consonant with the pur-
poses of zoning by-laws. Finally, in Figol the court noted that the by-law
subdelegated responsibility to officials for matters with which they would
normally deal.
The fourth factor is administrative exigency which, although persuasive
in arguing for the subdelegation of matters that the courts characterize as
“administrative,” will not prevail over the delegatus maxim when broad
discretionary powers are in issue.
While the first three factors have their roots in the confidence principle,
the first two also reflect principles derived from the rule of law. These entail
the right to equality and the notion that the law should be in a definite
written form that makes it accessible to those affected by it and permits
judicial review of its application.55 In the context of municipal by-laws, this
indicates a serious deficiency in Professor Willis’s approach to the delegalus
maxim. His approach overlooks the primary reason for granting by-law
making powers, namely to permit the making of law. The subdelegation of
powers erodes the degree to which a by-law expresses the law, leaving part
of its expression to be determined through ad hoc, unpublished decisions.
Thus, the determination of whether a power may be subdelegated must take
account of not only the confidence principle, but also the principle that the
law be accessible and definite. In fact, the latter principle predominates in
the context of delegated legislative powers and forms the basis for the duty
to make law. This duty extends beyond subdelegation to prevent the erosion
of the rule of law by other techniques discussed in Part V of this article.
It is possible to argue that conclusions derived from municipal law do
not apply to other delegated legislative authorities. The strict construction
of municipal powers expressed in Merritt and approved by Locke J. in Vic
Restaurant has accuracy in so far as most municipal statutes still confer
powers in a very detailed fashion that invites the application of the principle
55See Black-Clawson International Ltd v. Papierverke Waldhof-Aschaffenburg A.G. [1975]
A.C. 591 at 638, [1975] 2 W.L.R. 513, [1975] 1 All E.R. 810 (H.L.) per Lord Diplock; Reference
Re Manitoba Language Rights [1985] 1 S.C.R. 721 at 747ff.
1987]
DELEGATUS
of expressio unius est exclusio alterius.56 In addition, many municipal cases
involve the infringement of common law rights and for this reason also
invite strict construction. Hence, one must examine non-municipal sub-
delegation cases to discover whether there are any significant differences in
the application of the delegatus maxim.
III. Subdelegation in Non-Municipal Delegated Legislation
Most of the non-municipal case law on subdelegation has been gen-
erated since the Reference Re Validity ofthe Regulations in relation to Chem-
icals.5 7 This case has become something of a locus classicus on subdelegation
outside the municipal context. This is in no small measure due to Professor
Willis’s article, where he took the case as his point of departure and used
it as a principal buttress for his conclusions.
In the Chemicals Reference the Supreme Court approved virtually un-
limited subdelegation of the Governor in Council’s powers under the War
Measures Act. While the Act did not expressly authorize subdelegation, the
Court found implied authority to do so.
The impact of the case on the delegatus maxim is far from clear when
one examines the opinions of the five concurring justices. Four suggested
that the maxim was entirely inapplicable. For example, Duff C.J., who did
not even mention it, stated:
Ex facie such measures are plainly within the comprehensive language em-
ployed, and I know of no rule or principle of contruction requiring orjustifying
a qualification that would exclude them.58
In turn, Rinfret, Davis and Kerwin JJ. found the Governor in Council’s
powers to be so broad that there was no need to consider the maxim. In
particular, Rinfret and Davis JJ. characterized the conferral of war-time
regulatory powers on the Governor in Council as the creation of an inde-
pendent source of original legislation, analogous to the creation of original
legislative capacity in the Federal and Provincial legislatures by the Con-
stitution Act, 1867. Citing Hodge v. R., 59 they held that this did not constitute
delegation. 60
Only Hudson J. considered in any detail the scope and content of the
maxim, concluding:
56The vitality of this approach has most recently been affirmed by the Supreme Court of
Canada in Kirkpatrick, supra, note 44 at 127-28.
S7[1943 ] S.C.R. 1, [1943] 1 D.L.R. 248 [hereinafter Chemicals Reference cited to S.C.R.].
5S8Ibid. at 12.
59Supra, note 14 at 132.
60Chemicals Reference, supra, note 57 at 18-19 and 25-27.
McGILL LAW JOURNAL
[Vol. 33
In light of the necessity for delegation and what took place during the last
war and the decision of the courts in the case of Fort Frances Pulp and Paper
Co. v. Manitoba Free Press6′ I think it must be held that the Governor in
Council has the power to delegate to others the performance of such duties as
has been done in the present case. 62
Arguably, the majority of the court considered the delegatus maxim to
be entirely irrelevant because of the overwhelming breadth of the Governor
in Council’s powers. If they can be said to have commented on it at all,
they did so only in the sense of recognizing a highly unusual exception to
its application, namely that it does not apply to an authority exercising such
broad, plenary powers as those conferred by the British Parliament on a
dominion or colonial government. 63
The only generally applicable principle that can be extracted from the
decision is that the delegatus maxim is merely a rule of construction that
can be excluded by express or implied authority to subdelegate. The case
does not, however, provide much useful guidance on how or in what cir-
cumstances this authority may be implied. Although Professor Willis made
much of the court’s references to administrative necessity,64 the degree of
administrative necessity present in the Chemicals Reference is hardly likely
to arise in any but war-time cases. Hence, the judgement can always be
distinguished on this point.65
Similarly, any assertion that broad language in an enabling provision
will permit extensive subdelegation is bound to falter for the same reason.
The wording of the War Measures Act was of unprecedented breadth and
was construed in light of the purpose of the Act to confront a grave national
emergency. It is most unlikely that one would ever find such a combination
of language and purpose in any other statute.
6’Fort Frances Pulp and Paper Co. v. Manitoba Free Press Co. [1923] A.C. 695 (PC.).
62Chemicals Reference, supra, note 57 at 37.
631bid. at 18-19, Rinfret J.; at 30, Kerwin J.; and at 36-37, Hudson J.
64Willis, supra, note 1 at 261-62.
65See, e.g., Re Clark and A.G. Canada (1977), 17 O.R. (2d) 593 at 609-10, 81 D.L.R. (3d)
33 (H.C.) [hereinafter Re Clark cited to O.R.] where Evans C.J.H.C. stated:
The approach of the Supreme Court of Canada in the Chemicals Reference case is
dictated by the exigencies of the war-time situation. That is not so in the present
case. In the first place, it is not an over-burdened Executive delegating to a subor-
dinate. It is a federal board delegating to a Member of the Cabinet. There is nothing
in the Atomic Energy Control Act which justifies the conclusion that the Board is
entitled to delegate the powers granted to it by the Act. Finally, the Board is esta-
blished to carry out the “policing” of the atomic energy field. One can assume that
the Board is comprised of people who are experts in the field and are experienced
in administrative practice. Consequently, the Board and not a Minister is best suited
to handle the powers given to it by Parliament.
1987]
DELEGATUS
The limited application of the Chemicals Reference is best demon-
strated by its minimal impact in the next significant non-municipal sub-
delegation decision of the Supreme Court: A.G. Canada v. Brent.66 This case
involved a provision of the Immigration Act that authorized the Governor
in Council to make regulations “respecting … the prohibiting or limiting of
admission of persons” for a number of reasons specified in the Act. 67 A
regulation made under this provision subdelegated to special inquiry officers
the power to refuse admission on the basis of these reasons. Speaking on
behalf of the court, Kerwin C.J. held the regulations to be invalid, adopting
the reasons of Aylesworth J.A. in the Ontario Court of Appeal. 68
Although Aylesworth J.A. cited the Chemicals Reference as authority
for the delegatus maxim, it hardly appears to have affected his application
of it. He did not consider the administrative exigencies of the case before
him, but rather applied the maxim on a basis that clearly suggests the con-
fidence principle and the rule of law notions discussed above in relation to
municipal by-laws. Thus, he suggested that the regulation-making power in
question was intended to be used to prescribe “standards for the general
guidance of immigration officers.” In turn, he held that the Governor in
Council had failed to exercise this power, but had instead merely distributed
it among the immigration officers. 69 Once again one finds the Court ad-
vancing what is essentially a duty to make law in the context of
subdelegation.
The Brent case represents perhaps the most vigorous statement by the
Supreme Court of the principles underlying the delegatus maxim. In two
subsequent decisions the court applied the maxim much less restrictively:
in one case they inferred that the subdelegated powers entailed only the
application of standards prescribed by the enabling statute70 and in the
66[1956] S.C.R. 318, 2 D.L.R. (2d) 503, 114 C.C.C. 296 [hereinafter Brent cited to S.C.R.].
67R.S.C. 1952, c. 325, s. 61.
6SEx parte Brent [1955] O.R. 480, [1955] 3 D.L.R. 587, 111 C.C.C. 323 [hereinafter cited to
O.R.].
691bid. at 490.
70Espaillat-Rodriguesv. R. (1963), [1964] S.C.R. 3, 42 D.L.R. (2d) 1, 41 C.R. 195 [hereinafter
cited to S.C.R.], where the regulations in question required an immigrant seeking landing in
Canada to be in possession of “a valid and subsisting immigrant visa issued to him by a visa
officer….” They contained no guidelines for issuing visas and the appellant argued that broad
discretionary powers had been improperly subdelegated to visa officers. The Court held other-
wise, with Abbott J. for the majority ruling that visa officers exercised only an “administrative
responsibility.” He went on to state at 8:
As I have said, the administrative responsibility of granting or refusing the im-
migrant visa required by regulation 28(l) has been entrusted to certain designated
officers located outside of Canada. It must be entrusted to someone and the duty
of such officers is to ascertain whether or not an applicant for permanent landing
in Canada comes within one of the prohibited classes. That question is a question
REVUE DE DROIT DE McGILL
[Vol. 33
second they characterized the subdelegated power as “administrative” in
spite of its broad impact and unfettered discretion.71
The latter case, Desrosiers v. Thinel, concerned regulations made pur-
suant to section 25 of the Department of Transport Act which provided that:
The Governor in Council may from time to time make such regulations as he
deems necessary for the management, maintenance, proper use and protection
of all or any of the canals or other works under the management or control of
the Minister, and for the ascertaining and collection of the tolls, dues and
revenue thereon. 2
The regulations purported to prohibit the operation of a commercial pas-
senger vehicle service “without the authority in writing of the Minister.”
The Court upheld the regulations. Fauteux J. first distinguished a similar
municipal case 73 by asserting that, since the regulations governed the use
of the property of the Crown, they did not limit any common law right. He
then noted the enabling provision and concluded:
With the unlimited discretion given by Parliament to the Governor-in-Council,
the latter, had he deemed it necessary, might well have determined, by regu-
lations, the circumstances in which the Minister should grant the authority.
This, however, Parliament did not require the Governor-in-Council to do. In
the exercise of the power given to him by s. 4A, the Minister performs an act
which, of its nature, is clearly administrative. 74
These conclusions recall the decision of Duff C.J. in the Chemicals
Reference, where the broad wording of the enabling provision seemed suf-
ficient in itself to permit unlimited subdelegation. However, Fauteux J.’s
emphasis on the enabling provision was coupled with his characterization
of the Minister’s power as “administrative,” suggesting that broad statutory
language alone was not sufficient to justify the subdelegation.
Abbott J. reached the same conclusion in a separate opinion, although
he seems to have done so solely on his characterization of the Minister’s
power as non-legislative:
of fact.
Cartwright J., who dissented, expressed no conclusive opinion on the scope of the visa officers’
powers and did not share the majority’s confidence in construing the visa officers’ powers so
narrowly. This is not surprising given the absence of any express statement in the regulations
that the issue of a visa should turn solely on whether or not an applicant was a member of a
prohibited class.
7’Desrosiers v. Thinel [1962] S.C.R. 515, 33 D.L.R. (2d) 715 (hereinafter Desrosiers cited to
72R.S.C. 1952, c. 79, s. 25.
73Cit.v of Verdun v. Sun Oil Co. (1951), [1952] 1 S.C.R. 222, [1952] 1 D.L.R. 529.
74Supra, note 71 at 519.
S.C.R.].
1987]
DELEGATUS
The granting of such authority to the Minister by Order-in-Council is not a
delegation of legislative authority. It merely indicates how the Minister shall
exercise his responsibility of managing and controlling the public work en-
trusted to him by the statute.75
On its face, Desrosiers suggests that even a broad unfettered discre-
tionary power may be characterized as “administrative” and thus subde-
legated. However, a crucial factor in this case was the subject matter of the
Governor in Council’s regulation-making power, the management of gov-
ernment property. Arguably, the court considered this to be an essentially
administrative function that would ordinarily be undertaken by a minister
of the Crown without any regulations. This characterization was reinforced
by the limited impact of the powers in question in so far as no common
law rights were affected. The regulation-making power merely provided the
Governor in Council with an additional, albeit formal and public, tool for
directing the management of government property. In the absence of such
a power, the Governor in Council could have accomplished the same result
through internal directives.
Although this explanation goes some distance toward accounting for
the result, it does not address the question of why the regulation-making
power was conferred. Conceivably, Parliament’s objective was to regularize
the management of “canals or other works” that were established primarily
for the use of the public. The fact that no common law rights were in issue
does not mean that the public would have been indifferent to the govern-
ment’s management practices. No such rights were affected in Brent, yet the
court there considered that Parliament had intended that there be substan-
tive regulations on which visitors and immigrants could rely in seeking
admission to Canada. As in Brent, one can argue that Parliament did not
intend the management of canals or other works to be conducted on the
basis of varying practices unknown to the public and subject to change
without notice. Rather, Parliament intended that there be regulations with
content indicating how the public might use the canals and works.
The Supreme Court decisions examined above provide limited guid-
ance on the application of the delegatus maxim in non-municipal cases. A
more complete picture, similar to that derived from the municipal cases,
emerges from an examination of a number of lower court decisions. Here,
the courts appear reluctant, even when faced with very broadly worded
enabling provisions, to imply authority to subdelegate powers that entail a
high degree of discretion and a significant aspect of the subdelegator’s pow-
75Ibid. at 517.
McGILL LAW JOURNAL
[Vol. 33
ers.76 By the same token, the subdelegation of narrow powers is generally
tolerated. 77
It is arguable that administrative exigencies carry greater weight in the
non-municipal cases. In PG. Canada v. Corporation Pharmaceutique Fran-
gaise Ltje,78 Dugas J. dwelt at some length on the constantly and rapidly
changing nature of the drug manufacturing industry. The enabling authority
for the regulations in question was both broad and detailed 79 and the sub-
delegated powers concerned the approval of methods of drug analysis and
the evaluation of the sufficiency of the training of drug inspectors. In up-
holding the validity of the regulations, Dugas J. stated:
I1 faut d’abord se rappeler que la mati~re dont traite la Loi F-25 et le r~glement
est une mati~re en constante 6volution sous 1’impulsion des milliers de cher-
cheurs et de fabricants de tous les coins du monde. Non seulement voit-on
chaque jour apparaitre un produit nouveau qu’il faut bient6t faire place A de
nouveaux formats, A des copies et A des combinaisons. De nouvelles techniques
de production et d’analyse apparaissent constamment. C’est une matire of le
remade de l’un est le poison de l’autre. M’tat se doit de contr8ler la matirre
avec des outils aussi varibs que ceux que possde l’industrie et doit contraler
les drogues avant qu’elles n’atteignent les marchs. Mais il ne faut pas que ces
contrrles dfcouragent l’invention et paralysent l’6volution. Le contr8le doit
8tre assez souple pour s’adapter au changement et assez ferme pour garantir
l’innocuit6 des produits.80
In support of his conclusion, Dugas J. emphasized the large scope that the
regulations left to drug manufacturers to regulate themselves. Drug analysis
76See, e.g., Robertson v. R. [1972] EC. 80, 30 D.L.R. (3d) 383 (T.D.): power to require
retirement of employees before the mandatory retirement age fixed by regulation; Re Clark,
supra, note 65: unfettered power to grant exemptions from a regulation prohibiting the dis-
closure of certain information; R. v. Ouimet (1978), [1979] 1 EC. 55 (C.A.): power to “extend”
a probationary period prescribed by regulations made under a power to “establish” such pe-
riods; Sarafinchan v. Alberta Hail and Crop Insurance Corp. (1979), 14 A.R. 242, 5 Alta L.R.
(2d) 52 (C.A.): power to prescribe forms that were to be prescribed by regulations; Forget v.
PG. Quebec [1984] C.A. 492: power to prescribe the grade necessary to pass a mandatory
language test.
77See, e.g., Re Alberta Teachers’ Association (1973), 39 D.L.R. (3d) 528, [1973] 1 W.W.R.
269 (Alta C.A.) and the cases cited infra, notes 78 and 81.
78[1977] C.S. 675 [hereinafter Corporation Pharmaceutique].
79Food and Drugs Act, R.S.C. 1970, c. F-27, s. 25(1):
The Governor in Council may make regulations for carrying the purposes and
provisions of this Act into effect, and, in particular, but not so as to restrict the
generality of the foregoing, may make regulations
(o) respecting
(i) the method of preparation, manufacture, preserving, packing, labelling, sto-
ring and testing of any new drug, and
(ii) the sale or the conditions of sale of any new drug.
80Supra, note 78 at 682.
1987]
DELEGATUS
methods were to be developed by the manufacturers rather than dictated
to them, while the inspectors were to be employees of the manufacturers,
not government officials.
Although the greater significance of administrative exigency in non-
municipal cases is supported by a number of other cases, 8′ one should note
that it can be a two-edged sword. In Re Clark and A.G. Canada82 Evans
C.J.H.C. considered a regulation of the Atomic Energy Control Board pro-
hibiting the disclosure of information relating to certain “conversations,
discussions or meetings” without the consent of the Minister of Energy,
Mines and Resources. He struck down the regulations after observing, inter
alia, that the Board had the expertise and administrative capacity to regulate
such matters, and was therefore more capable than the Minister to decide
which conversations should remain confidential:
There is nothing in the Atomic Energy ControlAct which justifies the conclusion
that the Board is entitled to delegate the powers granted to it by the Act. Finally,
the Board is established to carry out the “policing” of the atomic energy field.
One can assume that the Board is comprised of people who are experts in the
field and are experienced in administrative practice. Consequently, the Board
and not a Minister is best suited to handle the powers given to it by
Parliament.83
Re Clark can also be viewed as a case where the court disapproved of the
choice of subdelegate. Thus, as in the municipal cases, the character of the
person or body on whom powers are conferred may be an important factor
in determining whether their conferral is permissible. 84
Most of the non-municipal cases where subdelegation was struck down in-
volved the subdelegation of very broad powers, unfettered by standards or
guidelines. Dene Nation v. R.85 is a rather exceptional case in which the
court was not satisfied that a subdelegated power was sufficiently circum-
scribed by guidelines or standards. Madam Justice Reed held that a regu-
lation to authorize water use without a licence under the Northern Inland
Waters Act 86 was ultra vires. Section 26 of the Act empowered the Governor
81See, e.g., Re Denison Mines Ltd and Ontario Securities Commission (1981), 32 O.R. (2d)
469, 122 D.L.R. (3d) 98 (Div. Ct) [hereinafter Re Denison Mines]; Senecal v. R. [1984] 1 EC.
169 (T.D.); Re Merrick and Director of Vocational Rehabilitation Services (1985), 49 O.R. (2d)
675, 7 O.A.C. 255 (Div. Ct).
82Supra, note 65.
831bid. at 609-10.
84See also Calderv. Minister of Employment and Immigration (1979), [1980] 1 EC. 842, 107
D.L.R. (3d) 738, 80 C.L.L.C. 14, 009 (C.A.) and Re Denison Mines, supra, note 81 where the
subdelegate already had power, for other purposes, to perform the function entailed by the
subdelegated power.
85[1984] 2 EC. 942 (T.D.) [hereinafter Dene Nation].
86R.S.C. 1970 (1st Supp.), c. 28.
REVUE DE DROIT DE McGILL
[Vol. 33
in Council to make regulations authorizing such use, but stipulated that the
use or class of uses, or the maximum quantity or rate of use, was to be
“specified” in the regulations.
The regulations stated that water could be used without a licence if a number
of conditions were met, one of which was that “the controller has stated in
writing that he is satisfied that the proposed use would meet the applicable
requirements of section 10(1) of the Act … .. In striking down the regulation,
Reed J. concluded:
I agree that the controller was not authorized to act legislatively e.g., by making
regulations or rules. What occurred instead was the transformation by regu-
lation of a legislative power into an administrative or a quasi-judicial power,
and the conferral of that power on the controller.
Parliament clearly intended two procedures for authorizing water uses: one
through the Yukon and Northwest Territories Water Boards, exercising the
quasi-judicial and discretionary powers which such bodies characteristically
exercise. The other through regulation in which it was clearly intended that all
the requirements to be met in order to use water without a licence would be
specifically and exhaustively set out by the Governor in Council in the Reg-
ulations. There is nothing in the Act from which one can infer any intention
that part or all of that power should be conferred on a sub-delegate to be
exercised in a discretionary fashion.8 7
Reed J. then acknowledged that the subdelegation was not “wholesale,”
as in the Brent case, since some legislative guidance was given to the
controller:
The proposed use must be for municipal or water engineering purposes; the
quantity must be less than 50,000 gallons a day; and the requirements of
subsection 10(1) must be met. However, not enough legislative guidance has
been given to escape the conclusion that an unauthorized sub-delegation has
occurred. Subsection 10(l) does not provide a sufficiently complete code of
requirement. Instead it sets up parameters within which discretionary judg-
ments must be made.88
The key to this conclusion lies in the subjective requirement of the
regulations that the controller be “satisfied” that the applicable requirements
were met. Notwithstanding the strictures governing the controller’s discre-
tion, Reed J. concluded that this term imported a discretionary power that
too closely paralleled the powers of the water board, and that its subdele-
gation was not permitted under the regulation-making power to “specify”
license exemption requirements.
Two recent decisions indicate a measure of uncertainty in the appli-
cation of the delegatus maxim in non-municipal case law. They both con-
87Supra, note 85 at 947-48.
88Ibid. at 948.
1987]
DELEGATUS
cerned regulations under section 34 of the Fisheries Act89 and suggest that
the appellate courts in Ontario and British Columbia have substantially
different views on the permissible degree of subdelegation.
The enabling provision permitted the Governor in Council to “make
regulations for carrying out the purposes and provisions of this Act … ..” It
went on to recite a number of particular powers, most of which were stated
to be “respecting” particular aspects of the fishing industry. Although par-
agraph 34(m) specifically authorized subdelegation, it did so only in relation
to the variation of a “close time or fishing quota that has been set by the
regulations.”
In R. v. Tenale,90 the British Columbia Court of Appeal struck down a
regulation that permitted the Minister of Recreation and Conservation for
British Columbia to publish notices specifying a wide variety of limits on
fishing.91 Seaton J.A. adopted the reasoning of Andrews Co. Ct J., from
whose judgement the appeal was taken. Andrews Co. Ct J. said:
To be valid subdelegation, it must be authorized specifically or the maxim must
be displaced by general language and objective of the statute. Contrary to the
trial Judge, I do not find in the Fisheries Act itself any wording to support an
argument that delegation was either intended or contemplated other than to
those limited persons described in s. 34(m). Unlike the licensing cases referred
to, the Fisheries Act contains no specific authority to delegate and certainly
contains no suggestion that the whole subject of inland fisheries may be sub-
delegated to a Province with power and authority to legislate or regulate. 92
The conclusion rested on Andrews Co. Ct J.’s characterization of the
regulation as “a total divesting and abdication of jurisdiction by the federal
authorities over inland fisheries.”‘ 93 He conceded that, prior to 1978, the
regulations set out detailed requirements in accordance with the wishes of
the provincial authorities, and that this entailed a rather lengthy procedure
“that was far too long to respond in a timely way to the provincial re-
quests.” 94 Nevertheless, he was not prepared to permit subdelegation merely
on the basis of administrative exigency.
The reasoning and results in the Ontario case, Re Peralta,95 were much
different. Here, the impugned regulation authorized the Minister of National
Resources for Ontario to “designate” in any commercial fishing licence
89R.S.C. 1970, c. F-14.
90(1982), 145 D.L.R. (3d) 52,3 C.C.C. (3d) 254 (B.C.C.A.) [hereinafter Tenale cited to D.L.R.].
91British Columbia Fishery (General) Regulations, C.R.C. 1978, c. 840, s. 58(1).
92(1982), 134 D.L.R. (3d) 655 at 662, 66 C.C.C. (2d) 180 (B.C. Co. Ct).
931bid. at 659.
94Ibid. at 662.
95(1985), 49 O.R. (2d) 705, 16 D.L.R. (4th) 259 (C.A.) [hereinafter Re Peralta cited to O.R.]
(leave to appeal to the Supreme Court of Canada granted 27 June 1985).
McGILL LAW JOURNAL
(Vol. 33
various limitations and restrictions, including limits on the quantity of fish
to be taken, and to
impose such terms and conditions as he deems proper and that are not in-
consistent with these Regulations.96
Pursuant to these powers, the Minister imposed restrictions limiting fish
catches to the quotas allocated by him to the various licensees.
MacKinnon A.C.J.O. examined the subdelegation question in more
detail than did the British Columbia Court of Appeal in Tenale. He was
clearly influenced by Professor Driedger’s approach to subdelegation 97 and
began by emphasizing that the word “respecting” in the enabling provisions
conferred broader powers than did the earlier provisions that had used the
term “prescribed.” MacKinnon A.C.J.O. went on to comment that a court
should consider both the manner in which a statutory power has been ex-
ercised as well as the “administrative necessity” involved:
In the Act there is no indication of the person or body to whom the Governor
in Council may delegate, and the fact that it has been to provincial ministers
cannot by itself establish the right. However, the exercise of the right may be
considered to show that interpreting the legislation as conferring the power of
subdelegation does not lead to an absurdity. When courts have considered
whether delegation of ministerial powers was intended, considerable weight
has been given to “administrative necessity”, that is, it could not have been
expected that the Minister (in this case the Governor in Council) would exercise
all the administrative powers given to him. Further, in such cases the suitability
of the delegate has been a material factor in determining whether such dele-
gation is intended and lawful: see Lanham, “Delegation and the Alter Ego
Principle”, 100 L.Q.R. 587 (1984). 98
He then found that subdelegation of the “necessary powers to carry out
the object of the regulations” was “intended by necessary implication” and
that the Minister’s powers could be classified as such. 99 To reinforce these
conclusions, he discussed the Chemicals Reference, Brent and Brant Dairy
Co. v. Milk Commission of Ontario,l0 0 rejecting the contention that the first
was relevant only to war-time situations, distinguishing the second as a case
where the Governor in Council had “delegated all its powers” and asserting
that the third applied only when delegated legislation merely “repeats” its
enabling authority. 101 In contrast to the broad discretion which was attacked
96Ontario Fishery Regulations, C.R.C. 1978, c. 849, s. 29(5).
97E.A. Driedger, The Composition of Legislation, 2d ed. (Ottawa: Department of Justice,
1976) at 193, cited by Mackinnon A.C.J.O. in Re Peralta, supra, note 95 at 718.
98Supra, note 95 at 717.
99Ibid. at 718 and 723.
100(1972), [1973] S.C.R. 131 [hereinafter Brant Dairy], discussed below, Section 5.
1’Supra, note 95 at 720.
1987]
DELEGATUS
in those cases, MacKinnon A.C.J.O. found the Minister’s powers in Re
Peralta to be circumscribed by provisions in the regulations that
detail[ed] the general conditions applicable to commercial fishing and to gill-
nets and trawl-nets (ss. 30 to 43, 46, 57 to 59). They divide the waters of
Ontario [into] special areas and they establish global quotas for commercial
fishing of particular species from those waters (ss. 34, 39(5) and (6), 46(2),
59(1)). Commercial fish are defined in the definition section, and their mini-
mum sizes are set out in Sch. VIII of the Ontario Fishery Regulations. The
effect of the regulations was to set general policy and in setting the individual
quotas within those policy guide-lines, the Minister was acting in a fashion
consistent with the regulations. 02
The inconsistencies in the approaches to the delegatus maxim become
clear from a comparison of Tenale and Re Peralta. The subdelegated powers
in each case were substantially similar since they both entailed the impo-
sition of a wide variety of limits on fishing. In addition, the powers in Tenale
seem to have been just as circumscribed by regulatory provisions as those
in Re Peralta.103
The most obvious distinction between the two cases lies in the manner
in which the fishing limits were imposed. In Tenale, they were imposed
generally through a public notice, while in Re Peralta their imposition was
on an individual basis through the licensing process. However, it is difficult
to see why this distinction should have made any difference in applying the
delegatus maxim. Arguably, the real difference was in each court’s conception
of the scope and breadth of discretion permissible in subdelegating powers
under section 34 of the Fisheries Act.
IV. Distinctions between Municipal and Non-Municipal Subdelegation
Cases
In both the municipal and non-municipal context the case law manifests
considerable uniformity with respect to the factors and principles underlying
the application of the delegatus maxim. In fact, one often finds references
to municipal case law in cases dealing with non-municipal subdelegation, 04
although the reverse does not appear to be true, probably because the volume
of municipal cases is somewhat greater. There are, however, several dis-
tinctions between the two groups of cases. In the municipal cases, the courts
repeatedly advert to the potential for discrimination and inequality inherent
in the exercise of discretionary powers. This aspect of discretionary powers
receives far less attention in the non-municipal cases, suggesting that the
I02Ibid. at 723.
103Supra, note 91, ss 55-68.
104See, for example, Dene Nation, supra, note 85; Re Peralta, supra, note 95.
REVUE DE DROIT DE McGILL
[Vol. 33
courts more readily accept the propriety, if not the necessity, of some dis-
cretion in this context.
A second distinction rests on the fact that, in the non-municipal cases,
enabling provisions are generally construed more broadly and are not subject
to the stricter interpretation accorded municipal statutes. The scope for
subdelegation is especially broad in relation to delegated legislative powers
such as those in Desrosiers that neither impose penalties nor affect common
law rights.
Although the latter distinction rests on the traditional strict construction
of municipal powers, it also demonstrates the significance of the wording
used in enabling provisions. 10 5 When these prescribe in some detail what
is to be set out in delegated legislation, its content must reflect this detail.
Thus, the detail of the enabling provisions considered in cases like Brent
or Dene Nation was unquestionably important in precluding subdelegation,
while the more generally worded provisions in cases like Desrosiers or Cor-
poration Pharmaceutique permitted greater scope for subdelegation.
The detail of the enabling provision as a factor in applying the delegatus
maxim accords with the judicial disapproval of the subdelegation of a sub-
stantial portion of the delegated legislative powers in question. Although it
is often difficult to predict whether a power will be characterized as sub-
stantial, as opposed to minor or administrative, there appears to be a greater
tendency towards the latter characterization in non-municipal cases.
In explaining the distinctions between the municipal and non-
municipal case law, one should also bear in mind that the administrative
exigencies for subdelegating are less persuasive in relation to municipal
authorities whose duties and powers are usually far less comprehensive than
those of federal or provincial Ministers of other governmental bodies. Since
municipal authorities are generally capable of personally exercising most of
the powers delegated to them, and since Ministers are not, there is less
reason to allow municipal authorities to subdelegate than there is to allow
subdelegation by Ministers.
The distinctions may also result from the influence exerted by the no-
tion crystallized in Carltona v. Commissioner of Works’0 6 and most recently
characterized by David Lanham as the “alter ego principle.”‘ 1 7 It applies
mainly to the delegation of functions by a Minister of the Crown to members
of the department over which the Minister presides. This principle has been
105See supra, note 56 and accompanying text.
106[1943] 2 All E.R. 560 (C.A.).
107D. Lanham, “Delegation and the Alter Ego Principle” (1984) 100 L.Q. Rev. 587; note the
reference to this article in Re Peralta, supra, note 98 and accompanying text.
1987]
DELEGATUS
seen either to preclude the application of the delegatus maxim or, more
frequently, to hold that no delegation takes place in this situation since the
minister and his departmental staff are legally the same. 10 8
The alter ego principle rests almost entirely on administrative exigency
and the choice of the subdelegate as someone under the control of the
delegator. The courts have frequently observed that the complexity and
multitude of functions assigned to a minister cannot possibly be meant for
his personal performance, but must be capable of performance by depart-
mental staff.’ 09
The development of the alter ego principle suggests that considerations
springing from the rule of law are now more important than the confidence
principle as a basis for the delegatus maxim. This trend is reinforced by the
constitutional” 0 and legislativelII reforms of the last five years to protect
the public from governmental intrusion and permit greater access to infor-
mation about government activities. Although subdelegation can be a useful
administrative tool, it can equally serve to conceal government regulatory
activity, particularly as it relates to the exercise of law making powers.
Arguably, the shift in the basis of the delegatus maxim signals the rise
of a duty to make law in the context of delegated legislative powers. In
essence, the factors used by the courts in applying the maxim entail bal-
ancing the interests of those affected by a subdelegated power against the
interests of those involved in its exercise. The scope of the power, the breadth
of discretion it entails, the character of the subdelegate and the adminis-
trative exigencies are the elements of a rough equation used to protect the
principles inherent in the rule of law, without restricting unduly the admin-
istration of law.
Support for the existence of a duty to make law is not confined to cases
on subdelegation. Rather, it encompasses several other forms of exercising
statutory powers. In Part V, I propose to examine these forms in order to
delineate further the duty to make law and to analyse critically its merits
and weaknesses as a judicial tool for controlling statutory powers.
1081bid. at 587.
09See, e.g., Carltona, supra, note 106 at 563 and Ahmad v. Appeal Board established by the
Public Service Commission [1974] 2 EC. 644 at 651, (sub nom. Ahmad v. Public Service Com-
mission Appeal Board) 6 N.R. 287, (sub nom. Re Ahmad and Appeal Board established by the
Public Service Commission) 51 D.L.R. (3d) 470 (C.A.).
I”0Canada Act 1982 (U.K.), 1982, c. 11; note Re Ontario Film and Video Appreciation Society
and Ontario Board of Censors (1983), 41 O.R. (2d) 583 at 592, 147 D.L.R. (3d) 58 (Div. Ct)
[hereinafter Re Ontario Film and Video Appreciation Society cited to O.R.], aff’d (1984), 45
O.R. (2d) 80, 5 D.L.R. (4th) 766 (C.A.).
” I’Access to Information Act, S.C. 1980-81-82-83, c. 111 (Sched. I); Privacy Act, S.C. 1980-
81-82-83 (Sched. II).
McGILL LAW JOURNAL
[Vol. 33
V. The Duty to Make Law
Under the rubric of subdelegation, one finds numerous cases that do
not involve transfers of power from a delegate to a subdelegate. Rather, they
arise when an authority transforms its delegated legislative power into a
power exercisable by the authority itself on a less formal basis, either by
issuing policy guidelines or through ad hoc decisions in individual cases.
Although the confidence principle is not violated in such cases, the rule of
law principles underlying the decisions on subdelegation clearly apply. These
entail the concerns raised by Kelly J. in Sandler, namely, that citizens will
not know what the law is with sufficient detail to permit them to observe
it or obtain benefits under it. 112
Brant Dairy’ 13 is the best example of the prohibition of the transfor-
mation of a delegated legislative power into an “administrative”, ad hoc
decision-making power. The Ontario Milk Commission was empowered to
make regulations “with respect to regulated products generally or to any
regulated product.”‘” 4 In addition, the enabling provision permitted regu-
lations “providing for” a number of elements of a marketing scheme, one
of which was a quota system. Superimposed on all of these powers was a
provision permitting the Commission to delegate its regulation-making pow-
ers to a marketing board. The Commission did so, conferring its powers on
the Ontario Milk Marketing Board. In turn, the Board made a regulation
that virtually repeated the wording of the enabling provision concerning the
establishment of a quota system. Rather than “providing for the fixing and
allotting to persons of quotas,” the regulation merely stated that the Board
“may fix and allot to persons quotas … on such basis as the Board deems
fit.”
The Supreme Court struck down the regulation. Laskin J. stated for
the majority:
The fact that the powers conferred are to be carried out on a basis that the
Board deems proper does not entitle it to keep its standards out of the regu-
lation. The “deem proper” clause of the empowering statute gives the Board
(as subdelegate) a wide scope in setting up a quota system and in fixing quotas
but it does not allow the Board to escape its obligation, as I read the statute,
to embody its policies in a regulation.
A statutory body which is empowered to do something by regulation does
not act within its authority by simply repeating the power in a regulation in
112See supra, notes 32-34 and accompanying text.
“13Supra, note 100; note, however, that it is by no means the earliest such case: see, e.g., Re
’14The Milk Act, 1965, S.O. 1965, c. 72, s. 8(1).
Nash and McCracken (1873), 33 U.C.R. 181.
1987]
DELEGATUS
the words in which it was conferred. That evades exercise of the power and,
indeed, turns a legislative power into an administrative one., 1 5
As authority for this proposition, he cited Brent and City of Verdun v. Sun
Oil Co.1 6 and enunciated the general principle that law making powers
must be used to make law:
What is objectionable, in my view of the law, is not the breadth of the delegation
or the subdelegation but the failure of the subdelegate (and it would equally
be a failure in the Commission itself as delegate) to provide even a minimum
of direction and specification in s. 4 of 0. Reg. 52/68. The Commission was
given a discretion to fix the “law” on enumerated matters, and was authorized
to subdelegate its power to the Board. Either one, as the regulation-making
authority, could retain discretion as to the execution or application of the “law”,
but that is not this case so far as s. 4 is concerned. There was no “law” stated.” 1 7
Finally, Laskin J. noted a policy statement that the Board had published
indicating the bases upon which quotas would be awarded, transferred and
adjusted. He also mentioned other parts of the regulations that provided
standards for the regulation of other facets of the milk industry. These ob-
servations clearly negated any arguments related to administrative exigency.
The decision in Brant Dairy is a landmark judgement recognizing a
principle that has long been shrouded in the delegatus maxim. It broadens
the basis for applying the maxim to law-making powers by recognizing that
they are granted to permit skeletal statutory schemes to be fleshed out, firstly
to enable those whom they regulate to know the law and order their affairs
accordingly and, secondly, to ensure a measure of equality in the application
of the law, confining discretion to what is necessary for effective
administration.
Brant Dairy is also noteworthy in bridging the municipal and non-
municipal case law by wedding to the Verdun case the logic of Brent. Thus,
the Brant Dairy principle has since been applied to cases in both areas.” 8
1’5Supra, note 100 at 146.
“16Supra, note 73, where the Court struck down a municipal building by-law that conferred
on the municipal council the power to grant or refuse building permits; the decision was rooted
in the concern that the council not evade the formalities governing the making of by-laws and
that the by-law not give rise to discrimination.
” 7Supra, note 100 at 150.
” 8For municipal cases, see Canadian Institute of Public Real Estate Companies v. City of
Toronto [1979] 2 S.C.R. 2, 25 N.R. 108, 103 D.L.R. (3d) 226; Air Canada v. City of Dorval
[1985] 1 S.C.R. 861, 59 N.R. 177, 19 D.L.R. (4th) 401 [hereinafterAir Canada cited to S.C.R.].
For non-municipal cases see Butler Metal Products Co. v. Canada Employment and Immigra-
tion Commission (1982), [1983] 1 EC. 790, 44 N.R. 271 (C.A.); Re Normand and Registration
Committee of the Royal College ofDental Surgeons of Ontario (1985), 50 O.R. (2d) 443, (sub
nom. Normand v. Royal College ofDental Surgeons of Ontario) 10 Admin. L.R. 196 (Div. Ct);
Dene Nation, supra, note 85.
REVUE DE DROIT DE McGILL
[Vol. 33
However, the subsequent case law demonstrates a degree of ambivalence
ranging from Dene Nation, with its rigorous demand for standards to guide
the subdelegate, to Re Peralta, where the Court dismissed the relevance of
the principle. In Re Peralta, the court considered the Brant Dairy principle
to apply only where the delegate merely repeated the terms of the enabling
provisions, prescribing no standards at all.
When one examines Brant Dairy closely, it becomes clear that the reg-
ulations in question were far from barren of standards. Rather, Laskin J.
looked at specific elements of the Board’s regulation-making powers and
required that some standards be prescribed for each one. The fact that other
elements of milk marketing were regulated by standards did not save the
provision relating to quotas.
This point has most recently been affirmed by the Supreme Court of
Canada in Air Canada.I” 9 This decision involved a power to “impose by
by-law and collect certain annual dues or taxes” with the further provision
that “such dues or taxes may consist of a fixed amount or be proportionate
to the annual rental value.” Purporting to act under this power, the city
made a by-law imposing an annual tax on businesses “at a rate to be fixed
annually by resolution of the City Council.”
In striking down the by-law, the court noted the various procedural
requirements that attended the making of by-laws, as opposed to resolutions,
and concluded:
In the case at bar the Council of the City of Dorval did not simply reproduce
the provisions of s. 526 of the Cities and Towns Act in By-law 577. It enacted
provisions in accordance with the Act by making certain of the choice offered
to it. However, it did not exercise its powers respecting the rate. To use the
language of Laskin J. in Brant Dairy Co., the Council, in which the power to
set a rate by by-law was vested, redelegated to itself the power to set it by way
of resolution. The Council did not have the power to thus make a redelegation
to itself.’20
The Air Canada decision reveals a further reason for requiring delegated
legislation to have content, namely to ensure that the safeguards that attend
its making are not circumvented.’ 2′ This of course resonates with the rule
of law considerations that the law be public and accessible. If a process is
prescribed to permit public participation in the making of delegated legis-
lation, it too cannot be nullified by the conferral of discretionary powers.
Brant Dairy by no means represents the only situation where the duty
to make law may be imposed. One also finds this duty expressed in cases
‘llbid.
120Ibid. at 871.
‘See also Fralick v. Grand Trunk Ry (1910), 43 S.C.R. 494.
1987]
DELEGATUS
where delegated legislation does not enunciate any generally applicable rules
or standards. Thus, the power to “prescribe by regulation” exceptions to a
statutory visa requirement has been held to confer
authority to make exceptions to the rule in subsection 9(1) for certain categories
or classes of immigrants or visitors rather than to grant exemptions from the
rule in individual cases. It contemplates exceptions of a general, legislative
nature to be applied to individual cases. That is what is implied, I think, by
the word “prescribed.”‘ 2 2
Similarly, a regulation made under a power to “fix the minimum and
maximum number of permits … and prescribe the conditions on which a
person may hold a permit” was struck down for prescribing “the public
interest” as the sole criterion for their issue. 123 The latter case is particularly
interesting in its approval of the thesis held by Professors Dussault and
Borgeat:
[L]e r~glement doit contenir des normes de comportement qui soient le plus
prfcises possible. Cette exigence, provenant des tribunaux, nous paralt tout A
fait justifi6e. Alors que ]a loi ne contient la plupart du temps que les grandes
lignes de l’ordre juridique que le l6gislateur veut 6tablir, le r~glement est cens6
venir completer ce cadre g~n~ral par des r~gles d’application pr~cises. Le citoyen
est donc en droit de s’attendre A ce que les normes de comportement contenues
dans le r~glement ne soient pas de m~me niveau que celles que l’on retrouve
dans la legislation: permettre le contraire serait aller a l’encontre de l’esprit qui
fonde la dfl~gation du pouvoir de l6gif’erer124
The duty to make law can also be seen underlying cases where an
authority has attempted to use an administrative power to accomplish so-
mething that should have been done through delegated legislation. Thus,
the Canadian Transport Commission was prohibited from imposing con-
ditions in air carrier licences through a general order. 125 Similarly, the Nova
Scotia Rent Review Commission was found to have improperly fettered its
discretion by considering internal policy guidelines that should have been,
’22Jimninez-Perez v. Minister ofnEmployment and Immigration [ 1983] 1 EC. 163 at 169 (C.A.),
rev’d on other grounds [1984] 2 S.C.R. 565.
23Voyageur Inc. v. Commission des transports du Qutbec [1986] R.J.Q. 2577 (C.S.) at 2584;
1
one should note that the power to issue permits was conferred by the enabling statute, the
Transport Act, R.S.Q. 1977, c. T-12, s. 32, but was subject to being exercised “within the scope
of the regulations”; hence, the regulation effectively enlarged the discretion to issue permits.
24R. Dussault & L. Borgeat, TraitW de droit administratif, t. I, 2d ed. (Quebec: Presses de
1
l’Universit6 Laval, 1984) at 542.
125North Coast Air Services Ltd v. Canadian Transport Commission [1968] S.C.R. 940, 69
D.L.R. (2d) 425. See also Re Phillips and Registrar, Mortgage Brokers Act (1978), 86 D.L.R.
(3d) 518 (B.C.C.A.).
McGILL LAW JOURNAL
[Vol. 33
and subsequently were, promulgated as regulations. 126 Although these cases
focus on administrative powers and are rooted in administrative law doc-
trine regarding natural justice and fettering discretion, they also suggest that
the action in question would have been valid if it had been accomplished
through the delegated legislative powers conferred by the relevant statutes.
Perhaps the furthest reaching decision is Re Garden of the Gulf Court
& Motel Inc.127 which involved a telephone company’s refusal to connect
a private switchboard. The owner of the switchboard applied to the Public
Utilities Commission for review of this decision under the Prince Edward
Island Electric Power and Telephone Act 28. Subsection 33(2) of the Act
conferred broad discretion on the Commission to settle such disputes and
“make such order … as seems reasonable and just.” In reviewing the
Commission’s ratification of the refusal to connect, the court noted both
the complexity of the issues involved and the absence of any regulations
indicating how the Commission would exercise its powers. The court or-
dered a stay of the proceedings before the Commission pending the pro-
mulgation of regulations, stating:
In my opinion some such requirements set out in regulations should be pre-
scribed in this Province so that customers such as the appellant will be in a
position to know definitely what type of equipment is acceptable to the Com-
mission and what particular requirements must be met if such equipment is
to be connected. It is neither fair nor practical that such an important part of
the telecommunications industry in this Province be without specific regula-
tions. The Commission should move without delay to establish such
regulations. 29
This conclusion is rather startling considering that neither the Electric
Power and Telephone Act nor the Public Utilities Commission Act’ 30 confer-
red any express authority on the Commission to make regulations and the
court did not mention what the authority might be.’ 3′
126Dale Corp. v. Rent Review Commission (1983), 58 N.S.R. (2d) 138, 123 A.P.R. 138, (sub.
nom. Re Dale Corp. and Rent Review Commission) 149 D.L.R. (3d) 113 (S.C.A.D.); Investment
Property Owners’Association of Nova Scotia Ltd v. Rent Review Commission (1984), 63 N.S.R.
(2d) 133, 141 A.P.R. 133 (S.C.T.D.). See also Hui v. Minister of Employment and Immigration
[1986] 2 EC. 96, 65 N.R. 69 (C.A.).
127(1981), 32 Nfld & P.E.I.R. 476, 91 A.P.R. 476, 126 D.L.R. (3d) 281 (PE.I. S.C.) [hereinafter
Garden ofthe Gulf].
128R.S.P.E.I. 1974, c. E-3.
’29Supra, note 127 at 292.
130R.S.P.E.I. 1974, c. P-31.
13’Note, however, s. 13(1) of the Public Utilities Commission Act, ibid., which stated:
The Commission has, in addition to the powers in this Act or any other specific
Act mentioned and indicated, all additional, implied and incidental powers which
may be necessary to carry out, effect, perform and execute all the powers of this
Act or any other Act, specified, mentioned and indicated.
1987]
DELEGATUS
Garden of the Gulfunquestionably stretches the bounds ofjudicial crea-
tivity in applying the duty to make law. Arguably, these bounds may be
stretched even further under the Canadian Charter ofRights and Freedoms.
Section 1 provides that the fundamental rights and freedoms are subject
only to reasonable limits “prescribed by law”, while subsection 15(1) gua-
rantees “equal protection and equal benefit of the law without discrimi-
“1132 In addition, Muldoon J. in the Trial Division of the Federal
nation…
Court has recently held that section 26 of the Charter “confirms all rights
and freedoms which have long been imported by the rule of law.” Accor-
dingly, he struck down the broad, discretionary powers conferred by section
34 of the Excise Tax Act:
Thus it may be seen that section 34 of the Excise Tax Act is no paradigm of
the rule of law. It is indeed, so contrary to the rule of law that it can surely be
declared to be unconstitutional. It accords arbitrary administrative discretion,
without any guidelines or directives, to the Minister whose determination is
not subject to any objective second opinion as is inherent in an appeal
provision.133
Although the duty to make law parallels, if not arises from, the delegatus
maxim, it is qualified to some extent by the decision of the Supreme Court
in Capital Cities Inc. v. Canadian Radio-Television and Telecommunications
Commission. 34 Laskin C.J.C. held that the Broadcasting Act did not compel
the C.R.T.C. to use its regulation-making powers, but rather permitted it to
regulate the burgeoning cable television industry on an ad hoc basis, laying
down only informal “guidelines” for the exercise of its licensing discretion:
In my opinion, having regard to the embracive objects committed to the
Commission under s. 15 of the Act, objects which extend to the supervision
of “all aspects of the Canadian broadcasting system with a view to imple-
132See, e.g., Re Ontario Film and Video Appreciation Society, supra, note 110 where the
Divisional Court stated at 592:
[L]aw cannot be vague, undefined, and totally discretionary; it must be ascertainable
and understandable. Any limits placed on the freedom of expression cannot be left
to the whim of an official; such limits must be articulated with some precision or
they cannot be considered to be law.
Note also Comit~pourlaRepubliquedu Canada v Canada [1987] 2 EC. 68 t 78 (C.A.); Stoffman
v. Vancouver General Hospital (1986), 30 D.L.R. (4th) 700, [1986] 6 W.W.R. 23 (B.C.S.C.)
where the court considered that a regulation providing for mandatory retirement did not
contravene section 15(1) since it prescribed a reasonable basis on which exceptions to man-
datory retirement were to be granted.
’33Vanguard Coatings and Chemicals Ltdv. M.N.R. (1986), [1987] 1 EC. 367 at 394 (T.D.).
134(1977), [1978] 2 S.C.R. 141, 18 N.R. 181, 81 D.L.R. (3d) 609 [hereinafter Capital Cities
cited to S.C.R.]. See also Wimpey Western Ltd v. Director of Standards and Approvals of the
Department of the Environment (1983), 49 A.R. 360, 2 D.L.R. (4th) 309, 28 Alta L.R. (2d) 193
(C.A.). For comment on the promulgation of directives and guidelines generally, see M. Filion,
“Le pouvoir discrftionnaire de radministration exerc6 sous forme de normes administratives:
Les directives” (1979) 20 C. de D. 855.
REVUE DE DROIT DE McGILL
[Vol. 33
menting the broadcasting policy enunciated in section 3 of the Act”, it was
eminently proper that it lay down guidelines from time to time as it did in
respect of cable television. The guidelines on this matter were arrived at after
extensive hearings at which interested parties were present and made submis-
sions. An overall policy is demanded in the interests of prospective licensees
and of the public under such a regulatory regime as is set up by the Broadcasting
Act. Although one could mature as a result of a succession of applications,
there is merit in having it known in advance.135
The decision in Capital Cities flows from a broad reading of the
C.R.T.C.’s twin administrative and legislative powers. Laskin C.J.C. refused
to divide these powers, but rather recognized the administrative exigencies
that warranted the flexibility of issuing informal guidelines or “quasi-law”
to provide direction for the exercise of the C.R.T.C.’s administrative powers
without binding its discretion as regulations would have done. The decision
suggests that when the regulation of a particular area is in its initial stages,
the considerations underlying the duty to make law can be satisfied otherwise
than by making delegated legislation, namely by issuing guidelines on the
basis of “extensive hearings at which interested parties were present and
made submissions.”
Another factor urging caution in requiring the making of law is the
recent move toward regulatory reform. At both the federal and provincial
levels one finds a number of measures designed to improve the process of
making delegated legislation by permitting greater public participation. Ad-
vance publication and comment provisions are becoming a standard feature
in legislation that authorizes or governs the making of delegated legisla-
tion. 136 Although the efficacy of these provisions depends on the willingness
of delegated legislative authorities to listen to public comments, they ne-
vertheless introduce a degree of public scrutiny that, arguably, reduces the
need for judicial scrutiny. 137
In the United States the duty to make law is usually discussed under
the rubric of “required rule-making” and is somewhat more developed than
in Canada. One finds an extensive tradition of informal or “interpretive”
rules 138 which the courts have not, until quite recently, questioned. However,
1
135Capital Cities, ibid. at 171.
36See, e.g., the Regulations Act, R.S.Q. c. R-18.1, ss 8-14; the AeronauticsAct, R.S.C. 1970,
c. A-3, ss 5-5.2; D.J. Miller, “Regulatory Reform in Manitoba: A Blueprint for Change” (1986)
15 Man. L.J. 219.
137See Wright v. T.LL. Services Pty Ltd (1956), 56 S.R.(N.S.W.) 413 at 423 where the court
drew on the existence of parliamentary scrutiny procedures as a basis for not striking down a
regulation that incorporated by reference a set of electrical equipment standards.
138See K.C. Davis, Administrative Lav Treatise, vol. II, 2d ed. (San Diego: K.C. Davis Pub.,
1979) at 46-54; Skidmore v. Sivift & Co., 323 U.S. 134 at 138 (1944). See also S. Estreicher,
“Policy Oscillation at the Labour Board: A Plea for Rulemaking” (1985) 37 Admin. L. Rev.
163, which presents a number of compelling arguments for rules.
1987]
DELEGATUS
with the development of “required rule-making,” these rules have some-
times been held to attract the requirements of the Administrative Procedures
Act, 139 which generally apply to formal, “legislative” rules. In addition, the
courts have invalidated administrative action that was unregulated by le-
gislative rules, often doing so on the basis of due process requirements that
resonate with the rule of law principles found in Canadian case law. 140
Finally, one should note that further impetus for required rule-making is
provided by the notion that administration without enunciated standards
tends to be “inherently irrational and arbitrary.”‘ 4’
Although the cases cited in both notes 140 and 141 demonstrate a trend
towards required rule-making in American jurisprudence, this trend has not
been clearly defined or free from criticism. The courts themselves have
expressed concern about unduly restricting the discretionary powers neces-
sary to develop policy or respond to variable circumstances. The detail of
required rules varies with these needs 42 and the ability of administrative
agencies to develop policy through adjudication remains largely intact, 43
although there are indications that major departures from adjudicatively
established law will attract rule-making requirements 44 or an obligation to
give a “reasoned analysis indicating that prior policies and standards are
being deliberately changed, not casually ignored.”‘ 45
the decision of the U.S. Supreme Court that goes the furthest towards
required rule-making has, coincidentally, attracted the greatest criticism
from Professor Davis. The broad language and vaguely articulated principles
of Morton v. Ruiz 146 potentially tie the hands of administrative agencies by
disallowing any scope to use adjudicative methods or interpretive rules.
Davis has commented as follows:
The courts should push agencies to develop guides for decisions, but they can
hardly insist on legislative rules in all instances…. Courts could soundly pro-
hibit unnecessary ad hoc decisions if doing so were practical. Operating without
any standards of eligibility would be judicially condemned; … a good system
139Davis, ibid. at 78-94.
140Davis, ibid. at 128-40; see, e.g., Sherrill v. Knight, 569 E2d 124 (D.C. Cir. 1977); Soglin
v. Kauffman, 418 E2d 163 (7th Cir. 1969); Campbell v. McGruder, 580 F2d 521 (D.C. Cir.
1978).
141Harnett v. Board of Zoning, Subdivision and Building Appeals, 350 ESupp. 1159 (V.I.
Dist. Ct 1972); Kent Farm Co. v. Hills, 417 ESupp. 297 (D.D.C. 1976).
Relations Board v. Bell Aerospace Co., 416 U.S. 267 (1974).
’42See, e.g., Sherrill v. Knight, supra, note 140.
143Securities & Exchange Commission v. Chenery Corp., 332 U.S. 194 (1947); National Labor
’44National Labor Relations Board v. Wyman-Gordon Co., 394 U.S. 759 (1969).
145Greater Boston Television Corp. v. Federal Communications Commission, 444 E2d 841
at 852 (D.C. Cir. 1971), cert. denied, 403 U.S. 923 (1971).
146415 U.S. 199 (1974).
McGILL LAW JO URNAL
(Vol. 33
– one that could properly be judicially required –
is the one the BIA (Bureau
of Indian Affairs) used in the Ruiz case, involving an explained decision based
on a meaningful standard stated in a Manual that was open to public inspection.
The Court’s prohibition of ad hoc decisions is a move in the right direction
that went much too far; the Court can and should fashion more refined ins-
truments to influence or require agencies to supplant ad hoc decisions with
decisions guided by rules or standards. The Ruiz case may be a crude beginning
that is susceptible of gradual refinement.147
Professor Davis’s plea for a flexible doctrine of required rule-making is
appealing in its functional emphasis and should not be too hastily dismissed
as applicable only to the U.S. Although there are certainly differences bet-
ween Canada and the U.S., the reasoning that lies at the core of both the
Brant Dairy principle and the concept of “required rule-making” is essen-
tially the same.
In the United Kingdom, the notion of a duty to make law has recently
met substantial criticism from Robert Baldwin and John Houghton. 148
Commenting on the suggestion that the courts should go beyond requiring
disclosure of existing internal administrative rules and require that rules be
made in cases where they have not previously existed, they have stated:
There are serious problems in taking the second step. Unfairness in the
first instance has an immediate quality: if a rule exists and is applied then, I
have a right to know about it. With the “duty to develop,” it may not be plain
that injustice has occurred when all the merits of the individual case have been
considered. An authority’s failure to structure is not the same thing as its
committing acts of injustice. Nor does traditional British emphasis on consi-
deration of the merits of a case (as opposed to rule-making and structuring)
seem particularly welcoming to such a rule.
The evidential difficulties in enforcing compulsory rule-making would be
huge. In order to say that a body should have structured a decision, the court
would have to be able to assess the ability of the agency to formulate and state
a rule with precision and clarity. To do this properly would involve detailed
analysis, often in a complex and specialist regulatory area. This is not something
which the courts are manifestly competent or willing to undertake. 149
The suggestion that the courts are unwilling to enforce a duty to act
legislatively overstates the situation in Canada. The cases on subdelegation
and the duty to make law demonstrate that Canadian courts are often pre-
pared to require the making of law by preventing the conferral of broad, ad
hoc decision-making powers. However, one cannot as easily dismiss the
argument that the courts are not competent to enforce compulsory law-
147Davis, supra, note 138 at 153-54.
’48″Circular Arguments: The Status and Legitimacy of Administrative Rules” [1986] Public
149Ibid. at 278.
Law 239 at 277-78.
1987]
DELEGATUS
making. In a previous article, 150 Mr Baldwin and Mr Hawkins suggested
that delegated legislation is not a panacea for regulatory problems, but is
merely one of a number of techniques for improving regulatory processes.
Not only is it ineffective in some circumstances,’ 51 but it can in fact be
retrograde. ‘ 52
Capital Cities demonstrates a degree of sensitivity to the limitations
on delegated legislation as a regulatory technique. However, not one of the
Canadian cases discussed contains the detailed analysis that Mr Baldwin
and Mr Houghton suggest is necessary. No evidence as to the feasibility of
embodying rules or standards in delegated legislation or as to its probable
impact ever seems to have been introduced. At best, one can only presume
that the courts simply interpreted the pertinent statutory provisions against
a factual background of which judicial notice was taken.
VI. Conclusions
The delegatus maxim has long outgrown its origins as a device for
protecting the confidence placed by a delegator in his delegate. In the sphere
of delegated legislation, the maxim has now been largely subsumed by the
duty to make law. This broader duty more accurately reflects the various
interests that either direct, or are affected by, modem regulatory activities.
Within the bounds of the duty administrative exigencies contend against
the need for openness, fairness and equality that springs from the rule of
law. Although the confidence principle still has some leverage in cases of
subdelegation, it is clearly not the critical element that it once was. The
cases discussed in Part V demonstrate that the rule of law principles un-
derlying the delegatus maxim are also capable of operating on their own in
situations that do not involve subdelegation.
The duty to make law depends primarily on the wording of enabling
provisions. However, this wording is most often very general and offers little
assistance in determining the extent to which delegated legislation may
confer discretionary powers. Consequently, the duty turns largely on a num-
ber of factors that determine what powers may be conferred. 153 Although
these factors are informed by the confidence and rule of law principles, they
hardly operate in a precise fashion. Considerable room is left for judicial
discretion in applying the duty to make law.
150R. Baldwin & K. Hawkins, “Discretionary Justice: Davis Reconsidered” [1984] Public
Law 570.
1’Note the Criminal Justice (Scotland) Act 1980 (U.K.), 1980, c. 62, discussed ibid. at 576.
152See S.B. Long, “Social Control in the Civil Law: The Case of Income Tax Enforcement”
in H.L. Ross, ed., Law and Deviance (Beverly Hills, California: Sage Publications, 1981) 185
at 206-07, discussed in Baldwin & Hawkins, supra, note 150 at 577-78.
153See above, text accompanying notes 37-42 and 105-09.
REVUE DE DROIT DE McGILL
[Vol. 33
If the duty to make law is hazy in some respects, it nevertheless clearly
prohibits delegated legislation that merely passes on its enabling powers or
a substantial element of them. In determining whether or not this has been
done, the courts consider the specific elements of the enabling provisions
and then decide whether the delegated legislation provides any elaboration
of them. The more detailed these provisions are, the more content will the
courts expect and the narrower will be the scope for conferring discretionary
powers.
Difficulties with the duty to make law arise when delegated legislation
confers powers that are somewhat less extensive than its enabling powers.
In these situations one finds considerable variation in the judicial appli-
cation of the duty. This variation is most apparent between municipal and
non-municipal cases. However, even among the non-municipal cases, de-
cisions such as Dene Nation 54 and RePeralta155 illustrate distinctly different
attitudes towards the conferral of discretionary powers.
There is unquestionably a need for the courts to enforce the duty to
make law. Delegated legislative powers are conferred with some expectation
that rules or standards will be promulgated to flesh out statutory schemes.
However, the American and British commentators noted above 156 all suggest
that the task of determining how much content delegated legislation should
have is exceedingly complex and for the most part unsuited to resolution
by the courts. Although this determination rests on the intention of the body
that delegates legislative powers, the generality of the language customarily
used to express this intention suggests that these bodies have no clear idea
of the extent to which the law is to be elaborated in delegated legislation.
In turn, one can argue that the power to make this determination is part
of the power conferred on the delegated legislative authority.
The application of the delegatus maxim and the duty to make law raise
fundamental questions about the role of the courts in interpreting statutes
and reviewing the exercise of statutory powers. One can hardly deny the
judicial creativity in this area; the central issue is the degree to which the
courts should wrest decisions about the amount of regulatory detail from
the hands of those who are charged with embodying that detail in delegated
’54Supra, note 85.
’55Supra, note 95.
156Davis, supra, note 138 at 153-54; Baldwin & Houghton, supra, note 148; Baldwin &
Hawkins, supra, note 150.
1987]
DELEGATUS
89
legislation. There is of course no easy answer, or at any rate the answer can
only be found in the dialectic between the demands of the rule of law on
the one hand and the administration of law on the other. One can only hope
that the courts will recognize as fully as possible the issues before them and
act neither legislatively nor administratively, but judiciously.
