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CROWN - Federal Parliament - Statutory instruments - Regulations and rules

Wednesday, September 15, 2021 @ 5:29 AM  


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Appeal by Portnov from a Federal Court decision dismissing his application to quash an order extending the 2014 Freezing Assets of Corrupt Foreign Officials (Ukraine) Regulations that designated 18 individuals, including the appellant, restricting and prohibiting their dealings with certain property for up to five years. According to the Regulatory Impact Analysis Statement for the 2014 Regulations, Ukraine’s former president, his senior officials, close associates, and family members misappropriated state funds, or obtained property inappropriately from their public offices or family, business or personal connections. The 2014 Regulations were extended by the 2019 Regulations. The appellant argued that extending the 2014 regulation under s. 6 of the Freezing Assets of Corrupt Foreign Officials Act required the same steps to be taken as making the regulation in the first place under s. 4 of the Act. He also argued that the application of the Regulations to him was unreasonable.

HELD: Appeal dismissed. Governor in Council’s decision to enact the extending Regulations was reasonable. The Governor in Council viewed s. 6 of the Act as permitting an extension of regulations if circumstances suggested the extension was necessary and consistent with the purposes of the Act. The Governor in Council did not interpret s. 6 as requiring satisfaction of the preconditions in s. 4. The Governor in Council referred to information received by the Government of Canada that supported an extension of the Regulations, the need for additional time for Ukraine to complete its criminal investigations and make actionable mutual legal assistance requests to Canada, the need to ensure that misappropriated assets held by officials of the former government were frozen so foreign persons might be held accountable, and the objective of furthering the accountability, rule of law, and democracy in Ukraine. Requiring all the preconditions under s. 4 of the Act to be met before regulations could be extended would frustrate these purposes. If extending a regulation required the same steps as making the regulation in the first place, each extension became a fresh regulation, and there was no need for the independent statutory power in s. 6 to extend it. The appellant did not identify any omitted aspect in the Governor in Council’s interpretation, whose importance was so great that it caused the reviewing court to lose confidence in the outcome reached by the decision maker. The express explanations given for the decision to extend the 2014 Regulations, viewed in light of the legislation and the record, were adequate and did not suffer from any fatal, overriding flaws.

Portnov v. Canada (Attorney General), [2021] F.C.J. No. 898, Federal Court of Appeal, M. Nadon, D.W. Stratas and M. Rivoalen JJ.A., August 23, 2021. Digest No. TLD-September132021006