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28Nov
2017

Mastering the Art of Delegation

Tent cities have been all over the news lately, but did you know the Manitoba Court of Appeal in 1919 was called on to consider the validity of a tent-controlling bylaw enacted by the tiny town of Winnipeg Beach? Back then Manitoba’s Municipal Act authorized its municipalities to pass bylaws “for licensing and regulating or preventing and prohibiting or restricting … tents and other similar structures”. Winnipeg Beach, established at the turn of century on the southern shore of Lake Winnipeg, had quickly blossomed into a popular resort destination. Its population fluctuated between 100 and 15,000. Not surprisingly, there were growing pains, so to “protect the health of the inhabitants” the town’s council passed a bylaw under the aforementioned authority. The bylaw limited the number of tents an owner could erect on a parcel, required a permit for any tent, and included clauses related to “sanitary arrangements and scavenging”. Despite a careful and unobjectionable delegation to a secretary-treasurer of the power to issue tent licences, the bylaw failed, largely because it also delegated to the mayor the power to cancel them.

Why was Winnipeg Beach’s delegation of the power to grant tent licences to a town employee acceptable, but its delegation of the licence cancellation power to the mayor fatal? The identity of the different delegates had nothing to do with it. The answer lies in how courts apply an easily stated but often violated legal maxim: delegatus non potest delegare (a delegate may not re-delegate). Though saying things in Latin always seems to give them a certain inscrutable gravitas, in a 1943 article John Willis says this rule against re-delegation is not a rule of law, but is at most “a rule of construction”; in other words, it simply tells courts how to interpret statutes conferring a provincial or federal power on another person or entity.

Whatever its precise status, the rule against re-delegation should be familiar to local governments, whose entire authority comes from above. As delegates who can only do what they have been told, local governments also require special permission before letting any other person or entity exercise their powers for them. In other words, as a general rule, they can’t re-delegate.

This paper begins by explaining the general rule against re-delegation, and some of the policy reasons underlying it; the second and third sections turn to the exceptions, touching on both express legislative provisions as well as the common law nuances that allow for re-delegation of certain local government powers, in certain circumstances; the final section offers a few suggestions for avoiding the pitfalls of improper re-delegation.

Download pdf: Mastering the Art of Delegation

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