Earlier this month, the Supreme Court of Canada decided that it will hear an appeal of the Federal Court of Appeal’s 2024 decision in Democracy Watch v. Attorney General of Canada (2024 FCA 158).
The fact that the Supreme Court will hear this case is significant as the matter involves a fundamental issue that has yet to be dealt with in a definitive manner by the courts (as the Federal Court of Appeal has itself recognized at the outset in its decision[1]). Specifically, whether Parliament (or a provincial legislature) may limit applicants’ ability to bring judicial review applications through statute – that is, whether or not partial restrictions on judicial review in the applicable statute are valid or offend the rule of law.
As the Supreme Court made clear in Canada, legislative intent is the “polar star” of judicial review and “[b]ecause administrative decision makers receive their powers by statute, the governing statutory scheme is likely to be the most salient aspect of the legal context relevant to a particular decision.”
However, Democracy Watch highlights the tension between the deference afforded to the legislature in its choices to delegate authority to administrative decision-makers and the rule of law – one of the underlying principles on which Canada’s constitutional order is founded.
In this case, the applicant sought judicial review of a report by the federal Conflict of Interest and Ethics Commissioner, alleging that the Commissioner had committed two errors of law and one error of fact in the report. The report ultimately concluded that then-Prime Minister Justin Trudeau did not contravene the Conflict of Interest Act when he participated in two decisions involving WE Charity.
Yet, under section 66 of the Act, Parliament has, in essence, prohibited judicial review based on the grounds advanced by Democracy Watch, and limited judicial review applications for decisions of the Conflict of Interest and Ethics Commissioner to the following grounds:
- Where the Commissioner has acted without jurisdiction, beyond their jurisdiction, or refused to exercise its jurisdiction;
- Where the Commissioner has failed to observe a principle of natural justice, procedural fairness, or other procedure that it was required by law to observe; or
- Where the Commissioner has acted, or failed to act, by reason of fraud or perjured evidence.
Ultimately, the Federal Court of Appeal dismissed Democracy Watch’s application for judicial review given that the legislative scheme contained within the Conflict of Interest Act provides “for a dual parliamentary and judicial oversight, with an elaborate procedure to regulate ethical conduct through political consequences.”
Given the Act requires reports of the Commissioner to be made publicly available, as well as provided to the Prime Minister, the public office holder who made the request, and the public office holder subject to the request, the Court of Appeal ruled that “accountability is intended to lie primarily with the legislative branch, courts should clearly exercise judicial restraint and adhere to the limits prescribed by section 66 of the [Act] in their judicial review function.”
At the same time, the Court of Appeal’s decision in Democracy Watch recognized that the tension between legislative sovereignty and the rule of law is a “most complex and vexed question” that, without further guidance from the Supreme Court, will cause courts to “be left to guess what posture to take when confronted with privative clauses.”
In addition to a potential of having significant ramifications on the ability of citizens to hold government to account through judicial review of delegated decision-making, the Supreme Court’s ruling on this case will, hopefully, bring precision to the issue, in circumstances where there is a partial privative clause.
About Our Political Law & Litigation Team
Fasken has frequently represented applicants in advancing judicial review applications at both the federal and provincial levels. Our team has a deep understanding of the intersection between litigation, policy, and politics – with a focus on providing pragmatic advice in navigating disputes with government.
For more information, or to discuss how cases such as Democracy Watch may affect your business, please contact us.
