Democracy Watch v. Canada (Attorney General)

Democracy Watch v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2018-12-19
Neutral citation
2018 FC 1291
File numbers
T-80-18
Notes
A correction was made on December 18, 2019.
Decision Content
Date: 20181219
Docket: T-80-18
Citation: 2018 FC 1291
Ottawa, Ontario, December 19, 2018
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
DEMOCRACY WATCH
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
[1] This is an application for judicial review of the appointment of Nancy Bélanger as the Commissioner of Lobbying. The appointment was made by the Governor in Council (“GIC”) on December 14, 2017, on the recommendation of the Prime Minister and pursuant to ss 4.1 and 4.2(3) of the Lobbying Act, RSC 1985, c 44.
[2] Democracy Watch, the Applicant, challenges the appointment on the basis that it was made in contravention of the consultation requirement contained in s 4.1(1) of the Lobbying Act, and in contravention of s 4 and s 6(1) of the Conflict of Interest Act, SC 2006, c 9, s 2, as well as on the basis that the appointment process was procedurally unfair.
[3] This matter was heard consecutively with a companion application for judicial review brought by the Applicant in Democracy Watch v Attorney General of Canada in T-78-18.
Background
[4] The Office of the Commissioner of Lobbying (or “Commissioner”) was established in 2006 under the Federal Accountability Act, SC 2006, c 9. The Commissioner is an independent Agent of Parliament and reports to Parliament by way of the Speakers of the House of Commons and the Senate. The Office of the Commissioner of Lobbying describes the purpose of the Lobbying Act as being to ensure transparency and accountability in the lobbying of public office holders in order to increase the public’s confidence in the integrity of government decision-making. The duties and functions of the Commissioner of Lobbying are set out in the Lobbying Act and include developing and implementing educational programs to foster public awareness of the requirements of that Act, particularly on the part of lobbyists, their clients and public office holders (s 4.2(2)); maintaining a registry of lobbyists (s 9(1)); and, conducting investigations to ensure compliance with the Act or the Lobbyists’ Code of Conduct (s 10.4(1)).
[5] Section 4.1(1) of the Lobbying Act states that the GIC shall appoint a Commissioner of Lobbying after consultation with the leader of every recognized party in the Senate and the House of Commons, and approval of the appointment by resolution of the Senate and the House of Commons. The Commissioner holds office during good behaviour for a term of seven years (s 4.1(2)) and is eligible for reappointment for one or more terms of up to seven years each (s 4.1(3)).
[6] Karen Sheppard was appointed as Canada’s first Commissioner of Lobbying, effective June 30, 2009, for an initial seven-year term. She was reappointed on an interim basis for three successive six-month terms effective, respectively, from June 30, 2016, December 30, 2016 and June 30, 2017.
[7] On October 25, 2016, the Applicant filed a petition with the Commissioner of Lobbying alleging violations of the Lobbyists’ Code of Conduct by Mr. Barry Sherman, Chairman of Apotex Inc., because, according to media reports, he had assisted in organizing a fundraising event to be attended by the Minister of Finance, Mr. Bill Morneau, scheduled for November 7, 2016, and because Apotex Inc. was registered to lobby Finance Canada. By letter of the same date, the Office of the Commissioner of Lobbying advised that the Applicant’s letter had been referred to the Investigations Directorate.
[8] On November 4, 2016, the Applicant filed a second petition with the Commissioner of Lobbying alleging violations of the Lobbyists’ Code of Conduct by Mr. Sherman because he organized and hosted a fundraising event attended by then-Liberal Party Leader Justin Trudeau in August 2015, and because Apotex Inc. was registered to lobby the Office of the Prime Minister. By letter of November 18, 2016, the Office of the Commissioner of Lobbying advised that the Applicant’s letter had been referred to the Investigations Directorate.
[9] On March 1, 2017, the Applicant filed a third petition with the Commissioner of Lobbying alleging violations of the Lobbyists’ Code of Conduct by Mr. Mickey Sherman, board member of Clearwater Seafoods Inc., because he organized and hosted a fundraising event attended by then-Liberal Party Leader Justin Trudeau in August 2014 and because Clearwater Seafoods Inc. was registered to lobby the Office of the Prime Minister. By letter of March 3, 2017, the Office of the Commissioner of Lobbying acknowledged receipt of the Applicant’s letter.
[10] On July 12, 2017, the Applicant filed a fourth petition with the Commissioner of Lobbying alleging violations of the Lobbyists’ Code of Conduct by staff members of the Council of Canadians Innovators (“CCI”) because they had assisted the 2015 federal election campaign of Minister of Foreign Affairs, Ms. Chrystia Freeland, and because CCI was registered to lobby Global Affairs Canada. By letter of July 20, 2017, the Office of the Commissioner of Lobbying acknowledged receipt of the Applicant’s letter.
[11] In June 2017, the Prime Minister Trudeau wrote to each of Mr. Andrew Scheer, M.P., Leader of the Conservative Party of Canada/Leader of the Opposition; Mr. Thomas Mulcair, P.C., M.P., Leader of the New Democratic Party; Mr. Peter V. Harder, P.C., Senator/Government Representative in the Senate; Mr. Larry W. Smith, Q.C. Senator/Leader of the Opposition; Mr. Joseph A. Day, Senator; and, Ms. Ealin McCoy, Senator, concerning the government’s ongoing process to select a new Commissioner of Lobbying. The letters noted that the Notice of Appointment Opportunity for the position was available on the provided Government of Canada website and stated the Prime Minister’s hope that the recipients would consider sharing this with Canadians who might be interested in the opportunity. Additionally, if the recipients believed that specific stakeholders should be consulted about the position, the Prime Minister asked that they be brought to the government’s attention.
[12] By letter of July 4, 2017, Mr. Mulcair responded, stating that it was the NDP’s view that the current appointment process should be replaced by a Parliamentary appointments committee, which he described and suggested would be ideal for the selection of a new Commissioner of Lobbying. He recommended that the Prime Minister consider adopting the proposed appointment process.
[13] On November 22, 2017, the Prime Minister wrote to the leaders of the recognized parties in the House of Commons and the leaders of the recognized parties and groups in the Senate, Mr. Andrew Scheer, M.P., Leader of the Conservative Party of Canada/Leader of the Opposition; Mr. Jagmeet Singh, Leader of the New Democratic Party; Mr. Peter V. Harder, P.C., Senator/Government Representative in the Senate; Mr. Larry W. Smith, Q.C, Senator/Leader of the Opposition; Mr. Joseph A. Day, Senator/Senate Liberal Leader; and, Mr. Yuen Pau Woo Q.C., Senator, Facilitator, Independent Senators Group, stating that in accordance with the Lobbying Act, he was writing with regard to its requirement for consultation on the appointment of the Commissioner of Lobbying. The Prime Minister stated that, following an open, transparent and merit-based selection process, he proposed the nomination of Ms. Bélanger as the next Commissioner of Lobbying, and enclosed her curriculum vitae. The Prime Minister requested a reply no later than seven days from the date of his letter.
[14] On November 22, 2017, Mr. Harder wrote to the Prime Minister acknowledging the Prime Minister’s letter of November 22, 2017, and advising that he fully supported the nomination of Ms. Bélanger as Commissioner of Lobbying and that he looked forward to her appearance before the Senate’s Committee of the Whole. By letter of November 28, 2017, Mr. Day advised that he was unaware of any reason why Ms. Bélanger’s nomination should not proceed. By letters of the same date, Mr. Smith advised that Ms. Bélanger’s education and work experience qualified her as an excellent candidate and, as the Official Opposition in the Senate, he looked forward to questioning her when she appeared before the Senate’s Committee of the Whole; Mr. Yuen Pau Woo advised that he had no objection to the nomination and looked forward to Ms. Bélanger’s appearance before the Senate Committee of the Whole. By letter of November 29, 2017, Mr. Andrew Scheer advised that, at that point, his party had found no reason to object to the nomination of Ms. Bélanger as the next Commissioner of Lobbying. By letter of the same date, Mr. Guy Caron, M.P., Parliamentary Leader of the New Democratic Party in the House of Commons, responded to the Prime Minister’s letter taking issue with the government’s unilateral determination that the consultation process that it had established satisfied s 4.1(1) of the Lobbying Act. Mr. Caron stated his view that consultation required the forming an opinion, which necessitated having information to make an evidence-based opinion, and accordingly requested a list of the shortlisted candidates, their qualifications, and a list of the selection committee members, stating that the process must be truly open and transparent to ensure the confidence of the public and parliamentarians. Mr. Caron demanded a consultation process that reflected the importance of the Lobbying Act, and respected s 4.1(1) of that Act. He stated that the NDP could not respond to the proposed nomination until it was provided with the requested information.
[15] On November 30, 2017, the Certificate of Nomination of Nancy Bélanger to the Position of Commissioner of Lobbying was tabled in the Senate and the House of Commons. On that same date, the Prime Minister issued a news release publically announcing the nomination.
[16] On December 6, 2017, Ms. Bélanger appeared before the Standing Committee on Access to Information, Privacy and Ethics (“ETHI Committee”) to present her qualifications for the Office of the Commissioner of Lobbying and to respond to questions from the Committee, whose members represented the three recognized parties of the House of Commons.
[17] On December 8, 2017, Ms. Bélanger appeared before the Senate Committee of the Whole to present her qualifications for the office of the Commissioner of Lobbying and to respond to questions from the Committee, which was comprised of the entire Senate.
[18] By way of Order in Council PC 2017-1564 dated December 14, 2017, Ms. Bélanger was appointed Commission of Lobbying. The Order in Council stated that after consultation with the leader of every recognized party in the Senate and House of Commons, and by resolution of the Senate dated December 11, 2017, and by the House of Commons dated December 13, 2017, the Senate and the House of Commons had approved the appointment. Therefore, the Committee of the Privy Council, on the recommendation of the Prime Minister, pursuant to s.4.1 and subsection 4.2(3) of the Lobbying Act, made the appointment.
Relevant Legislation
[19] Two acts make up the legislative framework relevant to this application, the Lobbying Act and the Conflict of Interest Act. The most relevant aspects of this legislation are described below.
The Lobbying Act
[20] Section 4.1(1) of the Lobbying Act requires that the GIC, prior to appointing a Commissioner of Lobbying, consult with the leader of every recognized party in the Senate and House of Commons:
Commissioner of Lobbying
4.1 (1) The Governor in Council shall, by commission under the Great Seal, appoint a Commissioner of Lobbying after consultation with the leader of every recognized party in the Senate and House of Commons and approval of the appointment by resolution of the Senate and House of Commons.
[21] The Commissioner of Lobbying holds office for a seven year term during good behaviour and may be reappointed for one or more further terms, each not to exceed seven years (ss 4.1(2) and (3)).
[22] The Commissioner’s duties include developing and implementing educational programs to foster public awareness of the requirements of this Act, particularly on the part of lobbyists, their clients and public office holders (s 4.2(2)), to maintain a registry of lobbyists (s 9(1)), and to develop a Lobbyists’ Code of Conduct (s 10.2(1)). The Commissioner also investigates potential contraventions of the Lobbying Act or the Lobbyists’ Code of Conduct:
10.4 (1) The Commissioner shall conduct an investigation if he or she has reason to believe, including on the basis of information received from a member of the Senate or the House of Commons, that an investigation is necessary to ensure compliance with the Code or this Act, as applicable.
(1.1) The Commissioner may refuse to conduct or may cease an investigation with respect to any matter if he or she is of the opinion that
(a) the matter is one that could more appropriately be dealt with according to a procedure provided for under another Act of Parliament;
(b) the matter is not sufficiently important;
(c) dealing with the matter would serve no useful purpose because of the length of time that has elapsed since the matter arose; or
(d) there is any other valid reason for not dealing with the matter.
[23] After conducting an investigation, the Commissioner is required to prepare a report including his or her findings, conclusions and reasons, and submit it to the Speaker of the Senate and the Speaker of the House of Commons, who shall each table the report in their respective houses (s 10.5(1)).
[24] The Commissioner must also prepare an annual report concerning the administration of the Act and submit it to the Speaker of the Senate and the Speaker of the House of Commons, who shall each table the report in the House over which he or she presides (s 11). The Commissioner may also, at any time, prepare a special report concerning any matter within the scope of his or her powers, duties and functions, which shall be similarly submitted and tabled (s 11.1).
[25] The Lobbying Act also sets out the offences and punishments for contraventions of the Act by lobbyists (s 14).
[26] The Act is also subject to review every five years:
14.1 (1) A comprehensive review of the provisions and operation of this Act must be undertaken, every five years after this section comes into force, by the committee of the Senate, of the House of Commons, or of both Houses of Parliament, that may be designated or established for that purpose.
(2) The committee referred to in subsection (1) must, within a year after the review is undertaken or within any further period that the Senate, the House of Commons, or both Houses of Parliament, as the case may be, may authorize, submit a report on the review to Parliament that includes a statement of any changes to this Act or its operation that the committee recommends.
The Conflict of Interest Act
[27] The purposes of the Conflict of Interest Act are set out in s 3 of that Act:
3 The purpose of this Act is to
(a) establish clear conflict of interest and post-employment rules for public office holders;
(b) minimize the possibility of conflicts arising between the private interests and public duties of public office holders and provide for the resolution of those conflicts in the public interest should they arise;
(c) provide the Conflict of Interest and Ethics Commissioner with the mandate to determine the measures necessary to avoid conflicts of interest and to determine whether a contravention of this Act has occurred;
(d) encourage experienced and competent persons to seek and accept public office; and
(e) facilitate interchange between the private and public sector.
[28] Part I deals with conflict of interest rules (s 4–19). For purposes of this application, I note that section 4 defines a conflict of interest in terms of a private interest:
4 For the purposes of this Act, a public office holder is in a conflict of interest when he or she exercises an official power, duty or function that provides an opportunity to further his or her private interests or those of his or her relatives or friends or to improperly further another person’s private interests.
[29] A private interest is defined in s 2(1) in terms of what it is not:
private interest does not include an interest in a decision or matter
(a) that is of general application;
(b) that affects a public office holder as one of a broad class of persons; or
(c) that concerns the remuneration or benefits received by virtue of being a public office holder. (intérêt personnel)
[30] Section 5 places a general duty on every public office holder to arrange his or her private affairs in a manner that will prevent the public office holder from being in a conflict of interest.
[31] Section 6(1) precludes participation in decision making where it would place a public office holder in a conflict of interest:
6 (1) No public office holder shall make a decision or participate in making a decision related to the exercise of an official power, duty or function if the public office holder knows or reasonably should know that, in the making of the decision, he or she would be in a conflict of interest.
[32] Sections 7 to 17 identify specified conflicts of interest, such as preferential treatment and insider information.
[33] Part II deals with compliance measures (ss 20–32). This includes s 21, which mandates that a public office holder shall recuse him or herself where he or she would be in a conflict of interest:
21 A public office holder shall recuse himself or herself from any discussion, decision, debate or vote on any matter in respect of which he or she would be in a conflict of interest.
[34] Subsection 2(1) defines a public office holder to include Ministers and a GIC appointee, other than the exceptions noted. A reporting public office holder is also defined and includes a Minister and a GIC appointee as set out.
[35] If a reporting public official has recused themselves, they are required to make a public declaration in that regard:
25 (1) If a reporting public office holder has recused himself or herself to avoid a conflict of interest, the reporting public office holder shall, within 60 days after the day on which the recusal took place, make a public declaration of the recusal that provides sufficient detail to identify the conflict of interest that was avoided.
[36] Similar declarations are required with respect to certain assets, liabilities and other matters set out in s 25. Divestment of controlled assets on appointment to office is dealt with in s 27. The functions of the Commissioner in this regard are also set out in ss 28 to 30:
28 The Commissioner shall review annually with each reporting public office holder the information contained in his or her confidential reports and the measures taken to satisfy his or her obligations under this Act.
29 Before they are finalized, the Commissioner shall determine the appropriate measures by which a public office holder shall comply with this Act and, in doing so, shall try to achieve agreement with the public office holder.
30 In addition to the specific compliance measures provided for in this Part, the Commissioner may order a public office holder, in respect of any matter, to take any compliance measure, including divestment or recusal, that the Commissioner determines is necessary to comply with this Act.
[37] Part 4 deals with administration and enforcement. Upon receipt of a request in writing from a Member of the Senate or the House of Commons, the Commissioner shall examine alleged potential contraventions of the Act. The Commissioner may also do so of his or her own initiative (ss 44(1), 45(1)). In conducting an examination, the Commissioner may consider information from the public that a Member of the Senate or the House of Commons brings to the Commissioner’s attention (s 44(4)):
44 (1) A member of the Senate or House of Commons who has reasonable grounds to believe that a public office holder or former public office holder has contravened this Act may, in writing, request that the Commissioner examine the matter.
(2) The request shall identify the provisions of this Act alleged to have been contravened and set out the reasonable grounds for the belief that the contravention has occurred.
(3) If the Commissioner determines that the request is frivolous or vexatious or is made in bad faith, he or she may decline to examine the matter. Otherwise, he or she shall examine the matter described in the request and, having regard to all the circumstances of the case, may discontinue the examination.
(4) In conducting an examination, the Commissioner may consider information from the public that is brought to his or her attention by a member of the Senate or House of Commons indicating that a public office holder or former public office holder has contravened this Act. The member shall identify the alleged contravention and set out the reasonable grounds for believing a contravention has occurred.
…….
45 (1) If the Commissioner has reason to believe that a public office holder or former public office holder has contravened this Act, the Commissioner may examine the matter on his or her own initiative.
[38] If the examination is in response to a request from a Member of Parliament, the Commissioner shall provide the Prime Minister with a report setting out the Commissioner’s factual findings, analysis and conclusions, and shall provide a copy to the Member who made the request, the subject of the report, and the public (ss 44(7)-44(8)). Similarly, if the examination is conducted on the Commissioner’s own initiative, unless the examination is discontinued, the Commissioner shall provide a report to the Prime Minister, to the public officer holder who is the subject of the report, and to the public ((s 45(2) and 45(4)). The Commissioner’s conclusions are final, but are not determinative of the measures to be taken as a result of the report (s 47).
[39] Public officer holders who contravene specified provisions of the Act commit a violation and are liable to an administrative monetary penalty, not exceeding $500 (s 52). Failing to file a public declaration of recusal as required by s 25(1) is such a violation.
[40] Part 5, general, includes a provision whereby the Commissioner’s orders and decisions are only subject to review on the grounds set out in s 18.1(4)(a), (b), or (e) of the Federal Courts Act, RSC 1985, c F-7. Specifically, s 66 of the Act states as follows:
66 Every order and decision of the Commissioner is final and shall not be questioned or reviewed in any court, except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act.
[41] Further, s 67 deals with a five-year review of the Act:
67 (1) Within five years after this section comes into force, a comprehensive review of the provisions and operation of this Act shall be undertaken by such committee of the Senate, of the House of Commons or of both Houses of Parliament as may be designated or established by the Senate or the House of Commons, or by both Houses of Parliament, as the case may be, for that purpose.
(2) The committee referred to in subsection (1) shall, within a year after a review is undertaken pursuant to that subsection or within such further time as may be authorized by the Senate, the House of Commons or both Houses of Parliament, as the case may be, submit a report on the review to Parliament, including a statement of any changes that the committee recommends.
Codes and Guidelines
[42] In addition to the above legislation, there are two codes and a guideline that are relevant to this matter.
The Lobbyist’s Code of Conduct
[43] The preamble of the Lobbyists’ Code of Conduct (“Lobbyists’ Code” or “Code”) describes its foundation in the Lobbying Act as follows:
The Lobbying Act is based on four principles:
• Free and open access to government is an important matter of public interest;
• Lobbying public office holders is a legitimate activity;• It is desirable that public office holders and the public be able to know who is engaged in lobbying activities; and
• A system for the registration of paid lobbyists should not impede free and open access to government.
The Lobbying Act provides the Commissioner with the authority to develop and administer a code of conduct for lobbyists. The Commissioner has done so, with these four principles in mind. The Lobbyists’ Code of Conduct is an important instrument for promoting public trust in the integrity of government decision‑making. The trust that Canadians place in public office holders to make decisions in the public interest is vital to a free and democratic society.
Public office holders, when they deal with the public and with lobbyists, are required to adhere to the standards set out for them in their own codes of conduct. For their part, lobbyists communicating with public office holders must also abide by standards of conduct, which are set out below.
These codes complement one another and together contribute to public confidence in the integrity of government decision-making.
[44] The Lobbyists’ Code states that its principles are that lobbyists should act in a manner that demonstrates respect for democratic institutions, including the duty of public office holders to serve the public interest; conduct with integrity and honesty all relations with public office holders; be open and frank about their lobbying activities; and observe the highest professional and ethical standards. In particular, lobbyists should conform fully with the letter and the spirit of the Lobbyists’ Code of Conduct as well as with all relevant laws, including the Lobbying Act and its regulations.
[45] The Code then sets out ten rules. For the purposes of this Application, rules 6 to 9 are most relevant.
[46] Rule 6 precludes a lobbyist from proposing or undertaking any action that would place a public office holder in a real or apparent conflict of interest. Rules 7 to 9 outline specific situations that rule 6 encapsulates. Specifically, rules 7 and 8 preclude a lobbyist from taking actions that may be seen as an office holder giving preferential access to the lobbyist or another person. Rule 9 precludes a lobbyist from undertaking political activities that could be seen to create a sense of obligation:
Conflict of Interest
6. A lobbyist shall not propose or undertake any action that would place a public office holder in a real or apparent conflict of interest.
In particular:
Preferential access
7. A lobbyist shall not arrange for another person a meeting with a public office holder when the lobbyist and public office holder share a relationship that could reasonably be seen to create a sense of obligation.
8. A lobbyist shall not lobby a public office holder with whom they share a relationship that could reasonably be seen to create a sense of obligation.
Political activities
9. When a lobbyist undertakes political activities on behalf of a person which could reasonably be seen to create a sense of obligation, they may not lobby that person for a specified period if that person is or becomes a public office holder. If that person is an elected official, the lobbyist shall also not lobby staff in their Office(s).
[47] For the purpose of the Lobbyists’ Code, a public officer holder is as defined in s 2(1) of the Lobbying Act, being any officer or employee of Her Majesty in Right of Canada and including:
(a) a member of the Senate or the House of Commons and any person on the staff of such a member,
(b) a person who is appointed to any office or body by or with the approval of the Governor in Council or a minister of the Crown, other than a judge receiving a salary under the Judges Act or the lieutenant governor of a province,
(c) an officer, director or employee of any federal board, commission or other tribunal as defined in the Federal Courts Act,
(d) a member of the Canadian Armed Forces, and
(e) a member of the Royal Canadian Mounted Police (titulaire d’une charge publique)
Conflict of Interest Code for Members of the House of Commons
[48] The Conflict of Interest Code for Members of the House of Commons (“Members’ Code”) is appended to the Standing Orders of the House of Commons and applies to all elected Members of Parliament. A fact sheet issued by the Office of the Ethics Commission states that the Commission administers the Conflict of Interest Act and the Members’ Code, and that the two regimes seek to prevent conflicts between private interests and public duties by appointed and elected officials. The Members’ Code prohibits Members from using their public office to further their private interests or those of their family, or from improperly furthering the private interests of another person or entity.
Ethical and Political Activity Guidelines for Public Officer Holders
[49] A document entitled Open and Accountable Government 2015 is published on the Prime Minister’s webpage and by the Privy Council Office. The document addresses Ministerial responsibility and accountability; portfolio responsibilities and support; Ministerial relations with Parliament; and standards of conduct, appending related Annexes A to J. Annex A contains the Ethical and Political Activity Guidelines for Public Office Holders (“EPA Guidelines”). Part I of Annex A, Ethical Guidelines and Statutory Standards of Conduct, applies to all public office holders as defined in the Conflict of Interest Act, and includes, with respect to ethical standards, that public office holders shall act with honesty and uphold the highest ethical standards so that public confidence and trust in the integrity, objectivity and impartiality of the government are conserved and enhanced. As to public scrutiny, Part I states that public office holders have an obligation to perform their official duties and arrange their private affairs in a manner that will bear the closest public scrutiny. Further, in decision making, public office holders, in fulfilling their official duties and functions, shall make decisions in the public interest and with regard to the merits of each case. Part I also states that public office holders are subject to the requirements of the Conflict of Interest Act and that before appointment a public office holder shall certify that he or she will comply with the EPA Guidelines, which are a term and condition of appointment.
[50] Annex B, Fundraising and Dealing with Lobbyists: Best Practices for Ministers and Parliamentary Secretaries, states that those officer holders must avoid conflict of interest, the appearance of conflict of interest and situations that have the potential to involve conflicts of interest. It sets out a summary of best practices expected to be followed in that regard. The practices are stated to compliment other rules that Ministers and Parliamentary Secretaries must observe including the Conflict of Interest Act, the Members’ Code and the Lobbying Act. (Conacher p 23).
Issues
[51] The Applicant submits that the main issue before the Court is procedural fairness during the appointment process and identifies five issues raised by the application.
[52] In my view, the issues arising in this application can be framed as follows:
Does the Applicant have standing to bring the application;
Did the GIC fail to consult with the leaders of every recognized party in the Senate and the House of Commons as required by s 4.1(1) the Lobbying Act;
Did the GIC contravene the Conflict of Interest Act thereby bringing the validity of the appointment into question;
Does the common law concerning reasonable apprehension of bias apply and, if so, did it preclude the GIC from making the appointment; and
Did the Applicant have a legitimate expectation that the GIC would recuse itself from the appointment process?
Standard of Review
[53] The Federal Court of Appeal in Tsleil-Waututh Nation v Canada, 2018 FCA 153 (“Tsleil-Waututh”) noted its prior decision Gitxaala Nation v Canada, 2016 FCA 187 in which it held that the standard of review must be assessed in light of relevant legislative provisions, the structure of the legislation and the overall purpose of the legislation (Tsleil-Waututh at para 204). In assessing the administrative law components of a decision of the GIC, the Federal Court of Appeal in Tsleil-Waututh applied the reasonableness standard, concluding that the court was required to be satisfied that the decision of the GIC was lawful, reasonable and constitutionally valid. To be lawful and reasonable, the GIC must comply with the purview and rationale of the legislative scheme (also see Globalive Wireless Management Corp. v. Public Mobile Inc., 2011 FCA 194, at para 31).
[54] In my view, this is also analogous to circumstances where an administrative tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity. There it is presumed that questions of statutory interpretation are subject to deference on judicial review (Alberta Teachers, 2011 SCC 61 at para 30; Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47 at para 22). Here, the GIC is interpreting s 4.1(1) of the Lobbying Act, the statutory procedural requirements necessary for the GIC to appoint an Agent of Parliament, which is concerned with the internal affairs of the legislature. On the same analysis, this attracts the standard of review of reasonableness.
[55] Whether the GIC correctly applied the legislation is really a question of statutory interpretation (Globalive at para 34). Although in Globalive, the Federal Court of Appeal found there may be some question as to whether this attracts the reasonableness or correctness standard (Globalive at para 35), in my view, considered in the context of this legislative regime, which is discussed below, and applying the Dunsmuir factors, the reasonableness standard applies to the GIC’s interpretation of s 4.1(1) of the Lobbying Act.
[56] To the extent that the Applicant’s arguments are based on a breach of the duty of procedural fairness, it is well-established that issues of procedural fairness are reviewable on the correctness standard (Mission Institute v Khela, 2014 SCC 24 at para 79; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43).
Issue 1: Does the Applicant have standing to bring the application?
[57] The Applicant is not directly affected by the issues it raises in this application. Therefore, it may only bring the application if this Court exercises its discretion to grant it public interest standing.
[58] The test for public interest standing is not in dispute. The parties agree that the test is set out by the Supreme Court of Canada in Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 (“Downtown Eastside”).
[59] There the Supreme Court stated that the traditional approach of the courts had been to limit standing to persons whose private rights were at stake or who were specially affected by the issue. However, in public law cases, such as the one before it, those limitations have been relaxed and a flexible, discretionary approach to public interest standing, guided by the purposes which underlie the traditional limitations, has now been taken.
[60] The Court acknowledged some of the traditional concerns underlying limitations on standing, including the need to preserve scarce judicial resources and the screening out of mere busy bodies, as well as ensuring that there are contending points of view before the court, and ensuring that the proper role of the courts and their constitutional relationship to other branches of government is respected by requiring that the proceeding raise a justiciable issue – being a question that is appropriate for judicial determination (Downtown Eastside at paras 27–30). The principle of legality, which holds that state action should conform to the Constitution and to statutory authority and that there must be practical and effective ways to challenge the legality of state action, also informs the standing inquiry (Downtown Eastside at paras 31, 33).
[61] In exercising the discretion to grant public interest standing, three factors must be considered:
(i) whether there is a serious justiciable issue raised;
(ii) whether the plaintiff has a real stake or a genuine interest in it; and
(iii) whether, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts.
[62] A party seeking public interest standing must persuade the court that these factors, applied purposively and flexibly, favour granting standing. All of the other relevant considerations being equal, a plaintiff with standing as of right will generally be preferred (Downtown Eastside at para 37).
[63] These factors should not be viewed as a checklist, but rather are interrelated considerations to be assessed and weighed cumulatively, not individually, in light of the underlying purposes of limiting standing (Downtown Eastside at para 20). They are to be applied in a flexible and generous manner that best serves those underlying purposes (Downtown Eastside at paras 20, 35, 36). In determining whether to grant standing in public law cases, courts should exercise their discretion and balance the underlying rationale of restricting standing with the important role of the Court in assessing the legality of government action. “At the root of the law of standing is the need to strike a balance ‘between ensuring access to the Courts and preserving judicial resources’: Canadian Council of Churches, [1992] 1 SCR 236 at p 252” (Downtown Eastside at para 23).
[64] To constitute a serious justiciable issue, the question raised must be a substantial constitutional issue or an important one, and the claim must be far from frivolous, although the courts should not examine the merits of the case other than in a preliminary manner (Downtown Eastside at para 42). By insisting on the existence of a justiciable issue, courts ensure that their exercise of discretion with respect to standing is consistent with the court staying within the bounds of its proper constitutional role. Where there is an issue that is appropriate for judicial determination, the court should not decline to determine it on the ground that because of its policy context or implications, it is better left for review and determination by the legislative or executive branches of government (Downtown Eastside at para 40). Once it becomes clear that the statement of claim reveals at least one serious issue, it will usually not be necessary to minutely examine every pleaded claim for the purpose of determining standing (Downtown Eastside at para 42).
[65] The second factor entails a consideration of whether the plaintiff has a real stake in the proceedings or is engaged with the issues they raise. A genuine interest has been found to have been established where the applicant had the highest possible reputation and demonstrated a real and continuing interest in the issue at hand (Downtown Eastside at para 43 referencing Council of Churches at p 254).
[66] Finally, at the third stage, a court should take a purposive approach and consider “whether the proposed action is an economical use of judicial resources, whether the issues are presented in a context suitable for judicial determination in an adversarial setting and whether permitting the proposed action to go forward will serve the purpose of upholding the principle of legality”. This consideration calls for a flexible, discretionary approach and there is no binary yes or no analysis possible. Whether a means of proceeding is reasonable, effective and will serve t