Democracy Watch v. Canada (Attorney General)

Democracy Watch v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2019-03-29
Neutral citation
2019 FC 388
File numbers
T-115-18
Notes
Digest
Decision Content
Date: 20190329
Docket: T-115-18
Citation: 2019 FC 388
Ottawa, Ontario, March 29, 2019
PRESENT: The Honourable Mr. Justice Gleeson
BETWEEN:
DEMOCRACY WATCH
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
I. Overview
[1] The applicant, Democracy Watch [DW], seeks judicial review of the September 18, 2017 decision of Karen Shepherd, the former interim Commissioner of Lobbying [Commissioner], responding to a written complaint alleging a breach of the Lobbyists’ Code of Conduct (Ottawa: Office of the Commissioner of Lobbying, 2015) [Lobbyists’ Code]. The complaint alleged that Prince Sha Karim Al Hussaini Aga Khan [the Aga Khan] was in breach of the Lobbyists’ Code as a consequence of having hosted the Right Honourable Justin Trudeau and his family and friends on a private island in the Caribbean.
[2] The Commissioner concluded that an investigation was not necessary to ensure compliance with the Lobbyists’ Code or the Lobbying Act, RSC 1985, c 44 (4th Supp) [Lobbying Act] as the Code did not apply to the Aga Khan’s interactions with the Prime Minister.
[3] DW did not initiate the complaint resulting in the impugned decision; however, it argues that it should be granted public interest standing to advance its arguments on judicial review. In seeking judicial review, DW argues that the Commissioner’s participation in a matter involving the Prime Minister, where the Commissioner held the position on an interim basis, was contrary to the conflict of interest provisions of the Conflict of Interest Act, SC 2006, c 9, s 2 [COI Act]. DW further argues that the process was procedurally unfair: there was a legitimate expectation that an interim commissioner would not participate in consideration of the complaint and the Commissioner’s failure to recuse herself in this circumstance raises a real apprehension of bias. Finally, DW argues the decision was wrong in law. DW seeks an order quashing the decision and directing the Commissioner to proceed with a full investigation of the alleged breach of the Lobbyists’ Code. In the alternative, the applicant seeks an order remitting the matter back to the Commissioner for redetermination.
[4] The respondent submits that DW should not be given public interest standing, that the alleged breach of the COI Act is not a matter that is justiciable, and that the Commissioner’s decision is not reviewable. The respondent further submits that neither the COI Act nor the common law create an expectation that the Commissioner would recuse herself, that there is no reasonable apprehension of bias, and that the process was fair. The respondent argues the Commissioner’s finding that the Lobbyists’ Code did not apply was reasonable.
[5] For the reasons that follow, DW is granted standing to bring the judicial review application and the application is granted.
II. Background
A. The Complaint
[6] In early January 2017, the media reported that the Prime Minister’s Office had confirmed that the Prime Minister, his family, and some friends had accepted, from the Aga Khan, the gift of a vacation on the Aga Khan’s private island in the Bahamas.
[7] On January 11, 2017, a private citizen sent a complaint to the Commissioner alleging that the Aga Khan had violated the Lobbyists’ Code by gifting the vacation to the Prime Minister.
[8] The Commissioner’s office acknowledged receipt of the complaint, and the Directorate of Investigations initiated an administrative review. The identity of the complainant is not disclosed in the record before me.
B. The Commissioner’s Decision
[9] In a memorandum to the Commissioner dated September 13, 2017, the Director of Investigations addressed whether the Aga Khan’s gift violated rules 8 (preferential access) or 10 (gifts) of the Lobbyists’ Code. It briefly detailed the content of media reports relating to the gifted vacation and the complaint that had triggered the administrative review. It then reviewed the role of the Aga Khan Foundation of Canada [Foundation], noting that the Aga Khan is a member of its Board of Directors and that the Foundation has an active in-house return in the Registry of Lobbyists. It noted the Aga Khan is not registered as a lobbyist.
[10] The memorandum to the Commissioner concluded that the Lobbyists’ Code did not apply to the Aga Khan’s interactions with the Prime Minister as there was no evidence indicating that the Aga Khan was remunerated for his work at the Foundation. Consequently, the allegations of a breach of the Lobbyists’ Code were unfounded. The memo recommended that the administrative review be closed.
[11] The memorandum states in part:
ISSUE
Whether the Aga Khan was in breach of Rule 8 (Preferential Access) and/or Rule 10 (Gifts) of the Lobbyists’ Code of Conduct (2015) as a consequence of hosting the Right Honourable Justin Trudeau and his family on a private island in the Caribbean.
BACKGROUND
Media Reports
On January 6, 2017, media reports stated that Mr. Justin Trudeau, Prime Minister of Canada, his family “and a few friends” had celebrated the new year on a private island in the Bahamas as guests of Prince Shah Karim Al Hussaini, known Aga Khan IV, a religious leader.
Complaint
On January 11, 2017, [name redacted], a private citizen, sent a complaint to the Commissioner related to this matter. On January 16, 2017, the Directorate sent an acknowledgement letter to the complainant.
The Aga Khan Foundation of Canada (AKFC)
The AKFC is a charitable organization which intervenes in the poorest regions of the world. His Highness the Aga Khan is listed as a member of the foundation’s Board of Directors on the AKFC’s website.
The foundation has an active in-house (organizations) return in the Registry of Lobbyists. During the Prime Minister’s vacation in the Bahamas, the Aga Khan Foundation of Canada had an active return. The Aga Khan is not registered as a lobbyist.
…
ANALYSIS
The Directorate has found no evidence to indicate that Prince Shah Karim Al Hussaini, Aga Khan IV, is remunerated for his work with the AKFC and, therefore, that he was engaged in registrable lobbying activity during the Prime Minister’s Christmas vacation.
Consequently, the Lobbyists’ Code of Conduct does not apply to the Aga Khan’s interactions with the Prime Minister.
RECOMMENDATION
The Investigations Directorate recommends that the administrative review be closed as there is no basis to conclude that the Aga Khan engaged in registrable lobbying activities, on behalf of the AKFC. The Directorate has a basis to conclude that the Lobbyists’ Code of Conduct does not apply to the Aga Khan’s interactions with the Prime Minister.
[12] On September 18, 2017, the Commissioner accepted the Director of Investigation’s recommendation. That decision is the subject of this judicial review.
C. The Record before the Court
[13] The case-specific documentation before me is limited to a single document, the September 13, 2017 memorandum to the Commissioner. The record before the Commissioner contained at least the complaint letter and presumably material gathered and generated in the course of the administrative review. The respondent objected to the production of a more extensive record, and the applicant did not take issue with the respondent’s position.
D. The Interim Appointment
[14] In June 2009, Ms. Karen Shepherd was appointed as Commissioner for a seven-year term. In anticipation of the expiration of Ms. Shepherd’s mandate, the Privy Council Office commenced a process to appoint a new Commissioner in May of 2016.
[15] The process to select and appoint a new Commissioner was ongoing in June 2016 when Ms. Shepherd’s mandate expired. At that time, Ms. Shepherd was appointed to the position for a six-month interim term commencing in June 2016. It was reported in November 2016 that Ms. Shepherd was not seeking reappointment to the Commissioner’s position.
[16] As a result of an extended selection process, Ms. Shepherd was appointed to a second six-month interim term in December 2016 and then a third in June 2017.
[17] A new Commissioner of Lobbying, Ms. Nancy Bélanger, was appointed by the Governor in Council on December 14, 2017 after consultation with recognized party leaders and groups in the Senate and House of Commons and approval of the appointment by the House of Commons and the Senate.
III. Relevant Legislation
[18] The Federal Accountability Act, SC 2006, c 9, enacted the COI Act and amended several other statutes including the Lobbyists Registration Act, renaming it the Lobbying Act. The COI Act and Lobbying Act are described below, and relevant extracts are reproduced in the Annex to these reasons for ease of reference.
A. COI Act
[19] The COI Act has several purposes, which include: (1) establishing clear conflict of interest and post-employment rules for public office holders; (2) minimizing the possibility of conflicts of interest and providing resolution mechanisms should conflicts arise; and (3) mandating the Conflict of Interest and Ethics Commissioner [Ethics Commissioner] to determine the measures necessary to avoid conflicts and to determine whether a contravention of the COI Act has occurred (COI Act, s 3).
[20] The COI Act prohibits public office holders from making decisions or participating in decision making related to the exercise of an official power, duty, or function if they know or ought to know that they would be in a conflict of interest in doing so (COI Act, s 6(1)).
[21] Public office holders are in a conflict of interest when they exercise an official power, duty, or function that provides an opportunity to further their own private interests or that of their relatives, friends, or another person (COI Act, s 4). A “private interest” is defined in subsection 2(1) of the COI Act by way of exclusion:
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)
intérêt personnel N’est pas visé l’intérêt dans une décision ou une affaire :
a) de portée générale;
b) touchant le titulaire de charge publique faisant partie d’une vaste catégorie de personnes;
c) touchant la rémunération ou les avantages sociaux d’un titulaire de charge publique. (private interest)
[22] Public office holders are required to recuse themselves from any discussion, decision, debate, or vote on any matter in which a conflict of interest would arise (COI Act, s 21).
[23] The Ethics Commissioner is responsible for administering and enforcing the COI Act.
[24] A member of the Senate or the House of Commons may request in writing that the Ethics Commissioner examine an alleged contravention. The Ethics Commissioner shall comply with the request unless he or she determines the request is frivolous, vexatious, or made in bad faith. The Ethics Commissioner may also examine a matter on his or her own initiative (ss 44(1), 44(3), 45(1)).
[25] Where the Ethics Commissioner undertakes an examination, he or she shall complete a report setting out his or her factual findings, analysis, and conclusions. The report is to be provided to the Prime Minister, the public officer holder who is the subject of the report, and the public. In those cases where the Ethics Commissioner is acting upon a request from a member of Parliament, a copy is also provided to that member (ss 44(7), (8) and 45(2), (4)).
[26] The Ethics Commissioner’s conclusions in a report relating to whether a public office holder has or has not contravened the COI Act are final, but the report is not determinative of the measures to be taken as a result (s 47). The COI Act also provides that the Ethics Commissioner’s orders and decisions are only subject to review on the grounds set out in paragraphs 18.1(4)(a), (b), or (e) of the Federal Courts Act, RSC 1985, c F-7 (s 66).
B. The Lobbying Act
[27] The Lobbying Act’s preamble sets out four underlying principles: (1) free and open access to government is an important matter of public interest; (2) lobbying public office holders is a legitimate activity; (3) public office holders and the public should be able to know who is engaged in lobbying activities; and (4) a system for registration of paid lobbyists should not impede free and open access to government.
[28] Section 4.1 of the Act provides for the appointment of the Commissioner by the Governor in Council for a renewable term of seven years, after consultation with the leader of every recognized party in the Senate and House of Commons and a resolution of the Senate and House of Commons approving the appointment (ss 4.1(1), (2)). A Commissioner is eligible to be reappointed (s 4.1(3)).
[29] A qualified individual may be appointed on an interim basis for a term not to exceed six months where, among other reasons, the office is vacant (s 4.1(4)). In the case of an interim appointment, the Lobbying Act does not impose a prior requirement to consult with the leaders of recognized parties in Parliament or require that the interim appointment be approved by resolution of the Senate and House of Commons.
[30] The Act requires that the Commissioner, among other things, develop the Lobbyists’ Code; establish and maintain a registry open to public inspection; and conduct investigations, where necessary, to ensure compliance with the Act and the Lobbyists’ Code (ss 9, 10.2, 10.4).
[31] The Commissioner reports directly to Parliament through the Speaker of the House of Commons and the Speaker of the Senate (ss 10.5, 11, 11.1).
[32] The Act requires the Commissioner to conduct investigations where there is reason to believe, including based on information received from a member of the House of Commons or the Senate, that an investigation is necessary to ensure compliance with the Lobbyists’ Code or the Act (s 10.4(1)). The Commissioner can refuse to investigate or cease an investigation if he or she is of the opinion that: (a) the matter would be more appropriately dealt with under a procedure in another Act of Parliament; (b) the matter is not sufficiently important; (c) dealing with the matter would serve no useful purpose as too much time has passed; or (d) there is any other valid reason not to deal with the matter (s 10.4(1.1)).
[33] Upon concluding an investigation, the Commissioner must prepare a report to include his or her findings, conclusions, and the reasons for the conclusions reached and submit the report to the Speakers of the Senate and the House of Commons. The Speakers shall, in turn, table the report in each House (ss 10.5(1), (2)). Certain contraventions of the Act constitute offences (s 14).
[34] The Act recognizes two categories of lobbyists: in-house lobbyists and consultant lobbyists. Both in-house lobbyists and consultant lobbyists are required to file returns with the Commissioner setting out various details relating to their activities (ss 5, 7).
[35] A consultant lobbyist is an individual who, on behalf of any person or organization, for payment, communicates with public office holders for enumerated purposes or arranges meetings between a public officer holder and any other individual (s 5).
[36] An individual is an in-house lobbyist where: (1) he or she is employed for a corporation or organization; (2) his or her duties include communication with public office holders for enumerated purposes; and (3) that activity constitutes a significant part of their duties or would constitute a significant part of the duties of one employee if it was performed by only one employee (s 7).
[37] A public office holder is defined as including members of the Senate and members of the House of Commons (s 2(1); Designated Public Office Holder Regulations, SOR/2008-117, schedule).
C. The Lobbyists’ Code
[38] The Lobbyists’ Code came into force on December 1, 2015, replacing the initial version of the Code that had come into effect in 1997. The Code’s introduction states its purpose is to “assure the Canadian public that when lobbying of public office holders takes place, it is done ethically and with the highest standards with a view to enhancing public confidence and trust in the integrity of government decision making.” The introduction further states the Code applies where the Act requires an individual to register, whether or not a registration has been filed.
[39] The Lobbyists’ Code identifies four principles upon which it was developed: respect for democratic institutions; integrity and honesty; openness; and professionalism. The Code sets out ten rules that address the broad issues of transparency, use of information, and conflicts of interest. Rule 6 provides that a lobbyist shall not propose or take action that will place a public office holder in a real or apparent conflict of interest. Rules 7 through 10 provide more specific guidance on the avoidance of real or apparent conflicts of interest:
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).
Gifts
10. To avoid the creation of a sense of obligation, a lobbyist shall not provide or promise a gift, favour, or other benefit to a public office holder, whom they are lobbying or will lobby, which the public office holder is not allowed to accept.
Conflit d’intérêts
6. Un lobbyiste ne doit proposer ni entreprendre aucune action qui placerait un titulaire d’une charge publique en situation de conflit d’intérêts réel ou apparent.
Plus particulièrement :
Accès préférentiel
7. Un lobbyiste ne doit pas organiser pour une autre personne une rencontre avec un titulaire d’une charge publique lorsque le lobbyiste et le titulaire d’une charge publique entretiennent une relation qui pourrait vraisemblablement faire croire à la création d’un sentiment d’obligation.
8. Un lobbyiste ne doit pas faire de lobbying auprès d’un titulaire d’une charge publique avec lequel il entretient une relation qui pourrait vraisemblablement faire croire à la création d’un sentiment d’obligation.
Activités politiques
9. Si un lobbyiste entreprend des activités politiques pour le compte d’une personne qui pourraient vraisemblablement faire croire à la création d’un sentiment d’obligation, il ne peut pas faire de lobbying auprès de cette personne pour une période déterminée si cette personne est ou devient un titulaire d’une charge publique. Si cette personne est un élu, le lobbyiste ne doit pas non plus faire de lobbying auprès du personnel du bureau dudit titulaire.
Cadeaux
10. Afin d’éviter la création d’un sentiment d’obligation, un lobbyiste ne doit pas offrir ou promettre un cadeau, une faveur ou un autre avantage à un titulaire d’une charge publique, auprès duquel il fait ou fera du lobbying, que le titulaire d’une charge publique n’est pas autorisé à accepter.
[40] The legal status of the Code has been judicially considered. This Court has recognized that the Code is not an enactment of Parliament, nor is it a statutory instrument pursuant to the Statutory Instruments Act, RSC 1985, c S-22 (Lobbying Act, s 10.2(4); Democracy Watch v Canada (Attorney General), 2004 FC 969 at para 23 [Democracy Watch 2004]; Makhija v Canada (Attorney General), 2010 FC 141 at para 15 [Makhija FC 2010]). However, the Act requires that the Code be developed in consultation with interested parties, that it be referred to a Committee of the House of Commons prior to being published, and that it be published in the Canada Gazette (s 10.2). Although breaches of the Code are not sanctioned by charges and penalties, lobbyists must comply with the Code (s 10.3; Makhija v Canada (Attorney General), 2010 FCA 342 at para 7 [Makhija FCA 2010]).
[41] The Code provides that anyone who suspects the Code has been violated should forward information to the Commissioner (Lobbyists’ Code, Introduction).
IV. Issues
[42] The applicant has raised a series of issues: (1) whether DW should be granted standing; (2) whether the Commissioner breached the COI Act; (3) whether the Commissioner was required to recuse herself; and (4) whether the Commissioner erred in deciding not to investigate the complaint.
[43] The respondent raises the following additional issues: (1) whether the Commissioner’s alleged breach of the COI Act is justiciable, and (2) whether the Commissioner’s decision not to investigate is reviewable within the meaning of subsection 18.1(3) of the Federal Courts Act.
[44] I have framed the issues as follows:
Does DW meet the test for public interest standing?
Is the alleged breach of the COI Act justiciable?
Is the Commissioner’s decision not to investigate reviewable?
What is the standard of review?
Does a reasonable apprehension of bias arise?
Does the doctrine of legitimate expectation apply?
Was the decision reasonable?
V. Analysis
A. Does DW meet the test for public interest standing?
[45] The Supreme Court of Canada reviewed and refined the test for public interest standing in Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 [Downtown Eastside].
[46] In that decision, the Court noted that despite long recognized and needed limitations on standing, there are occasions in the public law context where public interest litigation is an appropriate vehicle by which to bring matters of public interest and importance before the courts (para 22). In determining whether to grant standing, courts must balance the underlying rationale for restricting standing with the important role courts play in assessing the legality of government action (para 23).
[47] The Supreme Court addressed the traditional reasons underlying the limitations on standing. These reasons include the proper allocation of scarce judicial resources, a factor that is concerned with the effective operation of the court system as a whole; the screening out of the mere busybody; ensuring that courts have the benefit of the contending points of view of those most directly affected by the determination of the matters in issue; and preserving the proper role of the courts and their constitutional relationship to the other branches of government (paras 25–30). The Court further stated that the principle of legality—a principle that encompasses the notions that state action must conform to the Constitution and statutory authority and that there must be a practical and effective means to challenge the legality of state action—informs the careful exercise of the court’s discretion when considering the question of public interest standing (paras 31–35).
[48] In exercising discretion a court is to consider the following: (1) whether a serious justiciable issue is raised; (2) whether the plaintiff has a real stake or a genuine interest in it; and (3) whether, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts (para 37). The Supreme Court emphasized that these factors are not to be applied as a “rigid checklist”; rather, they should be “assessed and weighed cumulatively, in light of the underlying purposes limiting standing and applied in a flexible and generous manner that best serves those underlying purposes” (para 20).
[49] In considering the first factor, the Court defined a “justiciable question” as “a question that is appropriate for judicial determination” (para 30). It stated that for a question to be a “serious issue,” it must be a “substantial constitutional issue” or an “important one,” and the claim must be “far from frivolous”; however, a court “should not examine the merits of the case in other than a preliminary manner” (para 42).
[50] 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” (para 43).
[51] 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” (para 50). The Court noted a list of illustrative factors to consider at the third stage: the plaintiff’s capacity to bring forward a claim; whether the case is of public interest; whether there are realistic alternative means favouring a more efficient and effective use of judicial resources; and the potential impact on granting public interest standing on others who are equally or more directly affected (para 51).
[52] DW argues it meets the test for public interest standing. First, it contends that issues of compliance with the COI Act and the common law and the application of the Lobbying Act and Lobbyists’ Code are serious justiciable issues. Second, it argues it has a “genuine interest” and “real stake” in the proceedings, as demonstrated by its mandate, experience, expertise, and active involvement in policymaking and legislative processes in the areas of lobbying and conflicts of interest. Finally, DW argues it is likely the only interested party with the ability to bring this application before the Court.
[53] The respondent argues DW does not meet the test. It asserts there is no serious issue as the alleged breach of the COI Act is a matter for the Ethics Commissioner to determine and is therefore not justiciable. In effect, the applicant is attempting to involve the Court in matters that are properly left to Parliament and in which the applicant is not directly engaged. The respondent also takes the position that the application is not a reasonable and effective means to bring the case before the Court as only the Ethics Commissioner can investigate any alleged conflict of interest. It also notes that the private citizen who made this complaint has not brought this application.
[54] Applying the factors from Downtown Eastside, I am persuaded that the circumstances warrant the exercise of discretion in favour of granting DW public interest standing.
(1) A serious issue is raised
[55] The issues raised in this application engage questions that involve the interpretation of the COI Act, the Lobbying Act, and the Lobbyists’ Code as well as the application of common law principles relating to bias and legitimate expectations. The legislation and instruments in issue are intended to contribute to public confidence, trust, and transparency in the conduct of public office holders and those who engage with them.
[56] As noted above, the respondent argues that the alleged breach of the COI Act is not justiciable and that the decision the applicant seeks to challenge is not reviewable by this Court. I address both of these matters in greater detail below. However, the application also raises questions of fairness and bias, questions that in my view arise independently of, even if nourished by, the statutory frameworks in issue.
[57] The applicant also argues that the Commissioner erred in applying the test set out in the Lobbying Act for determining when an investigation is necessary. This raises a matter of the interpretation and application of the Act, and the respondent acknowledges the Court’s “obvious role in the interpretation and enforcement of statutory obligations.”
[58] I am satisfied that the application raises a “serious issue” or an “important one” that is “far from frivolous” and that the issues are justiciable (Downtown Eastside at para 42).
(2) Does DW have a real stake or genuine interest in the proceedings?
[59] The respondent argues that the applicant is seeking to involve the Court in matters that are left to Parliament and that “[a]s an outsider, the applicant is not directly engaged in Parliamentary matters and does not satisfy the second branch of the test.” This position fails to adequately address whether the applicant has a real stake or genuine interest in the proceedings. The record sets out in some detail what the applicant describes in written submissions as its “important role in the development of government oversight and accountability legislation and in the subsequent use of these mechanisms to continue promoting and advancing transparency and accountability in government.”
[60] I am satisfied, based on DW’s history of active participation in public policymaking and legislative processes—including amendments to the Lobbying Act and its predecessors, the creation of the position of the Ethics Commissioner, the enactment of the COI Act, and the drafting and amendment of the Lobbyists’ Code—that DW has a genuine interest in the matters raised in this application.
(3) Is the application a reasonable and effective way to bring the issues before the Court?
[61] The respondent argues the applicant should fail on this prong. The respondent submits that only the Ethics Commissioner can investigate alleged breaches of the COI Act; that complaints were not initiated alleging a conflict of interest by the Commissioner of Lobbying; and that the accountability mechanisms built into the COI Act do not involve the courts.
[62] As stated above and addressed in greater detail below, the issues raised in this application extend beyond the question of an alleged breach by the Commissioner of the COI Act. The respondent’s position that this single issue leads to the conclusion that the application is not a reasonable and effective way to bring the series of issues raised before the Court is not persuasive.
[63] The respondent also notes that there is a more directly affected party, the private citizen who initiated the complaint, who has chosen not to pursue this matter. This is a relevant consideration in applying the third prong of the test, but it is not determinative (Downtown Eastside at paras 50, 51).
[64] This third prong of the public interest standing test is not to be applied rigidly, but in a liberal and generous fashion (Downtown Eastside at paras 47, 48). In this case, the identity of the complainant has not been disclosed on the record. There is no evidence indicating the nature or extent of the complainant’s interest or of the complainant’s circumstances.
[65] I have concluded that the other two prongs of the test have been met: a serious issue is raised and the applicant has a genuine interest in the application. The Court has received extensive submissions on issues that engage the public interest, and those issues have been presented in a context suitable for judicial determination. As the Federal Court of Appeal recently noted, DW brings a “useful and distinctive perspective” to the issues, issues unlikely to otherwise be raised before the courts (Democracy Watch v Canada (Attorney General), 2018 FCA 194 at para 21 [Democracy Watch 2018]).
[66] Considering all the circumstances and approaching this prong of the test in a pragmatic and practical manner, I am satisfied that the application is a reasonable and effective means of bringing the issues before the Court.
B. Is the alleged breach of the COI Act justiciable?
[67] The respondent argues that the alleged breach of the COI Act is not justiciable. The respondent submits that it was open to Parliament to reserve for itself the sole enforcement role as it related to the obligations imposed by the COI Act and that Parliament has vested in the Ethics Commissioner the sole jurisdiction to investigate any alleged breaches of the COI Act.
[68] Justiciability essentially asks whether it is appropriate for the courts to decide a particular issue (Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26 at para 32 [Wall]). Questions of justiciability involve “a normative inquiry into the appropriateness as a matter of constitutional judicial policy of the courts deciding a given issue or, instead, deferring to other decision-making institutions of the polity” (Canada (Auditor General) v Canada (Minister of Energy, Mines and Resources), [1989] 2 SCR 49 at 90–91 [Auditor General]).
[69] As the Supreme Court recently noted in Wall at paragraph 34:
There is “no single set of rules” for determining justiciability. It depends to some degree on context, and the proper approach to determining justiciability must be flexible. The court should ask whether it has the institutional capacity and legitimacy to adjudicate the matter…In determining this, courts should consider “that the matter before the court would be an economical and efficient investment of judicial resources to resolve, that there is a sufficient factual and evidentiary basis for the claim, that there would be an adequate adversarial presentation of the parties’ positions and that no other administrative or political body has been given prior jurisdiction of the matter by statute.”
[Emphasis added]
[70] While justiciability is a flexible and contextual concept, trends have emerged in the case law. Some matters have been held not to be justiciable by virtue of the separation of powers; these include the exercise of prosecutorial discretion, questions of parliamentary privilege, and the legislative process. Other matters are purely political, such as the designation of a person as a persona non grata, the bestowing of a political honour, or the making of treaties. Still others involve statutory provisions that the legislature intends to be enforceable through the legislature itself rather than the courts (Robert W Macaulay, James LH Sprague & Lorne Sossin, Practice and Procedure before Administrative Tribunals (Toronto: Thomson Reuters, 2018) (loose-leaf updated 2019, release 2019-2), 28.3(c)(i)–(iii)). It is this final category upon which the respondent relies in contending that the decision is not justiciable.
[71] In considering questions of justiciability, courts must be sensitive to the separation of functions between the legislative, judicial, and executive branches of government and must not usurp the role of other branches (Doucet-Boudreau v Nova Scotia (Department of Education), 2003 SCC 62 at paras 33–36).
[72] In Auditor General, the Supreme Court considered a statutory scheme that purported to confine remedies to Parliament. In that case, the Auditor General was unable to obtain documents from Cabinet. The relevant statute provided for a reporting process in which the Auditor General reported annually to the House of Commons on whether all required information had been provided, and the Auditor General had made two such reports.
[73] The Court noted that Parliamentary sovereignty empowered Parliament to “make its intention known as to the role the courts are to play in interpreting, applying and enforcing its statutes” (Auditor General at 91). However, if a statute provides for an alternative remedy, the court must still inquire into the adequacy of the alternative remedy, and “when Parliament fails to state explicitly that a statutory remedy is the sole or exclusive remedy, it will always be the case that exclusivity cannot be automatically assumed” (Auditor General at 96).
[74] In considering exclusivity, the Court identified a number of factors leading to the conclusion that Parliament intended for the provisions at issue to be an exclusive remedy. First, there was a “linkage” between the statutory right and the statutory remedy in that similar language was used to describe entitlements and the corresponding remedies (Auditor General at 99). Second, the relevant sections of the Act had been added when the Auditor General’s rights and duties were consolidated in the Auditor General Act, SC 1976-77, c 34, for the first time, which was “consistent with Parliament having designated itself as final arbiter of any disputes over the Auditor General’s access to information” (Auditor General at 99–100). Third, the provisions were part of a comprehensive remedial code, as there were other provisions governing the Auditor General’s ability to obtain information (Auditor General at 100).
[75] In Representative for Children & Youth v British Columbia (Office of the Premier), 2010 BCSC 697, the Court noted at paragraph 31 that a three-part test emerged from Auditor General. First, the court must determine if there is a remedial provision in the statute. Second, it must consider whether Parliament intended for that statutory remedy to be the exclusive remedy. Finally, it must examine the adequacy of that remedy.
[76] In written submissions, the applicant sets out a brief history of the COI Act, stating its enactment in 2006 as part of the Federal Accountability Act, SC 2006, c 9, was the culmination of several decades of attempted reforms to a conflict of interest regime at the federal level. The applicant notes that the regime is enforced and administered by the Ethics Commissioner, who reports directly to Parliament, is granted broad investigative and enforcement powers, and exercises quasi-judicial functions.
[77] The applicant submits that the COI Act imposes demanding standards on public office holders and is but one of several pieces of legislation designed to maintain ethical conduct in government at the federal level, the others being the Criminal Code, RSC 1985, c C-46, and the Lobbying Act. The applicant notes that this broad regime serves “the important goal of preserving the integrity of government” (R v Hinchey, [1996] 3 SCR 1128 at para 13). The regime was intended to be, and has been, interpreted as encompassing situations of both real and apparent conflicts of interest where there is potential to compromise the appearance of integrity (Hinchey at para 17; see also Democracy Watch v Campbell, 2009 FCA 79 at para 49 [Campbell]).
[78] In this case, the applicant alleges that in deciding not to investigate the alleged breach of the Lobbyists’ Code arising from the Aga Khan’s gift, the Commissioner of Lobbying was in a conflict of interest and thereby breached the COI Act. This is because the Commissioner was seized with matters, including this matter, in which the Prime Minister had a private interest, and the Commissioner in turn had a real or apparent private interest in having her interim position renewed, a decision that rested with the Prime Minister and the Governor in Council.
[79] In identifying the alleged conflict of interest, the applicant describes a number of alternative processes for the appointment of a Commissioner that it submits would have avoided the alleged conflict. These alternative policy options are of limited relevance and assistance in the context of a judicial review.
[80] The respondent argues that in enacting the COI Act, Parliament has reserved for itself the role of investigating and enforcing the COI Act and has in turn vested that authority in the Ethics Commissioner, an Officer of Parliament. As a result, the alleged breach of the COI Act is not justiciable. I agree with the respondent.
[81] At the first stage of the Auditor General analysis, I must determine if the COI Act