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 1290
File numbers
T-78-18
Notes
A correction was made on December 18, 2019.
Decision Content
Date: 20181219
Docket: T-78-18
Citation: 2018 FC 1290
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 Mario Dion as the Conflict of Interest and Ethics Commissioner. The appointment was made by the Governor in Council (“GIC”) on December 14, 2017, pursuant to s 81(1) of the Parliament of Canada Act, RSC 1985, c P-1.
[2] Democracy Watch, the Applicant, challenges the appointment on the basis that it was made in contravention of the consultation requirement contained in s 81(1) of the Parliament of Canada 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-80-18.
Background
[4] The position of the Conflict of Interest and Ethics Commissioner (“Ethics Commissioner” or “Commissioner”) was created in 2006 under the Federal Accountability Act, SC 2006, c 9. The Ethics Commissioner is an Officer of Parliament who reports to Parliament by way of the Speakers of the House of Commons and the Senate. The mandate of the Commissioner is set out in the Parliament of Canada Act. The Commissioner is also required to perform the duties and functions assigned under the Conflict of Interest Act.
[5] Section 81(1) of the Parliament of Canada Act states that the GIC shall appoint an Ethics Commissioner after consultation with the leader of every recognized party in the House of Commons, and approval of the appointment by resolution of the House of Commons. The Ethics Commissioner holds office during good behaviour for a term of seven years (s 82(1)) and is eligible for reappointment for one or more terms of up to seven years each (s 81(3)).
[6] Mary Dawson was appointed as Canada’s first Ethics Commissioner effective July 9, 2007 for an initial seven year term. She was reappointed for an additional two year term effective July 9, 2014. She was then reappointed on an interim basis for three successive six‑month terms effective, respectively, from July 9, 2016, January 9, 2017 and July 9, 2017.
[7] Pursuant to the Conflict of Interest Act, upon written request by a Member of the Senate or the House of Commons who has reasonable grounds to believe that a public officer holder has contravened that Act, the Ethics Commissioner shall examine the matter described in the request (s 44(1)). The Ethics Commissioner may also examine a matter on his or her own volition (s 45(1)). In each case, the Commissioner shall provide any report detailing the facts as well as his or her analysis and conclusions (ss 44(7), 44(8), 45(3), 45(4)).
[8] In January 2016, the CBC reported that the then Ethics Commissioner, Mary Dawson, had commenced an examination under s 44(3) of the Conflict of Interest Act to determine if Prime Minister Trudeau had contravened ss 11 and 12 of that Act in connection with his family’s post-Christmas vacation stay and travel to the Aga Khan’s private island in the Bahamas. The Commissioner was also examining whether the Prime Minister may have contravened his obligations under ss 6 and 21 of that Act.
[9] On May 15, 2017, the CBC reported that the Prime Minister’s director of communications had issued a statement advising that, given the ongoing inquiry by the then Commissioner into the Prime Minister’s family Christmas vacation, effective immediately, the Prime Minister had recused himself from all matters related to the appointment of the new Ethics Commissioner. The Prime Minister designated the Leader of the Government in the House of Commons, Minister Bardish Chagger, to fulfill any relevant obligations in relation to that appointment process.
[10] In July 2017, Minister Chagger wrote to both Mr. Andrew Scheer, M.P., Leader of the Conservative Party of Canada/Leader of the Opposition, and Mr. Thomas Mulcair, P.C., M.P., Leader of the New Democratic Party, concerning the government’s ongoing process to select a new Ethics Commissioner. The letters noted that the Notice of Appointment Opportunity for the position was available on the provided Government of Canada website and stated Minister Chagger’s hope that Mr. Scheer and Mr. Mulcair would consider sharing this with Canadians who might be interested in the opportunity. Additionally, if Mr. Scheer and Mr. Mulcair believed that specific stakeholders should be consulted about the position, Minister Chagger asked that they be brought to the government’s attention.
[11] On November 10, 2017, CBC reported that then Ethics Commissioner Mary Dawson had confirmed that she was conducting an examination under s 44(1) of the Conflict of Interest Act concerning Finance Minister Bill Morneau’s sponsorship of Bill C-27, An Act to amend the Pension Benefits Standards Act, 1985, while holding shares in Morneau Shepell Inc., which entity administers private pension funds. It is not apparent from the record before me when the request for an examination was made or by which Member of Parliament. However, apparently related to it, on October 25, 2017, the Applicant wrote to Commissioner Dawson requesting that she recuse herself from any examination of Minister Morneau’s shareholdings on the basis that she had, in the course of her duties, advised him on the implementation of a conflict of interest screen for the administration of the shares, and because her term of office had been extended for six months by the current government, thereby giving rise to an apprehension of bias. The Applicant also sought an independent examination of whether Minister Morneau violated s 25(1) of the Conflict of Interest Act.
[12] On December 5, 2017, Minister Chagger wrote to both Mr. Scheer and Mr. Mulcair stating that, in accordance with the Parliament of Canada Act, she was writing with regard to the Act’s requirement for consultation on the appointment of an Ethics Commissioner. The letter noted that, as each of the recipients were aware, the Prime Minister and certain senior officials in his office had recused themselves from all matters related to the appointment and had deliberately not participated in any matters relating to the appointment. In that respect, Minister Chagger was writing in her capacity as the Minister delegated by the Prime Minster as responsible for the appointment. Minister Chagger proposed the nomination of Mario Dion, enclosed his biography, and described some of Mr. Dion’s professional background. The letter concluded by stating that, as the recipients knew, this was a critical role, and it was important that a permanent Ethics Commissioner be in place. Minister Chagger stated that she would appreciate the recipient’s thoughts on the proposed nomination by no later than December 11, 2017 at 12:00. At the top of that letter was the annotation “PROTECTED B- SENSITIVE PERSONAL INFORMATION SUBJECT TO RECUSAL BY THE PRIME MINISTER”.
[13] On December 11, 2017, the Certificate of Nomination for Mario Dion to the Position of Conflict of Interest and Ethics Commissioner was tabled in the House of Commons, and Minister Chagger publically announced the nomination.
[14] On the same date Mr. Guy Caron, Parliamentary Leader for the NDP, wrote to Minister Chagger in response to her December 5, 2017 letter. The letter asserted an apparent conflict of interest despite the Prime Minister’s recusal, sought a list of the short listed candidates and their qualifications as well as a list of the Members of the selection committee, and expressed concern with consultation process.
[15] On December 12, 2017, Mr. Dion appeared before the House of Commons Standing Committee on Access to Information, Privacy and Ethics (“ETHI Committee”) to present his qualifications for the Ethics Commissioner position and to respond to questions from the Committee, whose members represented the three recognized parties of the House of Commons.
[16] On December 13, 2017, the ETHI Committee tabled its report in the House of Commons. The ETHI Committee reported that it had considered the Certificate of Nomination of Mario Dion to the Position of Conflict of Interest and Ethics Commissioner, referred on December 11, 2017, and that it recommended that Mr. Dion be confirmed as such by the House of Commons. On that same day, the House of Commons passed a motion stating that, in accordance with s 81 of the Parliament of Canada Act, it approved the appointment of Mr. Dion as Ethics Commissioner for a term of seven years.
[17] By way of Order in Council P.C. 2017-1557 dated December 14, 2017, Mario Dion was appointed Ethics Commissioner. The Order in Council states that after consultation with the leader of every recognized party in the House of Commons, and by resolution of the House of Commons dated December 13, 2017, the House of Commons had approved the appointment of Mr. Dion as the Ethics Commissioner; therefore, the Committee of the Privy Council, on the recommendation of the Leader of the Government in the House of Commons, pursuant to ss 81(1) and 82(1) of the Parliament of Canada Act, made the appointment.
[18] Subsequently, by letter of December 21, 2017, Minister Chagger responded to Mr. Caron’s December 11, 2017 letter. Minister Chagger described the selection process followed and provided the names of the selection committee members, but she declined to provide the short listed candidates on privacy grounds.
Relevant Legislation
[19] Two acts make up the legislative framework relevant to this application, the Parliament of Canada Act and the Conflict of Interest Act. The most relevant aspects of this legislation are described below.
The Parliament of Canada Act
[20] Section 81(1) of the Parliament of Canada Act requires that the GIC, prior to appointing an Ethics Commissioner, consult with the leader of every recognized party in the House of Commons, and obtain approval of the appointment by resolution of the House of Commons:
81 (1) The Governor in Council shall, by commission under the Great Seal, appoint a Conflict of Interest and Ethics Commissioner after consultation with the leader of every recognized party in the House of Commons and approval of the appointment by resolution of that House.
[21] Section 81(2) speaks to the qualifications required for such an appointment:
(2) In order to be appointed under subsection (1), a person must be
(a) a former judge of a superior court in Canada or of any other court whose members are appointed under an Act of the legislature of a province;
(b) a former member of a federal or provincial board, commission or tribunal who, in the opinion of the Governor in Council, has demonstrated expertise in one or more of the following:
(i) conflicts of interest,
(ii) financial arrangements,
(iii) professional regulation and discipline, or
(iv) ethics; or
(c) a former Senate Ethics Officer or former Ethics Commissioner.
[22] The Ethics Commissioner is eligible to be reappointed for one or more terms of up to seven years (s 81(3)). As to tenure,
82 (1) The Commissioner holds office during good behaviour for a term of seven years but may be removed for cause by the Governor in Council on address of the House of Commons.
(2) In the event of the absence or incapacity of the Commissioner, or if that office is vacant, the Governor in Council may appoint any qualified person to hold that office in the interim for a term not exceeding six months, and that person shall, while holding office, be paid the salary or other remuneration and expenses that may be fixed by the Governor in Council.
[23] The Ethics Commissioner has the rank of a deputy head of a department in the Government of Canada and has the control and management of the office of the Commissioner (s 84).
[24] The Commissioner’s mandate is described in ss 85 to 87:
85 The mandate of the Commissioner is to
(a) carry out the functions of the Commissioner referred to in sections 86 and 87; and
(b) provide confidential policy advice and support to the Prime Minister in respect of conflict of interest and ethical issues in general.
86 (1) The Commissioner shall perform the duties and functions assigned by the House of Commons for governing the conduct of its members when they are carrying out the duties and functions of their office as members of that House.
(2) The duties and functions of the Commissioner under subsection (1) are carried out within the institution of the House of Commons. The Commissioner enjoys the privileges and immunities of the House of Commons and its members when carrying out those duties and functions.
(3) The Commissioner shall carry out those duties and functions under the general direction of any committee of the House of Commons that may be designated or established by that House for that purpose.
(4) For greater certainty, the general direction of the committee referred to in subsection (3) does not include the administration of the Conflict of Interest Act in respect of ministers of the Crown, ministers of state or parliamentary secretaries acting in their capacity as ministers of the Crown, ministers of state or parliamentary secretaries.
(5) For greater certainty, this section shall not be interpreted as limiting in any way the powers, privileges, rights and immunities of the House of Commons or its members.
87 The Commissioner shall, in relation to public office holders, perform the duties and functions assigned to the Commissioner under the Conflict of Interest Act.
[25] The Commissioner may delegate any of the powers, duties or functions of the Commissioner under the Parliament of Canada Act or the Conflict of Interest Act, except the power to delegate (s 89).
[26] The Commissioner must annually report to the Speaker of the House of Commons on the Commissioner’s s 86 activities, and the Speaker, in turn, must table the report in the House. Similarly, the Commissioner must report on his or her s 87 activities to the Speaker of the Senate and the Speaker of the House of Commons who must table the report in their respective Houses (s 90(1)).
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 28–30:
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 the alleged potential contravention 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 public office holder who is 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 (ss 45(2)–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 sections 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 is a code and a guideline that are relevant to this matter.
Conflict of Interest Code for Members of the House of Commons
[43] 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
[44] 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.
Issues
[45] 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.
[46] 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 House of Commons as required by s 81(1) the Parliament of Canada 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
[47] 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 component 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 rational of the legislative scheme (also see Globalive Wireless Management Corp. v Public Mobile Inc., 2011 FCA 194, at para 31).
[48] 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 81(1) of the Parliament of Canada Act, the statutory procedural requirements necessary to appoint an Officer of Parliament, which is concerned with the internal affairs of the legislature. On the same analysis, this attracts the standard of review of reasonableness.
[49] 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 81(1) of the Parliament of Canada Act.
[50] 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?
Issue 1: Does the Applicant have standing to bring the application?
[51] 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.
[52] 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”).
[53] 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.
[54] 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).
[55] 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.
[56] 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).
[57] 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).
[58] 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).
[59] 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).
[60] 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 to reinforce the principle of legality are matters of degree and must be considered in light of realistic alternatives in all of the circumstances (Downtown Eastside at para 50). The Supreme Court of Canada noted a list of illustrative, but not exhaustive, 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 of granting public interest standing on others who are equally or more directly affected (Downtown Eastside at para 51). In short, whether the proposed matter is, in all of the circumstances, a reasonable and effective means of bringing the matter before the court (Downtown Eastside at para 52).
[61] In this matter, the Applicant submits that it meets all three branches of the test for public interest standing. Specifically, that the Application raises serious justiciable issues concerning compliance by key public officials with statutes that govern ethical conduct by members of the executive (MFL at para 28). These issues are the failure to meaningfully consult with the leaders of each recognized party in the House of Commons on the selection of the Ethics Commissioner, violation of Conflict of Interest Act, and the failure of members of the GIC to recuse themselves from the decision-making process contrary to the requirements of the Conflict of Interest Act and the common law. These matters raise issues of public confidence in the integrity of government.
[62] Further, that the Applicant has a genuine interest in the proceeding given its mandate to advocate for democratic reform, citizen participation and ethical behaviour in government; by actively participating in public-policy making and legislative processes in matters relating to government accountability; its strong degree of involvement in the development and enforcement of the Parliamentary ethical obligations; and its active pursuit of government accountability before the courts.
[63] As to the third factor, the Applicant submits that it is likely the only interested party with the experience and ability to bring this challenge. There is no other directly affected party who could launch an application for judicial review, and that no other reasonable and effective means exists to bring this matter before the court.
[64] Conversely, the Respondent submits that the Applicant fails to meet the three-part test for public interest standing. I note here that the Respondent deals with justiciability both in the context of standing and as a stand-alone issue. It submits that this case raises issues that are neither justiciable nor serious. They are not justiciable because any concern relating to the process of appointment of Mr. Dion is for the domain of Parliament, not the courts. As for allegations of a conflict of interest by Ministers, it is for the Commissioner to address these in his role of administering and enforcing the Conflict of Interest Act. Here Parliament has reserved for itself the sole enforcement of matters in relation to the conflicts of interest of public office holders (Canada (Auditor General) v Canada (Minister of Energy, Mines and Resources), [1982] 2 SCR 49 (“Auditor General”). The issues raised are also not serious as they lack merit (RMFL at paras 19–20). Additionally, the Court should consider Parliament’s intention in s 66 of the Conflict of Interest Act, to limit court review of issues of statutory interpretation by the Commissioner. The Court should not undermine Parliament’s intent by liberally granting judicial review.
[65] Nor does the Applicant have a genuine interest because it has no real stake in the proceeding and it is not engaged with the issues that it raises. The Commissioner is entitled to commence an investigation, but no complaints with respect to the appointment of Mr. Dion were made by a Member of Parliament, nor did the Commissioner commence an investigation of his own accord. The conflict of interest regime is an alternative means of addressing the concerns raised by Applicant, which has never been invoked and cannot be ignored when deciding whether to grant standing. The Applicant is not entitled to rely on the Conflict of Interest Act to commence an independent review of a matter that is left to the exclusive jurisdiction of the Commissioner.
[66] Finally, the Respondent submits that this application is not a reasonable and effective means of bringing the issue before the Court because there are alternative parliamentary procedures for resolving the issues this Application raises. In essence, the Applicant seeks to have the Court dictate a different process for an appointment of an Officer of Parliament, an appointment for which Parliament has already created a process. There are accountability measures built into the Conflict of Interest Act and the Parliament of Canada Act that do not involve the Courts and must be considered when assessing standing.
Analysis
[67] As to the first factor of the test for public interest standing, I am satisfied that the issues raised by the Applicant are serious. They allege a failure to comply with the s 81(1) requirement under the Parliament of Canada Act to consult with the leaders of every recognized party in the House of Commons pr