Democracy Watch v. Canada (Attorney General)

Democracy Watch v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2021-06-15
Neutral citation
2021 FC 613
File numbers
T-915-20, T-916-20
Decision Content
Date: 20210615
Dockets: T-915-20
T-916-20
Citation: 2021 FC 613
Ottawa, Ontario, June 15, 2021
PRESENT: The Honourable Mr. Justice Brown
BETWEEN:
DEMOCRACY WATCH
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
I. Nature of the matters
[1] There are two issues before the Court. The first is a procedural request to allow Democracy Watch to continue two applications for judicial review it previously agreed to and, on consent, was ordered to discontinue. The Attorney General does not object, and the motion is granted. The second is the Attorney General’s motion to strike the applications as bereft of any chance of success. Democracy Watch opposes. The motion to strike is dismissed. Democracy Watch is granted public interest standing but not to re-litigate issues concerning bias and the appointment process of the current Lobbying Commissioner.
[2] An underlying issue is whether a Parliamentary Secretary (Honourable David Lametti) to a Minister (Honourable Chrystia Freeland) or his staff may be considered staff of the Minister with whom the Parliamentary Minister works.
II. Motion to continue
[3] The procedural motion is brought by Democracy Watch to continue two judicial review applications namely T-915-20 and T-916-20 [Applications]. The Applications involve the same two parties and the same subject matter although they concern two different but similarly situated individuals. At Democracy Watch’s request, and on consent of the Attorney General, both Applications were placed in abeyance by Order of Prothonotary Molgat in two separate but identical Orders dated September 18, 2020, pending the Supreme Court of Canada’s decision on leave to appeal of the Federal Court of Appeal’s decision in Attorney General of Canada v Democracy Watch, 2020 FCA 69 [DW 2020] [Rennie JA]. In DW 2020, the Federal Court of Appeal concluded a decision by the Commissioner of Lobbying [Lobbying Commissioner] not to investigate a complaint brought by a member of the public is not a decision or order subject to judicial review.
[4] Democracy Watch’s position before Prothonotary Molgat was that if leave was refused in DW 2020 it would discontinue the Applications. The Supreme Court of Canada refused leave to appeal on October 15, 2020.
[5] Notwithstanding its previous position, Democracy Watch (this time through counsel, which it did not have at the time of Prothonotary Molgat’s Order) now asks for leave to continue and to consolidate the two Applications. Mr. Duff Conacher, Democracy Watch’s principal, deposed he did not have legal advice and mistakenly thought that if the Supreme Court of Canada refused to grant leave in DW 2020, its legal issues in the Applications would be resolved. This evidence is not contested.
[6] Democracy Watch submits the Federal Court of Appeal’s decision in DW 2020 did not dispose of the legal issues in the Applications, which it says are distinct and based on different factual circumstances. It says the Applications should not be barred by a procedural irregularity. Further, it submits the Attorney General would not be prejudiced by continuance of the Applications.
[7] The Attorney General does not object to continuing and consolidating the two Applications, although it brings a cross motion to strike the Applications submitting they are bereft of any chance of success.
[8] Given the position of the parties, I granted the procedural relief at the beginning of the hearing, allowing the Applications to continue, consolidating them, and removing paragraph 2 from each of Prothonotary Molgat’s Orders. In doing so, I am persuaded this course of action would accomplish the ends of justice and efficiency on the merits per Rule 3 of the Federal Courts Rules, SOR/98-106 [Federal Courts Rules]. Therefore, these Reasons will speak to both T-915-20 and T-916-20, and a copy of these Reasons will be placed on both Court files.
III. Motion to strike
A. Facts
[9] On March 12, 2020, the Lobbying Commissioner tabled two reports [Reports] before Parliament regarding an investigation by her office into whether Mr. Benjamin Bergen and Ms. Dana O’Born, respectively, both registered in-house organization lobbyists employed by the Council of Canadian Innovators [CCI], contravened the Lobbyists’ Code of Conduct [Code].
[10] Democracy Watch filed the initial requests (which it called “petitions” although they are simply letters) asking the Lobbying Commissioner to investigate and rule on whether the actions of Mr. Bergen and Ms. O’Born violated Rules 6, 7, 8 or 9 of the Code.
[11] Rules 6, 7, 8, 9 of the Code state:
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).
[12] The Lobbying Commissioner conducted its assessment pursuant to Rules 6 and 9 of the Code. The Reports concluded neither Mr. Bergen nor Ms. O’Born contravened the Code.
[13] The Report for Mr. Bergen is the decision under review in Court file T-915-20. Mr. Bergen had previously volunteered for the Honourable Chrystia Freeland’s by-election campaign in 2013 and acted as co-campaign manager of her re-election campaign in 2015. He also was an executive of Ms. Freeland’s electoral district association. The Lobbying Commissioner conducted an investigation “on whether Mr. Bergen contravened Rule 6 (Conflict of Interest) or Rule 9 (Political Activities) of the [Code] by lobbying the Honourable Chrystia Freeland or members of her ministerial staff after undertaking political activities on behalf of Ms. Freeland”. The investigation found no evidence of lobbying Ms. Freeland, however, “while Ms. Freeland was Minister of International Trade, Mr. Bergen attended a meeting with the Honourable David Lametti, in his former capacity as Parliamentary Secretary to the Minister of International Trade, and with a member of his constituency (MP) staff. CCI reporting this communication in the Registry of Lobbyists.”
[14] Pursuant to Rule 9 the Lobbying Commissioner found neither Mr. Lametti in his capacity as Parliamentary Secretary, nor the member of Mr. Lametti’s constituency staff, were “staff” in Ms. Freeland’s office for the purposes of Rule 9. Therefore, Mr. Bergen did not contravene Rule 9.
[15] The Lobbying Commissioner also found no basis to conclude Mr. Bergen placed Ms. Freeland in a “real” or “apparent” conflict of interest contrary to Rule 6.
[16] The Report for Ms. O’Born is the decision under review in file T-916-20. Ms. O’Born previously acted as co-campaign manager for Ms. Freeland’s re-election campaign in 2015. She also was an executive of Ms. Freeland’s electoral district association. The Lobbying Commissioner conducted an investigation “on whether Ms. O’Born contravened Rule 6 (Conflict of Interest) or Rule 9 (Political Activities) of the [Code] by lobbying the Honourable Chrystia Freeland or members of her ministerial staff after undertaking political activities on behalf of Ms. Freeland”. The investigation found no evidence of lobbying Ms. Freeland, however, “while Ms. Freeland was Minister of International Trade, Ms. O’Born had two logistical telephone conversations to finalize arrangements in relation to CCI’s lobby day meeting with the Honourable David Lametti in his former capacity as Parliamentary Secretary to the Minister of International Trade. One of these logistical conversations was with Ms. Gillian Nycum, a member of Mr. Lametti’s constituency (MP) staff, on October 13, 2016. The other was with Ms. Megan Buttle, Special Assistant to Mr. Lametti, on October 17, 2016. Ms. O’Born also arranged and attended CCI’s lobby day for the clean technology industry on October 20, 2016, which was attended by Mr. Lametti and Ms. Buttle. CCI reported these communications in the Registry of Lobbyists.”
[17] Pursuant to Rule 9 the Lobbying Commissioner found neither Mr. Lametti nor Ms. Nycum qualify as “staff” in Ms. Freeland’s office for the purposes of Rule 9, and found Ms. Buttle was identified to Ms. O’Born as Special Assistant to Mr. Lametti in his capacity at Parliamentary Secretary. The Lobbying Commissioner found Ms. O’Born did not contravene Rule 9.
[18] The Lobbying Commissioner also found no basis to conclude Ms. O’Born placed Ms. Freeland in a “real” or “apparent” conflict of interest contrary to Rule 6 of the Code.
[19] In both Reports, the Lobbying Commissioner included the following identical comments under the heading “Observations”. These comments call upon Parliament to consider amending Rule 6, and to consider expanding Rule 9:
Although I determined that Rule 6 had not been contravened in the factual circumstances at issue in this investigation, I observed that the analysis required by Rule 6 raises concerns about the manner in which this provision is currently drafted.
My jurisdiction as Commissioner of Lobbying is confined to regulating the conduct of lobbyists. However, by prohibiting lobbyists from placing federal public office holders in real and apparent conflicts of interest, Rule 6 requires the Commissioner of Lobbying to make conclusions that implicate the conduct of public office holders who may be subject to separate ethical regimes, including those overseen by the Senate Ethics Officer and the Conflict of Interest and Ethics Commissioner. These concerns with Rule 6 should be addressed as part of any future amendments to the Code, which will require stakeholder consultations as contemplated by the Lobbying Act. In doing so, it will be necessary to consider amending the rules of conduct to focus exclusively on the specific behaviours of lobbyists without importing the regime governing the ethical conduct of public office holders by implied reference.
In determining that Rule 9 had not been contravened in the circumstances of this investigation, I found that parliamentary secretaries do not qualify as “staff” in a minister’s office for the purposes of Rule 9. However, parliamentary secretaries share the same political commitments as the minister they are appointed to assist.
For this reason, I am of the view that the scope of application of Rule 9 should be expanded to include individuals, such as parliamentary secretaries, who do not qualify as political staff in the office of an elected official, but who share the same political commitments as the elected official under whose purview they operate. This issue should also be addressed as part of any future stakeholder consultations aimed at revising the Code.
[20] On or about August 7, 2020, Democracy Watch issued separate Notices of Application requesting judicial review of the two Reports.
[21] In each Notice of Application, Democracy Watch submits the following summary of its position, which is later amplified in a statement of grounds for the Applications:
The application seeks an order quashing the Decision because:
1. A reasonable apprehension of bias exists on the part of the Lobbying Commissioner Nancy Bélanger in making the Decision given that she was appointed by Order in Council 2017-1564 dated December 14, 2017 of the Governor-in-Council (“Trudeau Cabinet”) on the recommendation of the Prime Minister after a process that was secretive and controlled by the Trudeau Cabinet, and that failed to consult with opposition party leaders as required under subsection 4.1(1) of the Lobbying Act, an appointment decision in which Minister Freeland participated;
2. a reasonable apprehension of bias also exists on the part of the Lobbying Commissioner due to public statements she has made concerning lobbyists and lobbying;
3. the Commissioner’s reasonable apprehension of bias gives rise to a legitimate expectation that the Lobbying Commissioner would recuse herself from making the Decision;
4. the Lobbying Commissioner erred in fact and in law in concluding that [Mr. Bergen/Ms. O’Born] did not lobby Minister Freeland, and erred in law in concluding that [Mr. Bergen/Ms. O’Born] did not violate Rules 6, 7, 8 and 9 of the Lobbyists’ Code, and the “Respect for democratic institutions” and “Integrity and honesty” Principles of the Code, by lobbying Minister Freeland, and;
5. the Lobbying Commissioner erred in law and the Decision was patently unreasonable given the rules in the Lobbyists’ Code that require the senior officer of any organization to ensure the company complies with the Code and given that the purpose of the Code 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” and given that the Lobbying Commissioner’s mandate is to ensure lobbyists “conform fully with the letter and the spirit of the Lobbyists’ Code as well as all relevant laws, including the Lobbying Act and its regulations”.
B. Issues
[22] The issues in these motions are:
a) Whether these Applications for judicial review should be struck as bereft of any chance of success?
b) In the alternative, whether these Applications should be struck on the basis that Democracy Watch does not have standing because it is not directly affected and does not meet the test for public interest standing? and
c) In the further alternative, should all or part of the Notices of Application be struck as an abuse of process of this Court?
C. Analysis
(1) Test on a motion to strike
[23] The Attorney General submits the Applications for judicial review have no chance of success, and therefore this Court should use its discretion and strike out the Applications. The Attorney General also argues the Applications should be struck because they constitute an abuse of process.
[24] The Attorney General submits, and I agree, the Court may strike Applications where they are “so clearly improper as to be bereft of any possibility of success” (David Bull Laboratories (Canada) Inc v Pharmacia Inc, [1995] 1 FC 588 (FCA) at page 600 [Strayer JA]). He submits there must be a “show stopper” or a “knockout punch” – an obvious, fatal flaw striking at the root of this Court’s power to entertain the Applications (Rahman v Public Service Labour Relations Board, 2013 FCA 117 at para 7 [Stratas JA]). It is also the case that the Court is not to assess whether the case, if allowed to continue, will cross the finish line, see Wenham v Canada (Attorney General), 2018 FCA 199 [Wenham] [Stratas JA]:
[29] The phrase “reasonable cause of action” is not an invitation to a court to assess the odds of a cause of action ultimately succeeding, and to let it go forward if there is only, say, a 3:1 chance against evidence coming forward that will clinch the claim. Wagering on whether the cause of action will cross the finish line is no part of the court’s task.
[25] In assessing a motion to strike, the Court must give a full and fair reading of the Notices of Application to assess the true essence of the Applications, accepting the facts pled as true. The Federal Court of Appeal in Wenham instructs the Court must determine whether the applications are doomed to fail:
[33] … In motions to strike applications for judicial review, this Court uses the same threshold. It uses the “plain and obvious” threshold commonly used in motions to strike actions, sometimes also called the “doomed to fail” standard. Taking the facts pleaded as true, the Court examines whether the application:
…is “so clearly improper as to be bereft of any possibility of success”: David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., 1994 CanLII 3529 (FCA), [1995] 1 F.C. 588 at page 600 (C.A.). There must be a “show stopper” or a “knockout punch” – an obvious, fatal flaw striking at the root of this Court’s power to entertain the application: Rahman v. Public Service Labour Relations Board, 2013 FCA 117 at paragraph 7; Donaldson v. Western Grain Storage By-Products, 2012 FCA 286 at paragraph 6; cf. Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959.
(Canada (National Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250, [2014] 2 F.C.R. 557 at para. 47.)
[34] To determine whether an application for judicial review discloses a cause of action, the Court must first read the notice of application to get at its “real essence” and “essential character” by “reading it holistically and practically without fastening onto matters of form”: JP Morgan at paras. 49-50.
[26] Rule 221 of the Federal Courts Rules provides where this Court may strike out pleadings:
Striking Out Pleadings
Radiation d’actes de procédure
Motion to strike
Requête en radiation
221 (1) On motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it
221 (1) À tout moment, la Cour peut, sur requête, ordonner la radiation de tout ou partie d’un acte de procédure, avec ou sans autorisation de le modifier, au motif, selon le cas :
(a) discloses no reasonable cause of action or defence, as the case may be,
a) qu’il ne révèle aucune cause d’action ou de défense valable;
(b) is immaterial or redundant,
b) qu’il n’est pas pertinent ou qu’il est redondant;
(c) is scandalous, frivolous or vexatious,
c) qu’il est scandaleux, frivole ou vexatoire;
(d) may prejudice or delay the fair trial of the action,
d) qu’il risque de nuire à l’instruction équitable de l’action ou de la retarder;
(e) constitutes a departure from a previous pleading, or
e) qu’il diverge d’un acte de procédure antérieur;
(f) is otherwise an abuse of the process of the Court,
f) qu’il constitue autrement un abus de procédure.
and may order the action be dismissed or judgment entered accordingly.
Elle peut aussi ordonner que l’action soit rejetée ou qu’un jugement soit enregistré en conséquence.
Evidence
Preuve
(2) No evidence shall be heard on a motion for an order under paragraph (1)(a).
(2) Aucune preuve n’est admissible dans le cadre d’une requête invoquant le motif visé à l’alinéa (1)(a).
[27] The Attorney General submits all issues raised by Democracy Watch have already been determined by various decisions of the Federal Court, the Federal Court of Appeal and the Supreme Court of Canada. The Attorney General notes Democracy Watch originally acknowledged proceedings before the Supreme Court of Canada would dispose of the matters raised in the present Applications and agreed to Orders placing these proceeding in abeyance pending results of the application for leave to appeal in DW 2020; I consider this argument spent given the procedural order I granted as outlined above. Although the Attorney General did not object to allowing the Applications to continue, it gave notice it would move to strike both applications once continued, as it has now done.
(2) Are the Reports reviewable decisions?
[28] The Attorney General submits there is an obvious fatal flaw with these Applications for judicial review, namely the Reports of the Lobbying Commissioner are not decisions or orders within the meaning of subsection 18.1(2) of the Federal Courts Act, RSC 1985, c F-7 [Federal Courts Act] and, therefore, not judicially reviewable by this Court:
Application for judicial review
Demande de contrôle judiciaire
Time limitation
Délai de présentation
18.1 (2) An application for judicial review in respect of a decision or an order of a federal board, commission or other tribunal shall be made within 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected by it, or within any further time that a judge of the Federal Court may fix or allow before or after the end of those 30 days.
18.1 (2) Les demandes de contrôle judiciaire sont à présenter dans les trente jours qui suivent la première communication, par l’office fédéral, de sa décision ou de son ordonnance au bureau du sous-procureur général du Canada ou à la partie concernée, ou dans le délai supplémentaire qu’un juge de la Cour fédérale peut, avant ou après l’expiration de ces trente jours, fixer ou accorder.
[29] In this connection, the Attorney General submits and I agree the Reports do not affect Democracy Watch’s rights or carry any legal consequences. No one suggests otherwise, although Democracy Watch has participated in numerous legal challenges relating to lobbying and conflict of interest in the Federal sphere.
[30] The Attorney General bases his submission in large part on the Federal Court of Appeal’s decisions in Democracy Watch v Conflict of Interest and Ethics Commissioner, 2009 FCA 15 [DW 2009] [Richard CJA] and in DW 2020 [Rennie JA].
[31] In DW 2009, Democracy Watch asked the Conflict of Interest and Ethics Commissioner [Ethics Commissioner] to investigate and rule on decisions, and participation in decisions, by former Prime Minister Stephen Harper and then Minister of Justice and Attorney General Robert Nicholson, and for a recusal ruling for all Cabinet ministers concerning certain matters involving the Mulroney-Schreiber situation. When the Ethics Commissioner declined to investigate the complaint (due to insufficient grounds to begin an examination), Democracy Watch sought judicial review. On appeal directly to it, the Federal Court of Appeal determined the decision not to investigate was not judicially reviewable because no order or decision had been rendered pursuant to section 66 of the Conflict of Interest Act, SC 2006, c 9, s 2 [Conflict of Interest Act], nor was the Ethics Commissioner’s refusal to investigate a decision within the meaning of section 18.1 of the Federal Courts Act:
[9] We are all of the view that the Commissioner’s letter is not judicially reviewable by this Court, since the Commissioner did not issue a decision or order within the meaning of section 66 of the Act or subsection 18.1(3) of the Federal Courts Act.
…
[14] Since we find that the Commissioner’s letter was not a reviewable decision or order under section 66 of the Act, this Court does not have the jurisdiction to grant the remedies requested by the applicant.
[32] In my view, DW 2009 is distinguishable. In that case, no decision or order was made, nor was an investigation undertaken. However, in the case at bar, not only were investigations undertaken, but two Reports were prepared and tabled with Parliament. In addition, as Democracy Watch submits in its memorandum:
13. In DW 2009, the judicial review application was of the commissioner’s letter to the Applicant, denying its request to start an investigation. In finding that this letter was not a reviewable decision, the court considered that members of the public do not have a statutory right to request investigations by the commissioner. Further, the commissioner’s letter was not legally binding or final, and was discretionary.[Footnote: Democracy Watch v Conflict of Interest and Ethics Commissioner, 2009 FCA 15, at paras 1-2, 11-12]. Indeed, the decision was rendered under subsection 45(1) of the Conflict of Interests Act, which contains permissive language: “may examine the matter on his or her own initiative.”12 14. By contrast, the decisions in the present Applications are different to the letter in DW 2009 because:
a. The Commissioner initiated investigations;
b. The investigations were not discretionary, as subsection 10.4(1) of the Lobbying Act provides that the Commissioner “shall conduct an investigation if he or she has reason to believe…that an investigation is necessary”; and
c. The Commissioner issued final decisions through the Investigation Reports, after completing the investigations.
[33] I note that in DW 2009 the Federal Court of Appeal referred to Democracy Watch v Canada (Attorney General), 2004 FC 969 [DW 2004] [Gibson J], a decision of this Court in which Democracy Watch asked the Ethics Counsellor to investigate four decisions. The Ethics Counsellor (a position since abolished by statute) had certain responsibilities under both subsection 5(1) of the Conflict of Interest and Post-Employment Code for Public Office Holders, and as a person designated by the Governor in Council pursuant to section 10.1, of the Lobbyists Registration Act, at a time when there was no statutory equivalent of a Conflict of Interest Act.
[34] In DW 2004, Justice Gibson granted judicial review, quashed all four decisions refusing to investigate, but declined to grant requested declaratory relief because the matters were moot:
[1] …In the petitions or complaints underlying three of the rulings or decisions under review, Democracy Watch requested a “full and detailed investigation”, essentially to determine whether ethics rules for lobbyists and public office holders were violated. In the fourth application, Democracy Watch requested a “clear”, public ruling under the Lobbyists’ Code of Conduct (the Lobbyists’ Code), once again dealing with an issue as to whether a violation of the Lobbyists’ Code had occurred….
…
[94] In summary, the four applications for judicial review that are before the Court will each be allowed by reason of my finding that, on the totality of the evidence before the Court, there existed grounds for a reasonable apprehension of bias, on the part of the Ethics Counsellor and his office, both specific against Democracy Watch and institutional or structural, and that such bias resulted in a breach of the principles of procedural fairness in arriving at the rulings or decisions under review.
[35] In essence, DW 2004 is a case where this Court actually conducted judicial review of a number of rulings under the Code. In DW 2009, the Federal Court of Appeal noted Justice Gibson’s decision in DW 2004 had been argued before it, but took no position on reviewability, stating:
[13] The applicant submits that a similar decision made by the Ethics Counsellor, the predecessor to the Ethics Commissioner, was deemed to be judicially reviewable by the Federal Court in Democracy Watch v. Canada (Attorney General), [2004] 4 F.C. 83, 2004 FC 969. While we take no position as to whether the Ethics Counsellor’s decision was properly reviewable by the Federal Court, it is nonetheless clear that this decision was made pursuant to a different regime than the one with which we are concerned. The Ethics Counsellor was not acting pursuant to the legislation with which we are presently concerned.
[36] The Attorney General also relies on DW 2020 to support its motion to strike. In that case, Democracy Watch asked the Lobbying Commissioner to investigate a complaint concerning the Aga Khan gifting a private trip to Prime Minister Justin Trudeau. The Lobbying Commissioner refused to investigate, leading Democracy Watch to seek judicial review in the Federal Court. Judicial review was granted in Democracy Watch v Attorney General, 2019 FC 388 [DW 2019] [Gleeson J]. However, the Federal Court of Appeal allowed an appeal and dismissed the application for judicial review because the lobbying regime does not establish a public complaints process nor does it affect the rights of Democracy Watch. It found the receipt of information from the public, does not, in and of itself, create rights for those who provide information where they are not directly affected by the outcome:
[28] It is apparent that the Lobbying Act does not create a right for a member of the public to have a complaint investigated. There is nothing in the language of the statute to suggest that the Commissioner must investigate the public’s complaints. Parliament has established no process, procedures, mechanisms or obligations for disposing of complaints from the public.
[29] To the contrary, an investigation is required where the Commissioner 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 Lobbyists’ Code or the Lobbying Act. The Lobbying Act does not specify that the Commissioner must take into account information received from the public. In fact, the Lobbying Act does not mention the public in the investigations section at all.
…
[38] In light of the language in these statutes, and in light of the fact that similar language is notably absent from the Lobbying Act and the Lobbyists’ Code, I conclude that the lobbying regime does not establish a public complaints process. The solicitation of information from the general public, does not, in and of itself, create rights for those who provide information where they are not directly affected by the outcome.
[37] The Attorney General submits there is no material difference between the Applications in this case and DW 2009 and DW 2020. With respect, I disagree. In my view, the present Applications involve publicly available decisions arising from an investigation both initiated and concluded – the facts are quite different from DW 2020 where neither was the case. I also agree that just because a decision not to investigate a complaint is not reviewable, does not mean investigative decisions themselves are not reviewable. These seem to be very different matters.
[38] I say “seem to be” keeping in mind that Wenham at para 29 instructs courts on a motion to strike not to decide the merits of the cause of action in terms of whether these Applications will cross the finish line, but to decide whether the Applications are bereft of any chance or possibility of success or are doomed to fail because of a knock out punch or an obvious, fatal flaw striking at the root of this Court’s power to entertain the Applications.
[39] The position of the Attorney General seems to be opposed to the general proposition that administrative decisions, generally, are amenable to judicial review as an aspect of the rule of law. See Girouard v Canada (Attorney General), 2018 FC 865 [Noël J]:
[161] Also, in the Secession Reference, the Supreme Court reiterated that the rule of law and constitutionalism are among the underlying principles animating the Constitution and that they therefore transcend all of our institutions:
72. The constitutionalism principle bears considerable similarity to the rule of law, although they are not identical. The essence of constitutionalism in Canada is embodied in s. 52(1) of the Constitution Act, 1982, which provides that “[t]he Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” Simply put, the constitutionalism principle requires that all government action comply with the Constitution. The rule of law principle requires that all government action must comply with the law, including the Constitution. This Court has noted on several occasions that with the adoption of the Charter, the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy. The Constitution binds all governments, both federal and provincial, including the executive branch (Operation Dismantle Inc. v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441, at p. 455). They may not transgress its provisions: indeed, their sole claim to exercise lawful authority rests in the powers allocated to them under the Constitution, and can come from no other source.
[162] For the Minister and the Cabinet to be able to fulfill their constitutional role of deciding whether to submit the issue of the removal of a judge to Parliament under section 99 of the CA 1867, their authority to do so must be grounded in a process that is consistent with the Constitution. As mentioned above, natural justice and procedural fairness, principles stemming from the rule of law, ensure that judicial independence is maintained in the course of an inquiry. If there is a violation of procedural fairness, as alleged by Justice Girouard in his application for judicial review in this case and also according to the dissenting views of three chief justices, the Minister cannot act on the basis of a potentially flawed report without running the risk of acting in an unconstitutional manner. Judicial review of a recommendation by the CJC provides the Minister, and ultimately the two Houses of Parliament, that the process is consistent with the underlying constitutional principles. If the CJC were not subject to the superintending power of this Court, the Minister and Parliament would be forced to evaluate these legal issues, thereby overlapping with the judicial sector and threatening the separation of powers. It was precisely this situation that Parliament wished to avoid in establishing the CJC as it did.
[163] To conclude, I cannot accept the CJC’s argument to the effect that an alleged appeal de novo obviates the need for judicial review. Neither the JA nor the By-laws include any of the characteristics of an appeal de novo, and, furthermore, such a proposal would undermine the rule of law, “a fundamental postulate of our constitutional structure” (Roncarelli v Duplessis, 1959 CanLII 50 (SCC), [1959] SCR 121 at p 142; Secession Reference at paras 70-78).
[Emphasis added]
[40] Democracy Watch also notes it is the party that made the request which resulted in the investigations and two Reports in this case. In my view, it makes no difference to the right to apply for judicial review who made the initiating request for an investigation leading to a Report. While Democracy Watch may submit it has provided a useful, service by having made the requests resulting in the Reports to Parliament, that does not create a right to judicially review the Reports.
[41] Democracy Watch submits its Applications are not doomed to fail based and points to Makhija v Canada (Attorney General), 2008 FCA 402 [Pelletier JA] [Makhija]. With respect, I disagree. There, the Federal Court of Appeal held a final decision of the Registrar of Lobbyists (i.e. the Lobbying Commissioner’s previous title) after investigating a lobbyist’s alleged Code violation was a justiciable matter for judicial review. In fact, it set aside the challenged decision. However, this does not assist Democracy Watch because, as is made clear in both DW 2009 and DW 2020, a member of the public may seek judicial review of decisions by the Lobbying Commissioner that affects their rights or obligations, or causes prejudicial effects or legal consequences to them. In Makhija it was the lobbyist himself that challenged the decision. Democracy Watch is not in this position at all.
[42] That said, I also note the Federal Court of Appeal’s decision in Democracy Watch v Canada (Attorney General), 2018 FCA 194 [DW 2018 1] [per de Montigny JA] in which the Federal Court of Appeal found a decision of the Ethics Commissioner’s decision was justiciable:
[17] Counsel for the respondents submits that the applicant fails on the first and third branches of the public interest standing test. The application allegedly does not raise a justiciable issue, insofar as it concerns Parliament’s own means of holding the government to account. Relying on Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), 1989 CanLII 73 (SCC), [1989] 2 S.C.R. 49 and Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667, the respondents argue that the Court should not overstep the bounds of its constitutional role when deciding whether to grant public interest standing. Moreover, the respondents claim that the present application is not a reasonable and effective way to raise the issue, as it relates to a non-adversarial process between the Commissioner and public office holders to reach agreement on compliance measures, thereby not resulting in a “decision” or “order”. Equally relevant is the fact that section 44 of the Act provides another review mechanism, allowing parliamentarians who have reasonable grounds to believe a public office holder has contravened the Act to request that the Commissioner examine the matter.
[18] There is no doubt in my mind that the issues raised by the applicant are serious. Specifically, the question raised in regard to the reasonableness of the Commissioner’s interpretation of section 29 of the Act constitutes an important question that is far from frivolous. The same is true of the question of whether or not the establishment of a conflict screen circumvents the requirement, pursuant to section 25, to report each recusal arising due to a conflict of interest. These issues are also clearly justiciable, for the purpose of assessing public interest standing, as they concern the correct interpretation to be given to provisions of the Act. The Court is not called upon to play the role of an arbiter between various branches of government, but to ensure that a parliamentary servant does not stray beyond its proper legislative mandate. This is clearly and eminently a judicial function.
[Emphasis added]
[43] It seems to me these comments also speak to the justiciability of the decision in the case at bar: there is the question of who is and who is not staff of the Minister, a question concerning the correct interpretation of provisions of the Lobbying Act, RSC 1985, c 44 (4th Supp) [Lobbying Act]. Again, it seems more likely that the Court is not called upon to play the role of an arbiter between various branches of government, but to ensure that a parliamentary servant does not unreasonably constrain her legislative mandate. As Justice de Montigny said, so too here: “[t]his is clearly and eminently a judicial function.” The Lobbying Commissioner herself has called for review; that review would likely be aided by judicial input.
[44] I also note the judgment in Democracy Watch v Canada (Attorney General), 2018 FCA 195 [per Laskin JA] [DW 2018 2] where the Federal Court of Appeal declined to deal with the issue of standing not because the issue was not justiciable, but because the matter was moot. In that case, Democracy Watch sought to judicially review a decision of the Ethics Commissioner and submitted, contrary to the Ethics Commissioner’s position, that shares of Morneau Shepell held through two private companies constituted “controlled assets” of then Minister of Finance William Morneau. Democracy Watch argued the Ethics Commissioners failure to require Minister Morneau to divest the shares was a refusal to exercise her jurisdiction:
[6] Democracy Watch, a not-for-profit organization that advocates on matters relating to government accountability, commenced this application for judicial review on November 16, 2017. It named only the Attorney General, and not Minister Morneau, as a respondent. It argues that the Commissioner’s letter constitutes a “decision or order” subject to judicial review, that contrary to the Commissioner’s position, the shares of Morneau Shepell held through the two private companies constituted “controlled assets” of Minister Morneau, and that the Commissioner’s failure to require Minister Morneau to divest these shares was a r