Democracy Watch v. Canada (Attorney General)

Democracy Watch v. Canada (Attorney General)
Court (s) Database
Federal Court of Appeal Decisions
Date
2024-10-02
Neutral citation
2024 FCA 158
File numbers
A-169-21
Decision Content
Date: 20241002
Docket: A-169-21
Citation: 2024 FCA 158
CORAM:
DE MONTIGNY C.J.
BOIVIN J.A.
LEBLANC J.A.
BETWEEN:
DEMOCRACY WATCH
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
and
CANADIAN TELECOMMUNICATIONS ASSOCIATION
Intervener
Heard at Ottawa, Ontario, on March 25, 2024.
Judgment delivered at Ottawa, Ontario, on October 2, 2024.
REASONS FOR JUDGMENT BY:
DE MONTIGNY C.J.
CONCURRING REASONS BY:
BOIVIN J.A.
LEBLANC J.A.
Date: 20241002
Docket: A-169-21
Citation: 2024 FCA 158
CORAM:
DE MONTIGNY C.J.
BOIVIN J.A.
LEBLANC J.A.
BETWEEN:
DEMOCRACY WATCH
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
and
CANADIAN TELECOMMUNICATIONS ASSOCIATION
Intervener
REASONS FOR JUDGMENT
DE MONTIGNY C.J.
[1] Democracy Watch (the “applicant”) applied for judicial review of a report by the Conflict of Interest Ethics Commissioner (the “Commissioner”). The report concluded that Prime Minister Justin Trudeau (the “Prime Minister”) did not contravene the Conflict of Interest Act, S.C. 2006, c. 9, s. 2 (the “COIA”) when he participated in two decisions involving WE Charity. Before addressing the merits of this application, this Court bifurcated the proceeding into two stages (Democracy Watch v. Attorney General of Canada, 2023 FCA 39 (Democracy Watch 2023)). This is stage 1 of the application, where the main issue is whether the applicant can bring the application for judicial review despite the partial privative clause in COIA section 66.
[2] This case is somewhat special because it highlights an ongoing debate in the Court’s jurisprudence (Democracy Watch 2023 at para. 5). The majority decision in Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161 (Best Buy) holds that partial restrictions on judicial review for certain types of errors are contrary to the rule of law. In contrast, Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, rev’d in part 2023 SCC 17 (Canadian Council for Refugees) holds partial restrictions on judicial review can be valid and do not necessarily offend the rule of law. The Supreme Court’s decisions in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (Vavilov) and, more recently, Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8 (Yatar), do not definitively address the issue.
[3] For the reasons that follow, I am of the view that the Attorney General’s motion to strike the application for judicial review should be granted. In my view, the majority reasons in Best Buy do not govern the decision in this case, because the available alternative political remedies combined with section 66 of the COIA effectively bar the intervention of this Court. That being said, I will nevertheless address the role and impact of privative clauses and the underlying debate that has been going on in this Court, since the parties have focussed much of their arguments on that question.
I. Facts [4] On May 14, 2021, the Commissioner concluded that the Prime Minister was not in a conflict of interest when participating in two decisions involving WE Charity (“The Trudeau III Report”). The Commissioner released his report following an investigation that he had instigated under COIA section 44 following two requests from Members of Parliament on June 28, 2020 and July 3, 2020. The allegations were that the Prime Minister had contravened subsection 6(1) and sections 7 and 21 of the COIA. These provisions prohibit public office holders from making decisions that lead to a conflict of interest (s. 6) and from giving preferential treatment (s. 7), and require a public office holder to recuse themselves from any discussion where they have a conflict of interest (s. 21).
[5] On June 11, 2021, the applicant applied for judicial review of the Commissioner’s decision, alleging two errors of law regarding the Commissioner’s interpretation of subsection 6(1) and an error of fact regarding the Prime Minister’s relationship with one of the founders of WE Charity.
[6] The Attorney General (the “respondent”) moved to strike the application, arguing that the applicant lacked standing and that the application was based on grounds barred from judicial review by section 66 of COIA, which prevents an applicant from bringing an application for judicial review on questions of law and fact. Under COIA section 66, the Commissioner’s decisions can only be reviewed on the grounds listed in paragraphs 18.1(4)(a), (b), or (e) of the Federal Courts Act, R.S.C. 1985, c. F-7 (the “FCA”). Those grounds are, respectively, limited to issues of jurisdiction, procedural fairness, or acting or failing to act “by reason of fraud of perjured evidence.”
[7] On December 5, 2022, this Court ruled that the applicant has public interest standing, but left the issue of whether the application was barred by section 66 of the COIA to the panel hearing the application (Democracy Watch v. Canada (Attorney General), 2022 FCA 208).
[8] The applicant then moved for disclosure of documents from the Commissioner. It is at that point that the Court ordered that the application proceed in two stages, on the basis that the disclosure request placed the Commissioner in an untenable position. Such was the case because it involved asking the Commissioner to disclose confidential documents in support of a ground that might ultimately be barred under section 66. If that section were to be interpreted as barring some or all of the grounds raised in the application, confidential material that should not have been disclosed would nevertheless have been disclosed. To solve that conundrum, the Court decided it would hear and determine the legal issue of whether section 66 bars the application (stage 1). If the Court decides that it does not, it would then hear and determine the merits of the application (stage 2).
[9] By order of this Court dated May 4, 2023, the Canadian Telecommunications Association (the “CTA” or “intervener”), a trade organization that represents a number of companies across the telecommunications sector, was granted leave to intervene in stage 1 to make submissions on the prerequisite issue of the Court’s subject-matter jurisdiction.
II. Issue [10] The discrete issue to be decided in this application for judicial review can be stated as follows:
Under the COIA, does the partial privative clause limiting judicial review only on questions of jurisdiction, procedural fairness, and fraud or perjured evidence prevent the judicial review of questions of law or questions of fact arising from the Commissioner’s findings in the “Trudeau III Report”?
III. The legislative scheme [11] The Commissioner is an independent Officer of Parliament appointed under subsection 81(1) of the Parliament of Canada Act, R.S.C. 1985, c. P-1 (the “PCA”) to administer the COIA. The Office of the Conflict of Interest and Ethics Commissioner was established under the Federal Accountability Act, S.C. 2006, c. 9 (the “FAA”), which amended the PCA and established the COIA. The FAA received Royal Assent in December 2006 and came into force in July 2007.
[12] The COIA was implemented after several attempts to introduce conflict of interest and ethics legislation and codes in Parliament. The first recommendation for legislation regarding conflict of interest and ethics dates to a 1973 Green Paper tabled in the House of Commons on Members of Parliament and Conflict of Interest. Following the Green Paper, in 1974, Prime Minister Pierre E. Trudeau issued guidelines for Cabinet Ministers instead of legislation, and established the Office of Assistant Deputy Registrar within the Department of Consumer and Corporate Affairs, the first iteration of the Commissioner. The Office’s role was to manage the new ethics guidelines for Cabinet Ministers and process Cabinet Ministers’ disclosures of assets. Subsequent attempts to introduce legislation in 1978, 1983, 1988, 1989, 1991 and 1992 were unsuccessful and died on the order paper. In 1994, the Prime Minister appointed an Ethics Counsellor to replace the Assistant Deputy Registrar General (“Speech from the Throne”, House of Commons Debates, 35-1, vol. 133, No. 2 (18 January 1994) at 009 (Hon. Gilbert Parent)) and administer an updated Code of Conduct. The Counsellor’s role moved from a department to reporting directly to the Prime Minister. Additionally, unlike the current Commissioner, the Ethics Counsellor’s role was primarily advisory, not investigatory.
[13] In 2004, the Office of the Ethics Commissioner replaced the Ethics Counsellor through an amendment to the PCA, providing additional legislative accountability mechanisms. A Commissioner was chosen to implement the COIA for simplicity and to minimize the risk of partisanship (House of Commons, Standing Committee on Procedure and House Affairs, Code of Conduct, 37-2, No. 40 (13 June 2003) at para. 20 (Code of Conduct Report)). Additionally, it was believed that the person “who works with Members on a daily basis and provides confidential opinions on the interpretation of the Code should be the person to interpret that Code if a complaint is made” (Code of Conduct Report at para. 26). At the time, the Report acknowledged that the Commissioner would “not make final decisions; he or she makes recommendations to the House, which is the final arbiter.” (Code of Conduct Report at para. 27). The intention was to keep the final decision with the House of Commons and ensure the House of Commons could “refuse to implement the recommendation” (Code of Conduct Report at para. 27). With the introduction of the FAA, the current Commissioner became responsible for administering ethics and conflict of interest issues at the federal level, with a statute defining powers and obligations. Now the Commissioner is appointed after consultation with the leader of every recognized party in the House of Commons and approval by resolution of that House (PCA, s. 81). The Commissioner administers the COIA for “public office holders”, which means ministers, ministers of State, parliamentary secretaries, ministerial staff, ministerial advisors, and certain Government in Council appointees (COIA, s. 2(1)), and a conflict of interest code for Members of Parliament (PCA, ss. 85–87).
[14] Among the substantive prohibitions in the COIA, subsection 6(1) mandates that public office holders shall not engage in decision-making when they would be in a conflict of interest. Similarly, section 7 prohibits public office holders from giving preferential treatment to a person or organization. Equally of interest for the purposes of the underlying application for judicial review is section 21 of the COIA, which requires public office holders to recuse themselves from a matter in which they would be in a conflict of interest.
[15] The Commissioner encourages compliance with the COIA through various means, which include: (i) providing confidential advice to public office holders and the Prime Minister on how to comply with their obligations under the COIA; (ii) trying to reach agreement with public office holders on compliance measures, or otherwise ordering compliance measures; and (iii) overseeing the measures they take to meet their obligations (COIA at ss. 28–29, 32, 43). The Commissioner also receives confidential reports from all reporting public office holders within 60 days of their appointment, which address matters such as assets, liabilities, employment activities, businesses, and charitable activities (COIA, ss. 22(1), 22(2)). To encourage public office holders to comply with their reporting obligations in a timely way, the Commissioner is also empowered to issue limited administrative monetary penalties not exceeding $500 (COIA, s. 52). If such penalties are imposed, the Commissioner must make public the identity of the public officer holder, the violation, and the amount of the penalty (COIA, s. 62).
[16] The Commissioner may also examine alleged contraventions of the COIA, either on the request of a member of the House of Commons or the Senate, or on the Commissioner’s own initiative. The Commissioner may decline to examine requests that are frivolous, vexatious, or made in bad faith and may also discontinue examinations (COIA, ss. 44–45). If it is determined that a public office holder contravened the COIA, the Commissioner provides the Prime Minister with a report, setting out the facts and his analysis and conclusions. That report is simultaneously provided to the public office holder who is the subject of the report, any member who requested the examination, and to the public (COIA, ss. 44–45). The Commissioner is not empowered to enforce recommendations or to impose legal consequences or sanctions in connection with a report; ultimately, the decision on how to act upon the Commissioner’s findings is left to the Prime Minister.
[17] The COIA includes a partial statutory restriction on judicial review. This provision reads as follows:
Orders and decisions final
Ordonnances et décisions définitives
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.
66 Les ordonnances et décisions du commissaire sont définitives et ne peuvent être attaquées que conformément à la Loi sur les Cours fédérales pour les motifs énoncés aux alinéas 18.1(4)a), b) ou e) de cette loi.
[18] This provision is sometimes described as a partial privative clause. A full privative clause would simply provide that every decision is final and shall not be questioned or reviewed in any court. However, pursuant to section 66 (read in conjunction with subsection 18.1(4)), only questions of law or fact are not reviewable:
Grounds of review
Motifs
18.1(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
18.1(4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l’office fédéral, selon le cas :
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
a) a agi sans compétence, outrepassé celle-ci ou refusé de l’exercer;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
b) n’a pas observé un principe de justice naturelle ou d’équité procédurale ou toute autre procédure qu’il était légalement tenu de respecter;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
c) a rendu une décision ou une ordonnance entachée d’une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
e) a agi ou omis d’agir en raison d’une fraude ou de faux témoignages;
(f) acted in any other way that was contrary to law.
f) a agi de toute autre façon contraire à la loi.
IV. The parties’ positions A. The applicant [19] The applicant argues that the partial privative clause in COIA section 66 offends the rule of law, and makes three main arguments to support this position. First, the rule of law guarantees judicial oversight of administrative decision makers. Relying on Professor Paul Daly’s analysis that Vavilov constitutionally entrenches reasonableness review, the applicant argues the legislative branch cannot constitutionally shield the executive from oversight by limiting judicial review. For the applicant, “if a full privative clause cannot oust the courts’ authority to judicially review administrative decisions, there is no principled basis for a partial privative clause to do so.” (Applicant’s memorandum of fact and law at para. 18). Further, the applicant argues that since a statutory appeal mechanism can only limit judicial review on questions covered by the appeal mechanism (and not others) then a provision limiting judicial review without a statutory appeal mechanism cannot stand.
[20] Second, the applicant argues the jurisprudence (both before and after Vavilov) already affirms that partial privative clauses do not prevent judicial review on questions prohibited by the clause. Here, the applicant relies on the pre-Vavilov case Canada (Attorney General) v. Public Service Alliance of Canada, 2019 FCA 41 (PSAC), where Justice Gleason rejected the argument that the privative clause prevented judicial review of errors of fact and law because there are numerous examples of the Court’s review not adhering to the privative clause. PSAC and Public Service Alliance of Canada v. Canadian Federal Pilots Association, 2009 FCA 223 held that there is some overlap in the grounds set out in subsection 18.1(4) of the FCA. They also held that “jurisdiction” in paragraph 18.1(4)(a) includes unreasonable errors of law or fact, as such findings also went to the question of whether the decision-maker exceeded its jurisdiction. Further, since Vavilov, the majority decision in Best Buy confirms that judicial review is still available, even in the presence of a limited statutory right of appeal. Since the Best Buy majority confirms that the rule of law guarantees judicial review for any type of issue in an administrative decision, it means that all aspects of the decision are subject to judicial review. The applicant also argues that section 18.5 of the FCA constitutionally entrenches a right to judicial review on any issue. The applicant reads Best Buy as holding that “judicial review is available for any ground for which there is no statutory right of appeal” (Applicant’s memorandum of fact and law at para. 35).
[21] Third, the applicant argues that the COIA is quasi-constitutional because it furthers the unwritten constitutional principles of democracy, constitutionalism, and the rule of law. Since there are no internal appeal mechanisms or alternative recourse other than judicial review, Parliament cannot shield the Commissioner from judicial oversight.
B. The respondent [22] The respondent argues that section 66 prevents the applicant from judicially reviewing the Commissioner’s report on questions of law and fact. The respondent’s submissions focus on two main points. First, the privative clause is valid because the rule of law only requires some degree of judicial review. Relying on a number of Supreme Court decisions, the respondent submits that limits on judicial review can be justified by constitutional or legal policy considerations, such as when Parliament has reserved for itself the enforcement role. That being said, the respondent recognizes that the Supreme Court’s decision in Crevier v. Attorney General of Québec, [1981] 2 S.C.R. 220, 127 D.L.R. (3d) 1 (Crevier) held a privative clause cannot completely bar judicial review on questions of jurisdiction. Since section 66 still permits judicial review or questions of jurisdiction, then the limitation on judicial review complies with the Constitution Act, 1867.
[23] Contrary to the applicant’s submission, the respondent argues that Best Buy has limited applicability to the present case because it addresses judicial review in the presence of a statutory appeal mechanism, whereas the COIA does not contain a statutory appeal mechanism. Best Buy did not definitively hold that a partial privative clause could never be effective because it was concerned with concurrent appeals and judicial reviews. Further, the respondent argues that PSAC does not apply because there are parliamentary accountability mechanisms in the COIA that are not available in the statute at issue in PSAC.
[24] The second focus of the respondent’s argument is the very distinct role played by the Commissioner. In the respondent’s view, the exclusion of paragraphs 18.1(4)(c) and (d) of the FCA in section 66 was deliberate, and reflects the unique role of this decision-maker and the dual supervisory roles of the judiciary and Parliament in a highly political context. The powers of the Commissioner, an officer of Parliament who is accountable to Parliament, are limited to overseeing public and parliamentary accountability, with no mechanisms to enforce the findings from investigation reports. Instead, the Commissioner provides his reports to the Prime Minister, who then decides how to give effect to the recommendations, and for the House to hold the government to account. In this highly political environment, Parliament’s intention was to limit courts’ involvement in these matters to prevent interference with political conduct or matters concerning an officer of Parliament that are most appropriately dealt with by Parliament.
C. The intervener [25] The intervener is a trade organization representing telecommunication companies and equipment manufacturers across Canada. CTA’s submissions focus on the availability of judicial review in the presence of a statutory appeal mechanism. Particularly, CTA makes three main submissions that generally support the applicant’s position.
[26] First, CTA endorses the majority position in Best Buy because it supports pre-Vavilov cases that allowed judicial review on questions of fact or law in the face of a privative clause. This finding is supported by sections 18.1 and 28 of the FCA, which create a freestanding right of judicial review, regardless of any privative clauses in the decision-maker’s home statute. Judicial review is a core constitutional function of the courts created under sections 96 to 101 of the Constitution Act, 1867, and privative clauses that purport to oust any and all review are for that reason unconstitutional. The Court would abdicate its constitutional duty if it were to give effect to a statutory partial restriction that prohibits judicial review of one or more issues without providing adequate alternative remedies.
[27] CTA’s second and third arguments raise new issues that need not be decided by the Court in the context of the current proceeding. It claims that section 18.5 of the FCA does not bar judicial review in all circumstances, but only where Parliament has expressly provided for true appeals in a statute. It also submits that, when read in context, subsection 31(1) of the Broadcasting Act, S.C. 1991, c. 11 and subsection 52(1) of the Telecommunications Act, S.C. 1993, c. 38 cannot be interpreted as shielding from review factually-suffused issues in Canadian Radio-television and Telecommunications Commission’s decisions. These issues are not germane to the question to be decided in stage 1 of this application, first because the COIA does not provide for a statutory right of appeal, and second because there is no similarity between section 66 of the COIA and the provisions in the Broadcasting Act and in the Telecommunications Act the CTA relies on. Interveners cannot raise new issues that have not been put forward by the parties: Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 174 at paras. 54-55, 58.
V. Analysis A. Does section 66 of the Conflict of Interest Act bar this application for judicial review? [28] Privative clauses have had a chequered history in Canadian jurisprudence. Ever since the rise of the administrative state, courts and legislatures have tried to find equilibrium in their relationships. The reconciliation between the cardinal values of legislative supremacy and the rule of law has led to some confusion, and at times even to some tension. Nowhere has this tension been better expressed than in Dunsmuir v. New Brunswick, 2008 SCC 9, where Justices Bastarache and Lebel starkly contrasted the rule of law and the democratic principle, and strove to reconcile the two by inviting courts to be sensitive “not only to the need to uphold the rule of law, but also to the necessity of avoiding undue interference with the discharge of administrative functions” (at para. 27).
[29] As a constitutional matter, Parliament and the legislatures undoubtedly have the power to delegate power to subordinate decision-makers, within the confines of the distribution of powers set out in sections 91 to 95 of the Constitution Act, 1867¸ and to the extent that the legislature does not abdicate its legislative role: see Hodge v. The Queen, [1883] 9 A.C. 117; In re George Edwin Gray (1918), 57 S.C.R. 150, 42 D.L.R. 1; Reference as to the Validity of the Regulations in relation to chemicals, [1943] S.C.R. 1, [1943] 1 D.L.R. 248; References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11. One of the constitutional constraints Parliament and the provincial legislatures must adhere to when delegating power to decision-makers is the Judicature section of the Constitution Act, 1867, and in particular sections 96 to 101 of that constitutional document. These provisions, which seemingly relate to the appointment of superior court judges, their tenure and salary, have been interpreted as a safeguard of the core jurisdiction of these courts. This much was made clear by Chief Justice Laskin in Crevier, where he stated (at 237):
…given that s. 96 is in the [Constitution Act, 1867] and that it would make a mockery of it to treat it in non-functional formal terms as a mere appointing power, I can think of nothing that is more the hallmark of a superior court than the vesting of power in a provincial statutory tribunal to determine the limits of its jurisdiction without appeal or other review.
[30] Justices Bastarache and LeBel picked up on this interpretation of a “safeguard” in Dunsmuir. Before quoting from Crevier, they wrote (at para. 31):
… The inherent power of superior courts to review administrative action and ensure that it does not exceed its jurisdiction stems from the judicature provisions in ss. 96 to 101 of the Constitution Act, 1867: Crevier. As noted by Beetz in U.E.S. Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, at p. 1090, “[t]he role of the superior courts in maintaining the rule of law is so important that it is given constitutional protection”. In short, judicial review is constitutionally guaranteed in Canada, particularly with regard to the definition and enforcement of jurisdictional limits. …
[31] On this interpretation, what is constitutionally protected is not only the inherent jurisdiction of the superior courts, but maybe more importantly, the notion that these courts are the guardians of the rule of law. At its most basic, the rule of law ensures individuals are regulated by law and not the whim of government officials (Toronto (City) v. Ontario (Attorney General), 2021 SCC 34 at para. 55; British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49 at paras. 58-59; Reference re Code of Civil Procedure (Que), art 35, 2021 SCC 27 at paras. 50-51). And, in a constitutional democracy like ours, it means both that Parliament and the legislatures are constrained by the distribution of powers found in sections 91 to 95 of the Constitution Act, 1867, and that the executive branch must also act within the confines of their delegated authority. Indeed, it would make no sense for Parliament to delegate circumscribed decision-making powers to administrative and executive bodies if these same bodies could override the limits on their powers and act outside the range of their delegated authority. To that extent, judicial review by courts of superior jurisdiction becomes the essential companion to parliamentary sovereignty
[32] Two points need to be made before going any further. First, sections 96 to 101 bind Parliament as much as the legislatures. In other words, Parliament is no more able to transfer a Superior Court jurisdiction to a provincial court than a provincial legislature would be: McEvoy v. Attorney General for New Brunswick et al., [1983] 1 S.C.R. 704, 148 D.L.R. (3d) 25. Second, it is beyond dispute that Parliament cannot completely oust judicial review in the Federal Courts. Despite the fact that these courts have been created by statute pursuant to section 101 of the Constitution Act, 1867 and are not endowed with inherent jurisdiction like the section 96 courts, it is clear that Parliament’s intention was to grant them (and codify) the judicial review function over federal decision-makers as courts of superior jurisdiction. An interpretation that would nullify that power and bring the clock back to the situation pre-1971, when judicial review of federal boards and tribunals was within the purview of provincial superior courts, would run against Parliament’s intention (Quebec North Shore Paper v. C.P. Ltd. (1976), [1977] 2 S.C.R. 1054, 71 D.L.R. (3d) 111 at 1065-66).
[33] With the rise of the administrative state and the proliferation of administrative and quasi-judicial bodies, however, Parliament and the legislatures have sought in different ways to limit the availability of judicial review for all sorts of reasons (for example expediency, judicial economy, finality of the administrative process). Since very early on, courts have been called upon to define more precisely what it is exactly that is constitutionally protected in terms of judicial review. Or, to look at it from the opposite angle, how far can legislatures oust judicial review of the decisions made by decision-makers of their own making?
[34] In the early days, which was later dubbed the “jurisdictional era”, courts would only intervene when a decision-maker had exceeded its jurisdiction. If a decision was purportedly within the jurisdiction of an administrative board or agency, courts would refrain from reviewing it even if of the view that there was an error. This form of judicial deference, which reflected an attitude of reverence to parliamentary sovereignty, is evidenced in a number of cases that spans a period of more than 30 years (see, for example, Labour Relations Board v. Traders’ Service Ltd., [1958] S.C.R. 672, 15 D.L.R. (2d) 305; Bakery and Confectionery Workers International Union of America, Local No. 468 v. White Lunch Ltd., [1966] S.C.R. 282, 56 D.L.R. (2d) 193; Commission des relations ouvrières du Québec v. Burlington Mills Hosiery Co. of Canada, [1964] S.C.R. 342, 45 D.L.R. (2d) 730; Labour Relations Board of Saskatchewan v. The Queen et al., [1969] S.C.R. 898, 7 D.L.R. (3d) 1; see also, more generally, on that period: Paul Daly, “The Struggle for Deference in Canada” in Mark Elliott & Hanna Wilberg, eds., The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow (London: Hart Publishing, 2015) 297 at 300-09; Mark P. Mancini, “Foxes, Henhouses, and the Constitutional Guarantee of Judicial Review: Re-Evaluating Crevier” (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4589547) (Forthcoming, Canadian Bar Review); Dean Knight, Vigilance and Restraint in the Common Law of Judicial Review (Cambridge: Cambridge University Press, 2018).
[35] During that period, the role played by privative clauses was tightly related to jurisdiction. If the administrative decision-maker’s error was committed within the exercise of its jurisdiction conferred by statute, a privative clause would be effective to insulate it from review: see, as an illustration, Farrell v. Workmen’s Compensation Board, [1962] S.C.R. 48, 31 D.L.R. (2d) 177 (Farrell). If, on the other hand, an error went to the jurisdiction of the decision-maker exercising delegated authority, courts were justified to intervene, even in the face of a seemingly tightly worded privative clause, to ensure executive actors did not exceed the power delegated to them by Parliament.
[36] The decisions of the Supreme Court in Attorney General (Quebec) et al. v. Farrah, [1978] 2 S.C.R. 638, 86 D.L.R. (3d) 161 (Farrah) and Crevier illustrate that trend. At issue in Farrah was the establishment of a Transport Tribunal, comprised of provincial judges, that was granted an exclusive appellate jurisdiction from any decision of the Transport Commission. The Tribunal’s decisions were protected from the reviewing power of the Superior Court. Writing for the majority, Justice Pratte found that such a scheme was problematic because it encroached on the supervisory jurisdiction of superior courts, a power that is entrenched by section 96 of the Constitution Act, 1867. Relying on a number of cases (including Farrell and Woodward Estate v. Minister of Finance, [1973] S.C.R. 120, 27 D.L.R. (3d) 608), Justice Pratte wrote (at 655) that “while [privative clauses] are ineffective to oust the supervisory power of superior courts in cases of want or excess of jurisdiction of inferior tribunals, they are nevertheless effective to preclude interference by the courts in cases of “illegalities” committed by such tribunals in the exercise of their jurisdiction and for which, barring a privative clause, certiorari would otherwise lie.”
[37] Crevier similarly harks back to the notion of jurisdiction. Pursuant to the Québec Professional Code of the time, the Professions Tribunal, composed of judges of the Provincial Court, was granted the power to hear appeals of disciplinary decisions made by the various professional orders’ Disciplinary Committees. Section 194 of the Professional Code prevented any recourse to the Superior Court of decisions made by the Professions Tribunal. Once again, the Supreme Court struck down that provision on the basis that a legislature cannot oust judicial review on questions of jurisdiction. Writing for the Court, Chief Justice Laskin wrote (at 236-237):
It is true that this is the first time that this Court has declared unequivocally that a provincially-constituted statutory tribunal cannot constitutionally be immunized from review of decisions on questions of jurisdiction. In my opinion, this limitation, arising by virtue of s. 96, stands on the same footing as the well-accepted limitation on the power of provincial statutory tribunals to make unreviewable determinations of constitutionality. There may be differences of opinion as to what are questions of jurisdiction but, in my lexicon, they rise above and are different from errors of law, whether involving statutory construction or evidentiary matters or other matters. It is now unquestioned that privative clauses may, when properly framed, effectively oust judicial review on questions of law and, indeed, on other issues not touching jurisdiction. However, given that s. 96 is in the [Constitution Act, 1867] and that it would make a mockery of it to treat it in non-functional formal terms as a mere appointing power, I can think of nothing that is more the hallmark of a superior court than the vesting of power in a provincial statutory tribunal to determine the limits of its jurisdiction without appeal or other review.
[38] Behind this facade of apparent simplicity, however, the distinction between jurisdictional and non-jurisdictional error became increasingly muddy over time. The Supreme Court of Canada contributed to make that distinction ever more uncertain in a number of cases, much like the House of Lords did in the wake of Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147, [1969] 1 All E.R. 208. For a comprehensive and illuminating history of judicial review and the impact thereon of “ouster” clauses in England, see R. (on the application of Privacy International) v. Investigatory Powers Tribunal and others, [2019] UKSC 22, [2019] 4 All E.R. 1. In both countries, what started as a timid expansion of non-jurisdictional errors to cover egregious errors of law against which a privative clause would be of no effect gradually expanded, thereby allowing courts to review not only legal errors but also factual and evidentiary issues.
[39] It is in the landmark decision of Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, 97 D.L.R. (3d) 417 (New Brunswick Liquor), that our highest Court started to move away from the preliminary question doctrine. Under this doctrine, a reviewing court would inquire into whether a tribunal erred in determining the scope of its jurisdiction. However, New Brunswick Liquor focused instead on a substantive review of the determinations made by the administrative body. This new approach, which was meant to be more respectful of administrative decision-making, has frequently been characterized as “the beginning of the modern era of Canadian administrative law” (Dunsmuir at para. 35). Instead of applying an all or nothing approach, whereby the focus was whether a tribunal had erred in determining the scope of its jurisdiction, courts adopted a more nuanced approach and started to develop various standards of review through a “pragmatic and functional approach”, with a concomitant multi-level degree of deference.
[40] At issue in New Brunswick Liquor was the interpretation of a statutory provision which provided that “the employer shall not replace the striking employees or fill their position with any other employee”. The Public Service Labour Relations Board concluded that replacing striking employees with management personnel was not permissible, and rejected the employer’s argument that they could assign management personnel the duties otherwise performed by the striking employees because the intent of the section was to ensure that the jobs remained open for the employees after the strike was over. This decision was overturned by the Appeal Division of the Supreme Court of New Brunswick, which held that management was not prevented from performing the duties of striking employees.
[41] At the very beginning of his reasons, Justice Dickson, as he then was, writing for the Court, acknowledged that jurisdictional error will sometimes justify judicial intervention, but cautioned in the same breath that courts “should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so” (at 233). This is so not only because the question of what is or is not jurisdictional is often very difficult to determine, but also because in that case, a privative clause protected the decisions of the Board and reinforced the deference traditionally shown to specialized tribunals in the field of labour relations.
[42] That would have been sufficient to dispose of the appeal. But Justice Dickson went further and addressed the argument that the interpretation given by the Board to the provision barring employers to replace the striking employees was so patently unreasonable that it took the Board beyond the protection of the privative clause. After having stressed the ambiguity of that provision and its many possible interpretations, and having turned his mind to its purpose, Justice Dickson found it difficult to brand as “patently unreasonable” the interpretation arrived at by the Board. As he stated: “[a]t a minimum the Board’s interpretation would seem at least as reasonable as the alternative interpretations suggested in the Court of Appeal” (at 242).
[43] That seminal decision was significant for at least two reasons. First, it clearly signaled that courts should adopt a deferential attitude towards specialized tribunals, and therefore resist the temptation to label an issue as jurisdictional “that which may be doubtfully so” (New Brunswick Liquor at 233). Second, it opened the door to a judicial review of intrajurisdictional errors of law, even in the face of privative clauses. For all intents and purposes, an error of law that rose to the level of patent unreasonableness would be assimilated to a jurisdictional error (Bibeault v. McCaffrey, [1984] 1 S.C.R. 176, 7 D.L.R. (4t