Democracy Watch v. Canada (Attorney General)

Democracy Watch v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2004-07-09
Neutral citation
2004 FC 969
File numbers
T-641-03
Notes
Reported Decision
Decision Content
Date: 20040709
Docket: T-641-03
T-642-03
T-690-03
T-711-03
Citation: 2004 FC 969
BETWEEN:
DEMOCRACY WATCH
Applicant
and
THE ATTORNEY GENERAL OF CANADA
(OFFICE OF THE ETHICS COUNSELLOR)
Respondent
REASONS FOR ORDER
GIBSON J.:
INTRODUCTION
[1] These reasons follow the hearing of four (4) applications for judicial review filed on behalf of the Applicant ("Democracy Watch") with respect to rulings or decisions of the Ethics Counsellor referred to in subsection 5(1) of the Conflict of Interest and Post-Employment Code for Public Office Holders[1] (the "Public Office Holders' Code") and designated by the Governor in Council pursuant to section 10.1 of the Lobbyists Registration Act[2]. The four (4) applications were heard together. In the petitions or complaints underlying three (3) 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[3] (the Lobbyists' Code), once again dealing with an issue as to whether a violation of the Lobbyists' Code had occurred. The rulings under review are dated, respectively, in two (2) cases, the 21st of March 2003, and in the other cases, the 27th of March and the 31st of March, 2003.
THE PARTIES
[2] In the affidavit of Duff Conacher filed on behalf of Democracy Watch, Mr. Conacher describes himself as "Coordinator" of Democracy Watch. He attests to the nature of Democracy Watch in the following terms:
Democracy Watch was founded in September 1993 and incorporated pursuant to federal law as a not-for-profit corporation. Democracy Watch is a non-partisan organization that advocates democratic reform, citizen participation in public affairs, government and corporate accountability, and ethical behaviour in government and business in Canada. In pursuit of its mandate, Democracy Watch has initiated various campaigns, including a campaign relating to government and lobbyist ethics.[4]
[3] At all material times, the Ethics Counsellor was Mr. Howard Wilson. The Office of Ethics Counsellor was created in 1994 when the Prime Minister of the day promulgated the Public Office Holders' Code, the most recent in a line of conflict of interest rules for public office holders which dates back to 1973. The Ethics Counsellor assumed a second set of responsibilities in February of 1996 pursuant to section 10.1 of the Lobbyists Registration Act.
THE RULINGS OR DECISIONS UNDER REVIEW
a) The First Ruling or Decision
[4] By letter to the Ethics Counsellor dated the 27th of March, 2001, Democracy Watch requested an investigation into circumstances that, it indicated, it believed to "...raise serious questions concerning violations of the federal Lobbyists' Code of Conduct ...and the Conflict of Interest and Post-Employment Code for Public Office Holders..." . It noted:
...
Media reports through 1999 and early 2000 covered the activities of René Fugère, who reportedly acted at the time as an unpaid aide to Prime Minister Jean Chrétien and as a member of the executive of the Prime Minister's local Liberal riding association. In addition, the media reported clear evidence that Mr. Fugère was involved in the following activities:
1. being paid at least $15,000 to represent Philippe Clément and his company, Les Maisons Beam International, and its project to build modular homes in Grand-Mère, Québec (in the Prime Minister's riding) in its unsuccessful attempt to obtain over $1 million in federal grants;
2. being paid to represent the Opiticiwan sawmill in Obedjiwan, Québec in its successful attempt to obtain a $300,000 grant from the federal government (the government turned the grant application down at least twice, but then approved the grant after Mr. Fugère was hired to represent the mill); and
3. representing other companies seeking federal grants, including at least one other company in the Prime Minister's riding.
Mr. Fugère did not register as a lobbyist for any of these activities, even though the media has reported clear evidence that he was being paid to communicate with federal public office holders in an attempt to influence the awarding of grants, conditions under which the Lobbyists Registration Act requires registration as a lobbyist.
Also according to media reports, staff of the Prime Minister's Office called Mr. Clément and were active in supporting his company's grant application, and possibly others.[5]
...
[5] The Ethics Counsellor responded by letter dated March 21, 2003. That letter reads in part as follows:
...
My ability to proceed with a matter under the Lobbyists' Code of Conduct requires that the individual against whom a complaint or allegation has been made is a lobbyist within the meaning of the Lobbyists Registration Act, or is an individual who is required to register as a lobbyist because conduct or activities in which they engaged constitute a registrable activity under the Lobbyists Registration Act.
Mr. Fugère did not register under the Lobbyists Registration Act for the activities reported by the media in 1999 and early 2000. In this regard, you will recall that following the National Post articles in May 1999 about Mr. Fugère's assistance to Auberge des Gouverneurs and Celebrity Boats to obtain government funding, the Registrar [under the Lobbyists Registration Act] communicated with the RCMP and requested that they investigate whether Mr. Fugère was in violation of the Lobbyists Registration Act.
The RCMP carried out its investigation and Crown prosecutors concluded in August 2000 that there was insufficient evidence to support a successful prosecution under section 5 of the Act. Their conclusion was based on the great difficulty of developing a case which could prove "beyond a reasonable doubt" that an individual was paid to communicate with a public office holder "in an attempt to influence" such matters as the awarding of a grant or contribution, etc. We were, therefore, unable to demonstrate in a court of law that Mr. Fugère had an obligation to register as a lobbyist. In this situation Mr. Fugère was never subject to the provisions of the Lobbyists' Code of Conduct.
The Government was concerned that we would never be able to successfully prosecute an individual who simply refused to register their lobbying activities. We concluded that the solution was to remove the phrase "in an attempt to influence" to place the focus on the act of communicating. This was proposed in Bill C-15 which has just completed Third Reading in the House of Commons and is now before the Senate. When this change comes into force we are confident we will be able to effectively enforce the Lobbyists Registration Act.[6]
The legislative initiative referred to in the foregoing quotation as Bill C-15 received Royal Assent on the 11th of June, 2003.[7] However, as at the dates of these applications, it had not been brought into force by order of the Governor in Council.
b) The Second Ruling or Decision
[6] By letter dated April 12, 2001, Democracy Watch wrote to the Ethics Counsellor in part in the following terms:
We are filing this letter to request that you investigate a situation that Democracy Watch believes raise [sic] serious questions concerning violations of the Conflict of Interest and Post-Employment Code for Public Office Holders ... and the federal Lobbyists' Code of Conduct ... and Lobbyists Registration Act, ... .
...
Until very recently, John Dossetor was the Senior Policy Advisor to Allan Rock, federal Minister of Health. He is clearly covered by the Public Office Holders Code. Evidence exists that while working for the government Mr. Dossetor dealt with the file concerning decisions with respect to Monsanto Canada's applications for approval of genetically modified foods.
On February 26, 2001, Monsanto advertised that it had hired Dossetor as Vice-President, Government Affairs (effective February 5, 2001) to build "alliances and partnerships though [sic] the government channel, and helping develop and articulate Monsanto's strategy for internal and external government audiences,"
...
Based on Mr. Dossetor's work with the government, his Monsanto job description, and federal ethics rules, Democracy Watch believes that anything he could do for Monsanto would violate at least one of the ethics rules. Also, if Mr. Dossetor is fulfilling the responsibilities of his job description, he likely should also be registered under the Lobbyists Registration Act and be adhering to the Lobbyists' Code.[8]
[7] By letter dated March 27, 2003, the Ethics Counsellor responded, in part, in the following terms:
...
While we do not appear to have formally closed off this matter with you, we nevertheless want you to know that we assured ourselves that Mr. Dossetor did meet all of his post-employment obligations under the Conflict of Interest Code.
In relation to the allegation that Mr. Dossetor was not registered as a lobbyist under the [Lobbyists Registration Act], it should be noted that Mr. Dossetor was not registered as a lobbyist at the time your organization submitted its complaint ... . However, Mr. Dossetor did register as In-House (corporate) lobbyist on May 18, 2001, once his lobbying activities became a significant part of his duties at Monsanto Canada that is, once his duties with Monsanto constituted 20% or more of his duties. This is in conformity with the LRA Interpretation Bulletin, entitled "A Significant part of duties", ... . That Bulletin provides:
"Employees whose job[s] include a substantial or large amount of time fulfilling the duties described are subject to the registration requirements; 20 percent may be used as a guideline for what constitutes a significant part of their duties."
With respect to the allegation that Mr. Dossetor had breached the Lobbyists' Code by his failure to disclose his obligations under the LRA, no further information was provided by Democracy Watch in support of this allegation.
Following the receipt of a complaint under the Lobbyists' Code of Conduct, preliminary inquiries are made by my Office in order to assist me in making a determination whether or not I believe on a [sic] reasonable and probable grounds that a breach of the Lobbyists' Code of Conduct has occurred. These preliminary inquiries, in the case of Mr. Dossetor, did not reveal any information that he was not in conformity with the Lobbyists' Code.
Therefore, on the basis of the information available, I cannot conclude on reasonable and probable grounds that a breach of the Lobbyists' Code of Conduct has occurred.[9]
c) The Third Ruling or Decision
[8] By letter dated June 17, 2002, Democracy Watch filed a further petition or complaint with the Ethics Counsellor. That petition or complaint reads in part as follows:
We are filing this letter to request that you, in your legal position as enforcer of the federal Lobbyists' Code of Conduct ... , investigate situations that Democracy Watch believes raise serious questions concerning violations of the federal Lobbyists' Code.
Democracy Watch believes that you personally are biased in fulfilling the role of enforcing the Lobbyists' Code because you also hold the separate legal position of compliance officer for the Conflict of Interest and Post-Employment Code for Public Office Holders..., and as a result you personally cannot fairly and impartially uphold the Lobbyists' Code. As you know, Democracy Watch has filed an application in Federal Court challenging, among other things, the legality of you holding both these positions. However, Democracy Watch is still filing this letter without prejudice to that court application because it believes that, if you are replaced by another person in the legal position of enforcer of the Lobbyists' Code, the position has sufficient independence and powers to fairly and impartially uphold the Lobbyists' Code ... .
The Lobbyists' Code covers all lobbyists required to register under the [Lobbyists Registration] Act.
Recent media reports have confirmed that the following 9 lobbyists, all of whom are registered under the Act to lobby the federal government, have been in the past for various lengths of time (and, in some cases, are still) working with the following ministers and public office holders on at least one private initiative of each minister or public office holder (and possibly other initiatives), namely running for the leadership of a political party:[10]
...
[9] Democracy Watch then goes on to name nine (9) individuals, the Public Office Holder with whom each of the individuals is working on a leadership campaign and some or all of the clients of the individual on whose behalf he or she has been engaging in lobbying activities. In eight (8) of the cases, the public office holder identified was, at the relevant time, a Minister of the Crown. The other public office holder was, at the relevant time, a Member of Parliament who was campaigning for the leadership of the Canadian Alliance Party.
[10] After further detailing its concerns, Democracy Watch concludes in the following terms:
...
In other words, Democracy Watch believes that lobbyists cannot work with a public office holder in any way without causing a conflict of interest, and that Rule 8 of the Lobbyists' Code in effect means that lobbyists must choose between being a lobbyist and working with public office holders, political parties or candidates for public office.
In your legal position as Ethics Counsellor enforcing the Lobbyists' Code, you are required under the Lobbyists Registration Act to investigate if you have a reasonable belief that a violation of the Lobbyists' Code has occurred. You have the full powers of a judge in your investigation (including the power to subpoena witnesses and compel evidence), and you are required to report your ruling to Parliament ... .
We believe that a full and detailed investigation, using all of your investigative powers, is justified and needed to determine whether the 9 lobbyists named above have violated Rule 8 of the Lobbyists' Code.
We therefore request that you use your full powers under the Act to investigate these situations, determine if any of the named lobbyists have violated Rule 8 of the Lobbyists' Code, and report your rulings on these lobbyists to Parliament, as you are legally required to do.
We also request that if you learn of other registered lobbyists working with ministers, meaning doing anything that benefits the minister in any way, that you initiate investigations into whether they are violating Rule 8 of the Lobbyists' Code.
The standard for evaluating activities of public office holders under the Public Office Holders Code is whether "real, potential or apparent conflicts of interest" have been created (emphasis added). This standard creates an affirmative obligation on all public office holders to avoid even potential or apparent conflicts of interest.
We look forward to your investigation of this matter, and await your reply.[11]
[11] By letter dated March 21, 2003, the Ethics Counsellor replied, in part in the following terms:
...
Your letter [of June 17, 2002, just quoted from] arrived when this office had just completed guidelines for those Ministers who were pursuing or considering becoming involved in the campaign for the leadership of the Liberal Party. At the same moment I was still working on an interpretation of Rule 8 [of the Lobbyists' Code] which had earlier been requested by a lobbyist who wanted to be directly involved in one of the campaigns.
On June 11, 2002, the Prime Minister, as you are aware, released Guidelines - The Ministry and Activities for Personal Political Purposes. These Guidelines recognized that the pursuit of the leadership of a political party was a private interest and that the Conflict of Interest and Post-Employment Code for Public Office Holders ... was directly relevant. ...[12]
[12] After quoting from the Public Office Holders' Code and from the "Guidelines" referred to in the foregoing quotation, the Ethics Counsellor continued:
...
Our conclusion was that the obligation under the Conflict of Interest Code to ensure that there was not a conflict rested with the Minister and not the lobbyist. ...
The question, however, remained whether Rule 8 - Improper Influence of the Lobbyists' Code of Conduct ... placed an obligation as well on lobbyists who were involved in a Minister's leadership campaign. As noted above, I had earlier been asked by a lobbyist for an interpretation of the Lobbyists' Code on this point. I completed my work shortly after the New Year and provided the interpretation on the application of Rule 8 to the individual who had requested it. As has been our practice I adapted the interpretation to remove personal information and placed this on our website on January 21, 2003. Because of your interest in Rule 8, I sent you a copy directly as a matter of courtesy.
My reasoning is set out in detail in the interpretation but I would highlight the following conclusion:
"My conclusion is that it is not reasonable to believe that a lobbyist has exercised an improper influence on a Minister, placing him or her in a conflict of interest, merely because the lobbyist was assisting the Minister in a leadership campaign at the same time that the lobbyist was lobbying the Minister's department on behalf of a client. More broadly, I conclude that the mere fact that these two legitimate activities are being pursued by a lobbyist does not, in and of itself, breach the Lobbyists' Code of Conduct."
This is not to say that Rule 8 would never apply in this situation but, as the interpretation states, "what constitutes an improper influence on a public office holder is a question of fact in each particular case." The interpretation of Rule 8 sets out the factors to be considered in assessing whether a lobbyist has proposed or undertaken any action that would constitute an improper influence on a public office holder. These factors include but are not limited to:
- "whether there has been interference with the decision, judgment or action of the public office holder;
- whether there has been a wrongful constraint whereby the will of the public office holder was overpowered and whether the public office holder was induced to do or forbear an act which he or she would not do if left to act freely; and
- whether there has been a misuse of position of confidence or whether the lobbyist took advantage of a public office holder's weakness, infirmity or distress to alter that public office holder's actions or decisions."
These factors are absent in the cases you cite. Furthermore, with the issuance of the Guidelines of last June, I am satisfied that Ministers and their offices have ensured that those lobbyists who are working on a Minister's campaign team have ceased lobbying that Minister's department. Some other lobbyists, in a similar situation, have chosen not to work on the respective campaign.
I do not, therefore, have any basis to believe on reasonable grounds that the persons you cite have breached the Lobbyists' Code. In the absence of such a belief an investigation under the provisions of the Lobbyists Registration Act cannot occur.[13]
d) The Fourth Ruling or Decision
[13] By letter dated October 17, 2002, Democracy Watch again petitioned or complained to the Ethics Counsellor, requesting that he "...investigate situations that Democracy Watch believes raise serious questions concerning violations of the federal Lobbyists' Code." After again recording its concern that the Ethics Counsellor is personally biased by reason of his responsibilities in relation to the Lobbyists' Code and the Public Office Holders Code, Democracy Watch continued:
...
In June and early July 2002 you, in one or both of your two legal positions described above (you did not make it clear at the time), required Cabinet ministers Sheila Copps, John Manley, and Allan Rock to return donations they had received to their leadership campaign funds. You refused to disclose the sources and amounts of the donations, but according to media reports you claimed that the total returned by each minister was less than $50,000.
According to the Ottawa Citizen, you stated on July 11th (the date the ministers disclosed donations they had received) that your reason for requiring each minister to return some of the donations was as follows: "I was concerned that the minister was going to have to stand back on files that were just so important to their ministerial responsibilities that it would represent a serious impairment of the minister's abilities to carry out his or her responsibilities." You also made it clear that the donations were from sources which lobby the ministers, and that therefore the donations created the conflict that would require a minister "to have to stand back on files". The one returned donation which was made public, a $25,000 donation from BCE Inc. to Industry Minister Allan Rock, clearly fits within the standard you articulated, as BCE Inc. is registered to lobby Industry Canada.[14]
...
[14] After referring to provisions of the Lobbyists' Code and the Public Office Holders Code, Democracy Watch continued in its letter:
Democracy Watch believes that a reasonable interpretation and application of these rules in the Lobbyists' Code and the Public Office Holders Code, along with a reasonable interpretation of the common law standard for finding that a public office holder is in a "conflict of interest", would result in the conclusion that any lobbyist who makes a donation in secret to any minister, especially a minister the lobbyist lobbies, would be violating Rule 8 of the Lobbyists' Code.
By requiring ministers to return some donations, you clearly indicated that you agreed with this interpretation of federal ethics rules for public office holders and lobbyists.
As a result, Democracy Watch believes that you have failed to uphold your legal duty to report to Parliament the findings of your investigations into the donations to the Cabinet ministers, and in that report to make public the identities of the lobbyists who, by making these donations, violated Rule 8 of the Lobbyists' Code.
In your legal position as Ethics Counsellor enforcing the Lobbyists' Code, you are required under the Lobbyists Registration Act to investigate if you have a reasonable belief that a violation of the Lobbyists' Code has occurred. You have the full powers of a judge in your investigation (including the power to subpoena witnesses and compel evidence), and you are required to report your ruling to Parliament ... .
You may claim that you required the ministers to return the donations in your legal position as compliance officer of the Public Office Holders' Code. If this is your claim, Democracy Watch requests that you make it clear in a written statement that you were acting in this legal position. If you claim that you were acting in this legal position, Democracy Watch requests that you now, in your legal position as enforcer of the Lobbyists' Code, use your full powers under the Lobbyists Registration Act to investigate the donations made to ministers, to determine if any of [the] lobbyists who made donations have violated Rule 8 of the Lobbyists' Code, and to report your rulings on these lobbyists publicly to Parliament, as you are legally required to do.
In addition, Democracy Watch requests that you review and publicly rule, as you are required to do in your legal position as enforcer of the Lobbyists' Code, on whether the [sic] some of the donations from lobbyists you allowed the Cabinet ministers to keep are also a violation by the lobbyists of Rule 8 of the Lobbyists' Code.[15] ...
...
[15] After citing some donations by lobbyists that were apparently not required to be returned, Democracy Watch continued:
According to media reports, you stated on July 11th that "One has to balance this, and these sums were so very modest that I didn't think a credible case could be made for asking the minister to withdraw from those files or return those small contributions." Democracy Watch disagrees with the "balance" you claim to have established, and believes that you have failed to uphold your legal duties because you have not issued a clear ruling, from either of your two legal positions, as to how ethics rules apply to donations of such amounts from lobbyists or entities directly connected to a lobbyist. As a result, Democracy Watch requests a clear, public ruling under the Lobbyists' Code. [16]
...
[16] By letter dated March 31, 2003, the Ethics Counsellor replied, in part as follows:
...
Your letter expresses the view that "any lobbyist who makes a donation in secret to any minister, especially a minister the lobbyist lobbies, would be violating Rule 8 of the Lobbyists' Code." Later in the letter you state that you believe I have failed to uphold my legal duty to report to Parliament the findings of my investigations "into the donations to the Cabinet ministers, and in that report to make public the identities of the lobbyists who, by making these donations, violated Rule 8 of the Lobbyists' Code."
I should first point out that the political contributions that are made to Ministers pursuing the leadership of the Liberal Party are not made in secret. The Leadership Guidelines required that all contributions received before the publication of the Guidelines be disclosed within 30 days. Subsequent contributions which become known to the Minister must be disclosed within 60 days. Contributions made into the Minister's blind trust will be disclosed no later than 30 days before the convention.
Let me now address the possible application of Rule 8... [17]
[17] After quoting Rule 8, the Ethics Counsellor continued:
Fundraising is an important part of the political process, including for leadership campaigns and is generally viewed as legitimate, particularly in circumstances where full public disclosure is provided. Drawing upon the interpretation I made about Rule 8 "Lobbyists and Leadership Campaigns" which, as you know, is on my website, I cannot conclude that the mere fact that a lobbyist has made a political contribution to a Minister involved in the leadership race in and of itself would constitute a breach of the Lobbyists' Code of Conduct.
This is not to say that Rule 8 would never apply in this situation but, as the interpretation states, "what constitutes an improper influence on a public office holder is a question of fact in each particular case." The interpretation of Rule 8 sets out the factors to be considered in assessing whether a lobbyist has proposed or undertaken any action that would constitute an improper influence on a public office holder. ...[18]
[18] After reciting the same three (3) factors that are quoted from his response to Democracy Watch's third petition or complaint as quoted above, the Ethics Counsellor concluded:
No information has come to my attention that indicates that any of these factors were present in the cases you mention. I, therefore, have no basis to believe on reasonable grounds that these individuals or organizations breached the Lobbyists' Code. In the absence of such a belief an investigation under the provisions of the Lobbyists Registration Act cannot occur.[19]
[19] For ease of reference, in the balance of these reasons, Democracy Watch's four (4) petitions or complaints and the responses by the Ethics Counsellor to them will be referred to as the "Fugère" petition and ruling, the "Dossetor" petition and ruling, the "Nine (9) Lobbyists" petition and ruling and the "Donations" petition and ruling.
RELIEF REQUESTED
[20] In the Memorandum of Fact and Law filed on behalf of Democracy Watch, the following reliefs are requested:
- first, an Order quashing each of the rulings by the Ethics Counsellor as described above;
- second, a declaration that Democracy Watch was deprived of its right to procedural fairness in the context of its four (4) petitions or complaints;
- third, a declaration that the institutional scheme under the Lobbyists' Registration Act, in so far as it permits the same person to carry out the responsibility of investigating and reporting to Parliament on alleged violations of the Lobbyists' Code and to administering the Public Office Holders Code, raises a reasonable apprehension of bias;
- fourth, a declaration that the Ethics Counsellor, at all relevant times, lacked independence and suffered from structural bias by reason of the range of his responsibilities and those of his office and the resourcing of that office in government;
- fifth, a declaration that the Lobbyists Registration Act must be construed so as to prohibit the appointment of the same person to the office of Ethics Counsellor under the Lobbyists Registration Act as is appointed to the office of the Ethics Counsellor under the Public Office Holders Code;
- sixth, a declaration that the Ethics Counsellor, at all relevant times, was biased against Democracy Watch; and
- finally, costs, inclusive of GST, and such other relief as this Court deems just[20].
RELEVANT LEGISLATIVE AND RELATED PROVISIONS
[21] Judicial review lies to this Court from decisions of federal boards, commissions and other tribunals except such boards, commissions and other tribunals as are enumerated in subsection 28(1) of the Federal Courts Act[21] and except where otherwise provided by law. It was not in dispute before me that, at all relevant times, the Ethics Counsellor was a federal board, commission or other tribunal whose rulings or decisions were subject to judicial review by this Court. The definition "federal board, commission or other tribunal" in subsection 2(1) of the Federal Courts Act, subsections 18(1) and (3) and section 18.1 of that Act are set out in Schedule I to these reasons.
[22] At all times relevant to the applications for judicial review that are before the Court, the provisions of the Lobbyists Registration Act that are relevant and sections 8 to 10 of that Act that are relevant to a preliminary issue to which I will shortly turn, are set out in Schedule II to these reasons.
[23] Once again at all times relevant to the matters before the Court, the Lobbyists' Code, developed and adopted pursuant to section 10.2 of the Lobbyists Registration Act, is set out in full, including a related "message from the Ethics Counsellor", in Schedule III to these reasons. Its status would appear to be somewhat unclear. It is certainly not an enactment of Parliament, nor is it a statutory instrument for the purposes of the Statutory Instruments Act[22]. That being said, following its development by the Ethics Counsellor, a process which he indicates involved "...extensive consultation with a large number of people and organizations interested in promoting public trust in the integrity of government decision-making", it was reviewed by a Standing Committee of the House of Commons and was published in the Canada Gazette on the 8th of February, 1997. While counsel for the Respondent (the "Ethics Counsellor") referred to the Lobbyists' Code as "non-law", I am not satisfied that it is fully accurate to characterize it in that manner.
[24] Finally, and once again in the form at all times relevant for the purpose of these matters, the relevant provisions of the Public Office Holders' Code are reproduced in Schedule IV to these reasons.
A PRELIMINARY ISSUE
[25] Late on Thursday the 13th of May, 2004, only a few days before the scheduled commencement of the hearing of these matters on Monday, the 17th of May, 2004, counsel for the Ethics Counsellor served on counsel for Democracy Watch and delivered to the Registry of the Court at Toronto a motion record, without memorandum of argument, seeking the dismissal of the four (4) applications for judicial review here in question on the ground that they had become moot. The rationale for the motion lay in the fact that on the 11th of May, 2004, the Governor General in Council, on the recommendation of the Prime Minister, pursuant to section 42 of an Act to amend the Parliament of Canada Act (Ethics Commissioner and Senate Ethics Officer) and other Acts in consequence[23], fixed the 17th of May, 2004 as the day on which the substantive provisions of the Act in question came into force.[24]
[26] Briefly put, at the centre of the amendments made by the Act in question, was the creation of the offices of Ethics Commissioner and Senate Ethics Officer. The Ethics Commissioner, appointed by Order-in-Council P.C. 2004-656, with effect on the 17th of May, 2004 effectively assumed the functions of the Ethics Counsellor in relation to Public Office Holders as defined in the Public Office Holders' Code. Additionally, the Act in question amended the Lobbyists Registration Act to delete all references to the Ethics Counsellor and to vest in the Registrar designated pursuant to section 8 of that Act functions under that Act that were, until the 17th of May, 2004, functions of the Ethics Counsellor.
[27] In the result, effective on the 17th of May, 2004, the Office of Ethics Counsellor ceased to exist in all respects.
[28] The Supreme Court of Canada defined the test for mootness in Borowski v. Canada (Attorney General)[25]. In his reasons in that matter, Justice Sopinka described the doctrine of mootness in the following terms at page 353:
The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter.
The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term "moot" applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless elect to address a moot issue if the circumstances warrant. [emphasis added]
[29] As to the issue of whether a court should exercise its discretion to hear a matter notwithstanding the fact that no present live controversy continues to exist, Justice Sopinka outlined three (3) considerations to be taken into account. The first is that a court's competence to resolve legal disputes is rooted in the adversary system. Thus, if no adversarial relationship continues between the parties, a court should be reluctant to intervene. Second, is a concern for judicial economy. In the absence of special circumstances that make it worthwhile to apply scarce judicial resources to resolve an issue, a court should be very reluctant to undertake resolution of the issue. Justice Sopinka speaks of matters of public importance and matters with respect to which a resolution is in the public interest as special circumstances that would warrant a court exercising its discretion to apply scarce judicial resources. Finally, Justice Sopinka counsels that a court must be sensitive to its proper law-making function, that is to say, that its role is that of the adjudicative branch in our constitutional framework and not that of the legislative branch.
[30] After hearing submissions from counsel and adjourning briefly to consider those submissions and related authorities referred to by counsel, I determined to hear these applications, first on the ground that they are not moot, which is to say that I was satisfied that the applications continued to present a live controversy that affects the rights of the parties where the respondent is the Attorney General of Canada and not simply the Ethics Counsellor, and secondly, on the ground that, even if the matters were moot, judicial response to the applications before the Court was appropriate given a continuing adversarial relationship between Democracy Watch and the Attorney General of Canada, albeit not between Democracy Watch and the Ethics Counsellor or the Office of the Ethics Counsellor. Further, I concluded that special circumstances warranting application of judicial resources to the matters before the Court continued to exist, as matters of public office holders' and lobbyists' ethics, and public interest oversight of those matters, continue to attract much public attention. Finally, Parliament having spoken, there remain issues, at least in relation to lobbyists' ethics, that remain appropriate to judicial adjudication. The fact that the Act in question very specifically identifies the Ethics Commissioner as other than a "federal board, commission or other tribunal" within the meaning of subsection 2(1) of the Federal Courts Act, simply does not affect the reviewability of the decisions of those who continue to be charged with administration of the Lobbyists' Code.
[31] In the result, an order issued dismissing the Respondent's motion seeking dismissal on the ground of mootness of the four (4) applications for judicial review that are before the Court.
THE SUBSTANTIVE ISSUES
[32] In the Memorandum of Fact and Law filed on behalf of the Ethics Counsellor, the issues before the Court are described in the following terms:
1. Was the Ethics Counsellor biased against the Applicant in rendering the four decisions in question ("specific bias")?
2. Was the Ethics Counsellor subject to "institutional bias" when rendering the decisions in question?
3. What is the appropriate standard of review for this Court to apply in reviewing the decisions in question?
4. Should this Court disturb the decisions of the Ethics Counsellor?
5. Is the requested relief available in the circumstances?[26]
[33] While counsel for Democracy Watch was not as specific in his Memorandum of Fact and Law in characterizing the issues, I am satisfied that there was essentially no dispute before the Court that the foregoing characterization of the issues is appropriate.
[34] Since the issue of standard of review does not arise in the event that I were to find a reasonable apprehension of bias on the part of the Ethics Counsellor, either on the basis of "specific bias" or "institutional bias", I will deal with the bias issues first. I will then turn to the issue of the appropriate standard of review of the findings or decisions in question, then to review of those findings or decisions against the appropriate standard and finally to the issue of the reliefs requested.
[35] While neither counsel identified costs as an issue worthy of submissions, both