The high court will also consider Parliament's ability to limit judicial review via ouster clauses
As the Supreme Court of Canada reviews an appeal of a 2021 ethics report on former Prime Minister Trudeau, lawyers watching or involved in the case are flagging its potential to change the scope of courts’ authority over administrative decisions – and Parliament’s ability to limit such judicial review.
While the case, Democracy Watch v. Attorney General of Canada, specifically considers whether the conflict of interest and ethics commissioner must justify his decisions before a court of law, its implications could potentially be much broader.
A possible outcome is that the court sides with Democracy Watch. The advocacy group argues that decisions by the ethics commissioner are subject to judicial review, and that an ouster clause in the Conflict of Interest Act, or COIA – which limits the courts’ power to review the commissioner’s decisions – is unconstitutional.
If the high court accepts this novel argument, its logic could potentially apply beyond the ethics commissioner, says Brandon Barnes Trickett, a partner at Dentons who is not involved in the case. Such a decision could “change the scope of legislative power,” he says.
“It will mean that for a number of administrative decision makers, regulators, or tribunals – public bodies that are enabled by legislation that contains an ouster clause – that ouster clause no longer has full effect,” Barnes Trickett says. “So there will be increased court oversight of some types of decision making that currently are not subject to that kind of review.”
The dispute underlying the case dates back to the COVID-19 pandemic, when the federal government created a program to provide employment for post-secondary students. The program was designed by civil servants in Employment and Social Development Canada and the Department of Finance, who recommended that WE Charity, a development charity, administer the program.
However, Trudeau pulled the program off the Cabinet agenda when he learned about WE Charity’s involvement, due to his past participation in numerous WE Charity events. Sophie Grégoire Trudeau, his then-spouse, was an honorary ambassador for the charity and had also participated in its events.
After Employment and Social Development Canada argued that only WE Charity would be able to implement the program according to a proposed timeframe, the program returned to the Cabinet agenda. The Cabinet and Trudeau approved the plan.
In response, two Members of Parliament asked the ethics commissioner to investigate Trudeau’s role in the approval of the employment program, arguing he should have recused himself from decision making due to his past involvement with WE Charity. The ethics commissioner concluded that Trudeau did not violate COIA, which aims to prevent conflicts of interests by the prime minister and other senior federal public office holders.
Democracy Watch sought judicial review of the ethics commissioner’s decision in federal court. But in a unanimous decision, the Federal Court of Appeal said the ouster clause in COIA effectively barred the court from intervening in the dispute. The court also concluded that COIA clearly “reflects Parliament’s intention to give both Parliament and the court distinct supervisory roles in monitoring potential conflict of interests involving public office holders.”
Appealing to the SCC, Democracy Watch countered that when it is read properly, COIA “does not preclude judicial review at all.” The advocacy group added that if COIA does in fact bar the courts from reviewing the ethics commissioner’s decision, “it would be unconstitutional, since it would empower the commissioner to determine the limits of his own jurisdiction.”
Democracy Watch refers to a landmark 2019 SCC decision, Canada (Minister of Citizenship and Immigration) v. Vavilov, which concluded that reasonableness should be the presumptive standard of review that courts use when considering administrative law. Vavilov also clarified that while courts should respect the authority of administrative decision makers, administrative decision makers, for their part, also have to “adopt a culture of justification and demonstrate that their exercise of delegated public power can be ‘justified to citizens in terms of rationality and fairness.’”
According to Democracy Watch, allowing COIA’s ouster clause is tantamount to letting Parliament “flout the general principles of judicial review painstakingly crafted by this Court and eliminate the Vavilovian culture of justification.”
Sujit Choudhry of Circle Barristers, one of the lawyers representing Democracy Watch, told Canadian Lawyer that the SCC appeal “raises the basic question of whether the enforcement of the Conflict of Interest Act is entirely a matter for the political process or subject to legal accountability in the courts.”
He added that the FCA’s decision “means that the ethics commissioner has no obligation to justify their decision in a court of law, and need only provide it to the prime minister, who will do it with what he will.
“When a complaint is lodged against the prime minister himself – as was the case here – this raises the spectre of executive self-dealing."
Paul Daly, a research chair in the University of Ottawa’s Faculty of Law who also represents Democracy Watch, noted the appeal “also raises the question of Parliament’s ability to restrict judicial review of statutory decision-makers by means of privative clauses.”
Canada’s attorney general meanwhile told the SCC that the FCA did not err in its ruling. The FCA’s decision “is consistent with a body of case law giving effect to a principled distinction between ethics commissioners and other tribunals,” the attorney general argued. “The FCA did not abdicate judicial oversight of the COIA but recognized the role of other institutions in enforcing it.”
While Barnes Trickett says he does not have opinions on the merits of the parties’ positions, he argues that an SCC decision that favours Democracy Watch’s arguments could be impactful.
“We could imagine reasonably that that would embolden more requests of the court to review [administrative, regulatory, and tribunals’] decisions, because parties who previously would not have thought they had a chance of making that kind of argument because of the ouster clause… might find that they're willing to take that chance,” Barnes Trickett says.
But he argued there could also be more long-term consequences.
“Ouster clauses aren't the only way that a legislature or federal Parliament can restrict the scope of review – we accept limited scopes of review over questions of the exercise of the Crown prerogative, and we also accept that national security is often the ground for removing some of the authority of the court,” he says.
“Should the Democracy Watch argument be accepted, we’d have to re -examine whether those grounds continue to hold water.”
A spokesperson for the attorney general declined to comment on the matter, but said it would file its factum to the SCC on Sept. 22.
