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Judicial Review - Justiciability
MORE CASES
Part 2
. Democracy Watch v. Canada (Attorney General)
In Democracy Watch v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal from the earlier denial of a JR of "a report by the Conflict of Interest Ethics Commissioner".
Here the court considers JR prematurity 'adequate alternative remedy' (AAR) (aka 'prematurity'), in the larger federal Conflict of Interest Act and 'JR justiciability' context:B. Does the Conflict of Interest Act provide, as a matter of statutory interpretation, adequate alternative remedies to judicial review?
[79] Like any statutory provision, section 66 of the COIA must be interpreted through accepted principles of statutory interpretation, including an assessment of the whole legislative scheme in its proper context. When viewed in its totality, it is very clear that the COIA reflects Parliament’s intention to give both Parliament and the Court distinct supervisory roles in monitoring potential conflict of interests involving public office holders. In that context, it makes perfect sense to insulate from review by the Court the determinations made by the Commissioner within his jurisdiction.
[80] As previously mentioned (see above, paras. 13-16), the Commissioner is an independent Officer of Parliament, and the position he occupies is firmly within the legislative branch of government. He is tasked with the administration of the COIA for public office holders, and of the conflict of interest code for members of Parliament. Section 86 of the PCA makes it clear that he acts under the direction of the House of Commons when enforcing the code to its members.
[81] It is in this context that section 66 must be interpreted. Even if its wording is similar to that of subsection 34(1) of the Federal Public Sector Labour Relations and Employment Board Act, S.C. 2013, c. 40, s. 365 (the "“FPSLREB Act”") at issue in PSAC, the legislative intent behind this section is very different. It is very clear from subsections 44(7), 44(8), 45(3) and 45(4) of the COIA, which require the Commissioner to provide his reports to the Prime Minister, that it is for the Prime Minister to decide how to give effect to the Commissioner’s determination, and for the House of Commons to hold the government to account. The sanction is meant to be political, not judicial. This conclusion is reinforced by the fact that the report of the Commissioner is to be made available to the public, and that its conclusions are not determinative of the measures to be taken (s. 47 of COIA).
[82] This is not to say that the Court has no role to play in supervising the Commissioner and the use that the incumbent makes of its powers. While the Court is precluded from granting judicial remedies for alleged errors of fact and law within the Commissioner’s jurisdiction, it can still be called upon when the Commissioner does not act within the confines of its jurisdiction, fails to observe a principle of natural justice or procedural fairness, acts or fails to act by reason of fraud or perjured evidence. This is perfectly consistent with the dual supervisory roles assigned to the Court and to Parliament, in a context that is highly political by nature and that has historically been the exclusive preserve of parliamentarians.
[83] It is also interesting to note that the Commissioner is required to submit annual reports on the administration of the COIA to the Standing Committee on Access to Information; the Committee may then determine whether anything flowing from the Commissioner’s activities requires additional consideration. In December 2012, the House of Commons tasked the Committee to conduct a statutory review of the COIA. In its report dated February 2014 (Respondent’s record at Tab 5), the Committee recommended amending section 66 to allow judicial review on errors of law. Yet, no significant changes were made following the report.
[84] Courts should be loath to perceive judicial remedies as the only effective recourse in every instance where an aggrieved party raises an alleged illegality. The decision of the Supreme Court in Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), 1989 CanLII 73 (SCC), [1989] 2 S.C.R. 49, 61 D.L.R. (4th) 604 provides a useful (and, in my view, compelling) example of a situation where courts were denied the possibility to intervene in a dispute because Parliament had provided an adequate alternative remedy.
[85] In fulfilling his mandate and performing an audit, the Auditor General had requested certain documentation from the Department of Energy, Mines and Resources and from senior officials of Petro-Canada. These requests were denied, and the Governor in Council declined to exercise its powers to assist the Auditor General by ordering Petro-Canada to provide the information. The Auditor General sought to obtain the information through the judicial process. The Supreme Court found, unanimously, that the Auditor General had no recourse to the courts in the event of the refusal by Parliament, responsible Ministers, and the Governor in Council to make available to him all of the documentation he may seek in the discharge of his responsibilities.
[86] The Court started with the premise that it is open to Parliament to signal its view as to the role the courts should play in interpreting, applying and enforcing its statutes, and that such a signal should be respected in the same way as when courts give effect to privative clauses that oust judicial review (at 91-92). Interpreting the Act as a whole, the Court determined that the reporting mechanism in subsection 7(1) of the Auditor General Act, R.S.C. 1985, c. A-17 (the "“Auditor General Act”") was the only remedy available to the Auditor General for claimed denials of entitlements to certain information from the government. Pursuant to that provision, the Auditor General had an obligation to report annually to the House of Commons on whether, in carrying on the work of his office, he received all the information he required. According to the Supreme Court, on a proper and holistic interpretation of the Act, this was the only remedy available to the Attorney General "“not only because the text is conducive to such an interpretation but also because, in the circumstances, a political remedy of this nature is an adequate alternative remedy”" (at 103).
[87] The Court expanded on the notion that a political remedy is not to be dismissed as ineffectual in the following paragraph (at 104):The adequacy of the s. 7(1)(b) remedy must not be underestimated. A report by the Auditor General to the House of Commons that the government of the day has refused to provide the information brings the matter to public attention. It is open to the Opposition in Parliament to make the issue part of the public debate. The Auditor General’s complaint that the government has not been willing to provide all the information requested may, as a result, affect the public’s assessment of the government’s performance. Thus, the s. 7(1)(b) remedy has an important role to play in strengthening Parliament’s control over the executive with respect to financial matters. [88] In my view, the same can be said of the reporting mechanism found in the COIA. The statutory intention to have the courts defer to parliamentary remedies is, if anything, even clearer in the COIA than it was in the Auditor General case. While the Auditor General Act did not expressly exclude judicial remedies and the question of whether Parliament intended the court to defer to political remedies had to be inferred from the statute as a whole, section 66 of the COIA makes it even clearer that courts should not be drawn in disputes raising purely legal or factual issues within the jurisdiction of the Ethics Commissioner.
[89] Courts should always be sensitive to their proper role in a constitutional democracy like ours, where separation of powers goes hand in hand with the rule of law. Respect for the other branches of government must always be front and center when courts endeavour to play their role as judicial arbiters. As Justice McLachlin (as she then was) stated in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 CanLII 153 (SCC), [1993] 1 S.C.R. 319, 100 D.L.R. (4th) 212 at 389:Our democratic government consists of several branches: the Crown, as represented by the Governor General and the provincial counterparts of that office; the legislative body; the executive; and the courts. It is fundamental to the working of government as a whole that all these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other.
See also: Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 at para. 33; Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17 at para. 30, rev’d on a different point, 2016 SCC 29. [90] This theme, albeit not in the context of determining whether section 66 of the COIA precludes judicial review raising prohibited grounds, has been picked up by this Court and in the Federal Court in previous cases involving Democracy Watch. In Democracy Watch v. Canada (Attorney General), 2018 FCA 195, a panel of this Court found that Parliament has a supervisory role to play alongside the Court (at paras. 20-22). In Democracy Watch v. Canada (Attorney General), 2018 FC 1290, the Federal Court similarly found that the combined effect of sections 47 and 66 of the COIA demonstrate the limited role of the Court within an otherwise comprehensive regime of duties and remedies (at para. 116). The Court also held that these sections show that Parliament had reserved for itself what measures are to be taken as a result of the Commissioner’s findings.
[91] Provincial courts have similarly adopted an attitude of restraint and respect to the legislature in matters of internal conduct, even in the absence of privative clauses (see, for example, McIver v. Alberta (Ethics Commissioner), 2018 ABQB 240 at paras. 70-77; Democracy Watch v. British Columbia (Conflict of Interest Commissioner), 2017 BCSC 123 at paras. 35-37). In this last decision, the Supreme Court of British Columbia accepted the distinction between the Conflict of Interest Commissioner, an officer of the Legislature, and other administrative tribunals, and found that it was for the legislative assembly, not for the Commissioner, to exercise discipline authority over its members.
[92] Therefore, I am of the view, based on these considerations, that Best Buy and PSAC do not apply to this application for judicial review and ought to be distinguished. These cases arose in the context of decisions made by quasi-judicial or administrative tribunals, and not of findings by an Officer of Parliament. Moreover, the COIA provide for a dual parliamentary and judicial oversight, with an elaborate procedure to regulate ethical conduct through political consequences. In the context of such a scheme, where accountability is intended to lie primarily with the legislative branch, courts should clearly exercise judicial restraint and adhere to the limits prescribed by section 66 of the COIA in their judicial review function. . Air Passenger Rights v. Canada (Attorney General)
In Air Passenger Rights v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal considers the application of the recent Sierra Club Canada Foundation v. Canada (Environment and Climate Change), 2024 FCA 86 case to a JR justiciability issue (here advanced as a 'bias'):[33] I now turn to the parties’ submissions regarding the Court’s recent decision in Sierra Club. Initially, APR focussed its request for judicial review on the Statement and related CTA webpage references. APR expands its challenge to the conduct of the CTA in its post-hearing submissions and asserts an independent ground of review regardless of the justiciability of the Statement, premised on its allegations of reasonable apprehension of bias. APR argues that its application raises legal and/or jurisdictional issues that must be addressed by the Court as a supervisory court "“consistent with the Court’s constitutional and judicial review role”".
[34] By way of background, to establish its position that the CTA acted on the prompting and for the benefit of Canadian airlines in issuing the Statement, APR relies on Dr. Lukács’ affidavit evidence that details emails and communications in the days leading up to March 25, 2020, among Canadian airline executives, representatives of Transport Canada, and senior CTA officers, notably Mr. Scott Streiner, then CTA Chair, and Ms. Marcia Jones, CTA’s Chief Strategy Officer at the time.
[35] In APR’s narrative, these communications point to a regulator who acted in response to airline pressure, to assist those airlines to evade their obligations to provide refunds for cancelled flights. APR argues that this conduct was improper and gives rise to a reasonable apprehension of bias. Conversely, the respondent submits that there is nothing suspicious in the communications between the CTA as regulator, Transport Canada and industry participants. Indeed, in the exigent circumstances of March 2020, such communications were inevitable and necessary. The respondent notes that there is no smoking gun in the communications that suggests bias in favour of the airlines.
[36] The legislative framework for the Sierra Club decision was the complex federal impact assessment scheme established under the Impact Assessment Act, S.C. 2019, c. 28, s. 1 (the IAA). The IAA contemplated a three-phase regional assessment process: planning stage, regional assessment and, finally, decision making, including the making of a regulation by the Minister of the Environment (Sierra Club at para. 45). A number of issues were before the Court, only one of which is relevant to the present case: the validity of a March 2020 report (the Report) that resulted from a regional assessment of offshore oil and gas exploratory drilling in a defined area east of Newfoundland and Labrador.
[37] The Federal Court concluded that the regional assessment and resulting Report were not amenable to judicial review (Ecology Action Centre v. Canada (Environment and Climate Change), 2021 FC 1367 at para. 32). On appeal, this Court agreed. Writing for the Court, Justice Goyette found that neither the regional assessment nor the Report were decisions "“because they did not affect ‘legal rights, impose legal obligations, or cause prejudicial effects’”" (Sierra Club at para. 46, citing Sganos at para. 6). Rights were affected or obligations imposed only at the third phase when the Minister decided whether to make a regulation excluding potential projects from project-specific assessments (Sierra Club at para. 47).
[38] The Court continued, stating (at para. 61):[61] That said, just because a regional assessment, standing alone, is not amenable to judicial review, does not mean it is always immune from judicial review. If a regional assessment is materially deficient (unreasonable or procedurally unfair), the resulting regulation may be quashed on the basis that the Minister lacked the legal prerequisite set out in subsection 112(2) to make that regulation: FC Decision at paras. 26, 31, citing Trans Mountain at para. 201; Mikisew at paras. 108–109. (emphasis in original) [39] APR relies on paragraph 61 to argue that Sierra Club confirms "“that procedural fairness is an independent basis that is always justiciable, despite that the contents of the subject document may not be amenable to judicial review”". APR states that its allegation of reasonable apprehension of bias is the primary issue in this application and that, if the Court finds reasonable apprehension of bias, it need not consider whether the Statement is justiciable.
[40] APR explains its reading of paragraph 61 in its supplemental submissions. It argues that if a regional assessment under the IAA were prepared in a manner contrary to the requirements of procedural fairness, the resulting regulation could be struck down. This I agree with. APR then states, "“[b]y the same token, if the Statement gave rise to a reasonable apprehension of bias, this Court can issue a writ of prohibition (i.e. injunction) and/or a declaration, all pursuant to s. 18 of the Federal Courts Act”".
[41] APR’s second statement finds no basis in paragraph 61 of Sierra Club. There, the Court does not suggest that a regional assessment or second-stage report could be subject to independent judicial action if prepared in procedurally flawed circumstances. Rather, the Court acknowledges that the resulting regulation may be struck down because the regional assessment, a legal prerequisite under the IAA, was materially deficient (whether unreasonable or procedurally unfair).
[42] In the present case, the closest analogy is that of an air passenger complaint to the CTA. If a complaint were rejected by the CTA in reliance on the Statement, the Court on judicial review could be asked to grant the application and quash the CTA’s decision because the Statement was procedurally unfair (e.g., because there was prejudgment or reasonable apprehension of bias). However, the analogy is far from perfect because the Statement does not have the status or role of a report under the IAA.
[43] I find that Sierra Club does not support APR’s argument that the Court may assess allegations of reasonable apprehension of bias before (or without) considering whether the Statement is justiciable. Paragraph 61 does not establish this principle. In addition, the paragraph cannot be read in isolation. The Court reviewed the question of justiciability in paragraphs 44-47 and concluded that neither the regional assessment nor the Report was amenable to judicial review. They did not "“affect legal rights, impose legal obligations or cause prejudicial effects”" (see, e.g., Toronto Port Authority at para. 29, Democracy Watch 2021 at para. 29, and Sganos at para. 6). In my view, the Court’s decision in Sierra Club confirms the Court’s existing jurisprudence regarding the requirements for justiciability.
[44] This Court does not have plenary jurisdiction to intervene in the conduct of a federal board, commission or tribunal based on allegations of misconduct or perception of bias absent a matter in respect of which a remedy is available. Essentially, APR is asking the Court to censure the CTA regardless of the legal effects of its conduct. This is not the Court’s role. At the admitted risk of repetition, for a remedy to be available a matter must "“affect legal rights, impose legal obligations, or cause prejudicial effects”" (Democracy Watch at para. 29). The Statement does not do so and it is not otherwise amenable to judicial review.
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