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Judicial Review - Privative (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 reviews the Conflict of Interest Act regime, focussing on it's 'partial privative' aspect: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. . Canada (Attorney General) v. Pier 1 Imports (U.S.)
In Canada (Attorney General) v. Pier 1 Imports (U.S.) (Fed CA, 2023) the Federal Court of Appeal considered a joint appeal-JR against a ruling of the CITT (Canadian International Trade Tribunal), here addressing the calculation of 'value for duty' for imported goods (custom rates).
The relevant Customs Act (CA) provisions [CA s.67] purported to bar JR (a privative clause), leaving the aggrieved party with only a 'question of law' appeal right [CA s.68], an situation that has attracted recent judicial attention (Yatar):A. Observations Regarding the Concurrent Appeal and Application for Judicial Review
[28] The present case addresses both an appeal and an application for judicial review brought concurrently. Our Court recently discussed the issue as to whether an application for judicial review can be considered notwithstanding the statutory appeal mechanism contemplated by Parliament in subsection 68(1) of the Customs Act.
[29] More specifically, in Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161, [2021] F.C.J. No. 848 (Best Buy), our Court was unanimous on the disposition of the appeal but split on the question of whether the limitation in section 18.5 of the Federal Courts Act excluded applications for judicial review on questions of fact. The minority reasoned that only the statutory appeal mechanism under subsection 68(1) of the Customs Act was available to the parties to review the decision—i.e., only errors of law could be reviewed by our Court (Best Buy at paras. 36–61). The majority, however, found that such a complete bar to judicial review would be incompatible with the rule of law. Hence, the majority concluded that both errors were reviewable—errors of law are reviewable under the correctness standard via the statutory appeal mechanism in subsection 68(1) of the Customs Act, while errors of fact are reviewable under the reasonableness standard through an application for judicial review (Best Buy at paras. 112, 120). Our Court has since confirmed that the ability to bring an application for judicial review in parallel with an appeal, though on limited grounds, has been settled by Best Buy (BCE Inc. v. Québecor Média Inc., 2022 FCA 152, 2022 A.C.W.S. 5773 at para. 58 (BCE)).
[30] The above rulings are binding. The concurrent filing of an appeal and an application for judicial review in the same proceeding nonetheless raises certain practical considerations that will briefly be addressed in conclusion of these reasons.
....
[47] In conclusion, a few additional observations are apposite with respect to concurrent proceedings—appeal and judicial review—where the legislative intent is to limit an appeal to questions of law, as is the case in section 68 of the Customs Act (Vavilov at paras. 33, 36).
[48] The interaction between a right of appeal and judicial review has recently garnered judicial and academic interest across the country (See Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446, 2022 A.C.W.S. 1702 (leave to appeal to SCC granted, 40348 (9 March 2023)) (Yatar); Smith v. The Appeal Commission, 2023 MBCA 23, 479 D.L.R. (4th) 121; Best Buy; BCE; Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, [2021] 3 F.C.R. 294 (Canadian Council for Refugees); Neptune; Democracy Watch v. Canada (Attorney General), 2023 FCA 39, 2023 A.C.W.S. 707; Democracy Watch v. Canada (Attorney General), 2022 FCA 208, 2022 A.C.W.S. 5655; Paul Daly, “Vavilov on the Road” (2022) 35:1 Can. J. Admin. L. and Prac. 1; Paul Daly, “Rights of Appeal: Contracting or Expanding Judicial Review?” (3 October 2023), online (blog): Administrative Law Matters ˂www.administrativelawmatters.com/blog/2023/10/03/rights-of-appeal-contracting-or-expanding-judicial-review/˃; Mark Mancini, “Issue #71: Administrative Law Wrapped, 2022” (18 December 2022), online (blog): The Sunday Evening Administrative Review ˂sear.substack.com/p/issue-71-administrative-law-wrapped˃; Mark Mancini, “Issue #45” (19 June 2022), online (blog): The Sunday Evening Administrative Review ˂sear.substack.com/p/issue-45-june-19-2022˃; Mark Mancini, “Issue #4” (8 August 2021), online (blog): The Sunday Evening Administrative Review ˂sear.substack.com/p/issue-4-august-8-2021˃).
[49] The key issue emerging in this regard, except for Canadian Council for Refugees and the Democracy Watch cases, does not seem to be whether an application for judicial review remains available to a party concurrent to an appeal. Rather, the genuine issue is to what extent a judicial review application, which is by definition a discretionary remedy, should be entertained when filed concurrently with an appeal that has been expressly limited in scope.
[50] However trite, the duplication of proceedings has an impact on judicial economy (Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502 at para. 70). Recently, the Supreme Court in Vavilov reiterated the goal of judicial efficiency in administrative law (Vavilov at para. 29). The minority in Best Buy foresaw the consequences of the duplication of procedures, noting that the “process would be more burdensome and more complicated than the efficient and timely system of review contemplated by the Customs Act alone” (Best Buy at para. 68).
[51] The present circumstances are no different. This appeal and application for judicial review followed two sets of procedural requirements but were ultimately heard together (see Rule 301 and following and Rule 337 and following of the Federal Courts Rules, S.O.R./98-106). The parties, nonetheless, had to prepare and respond to two memoranda, which contained overlapping arguments. This may be explained by the fact that an application for judicial review must be filed within 30 days, whereas an appeal can be filed within 90 days (see s. 18.1(2) of the Federal Courts Act and s. 68(1) of the Customs Act). These timeline incongruences resulted in the parties including in their judicial review application memoranda arguments that should have fallen within the purview of the limited right of appeal. Consequently, at the hearing, the arguments were repetitive, or at best, repackaged and articulated differently in the context of either the appeal or the application for judicial review.
[52] The better approach to reflect Parliament’s intent and the rule of law might be the more restrictive stance adopted by the Ontario Court of Appeal, which reiterates that “judicial review is always available,” but mandates that courts ask themselves whether it is an “appropriate” exercise of their discretion, adding that this is so only in “rare cases” (Yatar at paras. 42, 48). However, the Ontario Court of Appeal did not expand on the meaning of “rare cases,” stating that they should be determined on a “case-by-case basis” (Yatar at para. 45). Perhaps because, as a matter of practice, and in the vast majority of cases, the statutory appeal will be sufficient to address the issue at hand, and the judicial review, although available, will be rendered superfluous (Yatar at para. 47; Best Buy at para. 129). . Mulmer Services Ltd. v. LIUNA, Local 183
In Mulmer Services Ltd. v. LIUNA, Local 183 (Div Court, 2023) the Divisional Court considered the LRA's privative provisions [s.114(1) and s.116] and how that is interpreted in modern JR 'standard of review' doctrine:[31] Moreover, in the context of labour relations, the courts have a longstanding jurisprudential commitment to affording labour relations tribunals the highest degree of deference.[30] Indeed, as the Ontario Court of Appeal said in a 2020 decision, “[f]ew tribunals have received more judicial deference than labour tribunals and nothing in Vavilov detracts from this posture.”[31] Our Court of Appeal recently emphasized, in the context of a decision of the OLRB, that the “relevant expertise of the administrative decision maker must be borne in mind by a court conducting a reasonableness review.”[32] The Court of Appeal went on to hold that the Board “is a highly specialized tribunal with considerable expertise, placing it in an elevated position to interpret its home statute.”[33]
[32] Having regard for the governing statutory scheme here, it is to be noted that the LRA conveys exclusive jurisdiction on the Board to determine disputes under the Act. The Act contains two strong privative clauses. Subsection 114(1) mandates the Board’s jurisdiction and provides, inter alia, that the Board’s decisions are “final and conclusive for all purposes,” as follows:The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling. [33] In a similar vein, s. 116 of the Act reflects the legislative intent that judicial review of the Board’s decisions must afford great deference to the Board, as follows:No decision, order, direction, declaration or ruling of the Board shall be questioned or reviewed in any court, and no order shall be made or process entered, or proceedings taken in any court, whether by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the Board or any of its proceedings. [34] Consistent with the courts’ jurisprudence on the reasonableness standard of review, these statutory provisions underscore the importance of judicial restraint and respect for the Board’s interpretation of the LRA, its home statute.
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