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Federal Court - JR - Standing. Canada (Attorney General) v. Canadian Civil Liberties Association
In Canada (Attorney General) v. Canadian Civil Liberties Association (Fed CA, 2026) the Federal Court of Appeal dismissed a federal AG JR, this brought against "the Federal Court’s finding that the declaration of a public order emergency was unreasonable and that some provisions of the Regulations and of the Economic Order violated the Charter", here where the emergency order was made under the federal Emergencies Act.
Here the court considers private JR standing under FCA 18.1 ['Application for judicial review']:[109] Pursuant to section 18.1 of the Federal Courts Act, a person seeking direct standing in an application for judicial review must establish that they are "“directly affected”" by the matter in respect of which relief is sought. In other words, a person seeking direct standing must establish that the challenged decision directly affects their rights, imposes an obligation on them, or causes them harm: see Unifor v. Vancouver Fraser Port Authority, 2017 FC 110 at para. 29; Friends of the Canadian Wheat Board v. Canada (Attorney General), 2011 FCA 101 at para. 21; League for Human Rights of B’nai Brith Canada v. Canada, 2010 FCA 307 [B’nai Brith] at para. 58; Laurentian Pilotage at paras. 31-32.
[110] The Federal Court acknowledged that courts should not give the words "“directly affected”" a restricted meaning. Yet the evidence must show more than a mere interest in a matter, as it also stated (Nagle at para. 159), and any direct effects must be non-speculative (see Hupacasath First Nation v. Canada (MFAIT), 2015 FCA 4 at para. 104). The rationale behind this requirement is to ensure that scarce judicial resources are devoted to real controversies, and therefore to avoid as much as possible the "“unnecessary proliferation of marginal or redundant suits”": Canadian Council of Churches v. Canada (MEI), 1992 CanLII 116 (SCC), [1992] 1 S.C.R. 236, 88 D.L.R. (4th) 193 at p. 252.
[111] We agree with the Federal Court that neither Ms. Nagle nor CFN meet the "“directly affected”" requirement. At no point were they named a "“designated person”" or a "“designated entity”" under the Economic Order, and none of their accounts were ever frozen. Indeed, they were never the subject of any measures taken under the Emergencies Act. In those circumstances, the Federal Court could find that Ms. Nagle and CFN’s argument had no "“air of reality”" and that it was "“inconceivable”" that any public authority would come to investigate and prosecute any hypothetical offences at this late stage in the aftermath of the February 2022 events.
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