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Legislature - Conflict of Interact Act (COIA). 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. . 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. . Democracy Watch v. Canada (Attorney General)
In Democracy Watch v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal (Strathas JA) considered another interlocutory issue in a larger politically-charged judicial review of decision-making by the Conflict of Interest and Ethics Commissioner. The immediate interlocutory issue here was the applicant's request that a full Commissioner record by available in the face of "bar(s) against raising certain grounds of review" [Conflict of Interest Act, s.66], whether the court should respect (or not) this immunity as a privative clause, and associated practical preservation of confidentiality concerns:[7] Democracy Watch’s disclosure request places the Commissioner in an untenable position. The Commissioner is being asked to disclose confidential documents in support of a ground that might be barred under section 66. If ultimately the panel hearing the application finds that section 66, as a partial restriction on judicial review, applies to bar some or all of the grounds raised in this application, then confidential material that never should have been disclosed will have been disclosed.
[8] Democracy Watch proposes protections to ensure that any material disclosed remains confidential as much as possible. For example, it proposes that confidential material will be disclosed only to its counsel and the panel and that both will be operating under strict prohibitions against disclosure.
[9] But this is not a full answer to the Commissioner’s concern. Confidentiality will no longer be all-encompassing: some, albeit very few, will have access to the material, arguably contrary to the expectations and legal rights of those who supplied evidence during the Commissioner’s investigation.
[10] The confidential material sought by Democracy Watch is relevant to only one ground for review: an alleged error of fact. The other two grounds concern statutory interpretation, a purely legal issue requiring the Court to examine the text, context and purpose of the Act. The confidential material is irrelevant to that task.
C. The solution
[11] The conundrum posed by this disclosure motion can be solved by Rule 107 of the Federal Courts Rules. Under Rule 107(1), the Court can order that “issues in a proceeding be determined separately”.
[12] Rule 107(1), which applies to a “proceeding”, applies here. An application for judicial review is “proceeding”: see Rule 2 (definition of “application”); see also Lukács v. Swoop Inc., 2019 FCA 145 at para. 9.
[13] Thus, the Court has the power under Rule 107 to order that an issue in this application for judicial review be determined separately. Here, the issue is the conflict in the Court’s jurisprudence about whether section 66 of the Conflict of Interest Act bars the grounds the applicant raises in its application: see paragraph 5 above.
[14] If the Court decides that section 66 bars the grounds, the Court must dismiss the application. If the Court decides that section 66 does not bar the grounds, in particular the ground of error of fact raised by Democracy Watch, the Court will have to consider the merits of the application. In that case, the first item of business will be whether the Commissioner has to disclose confidential material and, if so, under what conditions.
[15] Proceeding in this way ensures that disclosure under strict protective conditions—if it happens at all—will be only as a very last resort. . Democracy Watch v. Canada (Attorney General)
In Democracy Watch v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal considered a motion to strike a judicial review by a public interest litigant of decisions of the Conflict of Interest and Ethics Commissioner involving the Prime Minister. The case is interesting for it's review of portions of the Conflict of Interest Act, including a privative clause:[2] The Commissioner concluded that the Prime Minister did not contravene three sections of the Conflict of Interest Act: subsection 6(1) (participating in the making of a decision that would be a conflict of interest), section 7 (giving preferential treatment to a person or organization) and section 21 (failing to recuse from a matter in which there would be a conflict of interest).
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[11] Section 66 of the Act provides that every decision of the Commissioner is final and shall not be reviewed unless the grounds in paragraphs 18.1(4)(a), (b) or (e) of the Federal Courts Act, R.S.C. 1985, c. F-7, apply. Those grounds are that the decision-maker, here the Commissioner:"“acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction”" (paragraph 18.1(a)),
"“failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe”" (paragraph 18.1(b))
"“acted, or failed to act, by reason of fraud or perjured evidence”" (paragraph 18.1(e)).
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