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Legislature - Federal (2). Moreau v. Canada (House of Commons)
In Moreau v. Canada (House of Commons) (Fed CA, 2025) the Federal Court of Appeal dismissed an individual's consolidated appeal, here brought against two Federal Court standing/joinder orders regarding an incident where "the simultaneous interpretation of the proceedings of the House of Commons was interrupted, which the Speaker of the House of Commons commented on, only in English".
Here the court considered Federal Court joinder law [under FCR 303 (naming respondents)]:[5] On October 22, 2024, the Speaker of the Senate asked the appellant to amend his notice of application to remove her as a respondent because she is not at all affected by the application for remedy or involved in the allegations. After the appellant refused to comply with this request, the Speaker of the Senate brought a motion before the Federal Court on November 8, 2024, under Rules 104 and 303, seeking to be removed as a party and to have the style of cause amended. His Majesty the King did the same thing on November 5, 2024.
[6] In an order issued on November 27, 2024, Justice Lafrenière of the Federal Court allowed the Speaker of the Senate’s motion. On December 11, 2024, Justice Gascon of that same court also allowed His Majesty the King’s motion. In both cases, the Federal Court noted that neither the alleged shortcomings or facts, nor the remedies sought concern His Majesty the King or the Speaker of the Senate. In addition, the Federal Court found that no Act of Parliament provides for naming His Majesty the King or the Speaker of the Senate as a respondent in this dispute.
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[9] The Federal Court’s decisions on the joinder of parties, in application of Rule 104, are discretionary: Stevens v. Canada (Commissioner, Commission of Inquiry) (C.A.), 1998 CanLII 9074 (FCA), [1998] 4 F.C. 125 at para. 10. Insofar as such decisions involve the application of legal rules to facts, they may therefore be set aside only if the appellant can show that a palpable and overriding error was made. In contrast, errors that involve an extricable question of law must be reviewed on a standard of correctness: Housen v. Nikolaisen, 2002 SCC 33; Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215; Seismotech IP Holdings Inc. v. Ecobee Technologies ULC, 2024 FCA 144 at para. 5; Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157 at paras. 72 and 74.
[10] Rule 303(1) is clear: an application must name as a respondent every party directly affected by the remedies sought and, if applicable, the parties required to be included under an Act. When a person is not a proper party, nor a necessary party given the allegations made and remedies sought, they may cease to be a party under Rule 104(1): Canada (Fisheries and Oceans) v. Shubenacadie Indian Band, 2002 FCA 509 at paras. 6–8.
[11] In that case, this Court specified that a person should not be named as a defendant if the originating document "“states no cause of action against them, seeks no relief against them, and makes no allegations against them”" (at para. 6). The mere fact that the person may adduce relevant evidence or may be adversely affected by the outcome of the litigation will not be sufficient to join that person as a defendant in the litigation: ibid. at para. 7.
[12] That is precisely what Justice Lafrenière and Justice Gascon found in the two decisions that are the subject of these appeals. In both cases, the Federal Court concluded that His Majesty the King and the Speaker of the Senate were [translation] "“in no way involved in the application”" and that [translation] "“neither the alleged shortcomings and facts nor the remedies sought”" concerned His Majesty the King, the Senate or the Speaker.
[13] In my view, this finding is unassailable and contains no error of law, of fact or of application of the law to the facts. Indeed, the application relates only to allegations of non‑compliance with the OLA stemming from the interruption of simultaneous translation services on June 10, 2024, during a House of Commons debate. Yet, neither His Majesty the King nor the Speaker of the Senate plays a role in the conduct of House of Commons proceedings, nor in the way in which the simultaneous interpretation of those proceedings is provided. The House of Commons was present in this matter and clearly has better knowledge of the facts in dispute. Furthermore, none of the remedies sought involves His Majesty the King or the Speaker of the Senate. The fact that the appellant, in his originating document, claimed that there had been violations of the Charter does not in any way change the scope of the dispute or the nature of the remedies sought.
[14] The appellant contended that the Federal Court should have considered his motion for a mandatory interlocutory injunction. In that motion, the appellant asked the Federal Court to compel the Crown to exercise its prerogative to prorogue Parliament until the respondents took reasonable steps to protect interpreters from the violation of their rights. In his opinion, such an injunction would affect the Senate. However, it is accepted that the need for a party to be present for a proceeding must be assessed only on the basis of the contents of the originating document for that proceeding.
[15] Moreover, the Federal Court has already ruled that a third party may be joined as a party solely for the purposes of a motion, if it is established that their presence is necessary to dispose of the motion: see Canadian National Railway Company v. BNSF Railway Company, 2019 FC 142 at para. 14. More recently, the Speaker of the Senate was granted intervener status as part of a motion on the admissibility of documents relating to Senate proceedings. However, she was granted intervener status solely for the purposes of the motion; she was not considered a party to the underlying dispute, which was a class proceeding on a completely different issue: Thompson v. Canada, 2024 FC 1414; Thompson v. Canada, 2024 FC 1752; Thompson v. Canada, 2025 FC 476.
[16] Both Federal Court judges also correctly found that no Act of Parliament provides for naming the Speaker as a respondent in this proceeding. Even assuming that the OLA or the Rules allow the Speaker to be named as a party, doing so would not be appropriate insofar as this application involves only the House of Commons.
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[22] Regarding His Majesty the King, the appellant asserts that the Attorney General of Canada has already been named as a respondent, along with the House of Commons, in two prior cases: Quigley v. Canada (House of Commons) (T.D.), 2002 FCT 645 (CanLII), [2003] 1 F.C. 132 and Knopf v. Canada (House of Commons), 2006 FC 808. In my opinion, the fact that the Attorney General of Canada chose to participate as a respondent in a particular proceeding is insufficient to conclude that, in so doing, they agreed to being joined as a party in any subsequent dispute. The doctrine of issue estoppel does not extend that far. . 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.
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