FACTS: On May 14, 2021, the federal Conflict of Interest and Ethics Commissioner released a report concluding that then Prime Minister Justin Trudeau had not contravened s. 2 of the Conflict of Interest Act, S.C. 2006, c. 9 (the “COIA”), in connection with his participation in two funding decisions relating to the WE Charity. The report arose from an investigation initiated under s. 44 of the COIA at the request of two members of Parliament.
Democracy Watch applied to the Federal Court of Appeal for judicial review of the Commissioner’s decision, alleging errors of fact and law. The Attorney General of Canada moved to strike the application, arguing Democracy Watch lacked standing and that s. 66 of the COIA — which prohibits judicial review of the Commissioner’s decisions on questions of fact or law — barred the application in any event. A motion judge confirmed Democracy Watch’s public interest standing but deferred the s. 66 question to a full panel. The proceeding was bifurcated: Stage 1 would address the validity and applicability of s. 66, with Stage 2 to follow if Democracy Watch succeeded at Stage 1.
Following the Stage 1 hearing, the full panel of the Federal Court of Appeal unanimously dismissed the application. The majority held that adequate alternative political remedies existed under the COIA’s reporting and parliamentary oversight mechanisms, making judicial review unnecessary. Chief Justice de Montigny, in a separate concurrence, would additionally have upheld s. 66 as a valid bar to review on questions of fact and law.
DECISION (per Wagner C.J.; Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ. concurring): appeal allowed.
No adequate alternative remedy: The Federal Court of Appeal erred in declining judicial review on the basis of adequate alternative political remedies. Under Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, an alternative remedy is adequate only if it provides a genuine channel for oversight of the legality of the impugned administrative action and makes available a commensurate remedy. Political oversight of the Commissioner — through annual reporting to Parliament and the Standing Committee on Access to Information, Privacy and Ethics — does not satisfy this standard: neither Parliament nor any other body has the power under the COIA to alter the Commissioner’s conclusions, which are explicitly stated to be final under s. 47. Unless the Commissioner’s decision is quashed on judicial review, it cannot be changed.
The constitutional guarantee of legality review: The authority to review the legality of exercises of delegated public power is the exclusive province of the courts, entrenched by necessary implication in the core supervisory jurisdiction of the superior courts under ss. 96 to 101 of the Constitution Act, 1867. Every exercise of public power has inherent limits; an unlimited power is not a legal power. The courts’ supervisory jurisdiction to ensure that those limits are respected cannot be ousted by ordinary legislation. Legislation that purports to exclude any aspect of an administrative decision from legality review trenches on the constitutionally protected jurisdiction of the courts and is ultra vires.
Scope of the constitutional guarantee: The Court clarified that what is constitutionally guaranteed is the availability of legality review, not the particular standard articulated in Vavilov. Parliament may legislate standards of review and procedural mechanisms for judicial review provided the supervisory role of the courts is not ousted. The common law bases for declining to consider the merits of an application — adequate alternative remedy, mootness, non-justiciability, and the like — are consistent with the constitutional guarantee because they represent an exercise of, not a limit on, the courts’ supervisory jurisdiction.
Section 66 declared of no force and effect: The Court declined to read s. 66 of the COIA into constitutional compliance by interpreting it as implicitly permitting legality review on questions of fact and law. Parliament’s clear intent in drafting s. 66 to expressly exclude review on those grounds — by reference to the specific paragraphs of s. 18.1(4) of the Federal Courts Act — was to invoke “jurisdiction” in its narrow, post-Vavilov sense, excluding review on questions of fact and law. That intent could not be reconciled with a constitutionally compliant reading. Accordingly, s. 66 was declared of no force and effect to the extent it purports to bar judicial review on questions of fact and law, pursuant to s. 52(1) of the Constitution Act, 1982. The matter was remanded to the Federal Court of Appeal to proceed to Stage 2.
COMMENTARY: This is among the most constitutionally significant administrative law decisions the Supreme Court has rendered since Vavilov. A unanimous Court has now definitively answered a question that the FCA had resolved in its own jurisprudence but that the Supreme Court had previously left open: legislatures cannot, by means of a partial privative clause, shield any aspect of an administrative decision from legality review by the courts. Three dimensions of the decision are worth highlighting.
First, the conceptual move the Court makes from “jurisdictional review” to “legality review” is both clarifying and significant. The Court resolves what had been a long-standing ambiguity in Crevier v. A.G. (Quebec), [1981] 2 SCR 220: that decision’s statement that questions of law “not touching jurisdiction” could be validly ousted by a privative clause must be understood against the backdrop of the Anisminic era, when “judicial review” was synonymous with de novo correctness review. Once reasonableness replaced correctness as the presumptive standard, the category of questions “touching jurisdiction” expanded to encompass all aspects of an administrative decision. The practical upshot is that the evolution of the standard of review — from correctness to deference — simultaneously expanded the constitutional floor of what courts are guaranteed to review. Privative clauses, once the key instrument by which legislatures extended deference, have now been rendered entirely inert as constitutional matter: they can signal nothing about the scope of judicial review that the presumption of reasonableness from Vavilov does not already accomplish, and they cannot validly restrict the scope of review below the legality baseline.
Second, the decision raises important practical questions about the relationship between the constitutional guarantee and legislated standards of review. The Court states that what is constitutionally entrenched is legality review — the ability to ensure all exercises of public power are sourced in law — and not Vavilov’s formulation of reasonableness as such. This leaves open the question of whether Parliament could legislate a standard more deferential than Vavilov’s reasonableness without offending s. 96. The Court expressly declines to answer this question. For practitioners advising tribunals or drafting enabling legislation, the upshot is that the constitutional floor is now clearly set at legality review across all aspects of a decision, but the precise contours of that floor remain to be defined in a future case. Legislated standards of review will be valid “provided they respect the limits of the rule of law” — a formulation that invites, rather than forecloses, future litigation.
Third, the adequate alternative remedy analysis is notable in its own right. The Court’s unanimous rejection of parliamentary oversight as an adequate alternative remedy for a private party challenging the legality of the Commissioner’s conclusions has implications beyond the COIA context. The decision reinforces Yatar’s requirement that an adequate alternative remedy must actually provide a forum for oversight of legality and a commensurate remedy — not merely a forum for the airing of political grievances. Where a statute explicitly provides that an administrative decision cannot be altered except through judicial review, no amount of political accountability will satisfy the adequacy requirement. Integrity commissioners and analogous officers of Parliament who issue final and binding reports should expect that their conclusions will remain subject to judicial review, notwithstanding privative clauses or parliamentary oversight mechanisms.
Finally, it is worth situating Democracy Watch within the broader post-Vavilov landscape alongside York Region District School Board, 2024 SCC 22, and Commission scolaire francophone des Territoires du Nord-Ouest, 2023 SCC 31. Together, these decisions delineate the constitutional architecture within which administrative decision-making and judicial oversight operate: (i) correctness review applies to the engagement, scope, and framework of Charter rights (York Region District School Board); (ii) reasonableness applies to proportionate Charter balancing (Commission scolaire); and (iii) legality review — in some form — is constitutionally guaranteed across all aspects of any administrative decision, and cannot be ousted by any privative clause (Democracy Watch). What remains, as in each of these decisions, is the difficult line-drawing exercise: precisely what constitutes legality review, and at what point a legislated standard deferential enough to functionally preclude review will cross the constitutional line. That question awaits a future case.