Landmark SCC ruling provides clarity on privative clauses

In a significant decision, the Supreme Court of Canada unanimously ruled that section 66 of the Conflict of Interest Act is unconstitutional and of no force or effect. The provision limited courts’ ability to review findings by Parliament’s ethics commissioner, permitting judicial review only in certain circumstances.

Partner Andrew Bernstein who acted as co-counsel for an intervener in the case, told National Magazine that the ruling stands among the most consequential administrative law decisions since Vavilov. In his view, the Court took an expansive approach to resolving the issue.

“They could have decided that the provision was ultra vires on a narrower ground, but they decided to swing for the fences,” Andrew said.

Looking ahead, the decision may prompt legislative responses, including any efforts to define the applicable standard of review for administrative decisions.

“There is a series of legislation that specifies the standard of review,” he said.

“One would think that kind of legislation should be safe because the Court said that they are specifying a particular standard of review. Legislatures in other provinces or federally may decide to start specifying the standards of review, particularly for questions of fact and law.”

In another interview with Law360, Andrew commented that this is “probably the most significant [Constitution Act, 1867] s. 96 decision in Canadian history—the culmination of something that the court has been hinting at for years: s. 96 says a lot more than its text might suggest.”

While the decision is notable, he suggested its practical impact may be limited, given that privative clauses have been largely ignored [by courts] for decades.

“[The nine judges’ unanimity] is relatively rare, so it’s good to see they achieved it in a decision with this much impact on the theoretical underpinnings on Canadian constitutional law,” Andrew added.

Read: So long, and thanks for all the privative clauses

In comments to Canadian Lawyer, partner Jeremy Opolsky, who served as co-counsel for an intervenor in the case, said the ruling brings clarity to a key question in administrative law.

In its 1981 decision in Crevier v. Attorney General of Quebec, the Supreme Court held that privative clauses cannot prevent courts from reviewing administrative decision makers on questions of jurisdiction, while allowing review restrictions on certain other legal issues when properly framed.

More recently, in the landmark ruling in Canada (Minister of Citizenship and Immigration) v. Vavilov, Jeremy said the Supreme Court later stated it was “not going to treat true questions of jurisdiction as in and of themselves a different category of judicial review.”

“So there were these open questions as to what we would do with judicial review of privative clauses post-Vavilov,” he added.

“We were really waiting to see what the court would do to create clarity on this question... What do we do with judicial reviews that the legislature expressly wants to get rid of, or prevent, or oust, or block, given ... the different strands of the law that we've had post-Vavilov?” Jeremy said.

“The court here is quite clear as to the pre-eminence of the rule of law, and that review for legality, which is what the chief justice calls it, cannot be ousted by the legislature.”

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