So long, and thanks for all the privative clauses

Can Parliament or a provincial legislature prevent courts from reviewing administrative decisions? In Democracy Watch, the Supreme Court of Canada answered a longstanding question in administrative and constitutional law about the status of privative clauses, by deciding they are inconsistent with ss. 96 to 101 of the Constitution Act, 1867.

What you need to know

• Legality review is constitutionally guaranteed for all aspects of an administrative decision. The superior courts’ supervisory jurisdiction covers all exercises of public authority and ensures that each exercise does not exceed the legal limits of the authority at issue. 
• Privative clauses barring review of questions of fact and law can be constitutionally invalid. Courts must be able to remedy any unlawful exercise of authority. Legislative attempts to restrict this supervisory jurisdiction impermissibly limit the courts’ constitutional function.
• Political remedies will rarely displace judicial review. Courts retain discretion to decline to consider judicial review applications where there is an adequate alternative remedy. However, political remedies will only be adequate where they provide the ability to challenge the legality of impugned decisions.

Path to privative clauses: WE charity and conflicts of interest

Superior Courts have long exercised a supervisory role over the legality of administrative decision-making, a function known as judicial review. So-called privative clauses are sections of legislation that attempt to limit (or eliminate) judicial review. Canadian courts have regularly found that ss. 96 to 101 of the Constitution Act, 1867, which deal with the Superior Courts, protect their core functions and render invalid any privative clause that entirely eliminates judicial review. However, exactly what part of their judicial review jurisdiction is constitutionally protected has been a question that is much debated, and courts have largely split¹.

An attempt to review a Conflict of Interest Act decision runs into a privative clause

In 2021, the Conflict of Interest Ethics Commissioner concluded that Prime Minister Justin Trudeau did not contravene the Conflict of Interest Act² when he participated in decisions involving the WE Charity.

Democracy Watch, a non-profit citizen group, applied for judicial review of the Commissioner’s decision. The Act has a privative clause stating that the Commissioner’s decisions are only reviewable on issues of jurisdiction, procedural fairness, or acting or failing to act “by reason of fraud of perjured evidence”³. The Attorney General of Canada argued that this clause barred judicial review on questions of law and fact.

The Federal Court of Appeal struck the judicial review application, largely on the basis of existing political remedies. Writing only for himself, Chief Justice de Montigny held that the privative clause barred judicial review on questions of fact and law, and that this limitation was consistent with ss. 96 to 101 of the Constitution Act, 1867. The Supreme Court granted leave to appeal.

The Supreme Court is unanimous: all legality review is constitutionally guaranteed

Chief Justice Wagner wrote for a unanimous Supreme Court, which held that the Act’s privative clause is unconstitutional and invalid. The Court concluded that ss. 96 to 101 of the Constitution Act, 1867 protect all forms of judicial review for legality. These sections require that Courts be able to exercise their supervisory jurisdiction to remedy any unlawful exercise of legal authority. Legislative efforts to restrict this ability impermissibly limit the courts’ constitutional function and are ultra vires. The courts’ supervisory jurisdiction allows them to fulfil their role as guardians of the rule of law and to ensure that Canadians are protected from arbitrary administrative action. Nonetheless, the Court deferred to another day the question of whether a standard of review is constitutionally protected.

The Supreme Court also held that courts retain the discretion to decline to consider the merits of an application for judicial review, according to common law. This includes, most notably, where there is an adequate alternative remedy. However, the Court limited the availability of political avenues as adequate alternative forums that could displace judicial review. Previous cases have held that if a statutory regime provides an alternative forum to review the legality of an administrative decision, judicial review may be unnecessary. But here, the political remedy—a report from the Commissioner to a standing committee of Parliament—was insufficient. First, while the Commissioner potentially had recourse to Parliament, Democracy Watch did not. Second, the Act is explicit that the Commissioners’ conclusions are final; even if Democracy Watch could bring its concerns before Parliament, no remedy would be available.

Implications

1. The Supreme Court heralds a new era for privative clauses. Democracy Watch greatly limits the impact and viability of privative clauses. Legislatures will have difficulty barring judicial review through these types of provisions due to the constitutional guarantee of legality review. Privative clauses that currently limit judicial review for questions of law and fact are subject to legal scrutiny and challenge. 
2. No need to parse; questions of law and fact are reviewable. Canadian administrative law has long struggled with effectively distinguishing the different categories of reviewable questions. Instead of continuing this trend, Democracy Watch provides a simple solution through a broad understanding of legality review that encompasses both questions of fact and law. This choice will limit definitional disputes over whether an issue is properly a question of fact or law.
3. The existence of a constitutional minimum standard of review is left for another day. The Court declined to recognize a constitutional guarantee of reasonableness review. As a result, future disputes will likely require courts to consider whether a particular standard of review is constitutionally protected. This issue may return to the Supreme Court in the future.

Note

Andrew Bernstein, Jeremy Opolsky and Alex Bogach acted on this appeal for the intervener Canadian Constitutional Law Initiative of the University of Ottawa Faculty of Law.