Privative clause in the Conflict of Interest Act precludes judicial review of decision of Conflict of Interest Ethics Commissioner on questions of law and fact

Privative clause in the Conflict of Interest Act precludes judicial review of decision of Conflict of Interest Ethics Commissioner on questions of law and fact.

Administrative law – Decisions reviewed – Conflict of Interest Ethics Commissioner – Judicial review – Privative clauses

Democracy Watch v. Canada (Attorney General), [2024] F.C.J. No. 2023, Federal Court of Appeal, October 2, 2024, Y. de Montigny C.J., R. Boivin and R. LeBlanc JJ.A.

The applicant, Democracy Watch, applied for judicial review of a decision of the Conflict of Interest Ethics Commissioner that Prime Minister Justin Trudeau did not contravene the Conflict of Interest Act, S.C. 2006, c. 9, s. 2, when he participated in decisions involving WE Charity. The issue was whether the application for judicial review was prohibited by a privative clause in the Conflict of Interest Act.

On May 14, 2021, the Commissioner concluded that the Prime Minister was not in a conflict of interest when participating in two decisions involving WE Charity. The applicant applied for judicial review from that decision. The Attorney General of Canada applied to strike the application for judicial review, on the basis it was prohibited by s. 66 of the Conflict of Interest Act. Section 66 of the Conflict of Interest Act prevents an application from bringing an application for judicial review on questions of law and fact, limiting judicial review to specific issues identified under the Federal Courts Act, R.S.C. 1985, c. F-7, in particular, jurisdiction, procedural fairness, or acting or failing to act “by reason of fraud of perjured evidence.”

The Federal Court of Appeal found the application for judicial review was prohibited by s. 66 of the Conflict of Interest Act. The decision in issue was made by the Conflict of Interest Ethics Commissioner, an Officer of Parliament. This distinguished this case from decisions made by quasi-judicial decision-makers or administrative tribunals. While privative clauses have the potential to interfere with the role judicial review plays in the rule of law, the Court held the scheme of the Conflict of Interest Act provides for dual parliament and judicial oversight. That scheme supported adhering to the limits prescribed by s. 66 of the Conflict of Interest Act on the judicial review function.

This case was digested by Joel A. Morris of Harper Grey LLP and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please feel free to contact him directly at [email protected].