Constitutional Law/Courts: Review of Delegated Powers
Democracy Watch v. Canada (Attorney General), 2024 FCA 158, 2026 SCC 28 (41576)
“The Conflict of Interest and Ethics Commissioner released a report concluding the then Prime Minister had not contravened the Conflict of Interest Act, s. 2 (“COIA”), when he participated in two funding decisions relating to the WE Charity. The report was the result of 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.
The Attorney General of Canada brought a motion to strike Democracy Watch’s application for judicial review, arguing Democracy Watch lacked standing and that its application was barred by s. 66 of the COIA, which prohibits judicial review of the Commissioner’s decisions on questions of fact or law. The motion judge determined that Democracy Watch had public interest standing to bring its application. However, he deferred to a full panel the question of whether s. 66 was a bar to judicial review on questions of fact and law. He ordered the proceedings to be split into two stages: Stage 1 would determine the validity and applicability of s. 66; if Democracy Watch succeeded at Stage 1, the application would proceed to Stage 2 for consideration of other issues raised. In its decision following the Stage 1 hearing, the full panel of the Federal Court of Appeal unanimously dismissed Democracy Watch’s application. It concluded that there were adequate alternative political remedies, such that judicial review was inappropriate.”
The SCC (9:0) allowed the appeal.
The Chief Justice wrote as follows (at paras. 7-8, 68, 75-76, 83-87):
“…The authority to review the legality of an exercise of delegated power is the exclusive preserve of the courts, assigned to the judicial branch by the judicature provisions in ss. 96 to 101 of the Constitution Act, 1867. Intrinsic to the very idea of a constitution is the notion that legal powers and authorities are bounded; all delegated power has limits, and no authority may be used in a manner inconsistent with the purpose for which it is granted: see Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at p. 248, citing Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, at p. 750; Alford v. Canada (Attorney General), 2026 SCC 14, at para. 56; see also References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, [2021] 1 S.C.R. 175, at para. 73.
By virtue of these features of our constitutional system, every exercise of public authority is subject to the courts’ supervisory jurisdiction to ensure that it does not exceed its legal limits. The availability of this “legality review” is constitutionally guaranteed. When read in its historical context, our jurisprudence is clear that the Constitution guarantees the availability of legality review of all aspects of an administrative decision. Section 66 of the COIA infringes this guarantee by purporting to bar judicial review on questions of fact and law: to that extent, it is of no force and effect.
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The courts of Canada, like the courts of England, have consistently held that irrational administrative decisions are unlawful, insofar as they exceed the inherent limits of delegated authority. Irrational decisions raise the spectre of arbitrary exercises of public power; the power of the courts to protect against such arbitrariness lies, as I have explained, at the very heart of the courts’ constitutionally protected jurisdiction under ss. 96 to 101.
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To be clear, legislatures are competent to prescribe procedures for judicial review, provided that the supervisory role of the courts is not ousted. Legislation may, for example, validly set out specific timelines or fora for judicial review of certain issues without functionally foreclosing judicial review for legality. In the same vein, as already noted, legislated standards of review are valid, provided they respect the limits of the rule of law: Vavilov, at para. 35. And, of course, the common law bases to decline to consider the merits of an application for judicial review — for instance, the presence of an adequate alternative remedy, non-justiciability, mootness, or prematurity — are fully consistent with the requirements of the rule of law: they constitute an exercise of, not a limit on, the supervisory jurisdiction of the courts.
But the legality of every aspect of an administrative decision, and every exercise of public power, is subject to the supervision of the courts. Where a statutory provision, properly construed, purports to limit any aspect of the courts’ constitutionally enshrined supervisory jurisdiction, that provision is ultra vires.
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The courts’ tendency to read privative clauses into constitutional compliance has strained the limits of the presumption of constitutionality. Courts must not assign to these provisions meanings that are fundamentally incompatible with the intent of the enacting legislature.
Here, I cannot accept that s. 66, read together with s. 18.1(4) of the Federal Courts Act, permits legality review on questions of fact and law. By expressly separating out review on questions of fact and law from review on jurisdictional grounds, s. 66 of the COIA suggests that Parliament’s intent was to invoke “jurisdiction” in its narrower, modern sense, analogous to the category of “true questions of jurisdiction” with which this Court grappled until Vavilov. Parliament’s clear intent in drafting s. 66 so as to expressly exclude review on questions of fact and law cannot be ignored.
The better approach is to recognize that s. 66, properly interpreted, purports to oust judicial review on questions of fact and law. To the extent it does so, s. 66 is inconsistent with ss. 96 to 101 of the Constitution Act, 1867 and, pursuant to s. 52(1) of the Constitution Act, 1982, should be declared of no force and effect.
All legal powers are subject to inherent limits. Under a constitutional order based in the rule of law, there is no such thing as an unfettered discretion: Roncarelli, at p. 140. The courts are tasked with ensuring that legal powers are exercised in accordance with their limits: Vavilov, at para. 67. Parliament and the legislatures are not constitutionally competent to shield administrative exercises of delegated power from judicial review for legality on any ground; such efforts trench on the core jurisdiction of the courts and are ultra vires.
The privative clause in s. 66 of the COIA should be declared of no force and effect to the extent that it purports to bar judicial review on questions of fact and law. It poses no obstacle to Democracy Watch’s application for judicial review. Furthermore, the Federal Court of Appeal erred in dismissing the application on the basis that there is an adequate alternative to judicial review.”