Reviewable Decisions – The conundrum of determining whether a decision is subject to judicial review

Administrative law – Decisions reviewed – Conflict of Interest and Ethics Commissioner – Judicial review application – Availability – Investigation

Democracy Watch v. Canada (Attorney General), [2021] F.C.J. No. 683, 2021 FCA 133, Federal Court of Appeal, July 5, 2021, Y. de Montigny, M. Rivoalen and G.R. Locke JJ.A.

Relevant Facts

This Federal Court of Appeal decision arises from the investigation and report of the Conflict of Interest and Ethics Commissioner (the “Commissioner”) into the allegations of undue influence exercised upon the then Attorney General of Canada, the Honourable Jody Wilson-Raybould, to halt a criminal prosecution involving SNC-Lavalin. The applicant, Democracy Watch, argued that the Commissioner fettered his discretion and unreasonably refused to exercise his discretion under the Conflict of Interest Act, S.C. 2006, c. 9, when he stated that he did not have reasonable grounds to pursue concurrent examinations of eight public office holders (beyond the Prime Minister) who acted under the direction or authority of the Prime Minister.

The Commissioner had commenced his own investigation into a possible contravention of the Conflict of Interest Act by the Prime Minister. In his subsequent report, the Commissioner found that the individuals who acted under the direction or authority of the Prime Minister, as well as those who were involved on behalf of other ministers, could not have influenced the Attorney General simply by virtue of their position (unlike the Prime Minister). Therefore, on this basis, the Commissioner found that he had no reasonable grounds to pursue a concurrent examination of the eight other public officers and their conduct related to the allegations of undue influence. His investigation and subsequent report focused solely on the conduct of the Prime Minister directly or through his agents.

The Issue

Before turning to the merits of the issue raised by the application, the Federal Court had to determine whether the matter raised was justiciable – i.e., whether it was subject to judicial review. The applicant was not directly affected by the Commissioner’s decision. In Democracy Watch v. Conflict of Interest and Ethics Commissioner, 2009 FCA 15 [“Democracy Watch 2009”], the Federal Court established that if the conduct questioned in an application for judicial review fails to affect legal rights, impose legal obligations or cause prejudicial effects, there was no right to bring a judicial review of that conduct or decision.

The applicant argued two main points: (1) that the test developed in Democracy Watch 2009 did not apply; and (2) alternatively, even if it did apply, the test was met.

The Federal Court’s Analysis

What test applies?

On the first issue, the applicant argued that the test from Democracy Watch 2009 did not apply because it was outmoded and too restrictive. The applicant also argued that there was inconsistency in past Federal Court decisions concerning the correct test to be applied for the availability of judicial review. The Federal Court rejected the applicant’s argument.

First, it found that it was bound to follow Democracy Watch 2009, absent the applicant showing that it was “manifestly wrong, in the sense that the Court overlooked a relevant statutory provision or a case that ought to have been followed”. The court found that the applicant failed to meet this high bar. Second, it rejected the applicant’s argument that there was not uniformity in previous decisions. The court concluded that the test in Democracy Watch 2009 remains the applicable test to determine whether a decision is subject to judicial review.

Is the issue justiciable?

When applying the test in Democracy Watch 2009, the Federal Court concluded that the decision of the Commissioner not to commence a concurrent examination of the eight public office holders was not a reviewable matter. The Federal Court found that the Commissioner’s investigation and subsequent report, when viewed as a whole, did not “affect legal rights, impose legal obligations or cause prejudicial effects” to the eight public officers that Democracy Watch argued should have also been subject to investigation.

To begin with, the Commissioner’s investigation solely related to the liability of the Prime Minister. While the Commissioner reviewed documents from and interviewed other public officers, the purpose of this was to examine the Prime Minister’s conduct only. This was buttressed by the Commissioner’s finding that it was the Prime Minister that sought to influence the former Attorney General directly and through the actions of his agents. In other words, there were no finding or wrongdoing made against other public officers specifically. Given this, the court reasoned that the Commissioner was not in effect permitting any potential wrongdoing to go unpunished by not examining the conduct of the eight other public officers.

Finally, the court confirmed that the requirement of “prejudicial effect” asks whether the impugned act causes prejudicial effects. In this case, therefore, the question as whether the Commissioner’s decision not to investigate the eight public officers caused prejudicial effects. The court found it did not, largely relying on its earlier finding regarding the nature of the Commissioner’s investigation and report. The court also observed that the Commissioner had the authority to conduct an investigation of any other public officer related to the issue should new information come to light.

In the end, the court held that the applicant had not raised a justiciable issue and dismissed the application on this basis.

This case was digested by Adam R. Way, 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 contact Adam R. Way at away@harpergrey.com.

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