A prominent feature of Canadian jurisprudence in the public law domain is the absence of true stare decisis. A significant share of the key precedential cases addressing foundational notions in administrative law, such as the availability of review, the standard of review and the scope of Crown liability, have been decided relatively recently. The application of the Canadian Charter of Rights and Freedoms (Charter) also remains a working project. This is not, inherently, an unsatisfactory state of affairs. Challenging as it may be to advise clients, the common law is iterative in nature. Administrative law doctrines have morphed through time, dependent on the facts of the cases that have carried them, by dint of fate, to the court’s attention, with each later tribunal benefitting from past decisions and the experience of public life as it also evolves. The Charter is not yet 50 years old – the blink of an eye in jurisprudential time. Critical questions continue to require the court’s analysis.
One such example, and a prominent one, is Democracy Watch v. Attorney General of Canada (Democracy Watch).[1] Last month saw leave granted to the Supreme Court of Canada in this case, and at issue is whether privative (or ouster) clauses in statutory instruments can operate to foreclose, completely, the court’s jurisdiction to review. Are such clauses constitutional? How completely can they oust? Democracy Watch engages these questions directly.
A privative clause is a section of legislation which purports to prevent the court from reviewing or otherwise considering a determination of an administrative decision-maker. Democracy Watch – a public interest organization – argues that no ouster clause can exclude fully a court’s jurisdiction to review an administrative decision on grounds of reasonableness. The Federal Court of Appeal (the court below in the case) determined that the privative clause protecting the parliamentary Conflict of Interest Commissioner is good law. Democracy Watch’s argument is predicated on the purported constitutionality or quasi-constitutionality of judicial review. Review is said to be a core judicial function. The constitutionality of the court’s very existence (by virtue, in part, of sections 96 to 101 of the Constitution Act 1982), the argument goes, enshrines the constitutionality of the court’s core functions.
Historically, the difficulty with statutory clauses seeking to oust the court’s jurisdiction holus bolus was not the substance, but the scope, of the protected decision-maker’s power. An ouster or privative clause, interpreted at its broadest, could prevent a court from finding that a decision-maker is operating outside of their jurisdiction, and therefore outside the scope of what the privative clause is meant to cover. For example, a statute could be passed creating a cemeteries commissioner, whose determinations with respect to the upkeep of cemeteries are not to be reviewable. Should the cemeteries commissioner then determine that shopping mall parking lots are, in their view, cemeteries, the privative clause ought not to prevent the court from finding the cemeteries’ commissioner’s designs on shopping mall parking lots to be ultra vires – outside of its jurisdiction. In this limited – but consequential – basis alone, the court will always have a role of review. The court acts not as the referee of the dispute, but as an overseer of compliance with the system.
Matters progressed in Anisminic v. Foreign Compensation Commission,[2] a 1968 decision of the House of Lords. The Foreign Compensation Commission was a bureaucratic entity established to dispense public funds budgeted by Egypt to compensate British persons and businesses for property nationalized in the Suez canal region. Anisminic was a mining concern which was denied compensation by the Commission. Anisminic appealed, in face of an ouster clause in the applicable legislation which read that no “determination” of the Commission could be called into question in a court of law. Anisminic’s appeal was ultimately successful, however, as a majority in the House of Lords determined that a “determination” had not been made if it was outside the jurisdiction of the Commission. The kind of error made in Anisminic’s case – a material error of law – was not within the Commission’s jurisdiction to make.
The concept of “jurisdiction” was thus expanded beyond the colloquial notions of a decision-maker’s “wheelhouse” or “bailiwick” to something more substantive, often expressed as a vote of Parliamentary intention: Parliament’s words in the relevant statutory instrument, the argument goes, cannot be interpreted as giving an administrative decision-maker the power to make a legally wrong decision; such a power would not be conveyed and therefore any such “decisions” are not true decisions at all.
Canadian courts made the same evolution – from the “jurisdiction simpliciter” type of scope for review[3] (the cemeteries and shopping mall parking lots example), known as the “preliminary questions” doctrine, to a more involved concept of jurisdiction analogous to Anisminic, most notably in the New Brunswick Liquor case.[4] A “functional and pragmatic” approach – which in the event has proven to be neither functional nor pragmatic – of substantive review of administrative decision-making took precedence. By the time of the 1981 decision in Crevier, it was without question that the court’s scope of review was, in essence, the preliminary question at a minimum.[5]
The pendulum, in recent years, might have been swinging back towards a semblance of the preliminary questions doctrine.[6] With the advent of Vavilov[7] and the lasting settlement of the standards of review that it portends,[8] the prospect now arises that judicial review on grounds of reasonableness will be unassailably available for any administrative decision except those subject to correctness review, regardless of ouster language in the applicable statutory instrument. Privative clauses, Democracy Watch will argue, violate the rule of law as they serve to subjugate the court’s powers to ensure administrative decision-makers are rational, respect procedural fairness, and remain within their jurisdictional limits. If they are successful, administrative law in Canada will be fundamentally changed.
[1] 2024 FCA 158 (under appeal)
[2] [1969] 2 AC 147
[3] Farrell v. Workers Compensation Board, [1962] S.C.R. 48; Attorney General (Québec) et al. v. Farrah, [1978] 2 S.C.R. 638
[4] Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227
[5] Crevier v. Attorney-General of Québec, [1981] 2 S.C.R. 220
[6] For instance, commentary in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12
[7] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65
[8] SOCAN v. Entertainment Software Association, 2022 SCC 30; Mason v. Canada, 2023 SCC 21; Auer v. Auer, 2024 SCC 36
