Can The Government Immunize Certain Regulatory Decisions From Judicial Review? Federal Court Of Appeal And Supreme Court Of Canada Set To Weigh In

• Published date: 20 July 2023
• Subject Matter: Litigation, Mediation & Arbitration, Court Procedure
• Law Firm: Dentons
• Author: Ms Morgan Camley, Mélanie Power and Kathryn Gullason

Introduction

In a recent decision, the Federal Court of Appeal (the Court) considered whether the government can restrict parties from challenging government agencies and decision makers in court.

Generally speaking, a person (including a corporation) that is directly impacted by a regulatory decision made by a government agency or decision maker has the right to challenge that decision by way of an application in court for judicial review. The purpose of an application for judicial review is to ensure that government decision makers do not act outside the bounds of their statutory authority. On judicial review, the court will consider whether the decision was reasonable or, in some limited cases, whether the decision was "correct." Decisions made by government agencies and decision makers may also be reviewed by the court to ensure that they are procedurally fair.

In some cases, the federal or provincial government has passed legislation purporting to restrict the ability of an impacted party to apply for judicial review of a regulatory decision. This was the issue that arose in Democracy Watch v. Canada (Attorney General).¹

The decision

Democracy Watch, a non-profit organization, brought an application for judicial review seeking to set aside a decision of the Conflict of Interest and Ethics Commissioner (the Commissioner) finding that the Prime Minister did not contravene the Conflict of Interest Act by participating in two decisions involving a charity known as "WE Charity." The Commissioner sought to dismiss the application for judicial review relying on s. 66 of the Conflict of Interest Act, which limits the circumstances in which a person can judicially review a decision of the Commissioner.² In other words, s. 66 partially restricts the ability of an impacted party to challenge a decision of the Commissioner in court by way of judicial review.

Justice Stratas of the Federal Court of Appeal refused to decide the Commissioner's application to dismiss due to a serious conflict in the law regarding the validity of such partial restrictions on judicial review.³ One branch of case law says that partial restrictions on judicial review are contrary to the rule of law and should be ignored.⁴ However, another says that partial restrictions on judicial review are valid as long as they are supported by a pressing and valid government objective and are otherwise consistent with the rule of law, the ability of the judiciary to assess whether state action...