Court Of Appeal For Ontario Rules That Parliamentary Privilege Prevents Mike Duffy From Suing The Senate

• Published date: 08 October 2020
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Privilege
• Law Firm: McCarthy Tétrault LLP
• Author: Canadian Appeals Monitor, Byron Shaw, Adam Goldenberg and Rauf Azimov

Years after his expenses became the subject of political controversy and a criminal prosecution, Senator Mike Duffy of Prince Edward Island has suffered a serious - and potentially lawsuit-ending - setback in his civil claim for damages against the Senate of Canada. On August 28, 2020, the Court of Appeal for Ontario ruled, in Duffy v. Canada (Senate), 2020 ONCA 536, that the Senate's handling of the "Duffy affair" is immune from judicial scrutiny because of the doctrine of parliamentary privilege. The court's judgment, written by Justice Mahmud Jamal and concurred in by Chief Justice George Strathy and Justice James MacPherson, illuminates the scope of parliamentary privilege in Canada and its interplay with the jurisdiction of the courts.

What is parliamentary privilege?

Parliamentary privilege is a legal doctrine derived from English law that insulates the legislative activities of Parliament (and of the provincial legislative assemblies) from judicial oversight. The doctrine developed in the late 17^th century out of the British Parliament's struggle for independence from the Crown and from the common law courts. Over time, it has become entrenched and solidified in parallel with the concept of Parliamentary supremacy.

Parliamentary privilege was received in Canadian law as part of the common law. It finds expression federally in the preamble and s. 18 of the Constitution Act, 1867 and ss. 4 and 5 of the Parliament of Canada Act.

What is this Duffy case about?

The Duffy appeal turned on whether courts can entertain a civil action for damages against the Senate of Canada on the basis of Senator Duffy's allegations. Senator Duffy claimed that the Senate was liable to him for "malicious prosecution misfeasance in public office, and unjust enrichment; for disqualifying him as a senator on grounds not provided under s. 31 of the Constitution Act, 1867; and for breach of his rights under the Canadian Charter of Rights and Freedoms" (Duffy at para. 9).

The Senator's claim originated in a highly publicized political scandal in which he was alleged to have misused his parliamentary resources. As a consequence of these allegations Senator Duffy was suspended from the Senate and subsequently charged criminally. He was ultimately acquitted of all criminal charges.

He then sued the Senate. His claim was struck at first instance for want of curial jurisdiction, on the basis of parliamentary privilege (Duffy v. Senate of Canada, 2018 ONSC 7523). The Court of Appeal upheld that decision. In doing so, it confirmed that - at the federal level, at least - parliamentary privilege leaves very little room for courts to scrutinize legislative activity, which includes the management of a chamber's internal affairs and the disciplining of MPs and Senators.

Principles of parliamentary privilege

In striking Senator Duffy's claim, the Court of Appeal reiterated the Supreme Court of Canada's description of parliamentary privilege in Canada (House of Commons) v Vaid, 2005 SCC 30, at para. 29(2), as "the sum of the privileges immunities and powers enjoyed by the Senate, the House of Commons and provincial legislative assemblies, and by each member individually, without which they could not discharge their functions". The Court underlined the...