The Past, Present, And (Potential) Future Of Privative Clauses

• Published date: 19 December 2025
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Trials & Appeals & Compensation
• Law Firm: Gowling WLG
• Author: Taylor Rodrigues and John Wilson

Before commencing or responding to an application for judicial review of a public authority's decision, it is important to check for the presence of a privative clause. This article briefly explains the history of privative clauses, summarizes the present state of the law regarding their application, and considers how a pending Supreme Court of Canada ("SCC") decision will shape their future.

The past: A brief history of privative clauses

A privative clause signals the legislature's intent that certain administrative decisions be insulated from judicial review. There are two types of privative clauses:

• full privative clauses, which purport to completely bar an administrative decision maker's ("ADM's") decisions from judicial review; and
• partial privative clauses, which purport to bar an ADM's decisions from judicial review on some, but not all, grounds (e.g barring judicial review on errors of fact, but not errors of law).

Full privative clauses have not been effective in Canadian law.¹

Prior to the SCC's decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 [Vavilov], the Canadian jurisprudence on privative clauses can be divided into two main eras: the jurisdictional era, and the pragmatic and functional era.

In the jurisdictional era, privative clauses could bar judicial review of anything done within an ADM's statutory grant of authority, or its "jurisdiction."² This meant that full privative clauses were read down to only bar judicial review of actions an ADM did within its jurisdiction; a privative clause could not bar judicial review of anything an ADM did outside of its jurisdiction.

The jurisdictional approach was criticized because even when an ADM made an egregious error within its jurisdiction (for instance, a clear misapprehension of the facts or evidence before it) a privative clause could bar judicial review.

The Supreme Court of Canada's decision in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 CanLII 23 (SCC) is often credited with ushering in the pragmatic and functional era.³ There were two main developments in the law in this era:

1. Patently unreasonably errors of law, and then later also patently unreasonable errors of fact, were seen as akin to jurisdictional era. So patently unreasonable errors, in addition to jurisdictional errors, could not be barred by privative clauses.⁴
2. The presence and strength of a privative clause was seen as one of several factors that determined the standard of review in an application for judicial review. For example, a full privative clause may not prohibit judicial review but instead indicate that the court should adopt a more deferential standard of review.

In short, in the pragmatic and functional era, at most, a privative clause could bar judicial review of anything an ADM did within its jurisdiction, except for patently reasonable errors. However, often courts found that privative clauses did not bar grounds of judicial review but instead increased the deference that courts ought to apply in applications for judicial review.⁵

The present: The post-Vavilov era of privative clauses

Vavilov ushered in modern administrative law, including...