Commercial Litigation and Dispute Resolution Blog

When is a question not “legal” enough for a court to weigh in? The Federal Court of Appeal recently weighed in on this question in Canada (Attorney General) v. Democracy Watch, 2020 FCA 69, overturning the Federal Court on exactly this issue. The two courts’ decisions illustrate the difficulty in deciding what is and is not fair game for judicial review, and the blurriness of the boundary between justiciable and non-justiciable questions.

The facts of the case are now infamous. In early January 2017, Canadian media reported that Prime Minister Justin Trudeau, along with his family and some friends, celebrated the New Year on a private island in the Bahamas owned by Prince Karim Al Hussaini, Aga Khan (referred to here as the Aga Khan). The vacation was reported to be a gift of the Aga Khan.

On January 11, 2017, a private citizen (whose identity is not revealed in the Federal Court proceedings) sent a complaint to the federal Commissioner of Lobbying alleging that, in hosting the Prime Minister, his friends, and family, the Aga Khan breached the Lobbyists’ Code of Conduct.

The Commissioner ultimately declined to investigate, and this decision appears to have been based on an internal memo that concluded the Lobbyists’ Code did not apply to the Aga Khan’s interactions with the Prime Minister as they pertained to the vacation. Democracy Watch, a non-profit advocacy group, applied to the Federal Court for both public interest standing and judicial review of the Commissioner’s decision.

Before both the Federal Court and the Federal Court of Appeal, the Attorney General raised a threshold issue: is this the kind of application a court can and should rule on? In other words, is this matter justiciable? Far from the headline-worthy subject matter, the disagreement between the Federal Court and Federal Court of Appeal turns on this question: which disputes are appropriate for a court to decide, and which ones can’t even get in the door?

“Justiciability” is legal-speak for the idea that courts have only a limited role in resolving disputes. In a public law context, where the government is usually defending the litigation, “justiciability” is about the often blurry line between law and politics and about the boundaries between judicial, legislative and executive branches of government.^[1] In administrative law, it is also about whether an administrative body’s decisions are subject to judicial review, and whether there is any recourse available where a decision-maker has erred.

Democracy Watch demonstrates how profoundly judges can disagree about the application of this principle to a particular case. Both the Federal Court and the Federal Court of Appeal applied the test from Air Canada v. Toronto Port Authority, which holds that an administrative body’s decision will not trigger the right to judicial review if it “fails to affect legal rights, impose legal obligations, or cause prejudicial effects.”^[2] Both courts focused their analysis on section 10.4(1) of the Lobbying Act, which prescribes when the Commissioner must investigate complaints:

10.4 (1) The Commissioner shall conduct an investigation if he or she has reason to believe, including on the basis of information received from a member of the Senate or the House of Commons, that an investigation is necessary to ensure compliance with the Code or this Act, as applicable. (Emphasis added.)

The two courts differ starkly in their interpretation of this provision and their view of the Commissioner’s obligations with respect to information or complaints brought forward by the public. Clearly, section 10.4(1) contemplates that members of the Senate or the House of Commons may bring forward information regarding a compliance issue. But the Federal Court concluded that this section also allowed the Commissioner to consider information brought forward by a member of the public, and that the Commissioner is required to review, consider and render a decision about a compliance issue, including when that information is received from the public. For this reason, the Federal Court concluded that a decision under section 10.4(1) – such as a decision not to investigate, as was made here – affected legal rights and was thus properly subject to judicial review.

The Federal Court of Appeal adopted a much narrower view of the Commissioner’s obligations. The Federal Court of Appeal emphasized that, unlike many other statutes, the Lobbying Act does not expressly create a process for receiving and investigating public complaints. This is in contrast with information brought forward by members of the House of Commons or the Senate, which is directly addressed in section 10.4(1). The Federal Court of Appeal relied on this distinction to conclude that, because there is no statutory right for a member of the public to have a complaint investigated, the decision not to investigate is not subject to judicial review.

This is a curious and largely unexplained distinction to draw. It is an uncontroversial principle of statutory interpretation that the word “includes” usually carries a broad and non-restrictive meaning, and signals that the list or categories that follow are not exhaustive.^[3] The Federal Court of Appeal’s reasons do not deal with this interpretive issue.

The Supreme Court of Canada may yet weigh in on this issue, as Democracy Watch has sought leave to appeal. But beyond the perplexing exercise of statutory interpretation, this case raises important questions about the types of decisions for which judicial review is or is not available, even where, as in this case, there is no alternative mechanism for challenging the decision in question.

Whose rights have to be affected for an administrative body’s decision to be justiciable for purposes of judicial review? Must a complaint process, or other decision-making process, expressly and formally allow participation by the public in order to trigger a right of judicial review? What if the complaint isn’t about vindicating an individual’s rights, but instead seeks to hold a decision-maker to their statutory obligations? How does the concept of justiciability apply where Parliament has authorized – indeed, required – an administrative body to create and enforce rules about how lobbyists interact with public officials?

It’s also important to remember that litigants don’t find out if a case is justiciable until after the issue, or perhaps even the whole case, has been argued; in this case, Democracy Watch didn’t find out until after the appeal was decided. This has real consequences for litigants, who spend enormous amounts of money, energy and time preparing their case for court. Technical legal language aside, there is a very real public interest in having clarity around what sorts of cases are in or out of bounds when it comes to judicial review. This case provides an opportunity for the Supreme Court to weigh in on the meaning of justiciability and to clarify this most basic of ground rules.

_{[1] For more on the meaning of justiciability, see Lorne Sossin, Boundaries of Judicial Review: The Law of Justiciability in Canada, 2nd ed. (Toronto: Thomson Reuters, 2012).}

_{[2] 2011 FCA 347 [“Air Canada”] at para. 29.}

_{[3] See, for example, the Federal Court of Appeal’s decision in Canadian National Railway Company v. Canadian Transportation Agency, 2013 FCA 270 at para. 31.}