Democracy Watch – Supreme Court finds that the jurisdiction of the Federal Courts to review the legality of every federal administrative decision cannot be ousted

The Conflict of Interest and Ethics Commissioner released a report in May 2021 concluding that Prime Minister Trudeau had not contravened the Conflict of Interest Act (the “COIA”) when he participated in two funding decisions relating to the WE Charity. Democracy Watch applied to the Federal Court of Appeal for judicial review of this decision.

The Attorney General of Canada argued that the application of Democracy Watch was barred by s. 66 of the COIA, which provided:

Every order and decision of the Commissioner is final and shall not be questioned or reviewed in any court, except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.1(4)(a), (b), or (e) of that Act.

The enumerated excluded grounds adverted to erring in law in making a decision or basing it on an erroneous finding without regard to the tribunal record or otherwise acting contrary to law (but not to acting without jurisdiction).

After finding that s. 66 purported to oust judicial review on questions of fact and law, Wagner CJ concluded that s. 66 “should be declared of no force and effect to the extent that it purports to bar judicial review on questions of fact and law.”

Before so concluding, he stated:

[68] The courts of Canada, like the courts of England, have consistently held that irrational administrative decisions are unlawful, insofar as they exceed the inherent limits of delegated authority. Irrational decisions raise the spectre of arbitrary exercises of public power; the power of the courts to protect against such arbitrariness lies, as I have explained, at the very heart of the courts’ constitutionally protected jurisdiction under ss. 96 to 101. …

[71] Legislative efforts to limit legality review are ultra vires not because reasonableness review, per se, is constitutionally entrenched, but because the Constitution guarantees the courts’ role in ensuring that all exercises of public power, as they manifest in all aspects of an administrative decision, are sourced in law. Where an administrative decision-maker acts in an official capacity and exercises a delegated power, it does not matter whether that exercise of power concerns questions of fact, of law, of fairness, or any other issue … . [T]he notion advanced by some academic commentators that judicial review is guaranteed only on questions of law has no sound historical or jurisprudential basis … . What matters, for constitutional purposes, is that the courts are constitutionally empowered to supervise the exercise of delegated power to ensure it respects the boundaries of its inherent limits. …

[73] … A privative clause that prevents the Federal Courts from exercising a component of the s. 96 supervisory jurisdiction assigned to them [under s. 101] is contrary to the Constitution Act, 1867 and of no force and effect. …

[76] [T]he legality of every aspect of an administrative decision, and every exercise of public power, is subject to the supervision of the courts.

Neal Armstrong. Summary of Democracy Watch v. Canada (Attorney General), 2026 SCC 28 under Constitution Act, 1867, s. 101.