Dockets: T-1526-14
T-304-15
T-1539-14
T-1935-14
Citation:
2017 FC 942
Ottawa, Ontario, October 24, 2017
PRESENT: The
Honourable Madam Justice Gagné
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BETWEEN:
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BOULERICE ET
AL.
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Applicants
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and
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ATTORNEY
GENERAL OF CANADA, BOARD OF INTERNAL ECONOMY, SPEAKER OF THE HOUSE OF COMMONS
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Respondents
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and
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MAURICE
VELLACOTT
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Intervener
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ORDER AND REASONS
I.
Nature of the Matter
[1]
This preliminary motion, brought by the Board of
Internal Economy [Board] and the Speaker of the House of Commons [Respondents],
requires the Court to examine the scope and limits of two equally crucial constitutional
imperatives: parliamentary privileges and immunities stemming from the
separation of powers between the legislative, executive and judicial branches
of the State, and the role of judicial review in preserving the rule of law as
a “fundamental postulate of our constitutional
structure” (Roncarelli v Duplessis, [1959] S.C.R. 121 at 142).
[2]
The Respondents argue that this Court lacks
jurisdiction to hear the four applications for judicial review brought by the
Applicants, all members or former members of Parliament for the New Democratic
Party of Canada [NDP]. In these applications, they challenge decisions of the Board
who found that they had used parliamentary resources and services in
contravention of the Board’s by-laws. This, according to the Respondents, is
outside of this Court’s jurisdiction pursuant to the Federal Courts Act,
RSC 1985, c F-7, the doctrine of parliamentary privilege, and the House of
Commons’ exclusive right to manage its internal affairs. The Respondents thus ask
that these applications for judicial review be struck without leave to amend, and
dismissed in their entirety.
[3]
The Intervener, Mr. Maurice Vellacott, is a
former member of Parliament for the Conservative Party. He was granted
intervener status to set out the context of his own case before the Board. He
supports the position of the Applicants and argues in favour of this Court’s
jurisdiction over the matters.
II.
Decisions under Review
[4]
In its first decision, dated June 2, 2014, the Board
found that the NDP mailings, which had been the subject of an investigation,
were in contravention of the Board’s by-laws because they were prepared by and
for the benefit of a political party.
[5]
Then, on June 11, 2014, the Board declared that
the Applicants had to repay the printing costs and envelopes of those mailings,
due to their contravention of sections 4(3), 6, and 7 of the Members By-law.
[6]
In a third decision dated August 12, 2014, the
Board determined that some NDP members inappropriately used parliamentary
resources for expenses related to employment, telecommunications, and travel,
in contravention of the Members By-law, and that individual Members’
Office Budgets were used to supplement the NDP National Caucus Research Office
Budget.
[7]
Finally, on February 3, 2015, the Board directed
the House Administration to inform the NDP members of the costs that must be
reimbursed pursuant to the decisions dated August 12, 2014.
[8]
Following the issuance of the Board’s decisions,
the Applicants brought applications to this Court seeking judicial review of
the above decisions (see Court file numbers T-1526-14, T-304-15, T-1539-14, and
T-1935-14). Prior to any evidence being served and filed, the Respondents
brought the present motion to strike.
III.
Issues
[9]
This motion raises the following issues
concerning the matter of whether these decisions rendered by the Board can be
judicially reviewed by this Court:
A.
Whether decisions of the Board are subject to
judicial review by the Federal Court pursuant to the Federal Courts Act?
B.
Whether decisions of the Board relating to
the use of resources by members are proceedings in Parliament and immunized by
parliamentary privilege or whether they fall within the House of Commons’
exclusive right to manage its internal affairs?
IV.
Analysis
[10]
Although the Respondents challenge the
jurisdiction of this Court on two different counts – a statutory argument and one
based on parliamentary privilege – I agree with the Intervener that the
analysis and answers to be given to both questions ought to be somewhat
aligned. When enacting sections 2, 18 and 18.1 of the Federal Courts Act,
the legislator intended to remove judicial review jurisdiction over decisions
of all federal boards, commissions or other tribunals from the superior courts
of the provinces to the Federal Court. If I find that the decisions under
review are not covered by a parliamentary privilege, a finding that the Board
is not a “federal board” pursuant to subsection
2(2) of the Federal Courts Act would lead to the odd result that its
decisions would still be amenable to judicial review by the superior courts of
the provinces, contrary to the clear intent of the legislator.
A.
Whether decisions of the Board are subject to
judicial review by the Federal Court pursuant to the Federal Courts Act?
[11]
The Federal Court is granted exclusive original
jurisdiction to hear and determine applications for judicial review of any
federal board, commission or other tribunal, pursuant to sections 18 and 18.1
of the Federal Courts Act. The Act defines a “federal board, commission or other tribunal” as
follows:
[…] any body, person or persons having,
exercising or purporting to exercise jurisdiction or powers conferred by or
under an Act of Parliament or by or under an order made pursuant to a
prerogative of the Crown, other than the Tax Court of Canada or any of its
judges, any such body constituted or established by or under a law of a
province or any such person or persons appointed under or in accordance with a
law of a province or under section 96 of the Constitution Act, 1867; (Federal
Courts Act, ss 2(1) “federal board, commissions or other tribunal”).
[12]
Its specific application to the Senate and the House
of Commons – which do not exercise jurisdiction or powers conferred by or under
an Act of Parliament or by or under an order made pursuant to a prerogative of
the Crown – is further clarified in subsection 2(2) of the Act, whereby
it is stated:
For greater certainty, the expression federal
board, commission or other tribunal, as defined in subsection (1), does
not include the Senate, the House of Commons, any committee or member of either
House, the Senate Ethics Officer, the Conflict of Interest and Ethics
Commissioner with respect to the exercise of the jurisdiction or powers
referred to in sections 41.1 to 41.5 and 86 of the Parliament of Canada Act,
the Parliamentary Protective Service or the Parliamentary Budget Officer.
[Emphasis added.]
[13]
In light of the relevant legislative provisions,
the question that must be answered is whether the Board is excluded from this
Court’s jurisdiction pursuant to subsections 2(1) and 2(2) of the Federal
Courts Act.
[14]
In my opinion, it is not.
[15]
In order to be a “federal
board, commission or other tribunal”, a board must exercise jurisdiction
or powers conferred by or under an Act of Parliament. The Board is established
under section 50 of the Parliament of Canada Act, RSC 1985, c P-1, federal
legislation.
[16]
Under the Parliament of Canada Act, the
Board is empowered to act on all financial and administrative matters
respecting the House of Commons, its members, its premises, its services and
its staff (Parliament of Canada Act, s 52.3).
[17]
The Respondents rely on the Federal Court of
Appeal’s decision in Southam Inc v Canada (Attorney General), [1990] 3
FCR 465 (CA), in which the Court held that the Federal Court did not have
jurisdiction to entertain claims concerning proceedings of the Senate. In
reaching this conclusion, the Court analyzed the three conditions necessary to
base jurisdiction in the Federal Court, as prescribed by the Supreme Court of
Canada in ITO-Int'l Terminal Operators v Miida Electronics, [1986] 1 SCR
752.
[18]
The Federal Court of Appeal held that the Senate
was not a “federal board, commission or other tribunal”.
The definition requires that the federal board, commission or other tribunal
exercise jurisdiction or powers conferred by or under an Act of Parliament (Federal
Courts Act, ss 2(1) “federal board, commission or
other tribunal”). Since the Court determined that the privileges,
immunities and powers of the Senate are conferred by section 18 of the Constitution
Act, 1867, and not by statute, it could not fit within the prescribed
definition (Southam, above at para 26).
[19]
In the case of the Board, its jurisdiction and
powers are clearly stated at section 52.3 of the Parliament of Canada Act,
and are not derived from constitutional privileges. It cannot be said, as
argued by the Respondents, that any power found in the Parliament of Canada
Act is an expression of the privileges set out in section 18 of the Constitution
Act, 1867. It is only the legislative conferral of privileges, immunities
and powers found in section 4 of the Parliament of Canada Act, with the
limits expressly imposed therein, that derives from section 18 of the Constitution
Act, 1867:
Parliamentary privileges, immunities and
powers
4. The Senate and the House of Commons,
respectively, and the members thereof hold, enjoy and exercise
(a) such and the like privileges, immunities
and powers as, at the time of the passing of the Constitution Act, 1867, were
held, enjoyed and exercised by the Commons House of Parliament of the United
Kingdom and by the members thereof, in so far as is consistent with that Act;
and
(b) such privileges, immunities and powers
as are defined by Act of the Parliament of Canada, not exceeding those, at the
time of the passing of the Act, held, enjoyed and exercised by the Commons
House of Parliament of the United Kingdom and by the members thereof.
[20]
The same cannot be said of the provisions that establish
and empower the Board, namely section 52.3 of the Parliament of Canada Act.
The majority of the provisions in the Parliament of Canada Act do not
concern constitutional parliamentary privileges and they were, in my view,
enacted pursuant to section 91 of the Constitution Act, 1867.
[21]
The Federal Court of Appeal in Southam provided
that the plain meaning of the words “federal board,
commission or other tribunal” support the conclusion that the Senate
cannot be classified as such. The Court stated that the Senate – just like the
House of Commons, “is an essential part of the process
that gives birth to federal boards, commissions or tribunals, and as such the
Senate simply is not on the same level as those entities” (Southam,
above at para 28).
[22]
This case does not involve the Senate or the
House of Commons, institutions central to our free and democratic system of
government (Southam, above at para 29 citing Re House of Commons and
Canada Labour Relations Board, 1986 CanLII 4052 (FCA) at para 36). Rather,
we are faced with a subsidiary entity charged and empowered to administer the
use of resources and services by members. The Board, in all of its delegated
powers and functions, is clearly not as fundamental to our notion of free
democracy that it attracts the same protections afforded to the Senate and the
House of Commons.
[23]
Following Southam, subsection 2(2) was
added to the Federal Courts Act. It specifically excludes the House of
Commons and any committee or member thereof from the jurisdiction of the Federal
Court. Although the Respondents argue that this clearly excludes the Board, they
cite no case law in support of this assertion.
[24]
In addition to the Senate, the House of Commons,
and their members, Parliament deliberately excluded, in subsection 2(2) of the Federal
Courts Act, specific bodies and functions, but it did not exclude the Board
from the scope of judicial review. Therefore, the Intervener submits that
Parliament could not have intended to shield from review by this Court all
powers exercised under the Parliament of Canada Act, or it would have
done so expressly.
[25]
There is a line of jurisprudence following the
conclusion that the Senate is not a “federal board,
commission or other tribunal”, as enunciated in Southam and the
subsequent precision brought into the Federal Courts Act through
subsection 2(2). In Marcus v Waddell, 1997 CanLII 5487 (FCA), the
Federal Court of Appeal held that an individual member of Parliament was
clearly not a “federal board, commission or other
tribunal”. In Galati v Canada (Governor General), 2015 FC 91,
this Court confirmed that individual members of the House of Commons are not a “federal board, commission or other tribunal” within
the meaning of subsection 2(1) of the Federal Courts Act, and that in
the act of voting, cabinet ministers stand undifferentiated from other members
of Parliament (Galati, above at paras 63-64). The Court added that the
Governor General, in granting royal assent, is also excluded from this Court’s
jurisdiction (Galati, above at paras 32, 53). However, where a minister
makes a decision, order, or act pursuant to a jurisdiction or power under an Act
of Parliament, this may “trigger jurisdiction of this
Court” (Galati, above at para 65).
[26]
I also disagree with the Respondents that the
Board is no more than a “committee” of the House
of Commons. Committees of the House of Commons – be they standing, legislative,
special or subcommittee – are specific parliamentary bodies derived from the
conduct of the House, its Standings Orders and parliamentary tradition. “A parliamentary committee is a small group of Members
created and empowered by the House to perform one or more specific tasks”
(Audrey O’Brien and Marc Bosc, eds, House of Commons Procedure and Practice,
2nd ed (Ottawa: House of Commons, 2009) at ch 20 “Committees”).
They are not created by, nor do they take their powers from, an Act of
Parliament. They examine policy, engage in law-making and exercise functions at
the core of the legislative powers.
[27]
The Board, on the other hand, has no such functions.
Its only functions are financial and administrative.
[28]
Acknowledging those fundamental differences between
a committee of the House and the Board is, in my mind, far from what the Respondents
qualify as “a triumph of form over substance.”
[29]
If the Board was excluded from the definition of
“federal board” and thus not amenable to
judicial review before this Court, a decision whereby it terminates the
employment of a member of Parliament’s chauffeur or the House of Commons’ security
guards could only be reviewed by the superior court of a province, as those two
examples have been held not to fall within any category of parliamentary privilege
(Canada (House of Commons) v Vaid, 2005 SCC 30 and Syndicat de la function publique et parapublique du Québec(SFPQ) c
Chagnon, 2017 QCCA 271(QL)). Such a result would go
against the effect and intent of section 18 of the Federal Courts Act granting
this Court exclusive jurisdiction over the decisions of federal boards. This
statutory transfer of jurisdiction from the superior courts was not meant to
extinguish any existing judicial review oversight.
[30]
Finally, section 52.2 of the Parliament of
Canada Act provides that the Board has the capacity of a natural person and
may enter into contracts, memoranda of understanding and other arrangements, “[i]n exercising the powers and carrying out the functions
conferred upon it pursuant to this Act.” This capacity and these powers
are inconsistent with immunity from judicial scrutiny on grounds of parliamentary
privilege.
[31]
That is not to say that no decision or action of
the Board would benefit from a recognized category of parliamentary privilege,
but simply that the Board does not, in my view, fall outside the express
jurisdiction granted to this Court by sections 2 and 18 of the Federal
Courts Act.
B.
Whether decisions of the Board relating to the
use of resources by members are proceedings in Parliament and immunized by
parliamentary privilege or whether they fall within the House of Commons’
exclusive right to manage its internal affairs?
[32]
Parliamentary privileges in Canada take their
source from the preamble to the Constitution Act, 1867, which provides
for “a Constitution similar in Principle to that of the
United Kingdom”. As indicated above, its section 18 further limits the
privileges that can be conferred on the House of Commons by Parliament to those
held by the House of Commons of Parliament of the United Kingdom at the time of
Confederation. Therefore, the Respondents cannot rely on parliamentary
privilege exceeding this statutory and constitutional scope.
[33]
The Canadian approach to parliamentary privilege
is also limited to that which is necessary to allow the legislature to function
(Vaid, above at para 41). The Supreme Court of Canada in Vaid
established a two-step approach to determine the existence of a parliamentary
privilege: first, the question is whether the category asserted by the party
claiming privilege is established by prior authority; and second, whether the
party claiming privilege has established necessity.
[34]
The onus is on the Respondents to demonstrate
that the decisions at stake fall within an established category of privilege.
In my opinion, they failed to do so.
[35]
Recognized categories of privilege were outlined
by the Supreme Court of Canada in Vaid, and are as follows: freedom of
speech, control by the Houses of Parliament over debates or proceedings in Parliament,
the power to exclude strangers from proceedings, and disciplinary authority
over members and non-members who interfere with the discharge of parliamentary
duties, including immunity of members from subpoenas during a parliamentary
session (Vaid, above at para 29.10).
(1)
Proceedings in Parliament
[36]
The Respondents argue that the Board’s
activities fall under the category of privilege known as “Proceedings in Parliament” as found in Article 9 of
the UK Bill of Rights (entitled “Freedom of Speech”):
That the Freedome of Speech and Debates or
Proceedings in Parlyament ought not to be impeached or questioned in any Court
or Place out of Parlyament (Bill of Rights, 1688 (UK), 1 Will and
Mar Sess 2, c 2).
[37]
They argue that the definition of “Proceedings in Parliament” is broad and “includes everything said or done in either House in the
transaction of Parliamentary business”, citing the Ontario Court of
Justice decision R v Duffy, 2015 ONCJ 694 (QL) at paragraph 88, which
relied on the 2006 text, Robert W Hubbard, The Law of Privilege in Canada (Aurora,
Ontario: Canada Law Book, 2006) (loose-leaf release 21), ch 6 at 6-32.
[38]
However, the Court in Duffy ignored the
specific findings of the Supreme Court of Canada in Vaid that “not ‘everything that is said or done within the Chamber
during the transaction of business forms part of proceedings in Parliament.
Particular words or acts may be entirely unrelated to any business which is in
course of transaction, or is in a more general sense before the House as having
been ordered to come before it in due course’ (emphasis added)” (Vaid,
above at para 43, citing David Lidderdale, ed, Erskine May’s Treatise on The
Law, Privileges, Proceedings and Usage of Parliament, 19th ed (London:
Butterworths, 1976) at 89).
[39]
The primary purpose of the “Proceedings in Parliament” category of parliamentary
privilege is “unquestionably to protect freedom of
speech in the House of Commons” (R v Chaytor and others, [2010]
UKSC 52 at para 28).
[40]
Whether parliamentary privilege applies to
expense claims was considered by the UK Supreme Court in Chaytor. The
Court noted that whether a matter could be held to fall within the “Proceedings in Parliament” category of privilege
depends on how closely it impacts on the “core or
essential business of Parliament” (Chaytor, above at para 47). It
held that the immunity which parliamentary privilege provides to proceedings in
Parliament is there to protect the members’ freedom to debate in Parliament
without interference. It concluded that submitting expense claim forms does not
qualify as “Proceedings in Parliament” (Chaytor,
above at paras 47-48).
[41]
Since the role of the Court, at this stage, is
strictly to determine the existence and scope of a claimed privilege, and not
to assess the way it is used or exercised, I am of the view that the UK Supreme
Court’s analysis and findings in Chaytor (where the privilege was
invoked in a criminal context) apply equally in the context of judicial review.
(2)
Internal Affairs
[42]
Alternatively, the Respondents argue that even
if the Board and its activities do not fall within the recognized category of “Proceedings in Parliament”, its functions and
decisions fall within the exclusive jurisdiction of the House of Commons and
are necessary for the proper functioning of the House. The question here is
whether the matter falls within this necessary sphere of matters without which
the dignity and efficiency of the House cannot be upheld.
[43]
In Vaid, the Supreme Court of Canada
recognized that the constitutional independence of the House of Commons
includes the right to manage matters internal to the House without interference
from the courts. However, it found that the term “internal
affairs” was not an appropriate way to define the privilege asserted in
that case, warning that defining a privilege too broadly may result in
duplication of matters already recognized as an historical category of
privilege (Vaid, above at paras 50-51).
[44]
In New Brunswick Broadcasting Co v Nova
Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, the Supreme
Court of Canada stated that “Canadian legislative
bodies properly claim as inherent privileges those rights which are necessary
to their capacity to function as legislative bodies” (at 381). The appropriate
test for determining whether a claim of privilege is justified is necessity (New
Brunswick Broadcasting, above at 381). The Supreme Court of Canada expanded
on the test of necessity and stated that it is not a standard for judging the
content of a claimed privilege, but it is used to determine the necessary sphere
of exclusive or absolute “parliamentary” or “legislative” jurisdiction. If a matter falls within
this necessary sphere of matters without which the dignity and efficiency of
the House cannot be upheld, courts will not inquire into questions concerning
such privilege.
[45]
The matters here do not concern the
administration of allowances and benefits to the members of the legislature as
they did in Villeneuve v Legislative Assembly et al, 2008 NWTSC 41 (QL)
and Filion c Chagnon, 2016 QCCS 6146 (QL), but rather the alleged use of
parliamentary resources and services for political purposes instead of
parliamentary functions.
[46]
It is for the courts to determine whether
necessity sufficient to support a privilege is made out and the onus lies on
the party invoking the privilege. Yet the Respondents have cited no authority
to support their position that the matters at issue are at the core of
parliamentary functions and that without the claimed immunity, the House of
Commons would be paralyzed and prevented from discharging its legislative
functions. They provide very little in terms of legal arguments as to why the
specific decisions of the Board on the use of resources and services by members
of Parliament are necessary for upholding the dignity and efficiency of the
House of Commons, and its capacity to function as a legislative body.
[47]
In Chaytor, the UK Supreme Court cited
with approval a few excerpts of the Joint Committee on Parliamentary Privilege
Report (HL paper 43-1, HC 214-1 (1998-99)):
247. The dividing line between privileged
and non-privileged activities of each House is not easy to define. Perhaps the
nearest approach to a definition is that the areas in which the courts ought
not to intervene extend beyond proceedings in Parliament, but the privileged
area must be so closely and directly connected with proceedings in Parliament
that intervention by the courts would be inconsistent with Parliament’s sovereignty
as a legislative and deliberative assembly […]
248. It follows that management functions
relating to the provision of services in either House are only exceptionally
subject to privilege. In particular, the activities of the House of Commons
Commission, a statutory body appointed under the House of Commons
(Administration) Act 1978, are not generally subject to privilege, nor are the
management and administration of the House departments. The boundary is not
tidy. Occasionally management in both Houses may deal with matters directly related
with proceedings which come within the scope of article 9. For example, the
members’ pension fund of the House of Commons is regulated partly by resolution
of the House. So too are members’ salaries and the appointment of additional
members of the House of Commons Commission under section 1(2)(d) of the House
of Commons (Administration Act. These resolutions and orders are proceedings in
Parliament, but their implementation is not.
[48]
Under the House of Commons (Administration)
Act 1978 (UK), c 36, the Commission has similar composition
and functions to the Board, and thus, the position taken by the UK Supreme
Court in Chaytor, which is consistent with that of our Supreme Court in Vaid,
applies equally to the decisions under review in the present file.
[49]
I agree with the Intervener that the Respondents’
reliance on the production order in Duffy is misplaced. There, the Ontario
Court of Justice did not hold that all matters related to expenses were within
the exclusive authority of the Senate, but it noted that the Internal Audit
Report at issue in that production order was a report or document presented to
a subcommittee of the Senate during in camera deliberations. As the
Senate did not claim privilege in relation to expense claims, the Ontario Court
of Justice was able to distinguish the circumstances in Duffy from the
UK Supreme Court’s decision in Chaytor.
[50]
“If a sphere of the
legislative body’s activity could be left to be dealt with under the ordinary
law of the land without interfering with the assembly’s ability to fulfill its
constitutional functions, then immunity would be unnecessary and the claimed
privilege would not exist.” [Citations omitted.]
(Vaid, above at para 29.5). The Respondents have not convinced me that the
House of Commons’ activities were interfered with or that the House has been
prevented from fulfilling its constitutional functions since the Applicants
filed their present applications for judicial review.
V.
Conclusion
[51]
For all of these reasons, I am of the view that
the Board is a “federal board, commission or other
tribunal” within the purview of section 2 of the Federal Courts Act
so that this Court has jurisdiction over those decisions not covered by a
recognized category of parliamentary privilege. I am also of the view that the
Respondents have not met their onus of demonstrating that the four decisions
under review are, in fact, covered by a known parliamentary privilege, nor by
the necessary immunity that the law provides for members of Parliament in order
for them to do their legislative work. The Respondents’ motion to strike will
be dismissed and costs will be granted in favour of the Applicants.
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