Docket: A-159-19
Citation: 2020 FCA 69
| CORAM:
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WEBB J.A.
RENNIE J.A.
MACTAVISH J.A.
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| BETWEEN:
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| ATTORNEY GENERAL OF CANADA
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| Appellant
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| and
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| DEMOCRACY WATCH
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| Respondent
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REASONS FOR JUDGMENT
RENNIE J.A.
I.
Introduction
[1]
The Attorney General of Canada appeals from a judgment of the Federal Court (2019 FC 388, per Gleeson J.), in which the Court granted the respondent’s judicial review application and set aside a decision of the Commissioner of Lobbying not to conduct an investigation under subsection 10.4(1) of the Lobbying Act, R.S.C. 1985, c. 44 (4th Supp.). The Federal Court held that the Commissioner’s decision that an investigation was not necessary to ensure compliance with the Lobbying Act or the Lobbyists’ Code of Conduct was both subject to judicial review and unreasonable.
[2]
For the reasons that follow, I would allow the appeal.
[3]
The circumstances that gave rise to the application may be briefly stated. In January of 2017, the media reported that the Prime Minister of Canada, Justin Trudeau, and his family celebrated the New Year on a Caribbean island at the invitation of Prince Shah Karim Al Hussaini (the Aga Khan IV). The vacation was a gift.
[4]
Following the media report, a private citizen filed a complaint with the Office of the Commissioner of Lobbying, asserting that the Aga Khan’s gift had violated the Lobbying Act and the Lobbyists’ Code. An acknowledgement letter was mailed to the complainant.
[5]
The Office of the Lobbying Commissioner began an internal review to assess whether it should conduct an investigation. In a memorandum of September 13, 2017, the Director of Investigations recommended to the Commissioner that the file be closed without further investigation. In a short and somewhat cryptic memorandum, the Director found:
[…] no evidence to indicate that Prince Shah Karim Al Hussaini, Aga Khan IV, is remunerated for his work with the [Aga Khan Foundation Canada] and, therefore, that he was engaged in registrable lobbying activity during the Prime Minister’s Christmas vacation.
Consequently, the Lobbyists’ Code of Conduct does not apply to the Aga Khan’s interactions with the Prime Minister.
[6]
The Commissioner agreed. The reasons for the decision were not announced to the public, but the Commissioner informed the complainant of the decision not to investigate. I note, parenthetically, that the Aga Khan Foundation itself is a registered lobbyist under the Lobbying Act. The Aga Khan sits on the Board of the Aga Khan Foundation, but his position is unpaid. He is a volunteer.
[7]
Democracy Watch commenced a judicial review application to set aside the decision not to pursue an investigation in respect of the complaint.
[8]
After a review of the Commissioner’s investigative powers and duties, the Federal Court concluded that the scheme set out by the Lobbying Act and the Lobbyists’ Code imposed an obligation on the Commissioner to receive, consider and investigate complaints originating from the public. In reaching this conclusion, the Court relied in part on the introduction to the Lobbyists’ Code, which states that “[a]nyone suspecting non-compliance with the Code should forward information to the Commissioner”
.
[9]
The purpose of the Lobbying Act also played a role in the Federal Court’s analysis. The judge concluded that the exhortation in the Code that the public provide information, combined with a “duty”
on the part of the Lobbying Commissioner to review, consider and render a decision on information brought forward by the public furthered the important public purposes of the Act: to enhance public trust and confidence in the integrity of government decision-making. These factors led to a conclusion that legal rights were affected by a decision not to investigate under subsection 10.4(1) of the Lobbying Act. The Commissioner’s decision not to investigate further was therefore amenable to judicial review.
II.
The Arguments before this Court
[10]
The appellant makes two principle arguments.
[11]
The first is that because the Lobbying Act, like the Conflict of Interest Act, S.C. 2006, c. 9, s. 2, fails to create a statutory right for a member of the public to have their complaint investigated, the Federal Court was bound by this Court’s previous decision in Democracy Watch v. Conflict of Interest and Ethics Commissioner, 2009 FCA 15 (Democracy Watch 2009) and that it was an error of law for the Federal Court not to follow a binding authority.
[12]
At issue in that appeal was whether the Conflict of Interest and Ethics Commissioner’s decision not to begin an investigation under subsection 45(1) of the Conflict of Interest Act, when a member of the public had requested an investigation, was amenable to judicial review.
[13]
This Court concluded that there was no statutory right under the Conflict of Interest Act for a member of the public to have their complaint investigated. The Ethics Commissioner, in turn, had no statutory duty to act upon that complaint (Democracy Watch 2009 at para. 11). Because the Conflict of Interest Act did not create a right for a member of the public to have their complaint investigated, the Ethics Commissioner’s decision not to investigate was not an order or decision amenable to judicial review. The Court also noted that the Ethics Commissioner had not made any statements in her letter that could have binding legal effect (at para. 12).
[14]
In this case, the Federal Court judge was not bound by Democracy Watch 2009. I agree with the respondent that while the scheme is analogous, there are differences between the two Acts. The language governing investigations in subsection 10.4(1) of the Lobbying Act is mandatory, while the language in subsection 45(1) of the Conflict of Interest Act is permissive. While this would seem, as a matter of first impression, to favour the respondent, this Court pointed out in Democracy Watch v. Canada (Attorney General), 2018 FCA 194 at paragraph 29 that mandatory language does not necessarily translate into a reviewable order or decision amenable to judicial review.
[15]
While Democracy Watch 2009 is certainly instructive and contains guidance as to the criteria that the judge should consider in assessing whether the decision not to investigate gave rise to judicial review, it is not dispositive of the result in this case. The question whether the Lobbying Act creates rights or obligations, or causes prejudicial effects, can only be determined through consideration of the Lobbying Act itself, not another statute. It was not an error of law on the part of the judge to consider the argument whether a right of judicial review arose under the Lobbying Act on its own merits.
[16]
I turn to the appellant’s second argument.
[17]
The appellant highlights the fact that the Lobbyists’ Code, though it encourages the public to bring forward information, is not a statutory instrument that compels the investigation of complaints or creates legal rights. The appellant encourages this Court to distinguish between the process of gathering information provided for by the Lobbying Act and the Lobbyists’ Code, and a statutory complaints process sufficiently robust to create rights. To this end, the appellant juxtaposes the lobbying regime with other statutes in which Parliament uses express language to create a statutory mechanism for the investigation of complaints by agents of Parliament.
[18]
The respondent, in turn, highlights the legislative history of the Lobbying Act, emphasising the manner in which Parliament has, through a series of legislative reforms commencing in 1988, expanded the mandate and investigative powers of the Commissioner and lowered the threshold to commence an investigation. The respondent also emphasizes that the Lobbyists’ Code encourages “anyone”
to bring information to the attention of the Commissioner. Finally, the respondent argues that the loss of public trust that flows from the Commissioner’s decision that the Aga Khan is not subject to the Lobbying Act or the Lobbyists’ Code is a consequence sufficient to trigger a right of judicial review. According to the respondent, consequences need not be legal to trigger a right of review.
[19]
As in all judicial review applications, the Court must first decide whether the decision sought to be set aside is subject to judicial review. Not all administrative action gives rise to a right of review. There are many circumstances where an administrative body’s conduct will not trigger a right to judicial review. Some decisions are simply not justiciable, crossing the boundary from the legal to the political. Others may be justiciable but there may be an adequate alternative remedy. No right of review arises where the conduct attacked fails to affect rights, impose legal obligations, or cause prejudicial effects (Sganos v. Canada (Attorney General), 2018 FCA 84 at para. 6; Air Canada v. Toronto Port Authority Et Al, 2011 FCA 347, [2013] 3 F.C.R. 605 at para. 29; Irving Shipbuilding Inc. v. Canada (Attorney General), 2009 FCA 116, [2010] 2 F.C.R. 488; and Democracy Watch 2009, referred to above).
[20]
It is this latter criterion that is the focus of this appeal. The answer to the question whether the Lobbying Act affects rights, imposes obligations or causes prejudicial effects requires a careful examination of the legislation in question. As the issue is one of statutory interpretation, the standard of review is correctness (TELUS Communications Inc. v. Wellman, 2019 SCC 19 at para. 30).
III.
The Legislative Regime
[21]
The over-arching purpose of the Lobbying Act is to ensure transparency and accountability in the lobbying of public office holders and consequentially increase public confidence in the integrity of government decision-making. To that end, it establishes the Office of the Commissioner of Lobbying. The Commissioner reports directly to Parliament through the Speaker of the House of Commons and the Speaker of the Senate. The Commissioner’s mandate includes the maintenance of a publically accessible system for the registration of paid lobbyists. The Act authorizes the Commissioner to craft policies which give guidance to lobbyists and public office holders about appropriate conduct.
[22]
The Act recognizes two categories of lobbyists: in-house lobbyists and consultant lobbyists. Both are required to file returns with the Commissioner setting out various details relating to their activities. The legislative provisions are found in the appendix at the conclusion of these reasons.
[23]
A consultant lobbyist is an individual who, on behalf of any person or organization, for payment, communicates with public office holders for enumerated purposes or arranges meetings between a public officer holder and any other individual.
[24]
An individual is an in-house lobbyist where the individual is employed by a corporation or organization and their duties include communication with public office holders for enumerated purposes. The communication must constitute a significant part of the duties of an employee or would constitute a significant part of the duties of an employee if it was performed by only one employee (ss. 5(1) and 7(1)). The Act requires the Commissioner to promulgate the Lobbyists’ Code, which provides guidance as to appropriate and inappropriate conduct. The Code applies to all persons required to register under the Act. While the Code is not a statutory instrument as defined by the Statutory Instruments Act, R.S.C. 1985, c. S-22, it imposes obligations on lobbyists, a breach of which can result in a report by the Commissioner to Parliament.
[25]
The Act requires the Commissioner to conduct an investigation where the Commissioner has reason to believe that an investigation is necessary to ensure compliance with the Code or the Act. Reports in respect of investigations are tabled in Parliament. Subsection 10.4(1) of the Act reads as follows:
Investigation
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.
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Enquêtes
10.4 (1) Le commissaire fait enquête lorsqu'il a des raisons de croire, notamment sur le fondement de renseignements qui lui ont été transmis par un parlementaire, qu'une enquête est nécessaire au contrôle d'application du code ou de la présente loi
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[26]
Subsection 10.4(1.1) gives the Commissioner a broad discretion to decide whether to investigate a complaint or to cease an investigation. The range of relevant considerations includes: whether the matter would be more appropriately dealt with under a procedure in another Act of Parliament; whether the matter is sufficiently important; and whether dealing with the matter would serve no useful purpose as too much time has passed. The Commissioner may also decide not to deal with a matter if “there is any other valid reason for not dealing with the matter.”
[27]
At the conclusion of an investigation, the Commissioner must prepare a report that includes his or her findings, conclusions and the reasons for the conclusions reached and submit the report to the Speakers of the Senate and the House of Commons.
IV.
Analysis
[28]
It is apparent that the Lobbying Act does not create a right for a member of the public to have a complaint investigated. There is nothing in the language of the statute to suggest that the Commissioner must investigate the public’s complaints. Parliament has established no process, procedures, mechanisms or obligations for disposing of complaints from the public.
[29]
To the contrary, an investigation is required where the Commissioner 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 Lobbyists’ Code or the Lobbying Act. The Lobbying Act does not specify that the Commissioner must take into account information received from the public. In fact, the Lobbying Act does not mention the public in the investigations section at all.
[30]
A line in the introduction to the Lobbyists’ Code which encourages the gathering of information is insufficient to create a decision which is subject to judicial review.
[31]
Parliament placed an affirmative obligation on the Commissioner to investigate complaints that arise from Parliamentarians. As I outlined earlier, the Act describes in some detail the manner in which those investigations are to be carried out. It imposes a requirement for a decision and a reporting obligation. In contrast, the Act is silent with respect to information received from the public. There is no requirement to issue any decision, or to take any action, with respect to information arising from the public.
[32]
As a general proposition, where Parliament intends to create a formal complaints procedure with a concomitant duty on an agent of Parliament to investigate, it does so expressly. There are many examples.
[33]
The Access to Information Act, R.S.C. 1985, c. A-1 provides that the Information Commissioner "shall receive and investigate complaints"
from persons specified in subsection 30(1) thereof.
[34]
The Privacy Act, R.S.C. 1985, c. P-21 provides that the Privacy Commissioner "shall receive and investigate complaints"
from persons listed in subsection 29(1). Section 30 requires that complaints be made "in writing"
. The Privacy Commissioner must report "the results of the investigation"
to the complainant (s. 35(2)).
[35]
The Public Servants Disclosure Protection Act, S.C. 2005, c. 46 provides that the Public Sector Integrity Commissioner (PSIC) has "duties"
to "receive, review, investigate and otherwise deal with complaints made in respect of reprisals"
(s. 22(i)). Under subsections 19.4(1), (2) and (3), the PSIC "must decide whether or not to deal with a complaint"
within a specified time window, and provide written notice and reasons of a decision not to deal with a complaint to the complainant. A notice of refusal to investigate must also be provided to the complainant (s. 24(3)).
[36]
The Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.) provides that the Commissioner of Official Languages "shall investigate any complaint made [...] by any person or group of persons […]”
(ss. 58(1) and (2)). These provisions allow complaints to be brought by anyone, regardless of whether their own statutory rights have been affected, consistent with the view that where Parliament intends to give the public at large the right to make a complaint, it usually does so expressly. The Commissioner of Official Languages' right to refuse to investigate or cease an investigation is also spelled out, as is the duty to notify the complainant and to "give the reasons therefor"
where this occurs (ss. 58(4) and (5)).
[37]
In contrast, the Conflict of Interest Act reserves to Parliamentarians the ability to "request"
that the Conflict of Interest and Ethics Commissioner examine an alleged contravention of the Act (s. 44(1)). The Act provides that the Ethics Commissioner, in conducting an examination, "may consider information from the public that is brought to his or her attention by a member of the Senate or the House of Commons"
(s. 44(4)). The Ethics Commissioner may also examine a matter on his or her own initiative (s. 45(1)). As this Court determined in Democracy Watch 2009, a decision not to investigate a public complaint under the Conflict of Interest Act did not give rise to a reviewable decision.
[38]
In light of the language in these statutes, and in light of the fact that similar language is notably absent from the Lobbying Act and the Lobbyists’ Code, I conclude that the lobbying regime does not establish a public complaints process. The solicitation of information from the general public, does not, in and of itself, create rights for those who provide information where they are not directly affected by the outcome.
[39]
I understand the respondent’s position that the Lobbying Act and Lobbyists’ Code, interpreted differently, could accomplish their objectives in a more effective manner. This argument found favour with the Federal Court judge.
[40]
It is not, however, the role of a court to ascribe an intention to Parliament where that intention is not clear. Neither the purpose of the Lobbying Act, nor the language in the introduction to the Lobbyists’ Code, is sufficient to justify the reading in of a public complaints process and the concomitant right for members of the public to have the Lobbying Commissioner investigate their complaints.
[41]
The Lobbying Commissioner’s decision not to investigate a complaint brought by a member of the public is not a decision or order subject to judicial review. It is therefore not necessary to consider the reasonableness of the decision. I would allow the appeal, dismiss the application for judicial review, and restore the decision.
[42]
The parties’ submissions on costs before this Court are substantially the same as before the Federal Court. On costs, the Federal Court attached significant weight to the fact that Democracy Watch is a public interest organization that brought the application for judicial review in furtherance of that interest, and declined to exercise its discretion to order costs. I, too, would decline to exercise my discretion to order costs on appeal.
“Donald J. Rennie”
| “I agree
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| Wyman W. Webb J.A.”
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| “I agree
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| Anne L. Mactavish J.A.”
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