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Judicial Review - Adequate Alternative Remedy (AAR) (5). BizTech v. Accreditation Canada [arbitration stay v JR justiciability by discretion]
In BizTech v. Accreditation Canada (Div Ct, 2025) the Divisional Court considered what are essentially two JRs, these opposing decisions by Accreditation Canada and the Superintendent of Career Colleges [under the Ontario Career Colleges Act, 2005], these resulting in the revocation of a college's educational program which "triggered a statutory right by BizTech students in the DMS Program to a full refund of their fees."
The court considers whether a contractual arbitration clause - that can invoke a stay on civil proceedings - applies to bar a JR of these issues under the 'adequate alternative remedy' (AAR) [this starting at para 144] (or perhaps prematurity) JR doctrines:F. THE MOTION TO STAY IN FAVOUR OF ARBITRATION
[87] Accreditation Canada has brought a motion to stay BizTech’s judicial review application in favour of arbitration, pursuant to the parties’ contract and s. 7 of the Arbitration Act. Subsection 7(1) of the Arbitration Act provides:Stay
7 (1) If a party to an arbitration agreement commences a proceeding in respect of a matter to be submitted to arbitration under the agreement, the court in which the proceeding is commenced shall, on the motion of another party to the arbitration agreement, stay the proceeding. ....
[89] Some preliminary explanation of how I approach this motion is required.
[90] All parties agree that the leading authority to be considered is Peace River Hydro Partners v. Petrowest Corp., 2022 SCC 41, 475 D.L.R. (4th) 1 (“Peace River”). Both BizTech and Accreditation Canada rely on this case. In Peace River, the Supreme Court of Canada considered a motion under the British Columbia Arbitration Act to stay an insolvency proceeding in favour of arbitration provided for in the material contract. After a comprehensive exposition of the issue, Côté J. ultimately concluded on the facts of that case, a stay of proceedings in favour of arbitration was not warranted.
[91] After analyzing the policy rationales underlying arbitration and insolvency law, Côté J. concluded that in many cases, given the shared interests between the two areas in expediency, procedural flexibility, and specialized expertise, the parties should be held to their agreement and the presumption in favour of arbitration would lead the court to stay the legal proceedings. However, in certain situations, the court proceeding may take precedence if it was necessary because arbitration would compromise the orderly and efficient conduct of a court-ordered receivership. She stressed the analysis must focus on the facts of the specific case, the particular statutory regimes, and the arbitration agreements in play. In conducting this assessment, the court should have regard to the principles of party autonomy and freedom of contract as well as the policy imperatives underpinning the law under consideration, in that case, bankruptcy and insolvency law: Peace River, at paras. 72-75.
[92] Côté J. set out a test to guide the analysis. In her view, the test was implicit in all the various provincial arbitration legislation.
The Peace River Test
[93] In Peace River at paras. 76-79, a two-step process was established to determine whether court proceedings should be stayed in favour of arbitration:1. the technical requirements for a mandatory stay of proceedings are met; and
2. none of the statutory exceptions under the Arbitration Act apply. [94] Before analyzing this two-step test on the facts here, the competence-competence principle must be addressed. Competence-competence is a principle that gives precedence to the arbitration process subject to the exceptions where the challenge to jurisdiction involves pure questions of law, or questions of mixed fact and law requiring only superficial consideration of the evidentiary record. If the two exceptions do not apply, the arbitrator should be allowed to exercise their power to rule first on their own jurisdiction: Peace River, at paras. 41 to 42; Uber Technologies Inc. v. Heller, 2020 SCC 16, 447 D.L.R. (4th) 179, at para. 32. If the exceptions apply, the court may resolve a challenge to the arbitrator’s jurisdiction.
[95] None of the parties contend in this case that the competence-competence principle will be offended if the court determines the issue of the arbitrator’s jurisdiction. The questions in this judicial review are of mixed fact and law requiring at best a superficial consideration of the evidentiary record.[1] Acknowledging that the competence-competence principle is not lightly displaced, I find that an exception has been established: Lochan v. Binance Holdings Limited, 2024 ONCA 784, at para. 22. Therefore, I will resolve the question of arbitral jurisdiction.
[96] To begin the analysis, the two-step process set out in Peace River is mirrored in s. 7(1) and s. 7(2) of the Arbitration Act—section 7(1) being the technical requirements and s. 7(2) being the statutory exceptions.
The Technical Requirements
[97] Accreditation Canada must establish an “arguable case” that the following technical requirements to engage a mandatory stay have been met:1. an arbitration agreement exists;
2. court proceedings have been commenced by a “party” to the arbitration agreement;
3. the court proceedings are in respect of a matter that the parties agree to submit to arbitration; and
4. the party applying for a stay in favour of arbitration does so before taking any “step” in the court proceedings. Peace River, at paras. 83-85.
....
The Statutory Exceptions
[109] Even if the technical requirements for a stay are met, the party seeking to avoid arbitration can show on a balance of probabilities that one or more of the statutory exceptions apply: Peace River, at para. 88; Husky Food Importers & Distributors Ltd. v. JH Whittaker & Sons Ltd., 2023 ONCA 260, at para. 29.
[110] Section 7(2) of the Arbitration Act provides a list of statutory exceptions:Exceptions
(2) However, the court may refuse to stay the proceeding in any of the following cases:
1. A party entered into the arbitration agreement while under a legal incapacity.
2. The arbitration agreement is invalid.
3. The subject-matter of the dispute is not capable of being the subject of arbitration under Ontario law.
4. The motion was brought with undue delay.
5. The matter is a proper one for default or summary judgment. ....
Subject-matter of the dispute not capable of being the subject of arbitration under Ontario law
[128] BizTech argues that the judicial review of statutory decision-makers cannot be supplanted by a privately negotiated arbitration agreement. Acceptance of such an argument would descend administrative law into chaos—statutory decision-makers could simply delegate away decisions to private parties to avoid judicial oversight. Judicial review would become arbitral review. BizTech submits that it would be legally absurd if the court’s constitutionally recognized ability to judicially review decisions was ousted by arbitration provisions. It would sterilize the purpose of judicial review if parties and government actors could contract away the court’s right to judicially review public decisions and the public’s interest in ensuring statutory decision-makers are held accountable.
....
[142] There is nothing in the Arbitration Act that precludes a stay of proceedings from applying to a judicial review proceeding. Section 7(1) applies to a “proceeding”, a broad term which is left undefined.
[143] The Supreme Court of Canada in Wellman sets out the purposes and history of the Ontario Arbitration Act both generally and more particularly of s. 7. Fundamentally, this legislative scheme rests on a policy of party autonomy and through provisions like s. 7, the legislative and judicial preference that the parties to a valid arbitration agreement should abide by their agreement is given effect: Wellman, at paras. 51-53; Peace River, at para. 10.
[144] Giving effect in the right case to an arbitration agreement even if a public body exercising statutory authority is involved is consistent not only with the primacy given to arbitration under the Arbitration Act but also with the exercise of judicial discretion where there is an appropriate alternative remedy to judicial review. Put another way, it is appropriate to consider the Arbitration Act and a valid arbitration agreement in the exercise of the discretion in deciding whether judicial review is appropriate. Such an approach reflects what Yatar, at para. 64, described to be the “balancing exercise” that is judicial review in the following quote citing Strickland v. Canada (Attorney General), 2015 SCC 37:This Court in Strickland, at para. 43, also emphasizes the appropriateness of judicial review in the circumstances, referring to a "balancing exercise":The categories of relevant factors are not closed, as it is for courts to identify and balance the relevant factors in the context of a particular case: Matsqui, at paras. 36-37, citing [Minister of Energy, Mines and Resources], at p. 96. Assessing whether there is an adequate alternative remedy, therefore, is not a matter of following a checklist focused on the similarities and differences between the potentially available remedies. The inquiry is broader than that. The court should consider not only the available alternative, but also the suitability and appropriateness of judicial review in the circumstances. In short, the question is not simply whether some other remedy is adequate, but also whether judicial review is appropriate. Ultimately, this calls for a type of balance of convenience analysis: Khosa, at para. 36; TeleZone, at para. 56. As Dickson C.J. put it on behalf of the Court: "Inquiring into the adequacy of the alternative remedy is at one and the same time an inquiry into whether discretion to grant the judicial review remedy should be exercised. It is for the courts to isolate and balance the factors which are relevant ..." [Minister of Energy, Mines and Resources], at p. 96). [Emphasis added in Yatar.] [145] In determining whether to exercise that discretion, the constitutional nature of that power, as urged by BizTech, is respected. As stated in Yatar at para. 61:In Vavilov, this Court held that "because judicial review is protected by s. 96 of the Constitution Act, 1867, legislatures cannot shield administrative decision making from curial scrutiny entirely" (para. 24). Professor Paul Daly argues that "[w]here the judicial review jurisdiction of the courts has been successfully ousted by statute ... the legislature has provided a particular channel for oversight of the legality, rationality and procedural fairness of administrative action" (Understanding Administrative Law in the Common Law World (2021), at p. 188 (emphasis in original)). In other words, there was an appropriate alternative forum or remedy. [146] The Arbitration Act may not always provide a suitable alternative channel for the oversight of the legality, rationality, and procedural fairness of administrative action. Much will depend upon the terms of the contract, the arbitration agreement in issue, the nature of the interests involved, and the factual circumstances of the case. In some situations, judicial review should be entertained over arbitration. To put it in the words of s. 7(2), the subject matter in those circumstances is not capable of being subject to arbitration. Support for this can be found in Alexander M. Gay, Alexandre Kaufman A.J., and James Plotkin, Arbitration Legislation of Ontario: A Commentary, 4th ed, (Toronto: Thomson Reuters, 2023), at pp. 218-219, where the writers state that a dispute may not be capable of being the subject of arbitration under Ontario law due to the public interest at stake or the fact that “the very nature of the subject-matter cannot be entertained by an arbitral tribunal, such as a criminal proceeding or a right that has been conferred by statute and which is inalienable.”
[147] However, if on the specific facts, as Peace River insists the focus be on, the Arbitration Act and the arbitration agreement in issue viewed carefully in context provides an appropriate alternative forum or remedy, then arbitration should proceed as the subject matter is capable of being arbitrated under Ontario law; essentially on the grounds that it does not infringe the rule of law, the principle that underpins judicial review: Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770, at para. 28, citing Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 27-28.
[148] In this case, looking at some of the typical factors in the exercise of discretion set out in Strickland, at para. 42, many support the finding that arbitration is an alternative remedy adequate to justify a discretionary refusal to hear a judicial review application. These include the fact the alternative remedy is convenient and flexible. A single Toronto arbitrator can be chosen. The rules and procedures will be determined at the arbitration. It is designed to be conducted expeditiously; unless consented to by the parties, the arbitrator will decide within 30 days. The remedial capacity of the arbitrator is broad and it includes the awarding of costs. The grievances of BizTech can be determined by the arbitrator. Perhaps most importantly, BizTech can nominate three independent and impartial potential arbitrators of which Accreditation Canada may select one to be the arbitrator. This is an invaluable mechanism to select an arbitrator with the appropriate experience and/or expertise in such areas as educational institutions, assessment of regulatory programs, and health sciences; expertise that a court may well not have. The nature of the errors alleged can be adjudicated as appropriately by an arbitrator as by a court. Indeed, a reasonableness review on judicial review would likely be less exacting than one conducted under arbitration. While the judicial review is presently before the court, the court system must be mindful about the judicious use of limited judicial resources in cases such as this where scrutiny of thousands of pages of documents submitted by BizTech to Accreditation Canada on the Decision is required—the interpretation of which is unguided or unfiltered by any expert or expertise.
[149] While BizTech argues that the arbitration process will not be as transparent as judicial review or include the CMRITO as a party, for an alternative forum or remedy to be adequate, neither the process nor the remedy need be identical to those available on judicial review. In Strickland, at para. 42, the Court adopts the following framing of the question: “in each context the reviewing court applies the same basic test: is the alternative remedy adequate in all the circumstances to address the applicant’s grievance?”
[150] In my opinion, the alternative remedy of arbitration is adequate to address BizTech’s grievances.
[151] In coming to this conclusion, I am appreciative of the fact that the parties have not brought to the attention of the Court any authority relating to a stay of a judicial review proceeding under s. 7(1) of the Arbitration Act or other arbitration legislation.[3] I do note the decision of Knox v. Conservative Party of Canada, 2007 ABQB 180, [2007] A.J. No. 303 (Alta. Q.B.), at paras. 67-72, where a judicial review application brought against a political party’s decision to acclaim a candidate was dismissed as the court concluded that a referral to an arbitration panel, as permitted by the party’s constitution and rules, afforded a suitable alternative remedy for judicial review. On appeal, 2007 ABCA 295, 286 D.L.R. (4th) 129, at paras. 27-28, the Alberta Court of Appeal varied the decision finding that these decisions of the political party were not sufficiently public in character to be judicially reviewable and since the judge below had found the referral to arbitration to be proper, the arbitration legislation applied.
[152] Also, I have not overlooked BizTech’s submission that there are exceptional circumstances present such that, despite there potentially being an alternative remedy, an application for judicial review should nonetheless proceed: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, 111 O.R. (3d) 561, at para. 70. The exceptional circumstances are said to be the Superintendent’s Decision to revoke BizTech’s status as a career college to offer the DMS program thereby triggering an automatic refund of student fees leading to alleged devastating consequences for BizTech. Similar concerns were raised in BizTech’s motion to stay the Superintendent’s Decision pending the decision by this Court. For largely the reasons set out in our decision dismissing the motion, I am not persuaded that these constitute exceptional circumstances: BizTech Institute Inc. v. Accreditation Canada, 2025 ONSC 2455 (Div. Ct.).
[153] Finally, I observe that some of the factors used in the exercise of the judicial discretion in this context would parallel to a degree the analysis in Peace River regarding whether an arbitration agreement is “incapable of being performed” or would be rendered “inoperative” by the courts. Some factors set out in Peace River at para. 155, as modified to the context of judicial review, that may be relevant in determining whether an arbitration agreement is inoperative under s. 7(2) include: (a) the effect of arbitration on the integrity of the judicial review proceedings; (b) the relative prejudice to the parties to the arbitration agreement; (c) the urgency of resolving the dispute; (d) the effect of a stay of proceedings arising from the judicial review proceedings; and (e) any other factors the court considers material in the circumstances. Each factor may carry more or less weight depending on the circumstances of the case.
[154] In conclusion, I am not satisfied that BizTech has met its onus in establishing a statutory exception. This not being a “clear case” where the statutory exception applies, a stay of proceedings is warranted: Peace River, at para. 89; Dalimpex Ltd. v. Janicki, (2003) 2003 CanLII 34234 (ON CA), 64 O.R. (3d) 737 (C.A.), at para. 22; Goberdhan v. Knights of Columbus, 2023 ONCA 327, at para. 15.
....
I. DISPOSITION
[158] For the reasons given, I would grant the motion and stay the judicial review of the Decision and dismiss the judicial review of the Superintendent’s Decision. . Voices of Willowdale Inc. v. City of Toronto
In Voices of Willowdale Inc. v. City of Toronto (Ont Divisional Ct, 2025) the Divisional Court dismissed a JR, this against an OLT decision "to adopt a zoning by-law to permit the construction of a three-story apartment building for people leaving homelessness. The new development would be in addition to the existing four-story building on the property, which houses 600 senior citizens.":
Here the issue was whether the court should exercise it's discretion to hear a JR after a leave to appeal application [under OLTA s.24] was dismissed (unusually, the OLTA has a leave requirement at the first level of court appeal):Should we exercise our discretion to hear the judicial review application in light of the ruling on the motion for leave to appeal?
[19] VOW brought a motion for leave to appeal under s. 24 of the OLTA, which permits an appeal to this Court, with leave, on questions of law.
[20] On May 17, 2024, the motion for leave to appeal was dismissed. As is the practice in this Court, no reasons were provided.
[21] The City argues that VOW should not be permitted to proceed with judicial review on issues of law it raised in its notice of application for leave to appeal. The City argues VOW had a route to appeal errors of law and is now estopped from raising the same issues for which they were denied leave. The City submits that judicial review is a remedy of last resort and this Court should not exercise its discretion to hear the judicial review application because VOW had a full opportunity to raise any legal errors in its leave application.
[22] The Tribunal also submits that the Applicant should not be permitted to raise the same issues in their judicial review application that were raised in its leave motion.
[23] In Vavilov, the Supreme Court of Canada held that a right of appeal on a question of law does not preclude an individual from seeking judicial review for questions not dealt within the appeal.
[24] This Court was faced with a decision whether to consider an application for judicial review even though a statutory appeal had been filed, in Shearer v. Oz, 2024 ONSC 1723. In Shearer, both the appeal and the application for judicial review were before the same Divisional Court panel. The Court heard the appeal on a question of law. The Court also exercised its jurisdiction to hear the application for judicial review on questions of fact or mixed fact and law. Corbett J., stated at para. 32 that:In respect to the application for judicial review, this court will not entertain the application to the extent that its substance is addressed adequately by another process. In this case, the "other process" is the appeal. The only issues before us that could form a basis for judicial review that this court will entertain, therefore, are questions of fact, mixed fact and law (where there is no extricable question of law) and exercises of discretion, all of which are reviewed on a standard of reasonableness in an application for judicial review: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. [25] This Court dismissed VOW's motion for leave to appeal without reasons. In oral argument during this application hearing, the City conceded that some of the issues raised in the motion for leave to appeal were ones of mixed fact and law and, therefore, outside the scope of a statutory appeal. I am satisfied that all the issues raised in this application for judicial review are either questions of fact, or questions of mixed fact and law with no extricable questions of law. Those issues could not have been dealt with in an appeal under s. 24 of the OLTA. Judicial review is still available to VOW on issues of fact, or mixed fact and law and the principle of issue estoppel does not arise. As a result, I find that this is an appropriate case in which to exercise our discretion to hear the application for judicial review notwithstanding the unsuccessful application for leave to appeal: Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 SCR 713. . Whearty v. Waypoint Centre for Mental Health Care [new test]
In Whearty v. Waypoint Centre for Mental Health Care (Div Court, 2024) the Divisional Court dismissed a motion the quash (styled as "a motion to strike") a JR, here from an HRTO order that ordered counsel for a party to remove themselves due to the appearance of conflict.
Here the court considers dismissing the JR for prematurity, setting out a 'test' for this:[6] For the following reasons, I am not satisfied it is plain and obvious Mr. Whearty’s judicial review application will be dismissed as premature.
[7] The parties agree that interim decisions from an administrative tribunal are not ordinarily amenable to judicial review and fragmentation of proceedings should be avoided: College of Veterinarians of Ontario v. Mitelman, 2015 ONSC 484 (Div. Ct.), at para. 5. They also agree that this Court will only decide a judicial review of an interim decision on its merits in exceptional circumstances: CB Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, at paras. 31-32.
[8] The Tribunal argues there are no exceptional circumstances so it is plain and obvious Mr. Whearty’s judicial review application cannot succeed. I disagree. I find there is a reasonable basis on which Mr. Whearty can argue that his case is exceptional and that this Court should decide his judicial review on its merits.
[9] When deciding whether this matter is premature, the court will consider five factors:a. The hardship to Mr. Whearty if the Tribunal hearing proceeds without the ability to challenge the removal of his counsel;
b. The waste that will result if Mr. Whearty is required wait until the end of the Tribunal hearing to bring his judicial review application;
c. The delay in the Tribunal proceeding if Mr. Whearty is allowed to pursue his judicial review application now;
d. Whether fragmenting the process and the issues will create additional litigation; and
e. The strength of the Mr. Whearty’s judicial review application: Toronto Transit Commission v. Amalgamated Transit Union Loc. 113, 2020 ONSC 2642 (Div. Ct.), at para. 11. ....
[14] I am not saying Mr. Whearty is certain to win his judicial review application. The Member’s decision will be entitled to deference on review and may well be found to be reasonable. What I am saying is that it is not inevitable that Mr. Whearty’s judicial review application will be dismissed as premature because (a) it has merit and (b) he may be able to establish there are exceptional circumstances.
[15] There are at least three grounds which, taken together, could convince the panel there are exceptional circumstances to justify departing from the general rule against fragmenting judicial review applications. First, there is a valid argument that requiring Mr. Whearty to proceed to a hearing without his counsel of choice would result in real unfairness: Mitelman, at para. 7. I appreciate that the Member did not disqualify Ms. Kronis’s firm from acting for Mr. Whearty. She only disqualified Ms. Kronis. That does not, however, address the harm of being denied counsel of choice and being forced to retain new counsel for the hearing.
[16] Second, the Member’s decision could have implications beyond this case. In her reasons, the Member wrote, “I note that this decision will be relevant to whether Ms. Kronis should continue to act as counsel in her other cases with the Tribunal.” The Member urged Ms. Kronis to “review her role in any case that was open while she was [the Associate Chair], and/or in which the adjudicator was someone in whose recruitment she was involved.” If other Tribunal Members follow the interim decision in this case, it could create similar issues in other cases before the Tribunal and give rise to multiple judicial review applications. Resolving this issue now in the context of Mr. Whearty’s case could save significant court resources in other cases.
[17] Third, this judicial review application raises a discrete issue that is completely unrelated to the merits of Mr. Whearty’s application before the Tribunal.
[18] Balancing all the factors, I am not satisfied that it is “plain and obvious” Mr. Whearty’s judicial review application will be dismissed as premature. It will, of course, be for the panel to finally decide whether this application is premature or whether there are exceptional circumstances that justify deciding it on its merits even though it relates to an interim decision of the Board.
[19] The motion to strike is, therefore, dismissed. . Democracy Watch v. Canada (Attorney General)
In Democracy Watch v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal from the earlier denial of a JR of "a report by the Conflict of Interest Ethics Commissioner".
Here the court considers JR prematurity 'adequate alternative remedy' (AAR) (aka 'prematurity'), in the larger federal Conflict of Interest Act and 'JR justiciability' context:B. Does the Conflict of Interest Act provide, as a matter of statutory interpretation, adequate alternative remedies to judicial review?
[79] Like any statutory provision, section 66 of the COIA must be interpreted through accepted principles of statutory interpretation, including an assessment of the whole legislative scheme in its proper context. When viewed in its totality, it is very clear that the COIA reflects Parliament’s intention to give both Parliament and the Court distinct supervisory roles in monitoring potential conflict of interests involving public office holders. In that context, it makes perfect sense to insulate from review by the Court the determinations made by the Commissioner within his jurisdiction.
[80] As previously mentioned (see above, paras. 13-16), the Commissioner is an independent Officer of Parliament, and the position he occupies is firmly within the legislative branch of government. He is tasked with the administration of the COIA for public office holders, and of the conflict of interest code for members of Parliament. Section 86 of the PCA makes it clear that he acts under the direction of the House of Commons when enforcing the code to its members.
[81] It is in this context that section 66 must be interpreted. Even if its wording is similar to that of subsection 34(1) of the Federal Public Sector Labour Relations and Employment Board Act, S.C. 2013, c. 40, s. 365 (the "“FPSLREB Act”") at issue in PSAC, the legislative intent behind this section is very different. It is very clear from subsections 44(7), 44(8), 45(3) and 45(4) of the COIA, which require the Commissioner to provide his reports to the Prime Minister, that it is for the Prime Minister to decide how to give effect to the Commissioner’s determination, and for the House of Commons to hold the government to account. The sanction is meant to be political, not judicial. This conclusion is reinforced by the fact that the report of the Commissioner is to be made available to the public, and that its conclusions are not determinative of the measures to be taken (s. 47 of COIA).
[82] This is not to say that the Court has no role to play in supervising the Commissioner and the use that the incumbent makes of its powers. While the Court is precluded from granting judicial remedies for alleged errors of fact and law within the Commissioner’s jurisdiction, it can still be called upon when the Commissioner does not act within the confines of its jurisdiction, fails to observe a principle of natural justice or procedural fairness, acts or fails to act by reason of fraud or perjured evidence. This is perfectly consistent with the dual supervisory roles assigned to the Court and to Parliament, in a context that is highly political by nature and that has historically been the exclusive preserve of parliamentarians.
[83] It is also interesting to note that the Commissioner is required to submit annual reports on the administration of the COIA to the Standing Committee on Access to Information; the Committee may then determine whether anything flowing from the Commissioner’s activities requires additional consideration. In December 2012, the House of Commons tasked the Committee to conduct a statutory review of the COIA. In its report dated February 2014 (Respondent’s record at Tab 5), the Committee recommended amending section 66 to allow judicial review on errors of law. Yet, no significant changes were made following the report.
[84] Courts should be loath to perceive judicial remedies as the only effective recourse in every instance where an aggrieved party raises an alleged illegality. The decision of the Supreme Court in Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), 1989 CanLII 73 (SCC), [1989] 2 S.C.R. 49, 61 D.L.R. (4th) 604 provides a useful (and, in my view, compelling) example of a situation where courts were denied the possibility to intervene in a dispute because Parliament had provided an adequate alternative remedy.
[85] In fulfilling his mandate and performing an audit, the Auditor General had requested certain documentation from the Department of Energy, Mines and Resources and from senior officials of Petro-Canada. These requests were denied, and the Governor in Council declined to exercise its powers to assist the Auditor General by ordering Petro-Canada to provide the information. The Auditor General sought to obtain the information through the judicial process. The Supreme Court found, unanimously, that the Auditor General had no recourse to the courts in the event of the refusal by Parliament, responsible Ministers, and the Governor in Council to make available to him all of the documentation he may seek in the discharge of his responsibilities.
[86] The Court started with the premise that it is open to Parliament to signal its view as to the role the courts should play in interpreting, applying and enforcing its statutes, and that such a signal should be respected in the same way as when courts give effect to privative clauses that oust judicial review (at 91-92). Interpreting the Act as a whole, the Court determined that the reporting mechanism in subsection 7(1) of the Auditor General Act, R.S.C. 1985, c. A-17 (the "“Auditor General Act”") was the only remedy available to the Auditor General for claimed denials of entitlements to certain information from the government. Pursuant to that provision, the Auditor General had an obligation to report annually to the House of Commons on whether, in carrying on the work of his office, he received all the information he required. According to the Supreme Court, on a proper and holistic interpretation of the Act, this was the only remedy available to the Attorney General "“not only because the text is conducive to such an interpretation but also because, in the circumstances, a political remedy of this nature is an adequate alternative remedy”" (at 103).
[87] The Court expanded on the notion that a political remedy is not to be dismissed as ineffectual in the following paragraph (at 104):The adequacy of the s. 7(1)(b) remedy must not be underestimated. A report by the Auditor General to the House of Commons that the government of the day has refused to provide the information brings the matter to public attention. It is open to the Opposition in Parliament to make the issue part of the public debate. The Auditor General’s complaint that the government has not been willing to provide all the information requested may, as a result, affect the public’s assessment of the government’s performance. Thus, the s. 7(1)(b) remedy has an important role to play in strengthening Parliament’s control over the executive with respect to financial matters. [88] In my view, the same can be said of the reporting mechanism found in the COIA. The statutory intention to have the courts defer to parliamentary remedies is, if anything, even clearer in the COIA than it was in the Auditor General case. While the Auditor General Act did not expressly exclude judicial remedies and the question of whether Parliament intended the court to defer to political remedies had to be inferred from the statute as a whole, section 66 of the COIA makes it even clearer that courts should not be drawn in disputes raising purely legal or factual issues within the jurisdiction of the Ethics Commissioner.
[89] Courts should always be sensitive to their proper role in a constitutional democracy like ours, where separation of powers goes hand in hand with the rule of law. Respect for the other branches of government must always be front and center when courts endeavour to play their role as judicial arbiters. As Justice McLachlin (as she then was) stated in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 CanLII 153 (SCC), [1993] 1 S.C.R. 319, 100 D.L.R. (4th) 212 at 389:Our democratic government consists of several branches: the Crown, as represented by the Governor General and the provincial counterparts of that office; the legislative body; the executive; and the courts. It is fundamental to the working of government as a whole that all these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other.
See also: Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 at para. 33; Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17 at para. 30, rev’d on a different point, 2016 SCC 29. [90] This theme, albeit not in the context of determining whether section 66 of the COIA precludes judicial review raising prohibited grounds, has been picked up by this Court and in the Federal Court in previous cases involving Democracy Watch. In Democracy Watch v. Canada (Attorney General), 2018 FCA 195, a panel of this Court found that Parliament has a supervisory role to play alongside the Court (at paras. 20-22). In Democracy Watch v. Canada (Attorney General), 2018 FC 1290, the Federal Court similarly found that the combined effect of sections 47 and 66 of the COIA demonstrate the limited role of the Court within an otherwise comprehensive regime of duties and remedies (at para. 116). The Court also held that these sections show that Parliament had reserved for itself what measures are to be taken as a result of the Commissioner’s findings.
[91] Provincial courts have similarly adopted an attitude of restraint and respect to the legislature in matters of internal conduct, even in the absence of privative clauses (see, for example, McIver v. Alberta (Ethics Commissioner), 2018 ABQB 240 at paras. 70-77; Democracy Watch v. British Columbia (Conflict of Interest Commissioner), 2017 BCSC 123 at paras. 35-37). In this last decision, the Supreme Court of British Columbia accepted the distinction between the Conflict of Interest Commissioner, an officer of the Legislature, and other administrative tribunals, and found that it was for the legislative assembly, not for the Commissioner, to exercise discipline authority over its members.
[92] Therefore, I am of the view, based on these considerations, that Best Buy and PSAC do not apply to this application for judicial review and ought to be distinguished. These cases arose in the context of decisions made by quasi-judicial or administrative tribunals, and not of findings by an Officer of Parliament. Moreover, the COIA provide for a dual parliamentary and judicial oversight, with an elaborate procedure to regulate ethical conduct through political consequences. In the context of such a scheme, where accountability is intended to lie primarily with the legislative branch, courts should clearly exercise judicial restraint and adhere to the limits prescribed by section 66 of the COIA in their judicial review function.
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