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Cabinet - Federal Board, Commission or other Tribunal (FBCOT). Canada (Attorney General) v. Canadian Civil Liberties Association
In Canada (Attorney General) v. Canadian Civil Liberties Association (Fed CA, 2026) the Federal Court of Appeal dismissed a federal AG JR, this brought against "the Federal Court’s finding that the declaration of a public order emergency was unreasonable and that some provisions of the Regulations and of the Economic Order violated the Charter", here where the emergency order made under the federal Emergencies Act.
Here the court considers the federal cabinet as a "federal board, commission or other tribunal under sections 2 and 18.1 of the Federal Courts Act":[141] As for the argument that Cabinet cannot qualify as a federal board, commission or other tribunal under sections 2 and 18.1 of the Federal Courts Act because its existence is a matter of constitutional convention and it therefore cannot be granted powers by Parliament, it is entirely devoid of merit. The reality is that Cabinet is the only active part of the Privy Council, and in most matters is the supreme executive authority: see Babcock v. Canada (Attorney General), 2002 SCC 57 at para. 18, where the Supreme Court explained that Cabinet confidentiality is required to ensure full and frank exchanges among the elected representatives tasked with the heavy responsibility of "“making government decisions”". For all intents and purposes, therefore, Cabinet exercises the powers vested in the Privy Council. Accordingly, its decisions must be reviewable by the Federal Courts. The same logic would apply at the provincial level.
[142] In any event, Cabinet has been formally recognized in many statutes such that its legal status is no longer in dispute. The CEA, for example, regulates access to the "“Confidences of the Queen’s Privy Council of Canada”" (subsection 39(1)) and defines a number of documents where such information is contained (subsection 39(2)). All these documents are described by reference to "“Council”" the definition of which is given at subsection 39(3) in the following terms:39(3) For the purposes of subsection (2), Council means the Queen’s Privy Council for Canada, committees of the Queen’s Privy Council for Canada, Cabinet and committees of Cabinet.
39(3) Pour l’application du paragraphe (2), Conseil s’entend du Conseil privé de la Reine pour le Canada, du Cabinet et de leurs comités respectifs. [143] The same definition of "“Council”", in relation to Confidences of the King’s Privy Council for Canada, can be found in the Access to Information Act, R.S.C. 1985, c. A-1, subsection 69(2), the Corrections and Conditional Release Act, S.C. 1992, c. 20, subsection 196(2), and the Privacy Act, R.S.C. 1985, c. P-21, subsection 70(2). All these definitions clearly confer legal status on the Cabinet and its committees, if only with respect to the regulation of access to Cabinet confidences. If Cabinet did not have legal status, it would make no sense for Parliament to regulate the records of such a body. The jurisprudence of this Court is replete with cases referring to these definitions and identifying the Cabinet as the decision-maker: see, for example, Alberta Wilderness Association; Tsleil-Waututh Nation; Canadian Coalition for Firearm Rights v. Canada (Attorney General), 2025 FCA 82.
[144] We are therefore of the view that Cabinet is a "“federal board, commission, or other tribunal”" for the purposes of section 18.1 of the Federal Courts Act, and that its decisions can be reviewed by the Federal Court to the extent that it exercises, de facto, the powers conferred to the GIC by statute. In these reasons, we will therefore use "“GIC”" and "“Cabinet”" interchangeably.
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