Federal Court of Appeal Decisions

Date: 20090121

Docket: A-174-08

Citation: 2009 FCA 15

CORAM:       RICHARD C.J.

                        DÉCARY J.A.

                        NOËL J.A.

BETWEEN:

DEMOCRACY WATCH

Applicant

and

CONFLICT OF INTEREST AND ETHICS COMMISSIONER

Respondent

and

ATTORNEY GENERAL OF CANADA

Intervener

Heard at Ottawa, Ontario, on January 21, 2009.

Judgment delivered from the Bench at Ottawa, Ontario, on January  21, 2009.

REASONS FOR JUDGMENT OF THE COURT BY:                                               RICHARD C.J.

Date: 20090121

Docket: A-174-08

Citation: 2009 FCA 15

CORAM:       RICHARD C.J.

                        DÉCARY J.A.

                        NOËL J.A.

BETWEEN:

DEMOCRACY WATCH

Applicant

and

CONFLICT OF INTEREST AND ETHICS COMMISSIONER

Respondent

and

ATTORNEY GENERAL OF CANADA

Intervener

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Ottawa, Ontario, on January  21, 2009)

RICHARD C.J.

[1]               This is an application for judicial review by Democracy Watch pursuant to section 28 of the Federal Courts Act, R.S.C. 1985, c. F-7 arising out of a request to the Conflict of Interest and Ethics Commissioner (the ‘Commissioner) dated November 26, 2007 for an investigation of and ruling on decisions and participation in decisions by Prime Minister Stephen Harper and Minister of Justice and Attorney General Robert Nicholson, and for a recusal ruling for all Cabinet ministers concerning the Mulroney-Schreiber situation.

[2]               On  January 7, 2007, the Commissioner responded to the applicant, explaining that she did not have sufficient credible evidence to suggest that Mr. Harper, Mr. Nicholson, or any other individual mentioned in the applicant’s letter was in a conflict of interest in violation of the Conflict of Interest Act, S.C. 2006, c. 9, s. 2 (the ‘Act’).  Accordingly, the Commissioner found that she did not have sufficient grounds to begin an examination pursuant to subsection 45(1) of the Act.

[3]               The applicant requests the following in its notice of application:

·        An order quashing the decision of the Commissioner and directing the Commissioner to proceed with a full investigation into the applicant’s complaint or, in the alternative, an order quashing the decision of the Commissioner and sending it back with directions for reconsideration by the Commissioner;

·        A declaration that Democracy Watch was deprived of its right to a fair hearing; and

·        A declaration that subsections 44(1) to 44(6) of the Conflict of Interest Act violate sections 2(b) and 2(d) of the Canadian Charter of Rights and Freedoms

Legislative Scheme

[4]               An Act to establish conflict of interest and post-employment rules for public office holders (the Conflict of Interest Act) was introduced on April 11, 2006 during the first session of the 39^th Parliament as part of Bill C-2, now entitled the Federal Accountability Act, S.C. 2006, c. 9.  This legislation was given Royal Assent in December 2006 and came into force on July 9, 2007. 

[5]               Section 3 of the Conflict of Interest Act (the ‘Act’) declares that the purpose of the Act is to:

[6]               The Conflict of Interest and Ethics Commissioner was created to replace the position of the Ethics Commissioner.  In addition to certain supervisory and enforcement roles, the Act gives the Commissioner investigatory powers to determine whether a contravention of the Act has occurred. 

[7]               Specifically, the Act contemplates two mechanisms by which an investigation may be commenced by the Commissioner.  First, under subsection 44(3) of the Act, the Commissioner must examine possible contraventions of the Act if a member of the Senate or the House of Commons so requests, as long as the Commissioner does not determine that the request is frivolous, vexatious, or is made in bad faith.  Second, subsection 45(1) provides that the Commissioner may conduct an examination on his or her own initiative if he or she has reason to believe that the Act has been contravened.

[8]               Section 66 states that all decisions and orders of the Commissioner are final and are not reviewable in any court except in accordance with the Federal Courts Act.

Analysis

[9]               We are all of the view that the Commissioner’s letter is not judicially reviewable by this Court, since the Commissioner did not issue a decision or order within the meaning of section 66 of the Act or subsection 18.1(3) of the Federal Courts Act. 

[10]           Where administrative action does not affect an applicant’s rights or carry legal consequences, it is not amenable to judicial review (Pieters v. Canada (Attorney General), 2007 FC 556 at paragraph 60; Rothmans, Benson & Hedges Inc. v. Canada (Minister of National Revenue) (1998), 148 F.T.R. 3 at paragraph 28; see also Canadian Institute of Public and Private Real Estate Cos. v. Bell Canada, 2004 FCA 243 at paragraphs 5 & 7).

[11]           The applicant has no statutory right to have its complaint investigated by the Commissioner and the Commissioner has no statutory duty to act on it. There is no provision in the Act that allows a member of the public to request that the Commissioner begin an examination.  Indeed, the Act specifically contemplates the route which a member of the public should take if it wishes to present information to the Commissioner:

[12]           Furthermore, any statement made by the Commissioner in her letter does not have any binding legal effect.  The Commissioner retains the discretion to commence an investigation into the applicant’s complaint if, in the future, she has reason to believe that there has been a contravention of the Act. 

[13]           The applicant submits that a similar decision made by the Ethics Counsellor, the predecessor to the Ethics Commissioner, was deemed to be judicially reviewable by the Federal Court in Democracy Watch v. Canada (Attorney General), [2004] 4 F.C. 83, 2004 FC 969.  While we take no position as to whether the Ethics Counsellor’s decision was properly reviewable by the Federal Court, it is nonetheless clear that this decision was made pursuant to a different regime than the one with which we are concerned.  The Ethics Counsellor was not acting pursuant to the legislation with which we are presently concerned. 

[14]           Since we find that the Commissioner’s letter was not a reviewable decision or order under section 66 of the Act, this Court does not have the jurisdiction to grant the remedies requested by the applicant.

[15]           With respect to the applicant’s request for a declaration that subsections 44(1) to 44(6) violate their section 2(b) and 2(d) Charter rights, we find that while this Court can properly hear constitutional challenges within applications for judicial review, the applicant cannot simply tack a constitutional challenge onto an application for judicial review which was inappropriately brought. 

[16]           Accordingly, the application for judicial review will be dismissed with costs to the respondent only.

 "J. Richard"

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                              A-174-08

STYLE OF CAUSE:                                                              DEMOCRACY WATCH v. CONFLICT OF INTEREST AND ETHICS COMMISSIONER and ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                                                        Ottawa, Ontario

DATE OF HEARING:                                                          January 21, 2009

REASONS FOR JUDGMENT OF THE COURT BY:       (Richard C.J., Décary J.A. and Noël J.A.)

DELIVERED FROM THE BENCH BY:                            Richard C.J.

APPEARANCES:

SOLICITORS OF RECORD: