Law360 Canada (August 5, 2026, 9:30 AM EDT) --

Sara Blake

A unanimous decision of the Supreme Court of Canada has struck down a privative clause that restricted the grounds for judicial review of an exercise of statutory authority: Democracy Watch v. Canada (Attorney General), 2026 SCC 28.

The court ruled that the Constitution guarantees judicial review of every exercise of power conferred by statute. Judicial review is essential to the rule of law. It is the constitutional role of the superior courts to supervise those who exercise statutory power to ensure they do not overstep the limits of their legal authority. The legality of the exercise of power is always subject to judicial review.

This appeal concerns an application for judicial review of a report by the federal Conflict of Interest and Ethics Commissioner, which found that a former prime minister had not violated the Conflict of Interest Act. The SCC focused on the validity of the privative clause and remitted other issues to be decided by the Federal Court of Appeal.

The Act permits judicial review on grounds of jurisdiction, procedural fairness and fraud. Its privative clause precludes judicial review on grounds of errors of law and factual findings made in a perverse or capricious manner or without regard for the evidence. The court struck down this privative clause.

The court reviewed the jurisprudence with respect to the judicature provisions in ss. 96 to 101 of the Constitution Act, 1867. These provisions guarantee the existence of superior courts of inherent jurisdiction and protect the core, essential aspects of that jurisdiction as the primary guardians of the rule of law through judicial review. Legislative efforts to limit the core jurisdiction of the superior courts are ultra vires because they trench on the powers assigned exclusively to the courts by these constitutional provisions.

The main question before the court was whether a statute could preclude judicial review of issues that are not “jurisdictional.” The court reviewed its judicial history as to the meaning of that word. The court notes that the historical concept of “jurisdictional” encompassed more than the parameters of legal authority. It included unreasonable rulings on questions of law and unreasonable findings of fact. The court notes that unreasonableness, in a variety of definitions, has always been a ground of judicial review and that these “jurisdictional” errors have always entitled a court to ignore a privative clause. Irrational administrative decisions have always been unlawful because they raise the spectre of arbitrary exercises of public power.

The court discussed the evolution of privative clauses as a legislative reaction to the non-deferential correctness standard of review that was historically applied to review of many exercises of statutory power. Under that standard, the court decided the issues de novo without deference to the decision of the statutory delegate. During the evolution of the reasonableness standard of review since 1979, the purpose of many privative clauses was interpreted by the court to preclude review for correctness and to require the application of a reasonableness standard of review. Since the court has recently, in Vavilov, reduced the circumstances of correctness review and clarified the deferential nature of reasonableness review, the need for privative clauses has diminished Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. In the present case, the court rules that the reasonableness standard of review, as defined in Vavilov, is the constitutionally guaranteed minimum scope of judicial review. Rationality is a boundary of legality.

The court declines, in this case, the applicant’s request to define what minimum standard of review is constitutionally guaranteed. I doubt it ever will define it because the concept of reasonableness is too dependent on context for the development of a bright-line definition that could be applied to all circumstances.

The court rules that it does not matter whether the grounds for judicial review of an exercise of statutory power concern questions of fact, of law, of procedural fairness or any other issue. Constitutionally, all are subject to court supervision pursuant to the established standards of review. Any statutory provision that ousts this judicial review is ultra vires.

In my observation, problems with the application of the correctness standard of review to questions of statutory interpretation included the inexperience of some superior court judges in applying the principles of statutory interpretation and their inexperience with the subject matter governed by many statutes. And, though most statutory delegates were experienced in their regulatory subject, they lacked skill in the task of statutory interpretation. They often interpreted their statute to serve their personal views as to what is in the public interest without regard for legislative intent. The court in Vavilov solved these problems by requiring statutory delegates to interpret their statutes in accordance with the established principles of statutory interpretation — text, statutory context and statutory purposes — and by requiring courts on judicial review to apply a deferential but robust reasonableness standard of review to the delegate’s interpretation. Consequently, the general quality of statutory interpretation has improved.

Essentially, this case is about the separation of powers between the legislature and the courts and a decades-long dialogue between them. Some judges applied a correctness standard of review that reflected each judge’s opinion of the justness of each case, despite their inexperience with the subject matter and lack of skill at statutory interpretation. The legislatures reacted by trying to preclude judges from deciding matters that the legislature believed could be better decided by specialized statutory delegates. Over the years the SCC has restrained judges by establishing and refining a deferential standard of reasonableness review. And, in Vavilov, the SCC restrained the delegates by requiring them to interpret their statutes in accordance with the established principles of statutory interpretation. In addition, statutory delegates now receive better quality training on all aspects of procedure, statutory interpretation and writing decisions.

On reading only the headnote, I was surprised that factual findings can no longer be sheltered from judicial review by a privative clause. However, after reviewing the decision, I have concluded that the court has not altered the exceptional circumstances in which findings of fact may be judicially reviewed. There were no findings of fact at issue in this appeal.

The court decided one other issue relating to whether there was an adequate alternative remedy to judicial review. The Federal Court of Appeal noted that the commissioner is an officer of Parliament and subject to parliamentary supervision, then ruled that this political oversight of the commissioner’s report is an adequate alternative remedy to judicial review. The SCC disagreed, ruling that the Act does not grant the applicant any right to raise its issues with Parliament. In contrast, in the Federal Court, the applicant may apply for standing to challenge the legality of the commissioner’s exercise of power.

Sara Blake is the author of Administrative Law in Canada, 7th edition, LexisNexis Canada. Her practice is restricted to clients who exercise statutory and regulatory powers.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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