Summary

Keywords

Administrative Law — Judicial Review — Governor in Council Appointments — Institutional Independence — Procedural Fairness — Reasonable Apprehension of Bias — Applicant challenging appointment of Federal Conflict of Interest and Ethics Commissioner and appointment of the Commissioner of Lobbying — Whether Governor in Council’s appointment process for the Ethics Commissioner complied with the Parliament of Canada Act — Whether Governor in Council’s appointment process for the Commissioner of Lobbying complied with the Lobbying Act — Whether the doctrine of reasonable apprehension of bias applies to exercise of Governorin Council’s appointment powers under the Parliament of Canada Act and the Lobbying Act — Standard of review for Governor in Council’s appointment decisions —Parliament of Canada Act, R.S.C., 1985, c. P 1 at s. 81, Conflict of Interest Act, S.C. 2006, c. 9, s. 2 at s. 44, 45, 47, 66, Lobbying Act, R.S.C., 1985, c. 44 (4th Supp.) at s. 4.1(1), 4.2(2).

Summary

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The applicant, Democracy Watch, brought an application for judicial review of the appointment by the Governor in Council (hereinafter “GIC”) of Mario Dion as the Federal Conflict of Interest and Ethics Commissioner (hereinafter “Ethics Commissioner”). Democracy Watch challenged the appointment on the basis that it was made in contravention of the consultation requirement contained in s. 81(1) of the Parliament of Canada Act, R.S.C., 1985, c. P 1 and in contravention of s. 4 and s. 6(1) of the Conflict of Interest Act, S.C. 2006, c. 9, s. 2 (hereinafter“Conflict of Interest Act”), as well as on the basis that the appointment process was procedurally unfair. Democracy Watch also brought an application for judicial review of the appointment of Nancy Belanger as the Commissioner of Lobbying, challenging the appointment on the basis that it was made in contravention of the consultation requirement contained in s. 4.1(1) of the Lobbying Act, and in contravention of s. 4 and s. 6(1) of the Conflict of Interest Act, as well as on the basis that the appointment process was procedurally unfair. The Federal Court granted Democracy Watch public interest standing to bring the applications, but dismissed both applications for judicial review. The judge found that the GIC met the consultation requirements of both acts, that the issue of potential contraventions of the Conflict of Interest Act were not justiciable, as the Ethics Commissioner has exclusive jurisdiction to decide this matter, and that the common law concerning reasonable apprehension of bias did not apply to the GIC’s exercise of its discretionary appointment power under both acts. The Federal Court of Appeal dismissed Democracy Watch’s appeal, as it was not persuaded that the Governor in Council’s view was unreasonable. The Federal Court of Appeal also rejected Democracy Watch’s contention that the Governor in Council was biased in making the appointment. The court found that that the nature of the scheme made such a situation inevitable, and that it had no grounds upon which to interfere with the legislative scheme.

Lower Court Rulings