Democracy Watch v. Attorney General of Canada
(Federal Court) (Civil) (By Leave)
Administrative law - Judicial review, Legislation, Interpretation - Administrative law — Judicial review — Legislation — Interpretation — Is it an issue of public importance whether and how the federal Commissioner of Lobbying is required to investigate a complaint by a member of the public that a lobbyist has violated the Lobbying Act, RSC 1985, c. 44 (4th Supp) (Act) and/or the Lobbyists’ Code of Conduct, Ottawa: Office of the Commissioner of Lobbying, December 1, 2015 (Lobbyists’ Code) under s. 10.4(1) of the Act — Did the Federal Court of Appeal err in law in interpreting s. 10.4(1) of the Act to mean that only MPs and senators have a right to file a petition for investigation with the Commissioner, and that the public does not have a right to file such a petition.
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A complaint was filed by a private citizen with the Office of the Commissioner of Lobbying asserting that Prince Sha Karim Al Hussaini Aga Khan (Aga Khan) was in breach of the Act and the Lobbyists’ Code by gifting a New Year vacation on his private Caribbean island to Prime Minister Justin Trudeau and his family. The Aga Khan Foundation is a registered lobbyist under the Act. The Aga Khan sits on the Board of the Foundation in an unpaid position, as a volunteer. The Office of the Lobbying Commissioner began an internal review process, and the Director of Investigations recommended that the file be closed without further investigation on the basis that the Lobbyists’ Code does not apply to the Aga Khan’s interactions with the Prime Minister. There was no evidence that the Aga Khan was remunerated for his work with the Foundation or that he was engaged in registrable lobbying activity during the Prime Minister’s Christmas vacation. The interim Commissioner concluded that an investigation was not necessary to ensure compliance with the Lobbyists’ Code or the Act and informed the complainant. The applicant, Democracy Watch, brought an application for judicial review.
The Federal Court held that the Commissioner’s decision was subject to judicial review and was unreasonable. It granted the application for judicial review, set aside the Commissioner’s decision and returned the matter to the Commissioner of Lobbying for redetermination in accordance with its reasons. The Federal Court of Appeal allowed the appeal, set aside the Federal Court decision and dismissed the application for judicial review. Interpreting the Act, it held that as there was no obligation upon the Commissioner to act on a complaint by the public, her decision not to investigate the complaint in this case was not subject to judicial review.
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