A-159-19
2020 FCA 69
Attorney General of Canada (Appellant)
v.
Democracy Watch (Respondent)
Indexed as: Canada (Attorney General) v. Democracy Watch
Federal Court of Appeal, Webb, Rennie and Mactavish JJ.A.—Ottawa, December 12, 2019 and April 1, 2020.
Ethics –– Appeal from Federal Court judgment granting respondent’s judicial review application, setting aside Commissioner of Lobbying decision not to conduct investigation under Lobbying Act, s. 10.4(1) –– Federal Court holding that Commissioner’s decision that investigation not necessary to ensure compliance with Lobbying Act or Lobbyists’ Code of Conduct both subject to judicial review, unreasonable –– Prime Minister of Canada, Justin Trudeau, family, celebrating 2017 New Year on Caribbean island at invitation of Prince Shah Karim Al Hussaini (Aga Khan) –– Private citizen filing complaint with Office of Commissioner of Lobbying, asserting that Aga Khan’s gift violated Lobbying Act, Lobbyists’ Code –– Following internal review, Lobbyists’ Code of Conduct held not to apply to Aga Khan’s interactions with Prime Minister –– Commissioner informing complainant of decision not to investigate –– Federal Court concluding that scheme set out by Lobbying Act, Lobbyists’ Code imposing obligation on Commissioner to receive, consider, investigate complaints originating from public –– Whether decision sought to be set aside subject to judicial review –– Federal Court Judge not bound by Democracy Watch v. Conflict of Interest and Ethics Commissioner (Democracy Watch 2009) –– In that case, Court concluding there was no statutory right under Conflict of Interest Act for member of public to have complaint investigated — Democracy Watch 2009 not dispositive of result in present case –– Question of whether Lobbying Act creating rights or obligations or causing prejudicial effects could only be determined through consideration of Lobbying Act itself, not another statute –– Federal Court judge not erring in law when considering argument whether right of judicial review arising under Act on its own merits –– As to whether decision at issue subject to judicial review, not all administrative action giving rise to right of review –– No right of review arising where conduct attacked failing to affect rights, impose legal obligations or cause prejudicial effects –– Lobbying Act not creating right for member of public to have complaint investigated –– Nothing in language of statute suggesting that Commissioner must investigate public’s complaints –– Parliament not establishing process, procedures, mechanisms or obligations for disposing of complaints from public –– Where Parliament intends to create formal complaints procedure with concomitant duty on agent of Parliament to investigate, it does so expressly –– Neither purpose of Lobbying Act nor language in introduction to Lobbyists’ Code sufficient to justify reading in of public complaints process, concomitant right for members of public to have Commissioner of Lobbying investigate their complaints ––Commissioner of Lobbying’s decision not to investigate complaint brought by member of public not decision or order subject to judicial review –– Therefore not necessary to consider reasonableness of Federal Court’s decision –– Appeal allowed.
This was an appeal from a Federal Court judgment granting the respondent’s judicial review application and setting aside a decision of the Commissioner of Lobbying not to conduct an investigation under subsection 10.4(1) of the Lobbying Act. The Federal Court held that the Commissioner’s decision that an investigation was not necessary to ensure compliance with the Lobbying Act or the Lobbyists’ Code of Conduct was both subject to judicial review and unreasonable.
In January of 2017, the media reported that the Prime Minister of Canada, Justin Trudeau, and his family celebrated the New Year on a Caribbean island at the invitation of Prince Shah Karim Al Hussaini (Aga Khan). The vacation was a gift. Following the media report, a private citizen filed a complaint with the Office of the Commissioner of Lobbying, asserting that the Aga Khan’s gift had violated the Lobbying Act and the Lobbyists’ Code. The Office of the Commissioner of Lobbying began an internal review to assess whether it should conduct an investigation. The Director of Investigations recommended to the Commissioner that the file be closed without further investigation. In particular, it concluded that the Lobbyists’ Code did not apply to the Aga Khan’s interactions with the Prime Minister. The Commissioner agreed and informed the complainant of the decision not to investigate. The respondent commenced a judicial review application to set aside the decision not to pursue an investigation in respect of the complaint. After a review of the Commissioner’s investigative powers and duties, the Federal Court concluded that the scheme set out by the Lobbying Act and the Lobbyists’ Code imposed an obligation on the Commissioner to receive, consider and investigate complaints originating from the public.
The appellant made two principle arguments on appeal. The first was that because the Lobbying Act, like the Conflict of Interest Act, fails to create a statutory right for a member of the public to have their complaint investigated, the Federal Court was bound by the Federal Court of Appeal’s previous decision in Democracy Watch v. Conflict of Interest and Ethics Commissioner (Democracy Watch 2009) and that it was an error of law for the Federal Court not to follow a binding authority. In that case, the Court concluded that there was no statutory right under the Conflict of Interest Act for a member of the public to have their complaint investigated. The Ethics Commissioner, in turn, had no statutory duty to act upon that complaint. Because the Conflict of Interest Act did not create a right for a member of the public to have their complaint investigated, the Ethics Commissioner’s decision not to investigate was not an order or decision amenable to judicial review. The appellant’s second argument highlighted the fact that the Lobbyists’ Code, though it encourages the public to bring forward information, is not a statutory instrument that compels the investigation of complaints or creates legal rights. The appellant encouraged the distinction between the process of gathering information provided for by the Lobbying Act and the Lobbyists’ Code and a statutory complaints process sufficiently robust to create rights.
The respondent, in turn, highlighted the legislative history of the Lobbying Act, emphasising the manner in which Parliament has expanded the mandate and investigative powers of the Commissioner and lowered the threshold to commence an investigation. The respondent also emphasized that the Lobbyists’ Code encourages “anyone” to bring information to the attention of the Commissioner. Finally, the respondent argued that the loss of public trust that flowed from the Commissioner’s decision that the Aga Khan was not subject to the Lobbying Act or the Lobbyists’ Code was a consequence sufficient to trigger a right of judicial review.
At issue was whether the decision sought to be set aside was subject to judicial review.
Held, the appeal should be allowed.
With respect to the appellant’s first argument, in this case, the Federal Court Judge was not bound by Democracy Watch 2009. While the scheme of the Conflict of Interest Act is analogous, there are differences between the two Acts. The language governing investigations in subsection 10.4(1) of the Lobbying Act is mandatory, while the language in subsection 45(1) of the Conflict of Interest Act is permissive. However, mandatory language does not necessarily translate into a reviewable order or decision amenable to judicial review. While Democracy Watch 2009 was certainly instructive and contained guidance as to the criteria that the judge should consider in assessing whether the decision not to investigate gave rise to judicial review, it was not dispositive of the result in this case. The question whether the Lobbying Act creates rights or obligations or causes prejudicial effects could only be determined through consideration of the Act itself, not another statute. It was not an error of law on the part of the Federal Court judge to consider the argument whether a right of judicial review arose under the Lobbying Act on its own merits.
As to the appellant’s second argument, not all administrative action gives rise to a right of review. No right of review arises where the conduct attacked fails to affect rights, impose legal obligations, or cause prejudicial effects. The Lobbying Act does not create a right for a member of the public to have a complaint investigated. There was nothing in the language of the statute to suggest that the Commissioner must investigate the public’s complaints. Parliament has established no process, procedures, mechanisms or obligations for disposing of complaints from the public. To the contrary, an investigation is required where the Commissioner has reason to believe, including on the basis of information received from a member of the Senate or the House of Commons, that an investigation is necessary to ensure compliance with the Lobbyists’ Code or the Lobbying Act. A line in the introduction to the Lobbyists’ Code which encourages the gathering of information is insufficient to create a decision which is subject to judicial review. Parliament placed an affirmative obligation on the Commissioner to investigate complaints that arise from Parliamentarians but the Lobbying Act is silent with respect to information received from the public. There is no requirement to issue any decision or to take any action with respect to information arising from the public.
Where Parliament intends to create a formal complaints procedure with a concomitant duty on an agent of Parliament to investigate, it does so expressly. In light of the language in the statutes examined herein and the fact that similar language is notably absent from the Lobbying Act and the Lobbyists’ Code, the lobbying regime does not establish a public complaints process. The solicitation of information from the general public, does not, in and of itself, create rights for those who provide information where they are not directly affected by the outcome. It is not the role of a court to ascribe an intention to Parliament where that intention is not clear. Neither the purpose of the Lobbying Act nor the language in the introduction to the Lobbyists’ Code was sufficient to justify the reading in of a public complaints process and the concomitant right for members of the public to have the Lobbying Commissioner investigate their complaints. The Lobbying Commissioner’s decision not to investigate a complaint brought by a member of the public was not a decision or order subject to judicial review. It was therefore not necessary to consider the reasonableness of the Federal Court’s decision.
STATUTES AND REGULATIONS CITED
Access to Information Act, R.S.C., 1985, c. A-1, s. 30(1).
Conflict of Interest Act, S.C. 2006, c. 9, s. 2, ss. 44(1),(4), 45(1).
Lobbying Act, R.S.C., 1985 (4th Supp.), c. 44, ss. 5(1), 7(1), 10.4(1),(1.1).
Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31, ss. 58(1),(2),(4),(5).
Privacy Act, R.S.C., 1985, c. P-21, ss. 29(1), 30, 35(2).
Public Servants Disclosure Protection Act, S.C. 2005, c. 46, ss. 19.4(1),(2),(3), 22(i), 24(3).
Statutory Instruments Act, R.S.C., 1985, c. S-22.
CASES CITED
DISTINGUISHED:
Democracy Watch v. Conflict of Interest and Ethics Commissioner, 2009 FCA 15, 86 Admin. L.R. (4th) 149.
CONSIDERED:
Democracy Watch v. Canada (Attorney General), 2018 FCA 194, 428 D.L.R. (4th) 739.
REFERRED TO:
Sganos v. Canada (Attorney General), 2018 FCA 84; Air Canada v. Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605; Irving Shipbuilding Inc. v. Canada (Attorney General), 2009 FCA 116, [2010] 2 F.C.R. 488; TELUS Communications Inc. v. Wellman, 2019 SCC 19, [2019] 2 S.C.R. 144.
AUTHORS CITED
Office of the Commissioner of Lobbying of Canada. Lobbyists’ Code of Conduct, 2015.
APPEAL from a Federal Court decision (2019 FC 388) granting the respondent’s judicial review application and setting aside a decision of the Commissioner of Lobbying not to conduct an investigation under subsection 10.4(1) of the Lobbying Act. Appeal allowed.
APPEARANCES
Alexander Gay for appellant.
Sebastian Spano for respondent.
SOLICITORS OF RECORD
Deputy Attorney General of Canada for appellant.
Spano Law, Ottawa, for respondent.
The following are the reasons for judgment rendered in English by
Rennie J.A.:
I. Introduction
[1] The Attorney General of Canada appeals from a judgment of the Federal Court (2019 FC 388, per Gleeson J.), in which the Court granted the respondent’s judicial review application and set aside a decision of the Commissioner of Lobbying not to conduct an investigation under subsection 10.4(1) of the Lobbying Act, R.S.C., 1985 (4th Supp.), c. 44. The Federal Court held that the Commissioner’s decision that an investigation was not necessary to ensure compliance with the Lobbying Act or the Lobbyists’ Code of Conduct [Lobbyists’ Code] was both subject to judicial review and unreasonable.
[2] For the reasons that follow, I would allow the appeal.
[3] The circumstances that gave rise to the application may be briefly stated. In January of 2017, the media reported that the Prime Minister of Canada, Justin Trudeau, and his family celebrated the New Year on a Caribbean island at the invitation of Prince Shah Karim Al Hussaini (the Aga Khan IV). The vacation was a gift.
[4] Following the media report, a private citizen filed a complaint with the Office of the Commissioner of Lobbying, asserting that the Aga Khan’s gift had violated the Lobbying Act and the Lobbyists’ Code. An acknowledgement letter was mailed to the complainant.
[5] The Office of the Lobbying Commissioner began an internal review to assess whether it should conduct an investigation. In a memorandum of September 13, 2017, the Director of Investigations recommended to the Commissioner that the file be closed without further investigation. In a short and somewhat cryptic memorandum, the Director found:
… no evidence to indicate that Prince Shah Karim Al Hussaini, Aga Khan IV, is remunerated for his work with the [Aga Khan Foundation Canada] and, therefore, that he was engaged in registrable lobbying activity during the Prime Minister’s Christmas vacation.
Consequently, the Lobbyists’ Code of Conduct does not apply to the Aga Khan’s interactions with the Prime Minister.
[6] The Commissioner agreed. The reasons for the decision were not announced to the public, but the Commissioner informed the complainant of the decision not to investigate. I note, parenthetically, that the Aga Khan Foundation itself is a registered lobbyist under the Lobbying Act. The Aga Khan sits on the Board of the Aga Khan Foundation, but his position is unpaid. He is a volunteer.
[7] Democracy Watch commenced a judicial review application to set aside the decision not to pursue an investigation in respect of the complaint.
[8] After a review of the Commissioner’s investigative powers and duties, the Federal Court concluded that the scheme set out by the Lobbying Act and the Lobbyists’ Code imposed an obligation on the Commissioner to receive, consider and investigate complaints originating from the public. In reaching this conclusion, the Court relied in part on the introduction to the Lobbyists’ Code, which states [at page 2] that “[a]nyone suspecting non-compliance with the Code should forward information to the Commissioner”.
[9] The purpose of the Lobbying Act also played a role in the Federal Court’s analysis. The judge concluded that the exhortation in the Code that the public provide information, combined with a “duty” on the part of the Lobbying Commissioner to review, consider and render a decision on information brought forward by the public furthered the important public purposes of the Act: to enhance public trust and confidence in the integrity of government decision-making. These factors led to a conclusion that legal rights were affected by a decision not to investigate under subsection 10.4(1) of the Lobbying Act. The Commissioner’s decision not to investigate further was therefore amenable to judicial review.
II. The Arguments before this Court
[10] The appellant makes two principle arguments.
[11] The first is that because the Lobbying Act, like the Conflict of Interest Act, S.C. 2006, c. 9, s. 2, fails to create a statutory right for a member of the public to have their complaint investigated, the Federal Court was bound by this Court’s previous decision in Democracy Watch v. Conflict of Interest and Ethics Commissioner, 2009 FCA 15, 86 Admin. L.R. (4th) 149 (Democracy Watch 2009) and that it was an error of law for the Federal Court not to follow a binding authority.
[12] At issue in that appeal was whether the Conflict of Interest and Ethics Commissioner’s decision not to begin an investigation under subsection 45(1) of the Conflict of Interest Act, when a member of the public had requested an investigation, was amenable to judicial review.
[13] This Court concluded that there was no statutory right under the Conflict of Interest Act for a member of the public to have their complaint investigated. The Ethics Commissioner, in turn, had no statutory duty to act upon that complaint (Democracy Watch 2009, at paragraph 11). Because the Conflict of Interest Act did not create a right for a member of the public to have their complaint investigated, the Ethics Commissioner’s decision not to investigate was not an order or decision amenable to judicial review. The Court also noted that the Ethics Commissioner had not made any statements in her letter that could have binding legal effect (at paragraph 12).
[14] In this case, the Federal Court Judge was not bound by Democracy Watch 2009. I agree with the respondent that while the scheme is analogous, there are differences between the two Acts. The language governing investigations in subsection 10.4(1) of the Lobbying Act is mandatory, while the language in subsection 45(1) of the Conflict of Interest Act is permissive. While this would seem, as a matter of first impression, to favour the respondent, this Court pointed out in Democracy Watch v. Canada (Attorney General), 2018 FCA 194, 428 D.L.R. (4th) 739, at paragraph 29 that mandatory language does not necessarily translate into a reviewable order or decision amenable to judicial review.
[15] While Democracy Watch 2009 is certainly instructive and contains guidance as to the criteria that the judge should consider in assessing whether the decision not to investigate gave rise to judicial review, it is not dispositive of the result in this case. The question whether the Lobbying Act creates rights or obligations, or causes prejudicial effects, can only be determined through consideration of the Lobbying Act itself, not another statute. It was not an error of law on the part of the judge to consider the argument whether a right of judicial review arose under the Lobbying Act on its own merits.
[16] I turn to the appellant’s second argument.
[17] The appellant highlights the fact that the Lobbyists’ Code, though it encourages the public to bring forward information, is not a statutory instrument that compels the investigation of complaints or creates legal rights. The appellant encourages this Court to distinguish between the process of gathering information provided for by the Lobbying Act and the Lobbyists’ Code, and a statutory complaints process sufficiently robust to create rights. To this end, the appellant juxtaposes the lobbying regime with other statutes in which Parliament uses express language to create a statutory mechanism for the investigation of complaints by agents of Parliament.
[18] The respondent, in turn, highlights the legislative history of the Lobbying Act, emphasising the manner in which Parliament has, through a series of legislative reforms commencing in 1988, expanded the mandate and investigative powers of the Commissioner and lowered the threshold to commence an investigation. The respondent also emphasizes that the Lobbyists’ Code encourages “anyone” to bring information to the attention of the Commissioner. Finally, the respondent argues that the loss of public trust that flows from the Commissioner’s decision that the Aga Khan is not subject to the Lobbying Act or the Lobbyists’ Code is a consequence sufficient to trigger a right of judicial review. According to the respondent, consequences need not be legal to trigger a right of review.
[19] As in all judicial review applications, the Court must first decide whether the decision sought to be set aside is subject to judicial review. Not all administrative action gives rise to a right of review. There are many circumstances where an administrative body’s conduct will not trigger a right to judicial review. Some decisions are simply not justiciable, crossing the boundary from the legal to the political. Others may be justiciable but there may be an adequate alternative remedy. No right of review arises where the conduct attacked fails to affect rights, impose legal obligations, or cause prejudicial effects (Sganos v. Canada (Attorney General), 2018 FCA 84, at paragraph 6; Air Canada v. Toronto Port Authorityl, 2011 FCA 347, [2013] 3 F.C.R. 605, at paragraph 29; Irving Shipbuilding Inc. v. Canada (Attorney General), 2009 FCA 116, [2010] 2 F.C.R. 488; and Democracy Watch 2009, referred to above).
[20] It is this latter criterion that is the focus of this appeal. The answer to the question whether the Lobbying Act affects rights, imposes obligations or causes prejudicial effects requires a careful examination of the legislation in question. As the issue is one of statutory interpretation, the standard of review is correctness (TELUS Communications Inc. v. Wellman, 2019 SCC 19, [2019] 2 S.C.R. 144, at paragraph 30).
III. The Legislative Regime
[21] The over-arching purpose of the Lobbying Act is to ensure transparency and accountability in the lobbying of public office holders and consequentially increase public confidence in the integrity of government decision-making. To that end, it establishes the Office of the Commissioner of Lobbying. The Commissioner reports directly to Parliament through the Speaker of the House of Commons and the Speaker of the Senate. The Commissioner’s mandate includes the maintenance of a publically accessible system for the registration of paid lobbyists. The Act authorizes the Commissioner to craft policies which give guidance to lobbyists and public office holders about appropriate conduct.
[22] The Act recognizes two categories of lobbyists: in-house lobbyists and consultant lobbyists. Both are required to file returns with the Commissioner setting out various details relating to their activities. The legislative provisions are found in the appendix at the conclusion of these reasons.
[23] A consultant lobbyist is an individual who, on behalf of any person or organization, for payment, communicates with public office holders for enumerated purposes or arranges meetings between a public officer holder and any other individual.
[24] An individual is an in-house lobbyist where the individual is employed by a corporation or organization and their duties include communication with public office holders for enumerated purposes. The communication must constitute a significant part of the duties of an employee or would constitute a significant part of the duties of an employee if it was performed by only one employee (subsections 5(1) and 7(1)). The Act requires the Commissioner to promulgate the Lobbyists’ Code, which provides guidance as to appropriate and inappropriate conduct. The Code applies to all persons required to register under the Act. While the Code is not a statutory instrument as defined by the Statutory Instruments Act, R.S.C., 1985, c. S-22, it imposes obligations on lobbyists, a breach of which can result in a report by the Commissioner to Parliament.
[25] The Act requires the Commissioner to conduct an investigation where the Commissioner has reason to believe that an investigation is necessary to ensure compliance with the Code or the Act. Reports in respect of investigations are tabled in Parliament. Subsection 10.4(1) of the Act reads as follows:
Investigation
10.4 (1) The Commissioner shall conduct an investigation if he or she has reason to believe, including on the basis of information received from a member of the Senate or the House of Commons, that an investigation is necessary to ensure compliance with the Code or this Act, as applicable.
[26] Subsection 10.4(1.1) gives the Commissioner a broad discretion to decide whether to investigate a complaint or to cease an investigation. The range of relevant considerations includes: whether the matter would be more appropriately dealt with under a procedure in another Act of Parliament; whether the matter is sufficiently important; and whether dealing with the matter would serve no useful purpose as too much time has passed. The Commissioner may also decide not to deal with a matter if “there is any other valid reason for not dealing with the matter.”
[27] At the conclusion of an investigation, the Commissioner must prepare a report that includes his or her findings, conclusions and the reasons for the conclusions reached and submit the report to the Speakers of the Senate and the House of Commons.
IV. Analysis
[28] It is apparent that the Lobbying Act does not create a right for a member of the public to have a complaint investigated. There is nothing in the language of the statute to suggest that the Commissioner must investigate the public’s complaints. Parliament has established no process, procedures, mechanisms or obligations for disposing of complaints from the public.
[29] To the contrary, an investigation is required where the Commissioner has reason to believe, including on the basis of information received from a member of the Senate or the House of Commons, that an investigation is necessary to ensure compliance with the Lobbyists’ Code or the Lobbying Act. The Lobbying Act does not specify that the Commissioner must take into account information received from the public. In fact, the Lobbying Act does not mention the public in the investigations section at all.
[30] A line in the introduction to the Lobbyists’ Code which encourages the gathering of information is insufficient to create a decision which is subject to judicial review.
[31] Parliament placed an affirmative obligation on the Commissioner to investigate complaints that arise from Parliamentarians. As I outlined earlier, the Act describes in some detail the manner in which those investigations are to be carried out. It imposes a requirement for a decision and a reporting obligation. In contrast, the Act is silent with respect to information received from the public. There is no requirement to issue any decision, or to take any action, with respect to information arising from the public.
[32] As a general proposition, where Parliament intends to create a formal complaints procedure with a concomitant duty on an agent of Parliament to investigate, it does so expressly. There are many examples.
[33] The Access to Information Act, R.S.C., 1985, c. A-1 provides that the Information Commissioner “shall receive and investigate complaints” from persons specified in subsection 30(1) thereof.
[34] The Privacy Act, R.S.C. 1985, c. P-21 provides that the Privacy Commissioner “shall receive and investigate complaints” from persons listed in subsection 29(1). Section 30 requires that complaints be made “in writing”. The Privacy Commissioner must report “the results of the investigation” to the complainant (subsection 35(2)).
[35] The Public Servants Disclosure Protection Act, S.C. 2005, c. 46 provides that the Public Sector Integrity Commissioner (PSIC) has “duties” to “receive, review, investigate and otherwise deal with complaints made in respect of reprisals” (paragraph 22(i)). Under subsections 19.4(1), (2) and (3), the PSIC “must decide whether or not to deal with a complaint” within a specified time window, and provide written notice and reasons of a decision not to deal with a complaint to the complainant. A notice of refusal to investigate must also be provided to the complainant (subsection 24(3)).
[36] The Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31 provides that the Commissioner of Official Languages “shall investigate any complaint made ... by any person or group of persons ” (subsections 58(1) and (2)). These provisions allow complaints to be brought by anyone, regardless of whether their own statutory rights have been affected, consistent with the view that where Parliament intends to give the public at large the right to make a complaint, it usually does so expressly. The Commissioner of Official Languages’ right to refuse to investigate or cease an investigation is also spelled out, as is the duty to notify the complainant and to “give the reasons therefor” where this occurs (subsections 58(4) and (5)).
[37] In contrast, the Conflict of Interest Act reserves to Parliamentarians the ability to ”request” that the Conflict of Interest and Ethics Commissioner examine an alleged contravention of the Act (subsection 44(1)). The Act provides that the Ethics Commissioner, in conducting an examination, “may consider information from the public that is brought to his or her attention by a member of the Senate or the House of Commons" (subsection 44(4)). The Ethics Commissioner may also examine a matter on his or her own initiative (subsection 45(1)). As this Court determined in Democracy Watch 2009, a decision not to investigate a public complaint under the Conflict of Interest Act did not give rise to a reviewable decision.
[38] In light of the language in these statutes, and in light of the fact that similar language is notably absent from the Lobbying Act and the Lobbyists’ Code, I conclude that the lobbying regime does not establish a public complaints process. The solicitation of information from the general public, does not, in and of itself, create rights for those who provide information where they are not directly affected by the outcome.
[39] I understand the respondent’s position that the Lobbying Act and Lobbyists’ Code, interpreted differently, could accomplish their objectives in a more effective manner. This argument found favour with the Federal Court Judge.
[40] It is not, however, the role of a court to ascribe an intention to Parliament where that intention is not clear. Neither the purpose of the Lobbying Act, nor the language in the introduction to the Lobbyists’ Code, is sufficient to justify the reading in of a public complaints process and the concomitant right for members of the public to have the Lobbying Commissioner investigate their complaints.
[41] The Lobbying Commissioner’s decision not to investigate a complaint brought by a member of the public is not a decision or order subject to judicial review. It is therefore not necessary to consider the reasonableness of the decision. I would allow the appeal, dismiss the application for judicial review, and restore the decision.
[42] The parties’ submissions on costs before this Court are substantially the same as before the Federal Court. On costs, the Federal Court attached significant weight to the fact that Democracy Watch is a public interest organization that brought the application for judicial review in furtherance of that interest, and declined to exercise its discretion to order costs. I, too, would decline to exercise my discretion to order costs on appeal.
Webb J.A.: I agree.
Mactavish J.A.: I agree.
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LEGISLATIVE APPENDIX
Lobbying Act, R.S.C., 1985 (4th Supp.), c. 44
Consultant Lobbyists
Requirement to file return
5 (1) An individual shall file with the Commissioner, in the prescribed form and manner, a return setting out the information referred to in subsection (2), if the individual, for payment, on behalf of any person or organization (in this section referred to as the “client”), undertakes to
(a) communicate with a public office holder in respect of
(i) the development of any legislative proposal Government of Canada or by a member of the Senate or the House of Commons,
(ii) the introduction of any Bill or resolution in either House of Parliament or the passage, defeat or amendment of any Bill or resolution that is before either House of Parliament,
(iii) the making or amendment of any regulation as defined in subsection 2(1) of the Statutory Instruments Act,
(iv) the development or amendment of any policy or program of the Government of Canada,
(v) the awarding of any grant, contribution or other financial benefit by or on behalf of Her Majesty in right of Canada, or
(vi) the awarding of any contract by or on behalf of Her Majesty in right of Canada; or
(b) arrange a meeting between a public office holder and any other person.
…
In-house Lobbyists (Corporations and Organizations)
Requirement to file return
7 (1) The officer responsible for filing returns for a corporation or organization shall file with the Commissioner, in the prescribed form and manner, a return setting out the information referred to in subsection (3) if
(a) the corporation or organization employs one or more individuals any part of whose duties is to communicate with public office holders on behalf of the employer or, if the employer is a corporation, on behalf of any subsidiary of the employer or any corporation of which the employer is a subsidiary, in respect of
(i) the development of any legislative proposal by the Government of Canada or by a member of the Senate or the House of Commons,
(ii) the introduction of any Bill or resolution in either House of Parliament or the passage, defeat or amendment of any Bill or resolution that is before either House of Parliament,
(iii) the making or amendment of any regulation as defined in subsection) of the Statutory Instruments Act,
(iv) the development or amendment of any policy or program of the Government of Canada, or
(v) the awarding of any grant, contribution or other financial benefit by or on behalf of Her Majesty in right of Canada; and
(b) those duties constitute a significant part of the duties of one employee or would constitute a significant part of the duties of one employee if they were performed by only one employee.
…
Investigation
10.4 (1) The Commissioner shall conduct an investigation if he or she has reason to believe, including on the basis of information received from a member of the Senate or the House of Commons, that an investigation is necessary to ensure compliance with the Code or this Act, as applicable.
Exception
(1.1) The Commissioner may refuse to conduct or may cease an investigation with respect to any matter if he or she is of the opinion that
(a) the matter is one that could more appropriately be dealt with according to a procedure provided for under another Act of Parliament;
(b) the matter is not sufficiently important;
(c) dealing with the matter would serve no useful purpose because of the length of time that has elapsed since the matter arose; or
(d) there is any other valid reason for not dealing with the matter.
Conflict of Interest Act, S.C. 2006, c. 9, s. 2
Request from parliamentarian
44 (1) A member of the Senate or House of Commons who has reasonable grounds to believe that a public office holder or former public office holder has contravened this Act may, in writing, request that the Commissioner examine the matter.
Content of request
(2) The request shall identify the provisions of this Act alleged to have been contravened and set out the reasonable grounds for the belief that the contravention has occurred.
Examination
(3) If the Commissioner determines that the request is frivolous or vexatious or is made in bad faith, he or she may decline to examine the matter. Otherwise, he or she shall examine the matter described in the request and, having regard to all the circumstances of the case, may discontinue the examination.
Information from public
(4) In conducting an examination, the Commissioner may consider information from the public that is brought to his or her attention by a member of the Senate or House of Commons indicating that a public office holder or former public office holder has contravened this Act. The member shall identify the alleged contravention and set out the reasonable grounds for believing a contravention has occurred.
…
Examination on own initiative
45 (1) If the Commissioner has reason to believe that a public office holder or former public office holder has contravened this Act, the Commissioner may examine the matter on his or her own initiative.
…
Orders and decisions final
66 Every order and decision of the Commissioner is final and shall not be questioned or reviewed in any court, except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act.
Access to Information Act, R.S.C., 1985, c. A-1
Receipt and investigation of complaints
30 (1) Subject to this Part, the Information Commissioner shall receive and investigate complaints
(a) from persons who have been refused access to a record requested under this Part or a part thereof;
(b) from persons who have been required to pay an amount under section 11 that they consider unreasonable;
(c) from persons who have requested access to records in respect of which time limits have been extended pursuant to section 9 where they consider the extension unreasonable;
(d) from persons who have not been given access to a record or a part thereof in the official language requested by the person under subsection 12(2), or have not been given access in that language within a period of time that they consider appropriate;
(d.1) from persons who have not been given access to a record or a part thereof in an alternative format pursuant to a request made under subsection 12(3), or have not been given such access within a period of time that they consider appropriate;
(e) in respect of any publication or bulletin referred to in section 5; or
(f) in respect of any other matter relating to requesting or obtaining access to records under this Part.
Public Servants Disclosure Protection Act, S.C. 2005, c. 46
Complaints
19.1 (1) A public servant or a former public servant who has reasonable grounds for believing that a reprisal has been taken against him or her may file with the Commissioner a complaint in a form acceptable to the Commissioner. The complaint may also be filed by a person designated by the public servant or former public servant for the purpose.
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Duties
22 The duties of the Commissioner under this Act are to
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(i) receive, review, investigate and otherwise deal with complaints made in respect of reprisals.
Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31
Investigation of complaints
58 (1) Subject to this Act, the Commissioner shall investigate any complaint made to the Commissioner arising from any act or omission to the effect that, in any particular instance or case,
(a) the status of an official language was not or is not being recognized,
(b) any provision of any Act of Parliament or regulation relating to the status or use of the official languages was not or is not being complied with, or
(c) the spirit and intent of this Act was not or is not being complied with
in the administration of the affairs of any federal institution.
Privacy Act, R.S.C., 1985, c. P-21
Receipt and investigation of complaints
29 (1) Subject to this Act, the Privacy Commissioner shall receive and investigate complaints
(a) from individuals who allege that personal information about themselves held by a government institution has been used or disclosed otherwise than in accordance with section 7 or 8;
(b) from individuals who have been refused access to personal information requested under subsection 12(1);
(c) from individuals who allege that they are not being accorded the rights to which they are entitled under subsection 12(2) or that corrections of personal information requested under paragraph 12(2)(a) are being refused without justification;
(d) from individuals who have requested access to personal information in respect of which a time limit has been extended pursuant to section 15 where they consider the extension unreasonable;
(e) from individuals who have not been given access to personal information in the official language requested by the individuals under subsection 17(2);
(e.1) from individuals who have not been given access to personal information in an alternative format pursuant to a request made under subsection 17(3);
(f) from individuals who have been required to pay a fee that they consider inappropriate;
(g) in respect of the index referred to in subsection 11(1); or
(h) in respect of any other matter relating to
(i) the collection, retention or disposal of personal information by a government institution,
(ii) the use or disclosure of personal information under the control of a government institution, or
(iii) requesting or obtaining access under subsection 12(1) to personal information.