Feb 8, 2017

Facts: The Chief of the Mikisew Cree First Nation brought an application for judicial review claiming that the Governor General in Council and six federal government ministers breached their duty to consult the Mikisew Cree on the development and introduction in Parliament of two omnibus bills that reduced federal regulatory oversight of works and projects that might affect the Mikisew Cree’s treaty rights.

The Federal Court judge held that the Crown had a duty to consult with the Mikisew Cree when the bills were introduced in Parliament. The Governor General in Council and ministers appealed. The primary issues on the appeal were whether the Federal Court judge erred in conducting judicial review of legislative action contrary to the Federal Courts Act, or in failing to respect the doctrine of separation of powers or the principle of parliamentary sovereignty.

Decision: Appeal allowed.

De Montigny JA (writing for himself and Webb JA) reviewed the history of the Federal Courts Act and the rationale for judicial review as reflected in the Act. Under the ss 18 and 18.1 of the Act there are two requirements for the Federal Court to be validly seized of an application for judicial review: there must be an identifiable decision or order; and the impugned decision or order must have been made by a “federal board, commission or other tribunal”. Section 2 of the Act expressly excludes from the definition of “federal board, commission or other tribunal” the Senate, the House of Commons, and any committee or member of either House.

As to the first requirement, in this case, it is difficult to identify any discrete decision made by the Governor in Council or the various ministers that would be the subject of an application for judicial review. If the “decision” being challenged is the ministers’ decision to move forward with a policy initiative with a view to bringing proposed legislation to Cabinet for approval and, eventually, to Parliament for adoption, it would not meet the requirement for a formal decision as it would be inchoate and not formally recorded. Even if the focus of the inquiry were broader – whether the decision-maker has done anything which may have triggered rights on the part of an aggrieved party to bring a judicial review application, even if it has not made a formal decision or order – the application would still have to establish that the Federal Court can act and provide a remedy. The remedies available on judicial review do not relate to legislative action. To the extent that the ministers and Governor in Council were acting in their legislative capacity in developing the two bills, judicial review would not be available.

Regarding the second requirement, De Montigny JA held that while the ministers have executive powers in their responsibilities for their departments pursuant to various statues, those statutes do not refer to the ministers’ roles as policy-makers or to the development of legislation for introduction in Parliament. Those roles flow from the Constitution itself and from Canada’s system of parliamentary democracy. The exercise of such powers is not reviewable by way of judicial review. The legislative process is fluid and cannot be parsed into the minister’s executive functions and legislative functions. The power that the ministers exercised in the entire course of the law-making process was legislative in nature and derived from their status as members of Parliament. The matter is not a proper subject for an application for judicial review under the Federal Courts Act.

De Montigny JA also allowed the appeal on constitutional grounds – namely, that court intervention before a bill is introduced into Parliament would offend the doctrine of separation of powers and be an undue interference with Parliament’s process and sovereignty.

Pelletier JA concurred in the result but for different reasons. He noted that the relief sought was primarily declaratory, with ancillary orders in support of the declarations. The fact that a declaration is sought in an application against someone other than a federal board, commission or tribunal does not doom it to failure. Such a proceeding may not be an application for judicial review, but it may seek a remedy that the Federal Court has jurisdiction to grant under s 17 of the Federal Courts Act.

It may be that the judicial review remedies of certiorari, prohibition, mandamus and quo warranto are not available against anyone other than a federal board, commission or tribunal, but because a declaration is available against the Crown, the characterization of the respondent as a federal board, commission or tribunal is not critical to the success of a proceeding seeking a declaration.

The fact that the Mikisew Cree proceeding was not commenced as an application is not fatal. Under the Federal Courts Rules, such a procedural irregularity can be cured. Thus, the Mikisew Cree’s application is not doomed to fail as a result of a procedural irregularity and their entitlement to declarations must be decided on the merits. On the merits, there is no duty to consult with respect to laws of general application such as these bills.

Commentary: As noted by De Montigny JA, this case raises novel issues regarding the Crown’s obligation to consult when contemplating changes to legislation that might adversely impact treaty rights. Our focus in this Case Review is the administrative law angle and particularly the aspects of the case that relate to the jurisdiction of the Federal Court on judicial review. In that regard, the reasons of the majority and the minority are each notable in their own right.

The majority reasons clarify the issue of what actions of government ministers constitute legislative action not subject to judicial review, and what actions constitute decisions, orders or “matters” of a federal board, commission or tribunal that may be subject to judicial review. De Montigny JA’s reasons understand the legislative process as an indivisible continuum such that any ministerial action associated with the development, recommendation and introduction of a bill is legislative action over which the federal court has no judicial review jurisdiction. Ministers perform a variety of roles and wear many hats. Some of those roles are subject to judicial review, such as the exercise of decision-making powers conferred by legislation. However, the Federal Courts Act and the constitutional structure of the Canadian political system preclude the Federal Court from wading into the legislative process through judicial review. A party seeking to challenge such decisions will be left with challenging the enacted legislation itself on some constitutional ground.

Parties unsatisfied with that option and who are content with only declaratory relief may try to use Pelletier JA’s concurring reasons in future duty to consult cases, as an alternative to traditional judicial review (which is seemingly unavailable based on the majority’s reasons) or challenging the validity of enacted legislation. The majority did not comment on Pelletier JA’s approach or s 17 of the Federal Courts Act as a viable procedural route to seeking a declaration as to the duty to consult in the course of ministerial action prior to the introduction of legislation. Pelletier JA’s analysis of the availability of a declaration in such circumstances via s 17 of the Federal Courts Act seems sound. There may be a future case with stronger merits in which his analysis is endorsed by a majority of the court.

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