Supreme Court Confirms: Judicial Review Cannot Be Legislated Away

In Democracy Watch v. Canada (Attorney General), 2026 SCC 28, the Supreme Court unanimously held that Parliament cannot place any aspect of an administrative decision beyond judicial review, striking down a partial privative clause that purported to bar judicial review of questions of fact and law.

The decision establishes a new constitutional baseline for administrative law and will have far-reaching consequences. Partial privative clauses appear in many regulatory schemes. However, while legislatures may shape how courts review administrative decisions, they cannot prevent courts from reviewing whether executive power was exercised lawfully.

Background

In 2020, two members of Parliament asked the Conflict of Interest and Ethics Commissioner to investigate whether former Prime Minister Justin Trudeau had contravened the Conflict of Interest Act by participating in two federal funding decisions involving the WE Charity, an organization with ties to his family. The Commissioner initiated an investigation, but ultimately concluded that Trudeau had not contravened the Act.

Democracy Watch, a public-interest organization, applied to the Federal Court of Appeal for judicial review, arguing that the Commissioner had made errors of fact and law in interpreting and applying the Act. The Attorney General moved to strike the application, arguing that a partial privative clause in section 66 of the Act prevented the Court from reviewing questions of fact and law. The Federal Court of Appeal agreed and dismissed the application. Democracy Watch appealed to the Supreme Court of Canada.

The Supreme Court unanimously allowed the appeal

Chief Justice Wagner, writing for the Court, allowed Democracy Watch’s appeal, holding that section 66 of the Act is of no force and effect to the extent that it prevents courts from judicially reviewing any aspect of the Commissioner’s decision.

The Court made three critical findings.

1. The Constitution Guarantees Judicial Review of All Aspects of an Administrative Decision

The Court's central holding is that the Constitution guarantees the availability of judicial review for the legality of all exercises of public power. Every exercise of delegated authority has legal limits, and courts must remain available to ensure that administrative decision-makers do not exceed those limits. The Court held that the Court’s core supervisory jurisdiction enshrined by ss. 96-101 of the Constitution Act, 1867 protects legality review of "all aspects" of an administrative decision, including questions of fact, law, fairness, and other matters through which delegated authority is exercised (paras. 7-8, 41, 43-44, 71, 76).

The Court’s treatment of rationality review is especially important. The Court expressly held that irrational decisions are necessarily unlawful because rationality is one of the inherent limits on delegated authority. In tracing the evolution from CUPE through Dunsmuir to Vavilov, the Court concluded that irrational administrative action raises the spectre of arbitrary government action, which lies at the heart of the courts’ constitutional role as guardians of the rule of law (paras. 48-58, 67-69).

2. The Constitutional Guarantee Applies when Judicial Review Jurisdiction is Assigned to Section 101 Courts

The Court also answered an important question about the Federal Courts. The constitutional guarantee does not disappear simply because Parliament has assigned judicial review jurisdiction to a federal court created under s. 101 of the Constitution Act, 1867. The Court held that the supervisory jurisdiction protected by ss. 96-101 follows the jurisdiction itself: Parliament may transfer judicial review jurisdiction from the s. 96 courts to a s. 101 court, like the Federal Courts, but that transfer does not reduce or eliminate the constitutionally protected core of judicial review. Once jurisdiction that forms part of the superior courts’ constitutional core is assigned to the Federal Courts, it must remain exercisable to the same constitutional extent (paras. 72-73).

3. The Constitution Guarantees Lawfulness Review, Not Any Particular Standard of Review

While the Court constitutionalized judicial review itself, it stopped short of constitutionalizing reasonableness as the minimum standard of review. The Court expressly declined to hold that the Vavilov formulation of reasonableness review is itself constitutionally entrenched. Instead, the constitutional minimum is the availability of meaningful legality review to ensure that delegated authority remains within its legal bounds. The precise doctrinal tools through which courts perform that function may evolve over time, just as Canadian administrative law has evolved from the concept of jurisdictional error review to modern reasonableness review with recognized categorical exceptions (paras. 67, 70-71).

This aspect of the judgment leaves open interesting questions about the bounds of legality and legislated standards of review. The Court specifically acknowledged that legislatures may enact standards of review, like patent unreasonableness, provided they respect "the limits imposed by the rule of law." The Court deliberately left the outer boundaries of this principle for future cases, observing that the question of the minimum constitutionally required standard of review was not before it and should be "left to another day" (paras. 67-70, 75).

Key Takeaway

The bottom line is straightforward but important: legislation can still affect how courts review administrative decisions, but not whether courts may review them at all. After Democracy Watch, legislatures remain free to design deferential review regimes. But, they are not free to place any exercise of public power beyond review.

McCarthy Tétrault represented the Canadian Telecommunications Association as an intervener before both the Supreme Court of Canada and Federal Court of Appeal.