The dispute started with a 2021 report by the federal Conflict of Interest and Ethics Commissioner. A non-profit organisation wanted to challenge that report through judicial review - the process by which a court examines whether a government decision was legally made.
The problem was a privative clause in the governing statute: wording designed to bar courts from interfering with the Commissioner's report on certain grounds. The Federal Court of Appeal took that clause at face value, declined to hear the case, and suggested political accountability mechanisms were the appropriate route instead.
The Supreme Court disagreed on both points
The court held unanimously that political oversight was not an adequate substitute for judicial review in these circumstances. More significantly, it held that the Constitution guarantees a minimum core of review over the legality of administrative decisions - and that legislative attempts to remove that review are unconstitutional. The privative clause was struck down, and the challenge was allowed to proceed.
The reasoning rests on a straightforward proposition about the rule of law: every public power comes from somewhere and therefore has limits, whether set by the statute that created it, by the common or civil law, or by the Constitution itself. A power without limits would not be a legal power at all.
Why it matters
This reaches well beyond ethics commissioners. Privative clauses appear throughout federal, provincial, and territorial legislation - in statutes governing labour boards, professional regulators, licensing bodies, workers' compensation, and landlord and tenant tribunals. Businesses and individuals who have been told a tribunal's decision is simply beyond challenge may have more room than they thought. Expect a wave of constitutional challenges to similar clauses in the coming years.