The past, present, and (potential) future of privative clauses

Before commencing or responding to an application for judicial review of a public authority’s decision, it is important to check for the presence of a privative clause. This article briefly explains the history of privative clauses, summarizes the present state of the law regarding their application, and considers how a pending Supreme Court of Canada (“SCC”) decision will shape their future.

The past: A brief history of privative clauses

A privative clause signals the legislature’s intent that certain administrative decisions be insulated from judicial review. There are two types of privative clauses:

• full privative clauses, which purport to completely bar an administrative decision maker’s (“ADM’s”) decisions from judicial review; and
• partial privative clauses, which purport to bar an ADM’s decisions from judicial review on some, but not all, grounds (e.g., barring judicial review on errors of fact, but not errors of law).

Full privative clauses have not been effective in Canadian law.[i]

Prior to the SCC’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 [Vavilov], the Canadian jurisprudence on privative clauses can be divided into two main eras: the jurisdictional era, and the pragmatic and functional era.

In the jurisdictional era, privative clauses could bar judicial review of anything done within an ADM’s statutory grant of authority, or its “jurisdiction.”[ii] This meant that full privative clauses were read down to only bar judicial review of actions an ADM did within its jurisdiction; a privative clause could not bar judicial review of anything an ADM did outside of its jurisdiction.   

The jurisdictional approach was criticized because even when an ADM made an egregious error within its jurisdiction (for instance, a clear misapprehension of the facts or evidence before it) a privative clause could bar judicial review.

The Supreme Court of Canada’s decision in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 CanLII 23 (SCC) is often credited with ushering in the pragmatic and functional era.[iii] There were two main developments in the law in this era:

1. Patently unreasonably errors of law, and then later also patently unreasonable errors of fact, were seen as akin to jurisdictional era. So patently unreasonable errors, in addition to jurisdictional errors, could not be barred by privative clauses.[iv]
2. The presence and strength of a privative clause was seen as one of several factors that determined the standard of review in an application for judicial review. For example, a full privative clause may not prohibit judicial review but instead indicate that the court should adopt a more deferential standard of review.

In short, in the pragmatic and functional era, at most, a privative clause could bar judicial review of anything an ADM did within its jurisdiction, except for patently reasonable errors. However, often courts found that privative clauses did not bar grounds of judicial review but instead increased the deference that courts ought to apply in applications for judicial review.[v]

The present: The post-Vavilov era of privative clauses

Vavilov ushered in modern administrative law, including the third era of privative clauses in which we find ourselves. Vavilov made reasonableness the default standard of review for applications of judicial review and discarded “jurisdictional questions” as a distinct category of questions because “it is often difficult to distinguish between exercises of delegated power that raise truly jurisdictional questions from those entailing an unremarkable application of an enabling statute.”[vi] Post-Vavilov, privative clauses no longer affect the standard of review.

Importantly, Vavilov also clarified that a statutory appeal mechanism does not preclude an individual from seeking judicial review for types of questions that cannot be appealed under the statutory appeal mechanism.[vii] The SCC in Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, reaffirmed that the existence of a statutory appeal mechanism on certain questions does not bar judicial review on other types of questions.

A statutory appeal mechanism does act as a quasi-privative clause because courts generally consider a statutory appeal to be an adequate alternative remedy to an application for judicial review.[viii] Courts are prohibited from declining to consider an application for judicial review;[ix] however, they have discretion to decline to hear an application on the merits or deny relief, and will usually do so if the applicant has an adequate alternative remedy to filing an application for judicial review.[x]

Post-Vavilov, Crevier v. A.G. (Québec) et al., 1981 CanLII 30 (SCC) [Crevier] remains good law for the proposition that a privative clause cannot bar an application for judicial review on the ground of jurisdiction. In Crevier, the SCC held that s. 96 of the Constitution Act, prohibits full privative clauses that purport to insulate a provincial tribunal from judicial review of any of its decisions because doing so would in effect create a superior court, whose members can only be appointed by the Governor General in Council.

In summary, under the current law it is clear that:

• At common law, all questions are subject to judicial review (subject to the normal requirements for judicial review).
• If a question could be appealed under a statutory appeal mechanism, that type of question is not subject to judicial review.
• It is unconstitutional for a privative clause to ban applications for judicial review on the ground of jurisdiction.

Post-Vavilov, it is unclear if privative clauses can bar judicial review of patently unreasonable errors as patent unreasonableness is no longer a standard of review[xi] and Vavilov eliminated jurisdictional questions as a distinct category of questions.[xii] Did Vavilov return us to the jurisdictional era, further constitutionalize applicants’ right to judicial review or do something else entirely? 

There is a line of cases, most recently summarized by Khullar, C.J.A.’s dissent in Northback Holdings Corporation v Alberta Energy Regulator, 2025 ABCA 186 [Northback Holdings] suggesting that the Constitution gives individuals the right to seek judicial review on grounds beyond jurisdiction.

Khullar, C.J.A., dissenting in Northback Holdings, held that s. 96 of the Constitution Act, requires that questions of fact, mixed fact and law be subject to judicial review. Khullar, C.J.A. reasoned that:[xiii]

[…] Vavilov eliminated the category of jurisdictional questions, but it did not overrule cases holding that errors of jurisdictional fact – which came to include all patently unreasonable findings of fact – are subject to curial review despite a strong privative clause. A reconstruction that respects the precedents cannot exclude review on questions of fact (and mixed fact and law). When the adjective “jurisdictional” is dropped, the residue is questions of law and questions of fact.

However, there is an alternative line of cases holding that if the SCC intended in Vavilov to expand the constitutional minimum of judicial review established in Crevier, it would have done so explicitly.    

The future of privative clauses: Democracy Watch v. Attorney General of Canada

The SCC’s upcoming decision in Democracy Watch v. Canada (Attorney General), 2024 FCA 158 [Democracy Watch] will likely clarify to what extent privative clauses can bar grounds of judicial review.

In Democracy Watch, Democracy Watch applied for an application of judicial review of a report by the Conflict of Interest Ethics Commissioner (the “Commissioner”) on the grounds that the Commissioner made two errors of law and one error of fact.

The Attorney General brought a motion strike the application for judicial review on the grounds that it was barred by the privative clause clause in s. 66 of the Conflict of Interest Act. Section 66 of the Conflict of Interest Act purports to bar judicial review of the Commissioner’s decisions except on the following grounds:

• the Commissioner acted without jurisdiction, acted beyond its jurisdiction, or refused to exercise its jurisdiction;
• the Commissioner failed to observe a principle of natural justice, procedural fairness, or other procedure that it was required by law to observe; or
• the Commissioner acted, or failed to act, by reason of fraud or perjured evidence.

Democracy Watch made two arguments that all privative clauses were ineffective and one argument on why this particular privative clause was ineffective:

1. The rule of law, a constitutional law principle, requires judicial review of all ADMs’ decisions: “if a full privative clause cannot oust the courts’ authority to judicially review administrative decisions, there is no principled basis for a partial privative clause to do so.”[xiv]
2. Privative clauses must not bar review of errors of fact and law because numerous courts before and after Vavilov have not followed such privative clauses.[xv]
3. An application for judicial review of the Commissioner’s report must be available under the Conflict of Interest Act, because there is no adequate alternative remedy.

The Attorney General made one argument defending privative clauses generally and two arguments defending this particular privative clause:

1. The rule of law only requires that ADMs’ decisions be subject to judicial review on the grounds of jurisdiction, not all grounds.[xvi]
2. Parliament deliberately intended to exclude applications for judicial review on questions of fact and law given the unique role of the Commissioner. Courts should give effect to Parliament’s intentions.[xvii]
3. The parliamentary accountability mechanism in the Conflict of Interest Act is an adequate alternative remedy: The Prime Minister decides how to give effect to the recommendations in the Commissioner’s report, then the House of Commons can hold the Prime Minister to account if they are dissatisfied with how the Prime Minister responded to the Commissioner’s report.[xviii]

The Federal Court of Appeal in Democracy Watch essentially agreed with all of the Attorney General’s arguments and granted the motion to strike. However, the Supreme Court of Canada granted leave to Democracy Watch’s appeal.[xix] A hearing date for the appeal has not yet been set, but administrative law lawyers will be keenly awaiting a decision on the future of privative clauses in Canada. Constitutional lawyers will similarly be interested in how the Supreme Court applies the rule of law – an unwritten constitutional principle – in deciding the issue.