Democracy Watch v. Campbell et al., 2009 FCA 79

• Judge: Nadon, Sharlow and Pelletier, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: January 12, 2009
• Jurisdiction: Canada (Federal)
• Citations: 2009 FCA 79;(2009), 387 N.R. 261 (FCA)

Democracy Watch v. Campbell (2009), 387 N.R. 261 (FCA)

MLB headnote and full text

Temp. Cite: [2009] N.R. TBEd. AP.042

Democracy Watch (appellant) v. Barry Campbell and The Attorney General of Canada (Office of the Registrar of Lobbyists) (respondents)

(A-128-08; 2009 FCA 79)

Indexed As: Democracy Watch v. Campbell et al.

Federal Court of Appeal

Nadon, Sharlow and Pelletier, JJ.A.

March 12, 2009.

Summary:

In April 2000, Democracy Watch complained to the Ethics Counsellor alleging that Campbell had breached Rule 8 of the Lobbyists Code of Conduct (the Code) which stated that "Lobbyists shall not place public office holders in a conflict of interest by proposing or undertaking any action that would constitute an improper influence on a public office holder". Responsibility for enforcement of the Code was subsequently transferred to the Registrar of Lobbyists. The Registrar dismissed the complaint. Democracy Watch applied for judicial review.

The Federal Court, in a decision reported at 324 F.T.R. 44, dismissed the application. Democracy Watch appealed.

The Federal Court of Appeal allowed the appeal, holding that the Registrar's interpretation of Rule 8 of the Code was unreasonable. The court set aside the Registrar's decision, but did not remit the matter to the Registrar for a new decision. The court held that given that the events underlying Democracy Watch's complaint were almost 10 years old, it was doubtful that the interests of justice required that the complaint be returned for a new hearing and a fresh decision.

Crown - Topic 9012

Ethics re public office holders and lobbyists - Lobbyists - Improper influence - Democracy Watch complained to the Ethics Counsellor alleging that Campbell had breached Rule 8 of the Lobbyists Code of Conduct (the Code) which stated that "Lobbyists shall not place public office holders in a conflict of interest by proposing or undertaking any action that would constitute an improper influence on a public office holder" - Responsibility for enforcement of the Code was subsequently transferred to the Registrar of Lobbyists - The Registrar dismissed the complaint - Democracy Watch's application for judicial review was dismissed - Democracy Watch appealed - The Federal Court of Appeal allowed the appeal, holding that the Ethics Counsellor's interpretation of Rule 8, which was adopted by the Registrar, was unreasonable - The court stated that "The Ethics Counsellor found that Rule 8 did not prohibit lobbyists from placing public office holders in a conflict of interest, but only prohibited them from placing public office holders in a conflict of interest by proposing or undertaking activities which would amount to improper influence. With respect, this is a deeply flawed reading of the Rule. The Rule prohibits lobbyists from placing public office holders in a conflict of interest. The words 'by proposing or undertaking any action that would constitute an improper influence on a public office holder' are properly read as an attempt to elaborate on the meaning of 'conflict of interest' in the context of the regulation of lobbyists, and not as a limitation on the scope of the prohibition ... Improper influence has to be assessed in the context of conflict of interest, where the issue is divided loyalties. Since a public office holder has, by definition, a public duty, one can only place a public office holder in a conflict of interest by creating a competing private interest. That private interest, which claims or could claim the public office holder's loyalty, is the improper influence to which the Rule refers" - See paragraphs 27 to 53.

Crown - Topic 9025

Ethics re public office holders and lobbyists - Practice - Judicial review (incl. standard of review) - Democracy Watch complained that Campbell had breached Rule 8 of the Lobbyists Code of Conduct - The Registrar of Lobbyists dismissed the complaint - Democracy Watch applied for judicial review - Deputy Judge Frenette dismissed the application - Democracy Watch appealed - The Federal Court of Appeal stated "whether or not Mr. Campbell breached Rule 8 of the Code subsumes the question of the interpretation of Rule 8, an extricable question of law. The interpretation of Rule 8 by the tribunal charged with the responsibility for enforcing the Code is an example of a tribunal interpreting a statute or other normative document with which it has a particular familiarity. In the absence of some other, overriding, consideration, this suggests that the standard of review of that question is reasonableness ... As for the application of the interpretation of Rule 8 to the facts of Mr. Campbell's case, the appropriate standard is that applicable to the review of questions of mixed fact and law, reasonableness" - The court further stated that "the Deputy Judge's standard of review analysis did not distinguish between the Registrar's decision on the merits of the complaint and his interpretation of Rule 8. He simply decided, after conducting a pragmatic and functional analysis, that the standard of review of the Registrar's decision was reasonableness. He then went on to find that the Registrar's decision was not unreasonable. In proceeding in that truncated fashion, the Deputy Judge misconstrued the nature of the problem before him because he failed to examine separately whether the Registrar's interpretation of Rule 8 was reasonable. ... his failure to examine that legal question separately was an error of law" - See paragraphs 23 to 26.

Crown - Topic 9025

Ethics re public office holders and lobbyists - Practice - Judicial review (incl. standard of review) - In April 2000, Democracy Watch complained that Campbell had breached Rule 8 of the Lobbyists Code of Conduct - The Registrar of Lobbyists dismissed the complaint - Democracy Watch applied for judicial review - Deputy Judge Frenette dismissed the application - Democracy Watch appealed - The Federal Court of Appeal allowed the appeal, holding that the Registrar's interpretation of Rule 8 was unreasonable - The court set aside the decision of the Deputy Judge and, making the order that the Deputy Judge ought to have made, it set aside the decision of the Registrar - However, the court did not remit the matter to the Registrar for a new decision - Given that the events underlying Democracy Watch's complaint were almost 10 years old, it was doubtful that the interests of justice required that the complaint be returned for a new hearing and a fresh decision - See paragraphs 55 to 57.

Cases Noticed:

Democracy Watch v. Canada (Attorney General), [2004] 4 F.C.R. 83; 257 F.T.R. 6; 2004 FC 969, refd to. [para. 12].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 21].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 22].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 22].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 25].

Cox v. College of Optometrists (Ont.) (1988), 28 O.A.C. 337; 65 O.R.(2d) 461; 52 D.L.R.(4th) 298 (Div. Ct.), refd to. [para. 40].

3464920 Canada Inc. v. Strother et al., [2007] 2 S.C.R. 177; 363 N.R. 123; 241 B.C.A.C. 108; 399 W.A.C. 108; 2007 SCC 24, refd to. [para. 42].

Authors and Works Noticed:

Canadian Bar Association, Code of Professional Conduct (2006), p. 46 [para. 43].

Lobbyists' Code of Conduct (Can.), rule 8 [para. 3].

Counsel:

David Baker and Balpreet Singh (student), for the appellant;

Peter H. Griffin and Jordan Goldblatt, for the respondent, Barry Campbell;

Michael H. Morris and Derek C. Allen, for the respondent, The Attorney General of Canada.

Solicitors of Record:

Baker Law, Toronto, Ontario, for the appellant;

Lenczner Slaght Royce Smith Griffin, LLP, Toronto, Ontario, for the respondent, Barry Campbell;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent, The Attorney General of Canada.

This appeal was heard on January 12, 2009, at Toronto, Ontario, before Nadon, Sharlow and Pelletier, JJ.A., of the Federal Court of Appeal. The following judgment of the Court of Appeal was delivered by Pelletier, J.A., on March 12, 2009.