No Law Can Place Administrative Decisions Beyond Court Scrutiny

The Supreme Court confirms that judicial review is constitutionally protected

In a unanimous decision released on July 30, 2026, the Supreme Court of Canada delivered one of its most significant administrative law decisions in recent years, reaffirming that governments cannot place administrative decisions beyond the reach of the courts.

In Democracy Watch v. Canada (Attorney General), 2026 SCC 28, the Court held that section 66 of the Conflict of Interest Act is unconstitutional because it attempted to prevent judicial review of certain decisions made by the Conflict of Interest and Ethics Commissioner.

Importantly, this is the first time the Supreme Court has expressly defined the constitutional guarantee of judicial review and directly addressed whether legislatures can validly restrict it.

Background

The case arose from the Ethics Commissioner's investigation into former Prime Minister Justin Trudeau's involvement in funding decisions concerning WE Charity. After concluding that no conflict of interest had occurred, the Commissioner closed the matter. Democracy Watch sought judicial review of that decision, but the Attorney General of Canada (“Canada”) argued that section 66 of the Conflict of Interest Act prevented the courts from reviewing the Commissioner's findings on questions of fact or law.  

Under the rule of law, all public powers must be legal, and all legal powers have limits. 

Discussion

The Court began by reaffirming that superior courts are the constitutional guardians of the rule of law[1]. Their role is to ensure that governments and administrative decision-makers act within the limits of the authority granted to them by law. Judicial review is the tool that allows courts to perform that function and ensure that Canadians are protected from arbitrary government action.

Governments cannot make their decisions immune from review by the courts. 

The central question before the Court was straightforward: Can Parliament prevent courts from reviewing certain legal or factual aspects of an administrative decision simply by passing legislation? Democracy Watch argued that the Constitution guarantees meaningful judicial review of all exercises of public power. Canada argued that Parliament could validly limit review in some circumstances. The Supreme Court ultimately agreed with Democracy Watch.

All delegated power has limits, and no authority may be used in a manner inconsistent with the purpose for which it is granted. 

The Court explained that judicial review remains discretionary. Where legislation provides another process that genuinely allows the legality of an administrative decision to be reviewed and offers an adequate remedy, courts may decline judicial review. However, simply providing political oversight is not enough. The alternative must allow meaningful legal scrutiny.

The Supreme Court was careful to distinguish the constitutional guarantee of judicial review from a reviewing court's own discretion to decline to hear a particular application. Recognizing a constitutional guarantee of judicial review does not mean that every application must necessarily be heard on its merits. Rather, judicial review remains a discretionary remedy. Courts retain a limited procedural discretion to refuse to entertain an application in appropriate circumstances - for example, where an adequate alternative remedy already exists. Importantly, the discretion at issue is that of the reviewing court, not the administrative decision-maker whose decision is being challenged.

The Court further clarified that a reviewing court's exercise of this discretion is itself subject to appellate oversight. Although appellate courts owe deference to a lower court's discretionary decision to decline judicial review, that decision is not immune from review. Appellate intervention remains available where the discretion was exercised based on an error of law, a palpable and overriding error of fact, irrelevant considerations, a failure to consider relevant factors, or a "wrong principle."

Having clarified that judicial review remains constitutionally protected notwithstanding a court's limited procedural discretion, the Court turned to Canada's argument that parliamentary oversight constituted an adequate alternative remedy. Canada argued that parliamentary oversight of the Ethics Commissioner provided a sufficient alternative to judicial review. The Supreme Court disagreed. Parliamentary committees may scrutinize the Commissioner's work, but they cannot overturn or correct the Commissioner's conclusions. Because no meaningful legal review was available, section 66 effectively prevented courts from carrying out their constitutional role.

A legislature cannot prevent courts from reviewing whether government acted lawfully. 

The Court concluded that section 66 of the Conflict of Interest Act was unconstitutional because it attempted to shield certain aspects of the Commissioner's decisions from judicial review. While legislatures may establish procedures, timelines, and standards governing judicial review, they cannot eliminate the courts' constitutional responsibility to ensure that public authorities act within the limits of their legal powers.

Legality review on questions of fact and law is constitutionally guaranteed, and as such s. 66 of the COIA cannot bar judicial review of the Commissioner’s decision.

Why this decision matters

In practical terms, this decision sends a clear message to governments across Canada: while legislatures may shape administrative decision-making, they cannot shield it from meaningful judicial oversight. That constitutional safeguard belongs not only to lawyers, but to every individual and business affected by government action.

This decision extends well beyond the Conflict of Interest Act. It is one of the Supreme Court's clearest statements to date that judicial review is constitutionally protected and forms an essential component of the rule of law. Legislatures remain free to shape administrative processes, but they cannot remove the courts' ability to ensure that public authorities act lawfully.

Although this case arose in the context of federal ethics legislation, its implications extend to every area of administrative law. Businesses regularly interact with regulators, municipalities, licensing bodies, professional orders, and government agencies. This decision confirms that legislatures cannot simply insulate those decisions from meaningful judicial oversight.

For lawyers, public institutions, regulators, and anyone affected by administrative decision-making, Democracy Watch will likely become a leading authority on the constitutional foundations of judicial review. The decision reinforces an important principle: no exercise of public power is beyond legal scrutiny.

In an era where governments increasingly rely on specialized administrative bodies to make decisions affecting individuals, businesses, and entire industries, the Supreme Court has reaffirmed that legality - not political convenience - remains the ultimate constitutional safeguard.

Key Takeaway

Parliament can regulate how judicial review is exercised, but it cannot eliminate the courts' constitutional role in ensuring that public authorities act lawfully.

 

Author: Audrey Baillairgé

 
[1] See the judicature provisions in ss. 96 to 101 of the 1867 Constitution Act.