COURT OF APPEAL FOR ONTARIO

CITATION: Democracy Watch v. Ontario (Integrity Commissioner), 2025 ONCA 153

DATE: 20250228

DOCKET: COA-23-CV-0858

Harvison Young, Coroza and Gomery JJ.A.

BETWEEN

Democracy Watch

Applicant (Appellant)

and

Ontario Integrity Commissioner

Respondent (Respondent)

Nick Papageorge and Wade Poziomka, for the appellant

Justin Safayeni and Stephen Aylward, for the respondent

Sujit Choudhry, for the interveners Animal Justice, British Columbia Civil Liberties Association, and Centre for Free Expression at Toronto Metropolitan University

Heard: April 5, 2024

On appeal from the order of the Divisional Court (Associate Chief Justice Faye E. McWatt, Justices Anne M. Molloy and William S. Chalmers), dated August 19, 2022, with reasons at 2022 ONSC 4761, affirming the order of Justice Lise G. Favreau of the Divisional Court, dated November 9, 2021, with reasons reported at 2021 ONSC 7383.

Harvison Young J.A.:

Introduction

[1] The appellant, Democracy Watch (“DW”), is a non-profit, non-partisan organization that advocates for democratic reform, government accountability, and corporate responsibility. It appeals from a Divisional Court decision that upheld the granting of a motion to quash nine judicial review applications which DW brought. The applications sought judicial review of nine decisions rendered by the respondent, the Ontario Integrity Commissioner (“OIC” or “the Commissioner”), pursuant to the Lobbyists Registration Act, 1998, S.O. 1998, c. 27 (“LRA”). The ground for the dismissal was the finding that the appellant lacked the public interest standing necessary to bring the applications. The appellant also brought a motion to order the OIC to produce a record of proceedings pursuant to s. 10 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”), which was rendered moot given DW’s lack of standing.

[2] The motion judge concluded that the cases in issue were unrelated OIC investigations of the conduct of specific individuals. The OIC published case summaries and dispositions in the Commissioner’s 2019-20 Annual Report, as the LRA required. The motion judge found that granting public interest standing would effectively circumvent the legislative scheme in the LRA, and would also create a significant conflict with the interests of the individual lobbyists. This is because the individual lobbyists reasonably believed that their matters were concluded a number of years ago and the process would violate their confidentiality, which is protected under the LRA. In the motion judge’s view, the applications constituted fishing expeditions and did not raise any genuine issue of statutory interpretation. She also emphasized the level of discretion granted to the OIC by the LRA, both with respect to the investigations themselves, and with whether and what penalties to impose.

[3] DW brought a motion for an order setting aside the motion judge’s decision before a panel of the Divisional Court. The Divisional Court found no error in the motion judge’s reasons, which it endorsed, and dismissed the motion. DW appeals from that decision, alleging errors in the conclusions that the applications did not raise a serious justiciable issue and that the proceedings were not a reasonable and effective way to bring the issue before the courts, as per the factors set out in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524, at para. 37.

[4] For the reasons that follow, I would dismiss the appeal.

Background Facts

[5] From December 21 to 23, 2020, DW commenced nine applications for judicial review, challenging decisions made by the OIC under the LRA concerning investigations into lobbying activities. Broadly speaking, the applications raised issues about the OIC’s handling of the matters and his exercises of discretion. The applications alleged that judicial review was required because it appeared that the Commissioner was too lenient and applied s. 3.4 of the statute inconsistently by imposing different penalties for similar conduct. The impugned decisions are summarized in the Commissioner’s 2019-20 Annual Report, which contains the only publicly available information about the investigations underlying the decisions. The appellant also alleged a reasonable apprehension of institutional bias because the Commissioner is appointed by the very members of the legislature he is required to investigate.

[6] Because the legislative framework is central to the issues in this appeal, I will begin by setting it out, and will then summarize the nine cases with respect to which DW sought public interest standing.

The Statutory Scheme: The Lobbyists Registration Act

[7] The LRA regulates lobbyists in Ontario. It provides a set of rules that lobbyists must follow. This includes s. 3.4, which prohibits a lobbyist from knowingly placing a public office holder in a conflict of interest.

[8] The LRA also establishes a process, overseen by the Commissioner pursuant to s. 10, for investigation and discipline if a lobbyist is found to have contravened the statute: see ss. 17.1-17.12. The Commissioner has discretion pursuant to s. 17.1(1) to conduct an investigation to determine if any person has not complied with the LRA. Pursuant to s. 17.1(3), the Commissioner may cease such an investigation “for any reason” (emphasis added), including where the Commissioner believes that “the matter is minor or trivial” or where it would not be useful to continue because of delay. As the language indicates, these powers are discretionary.

[9] The Commissioner must give notice to a lobbyist if they believe the lobbyist has not complied with the LRA, along with reasons for this belief, and must give the lobbyist a reasonable opportunity to be heard regarding the alleged non-compliance and any penalty that could be imposed: s. 17.5(1). If the Commissioner ultimately finds there was non-compliance, they must give notice to the lobbyist of that finding, any penalty that will be imposed (pursuant to s. 17.9, discussed below), and the reasons for these findings: s. 17.6(1). The lobbyist then has 15 days to request that the Commissioner reconsider the finding of non-compliance or penalty: s. 17.7(1). If this request is made, then s. 17.7(3) requires the Commissioner to reconsider the decision and give notice of the outcome to the lobbyist. Section 17.8 also provides the lobbyist with a right to apply for judicial review from the finding of non-compliance or penalty within 60 days after receiving notice.

[10] Section 17.9(1) gives the Commissioner discretion to impose a penalty if the Commissioner is of the opinion that it is in the public interest to do so, among other considerations. This penalty can be one or both of prohibiting that person from lobbying for up to two years or publicizing certain information, including the lobbyist’s name.

[11] In general, subject to certain exceptions in the LRA, the existence of an investigation and any information obtained during the investigation is confidential: s. 17.10. There is, however, certain information that must be published in the Commissioner’s Annual Report, including: the number of investigations commenced, conducted, or resumed during the year; the number of matters the Commissioner refused to investigate; a summarized description of each investigation concluded or resumed during the year; and any other information relevant to the administration of the LRA, the public disclosure of which the Commissioner believes to be in the public interest: s. 17.12.

[12] In addition to this formal investigative process, the Commissioner occasionally resolves matters through an informal process, the purpose of which is to achieve compliance without using the statutory investigative resources that are better focused on more serious breaches of the LRA.

[13] In summary, the LRA gives the Commissioner broad discretion in exercising their investigative and disciplinary powers. Given that most of the information the Commissioner relies on in exercising this discretion is confidential, the LRA provides for little public insight into why the Commissioner exercises this discretion the way they do or how the Commissioner arrives at decisions under these provisions.

The Democracy Watch Applications

[14] The motion judge organized the nine decisions challenged by DW into four categories based on the outcomes:

1. Court Files No. 633/20 and 634/20: investigations the Commissioner discontinued because he found there was no evidence of non-compliance with the LRA;

2. Court Files No. 644/20, 645/20, and 660/20: investigations that were “ceased” pursuant to s 17.1(3) of the LRA and resolved through the informal resolution process;

3. Court File No. 632/20: an investigation that was discontinued because the Commissioner found there was no non-compliance after issuing a s. 17.5 notice and receiving submissions from the affected person; and

4. Court Files No. 646/20, 647/20, and 648/20: investigations in which the Commissioner found there was non-compliance with the LRA under s. 17.6 and issued notices under s. 17.5 but decided it would not be appropriate to impose a penalty under s. 17.9.

[15] To summarize, three of the applications alleged that the Commissioner incorrectly and unreasonably interpreted and applied s. 3.4 of the LRA, while the other six applications alleged that the Commissioner unreasonably exercised his discretion in deciding whether to impose a penalty under s. 17.9 of the LRA. All of the applications also allege a reasonable apprehension of bias and raise concerns with the amount of information that is publicly available under the statutory regime (although the statute itself is not challenged). The specific details of each application are discussed below.

[16] In order to assess the appropriateness of public interest standing in this case, particularly whether the applications raise a serious justiciable issue, it is necessary to consider the factual context presented by DW in each application, along with the basis for challenging the Commissioner’s decision. The appellant does not raise a constitutional or legal challenge to any section of the LRA itself. Rather, it takes issue with the manner in which the Commissioner interpreted and applied the LRA in respect of these specific complaints.

The Nine Applications

(a) Applications Raising Issues Regarding the Interpretation and Application of s. 3.4 of the LRA

(i) Application No. 632/20

[17] This decision concerned a lobbyist who worked on a political campaign for a candidate who became a public office holder, and then registered to lobby the public office holder. The lobbyist advertised her role in the campaign as being a senior role. The Commissioner found there was no non-compliance because the lobbyist did not actually have a senior or strategic role and had no meaningful professional or personal relationship with the public office holder. Furthermore, the lobbying of the office holder was very limited.

[18] In its application, DW argued that the decision was an incorrect and unreasonable interpretation and application of s. 3.4 of the LRA because “[a] lobbyist who engages in the lower-risk political activity of working on a political campaign for a candidate who becomes a public office holder, and then afterwards lobbies the office holder for any amount of time, knowingly places the office holder in a real or potential conflict of interest.”

(ii) Application No. 633/20

[19] Similar to Application No. 632/20, this decision involved a lobbyist who worked on political campaigns for two candidates and subsequently registered to lobby them after they became public office holders. The Commissioner found there was no evidence of non-compliance because an appropriate amount of time elapsed between the political campaigns and the start of the lobbying activities, which reduced the public office holder’s sense of obligation and therefore the risk of a conflict of interest.

[20] DW argued that this was an incorrect and unreasonable interpretation and application of s. 3.4 of the LRA because “[w]hen a lobbyist engages in the political activity of working on an election campaign for a candidate who wins the election… the lobbyist creates a sense of obligation and a conflict of interest on the part of the MPP that continues until at least until [sic] the following election, and arguably throughout the rest of the MPP’s career.”

(iii) Application No. 634/20

[21] This decision involved three consultant lobbyists who helped sell tickets to a fundraising event for a political party while they were registered to lobby public office holders, including the leader of the party. The Commissioner found there was no evidence of non-compliance because: (1) the lobbyists had no strategic or instrumental role in organizing the fundraiser; (2) the lobbyists did not interact with any public office holders concerning planning the fundraiser; and (3) the fundraiser was for the political party as a whole not the individual public office holder, which made it less likely that there would be any sense of obligation to the lobbyists.

[22] DW argued that this was an incorrect and unreasonable interpretation and application of s. 3.4 of the LRA because fundraising for a political party indirectly benefits the individual public office holders in the party. This is because the funds raised would be used for party activities and campaigning all directed at promoting the public office holders’ re-election and for party activities that they would attend for free.

(b) Applications Raising an Unreasonable Exercise of Discretion

(i) Application No. 644/20 and Application No. 645/20

[23] These decisions addressed lobbyists who failed to register their lobbying for a client for a number of years. The Commissioner ceased the investigations, without imposing any penalties, because: (1) the non-compliance was inadvertent, as the lobbyists thought their client had registered them as in-house lobbyists; (2) the lobbyists addressed the non-compliance quickly by registering once notified; and (3) the lobbyists fully cooperated with the investigations.

[24] DW argued that this was an unreasonable exercise of discretion under s. 17.9 of the LRA because the Commissioner did not impose penalties, unlike in previous decisions involving similar findings of serious non-compliance and mitigating factors.

(ii) Application No. 646/20 and Application No. 647/20

[25] These decisions involved senior officers of organizations who failed to update their organization’s registration of lobbyists for a significant period of time. The Commissioner found these were serious instances of non-compliance but declined to impose a penalty because of various mitigating factors, such as full cooperation with the investigation and the institution of internal changes to prevent future non-compliance. DW made the same argument as in Application No. 644/20 and Application No. 645/20, above.

(iii) Application No. 648/20

[26] This decision related to a lobbyist who worked in senior and strategic roles on political campaigns for a candidate who became a public office holder. The lobbyist then lobbied the office holder for several clients and had an ongoing personal relationship with the office holder for an unspecified period of time. The Commissioner found this was a serious breach of the LRA but declined to impose a penalty because the lobbyist stopped lobbying the public office holder once notified of the investigation, cooperated fully, and had no history of non-compliance. DW made the same argument as in Application No. 644/20 and Application No. 645/20, above.

(iv) Application No. 660/20

[27] This decision concerned a senior officer and in-house lobbyist for an organization who gifted free tickets to an event to a public office holder she was lobbying. The Commissioner found non-compliance with the LRA but did not impose any penalties because the organization stopped offering such free tickets, the senior officer left the organization and was no longer a registered lobbyist, and the new senior officer met with the Commissioner to discuss best practices to ensure future compliance. DW made the same argument as in Application No. 644/20 and Application No. 645/20, above.

The Decisions Below

[28] The motion judge allowed the OIC’s motion to quash all nine applications for judicial review on the basis that DW did not meet the test set out in Downtown Eastside for public interest standing. As a corollary, the motion judge concluded the appellant’s motion, which sought the production of the records of proceedings before the OIC, was moot.

[29] In considering whether the appellant should be granted public interest standing, the motion judge considered the well-known factors set out in Downtown Eastside, at para. 37, noting that the party seeking public interest standing must demonstrate that:

1. the application raises a serious justiciable issue;

2. the applicant has a real stake or genuine interest in the issue; and

3. in all the circumstances, the proceedings are a reasonable and effective way to bring the issue before the courts.

[30] The OIC took no issue with the appellant’s “serious interest in the issue”. The motion judge declined public interest standing on the basis of the other two considerations.

No serious justiciable issue

[31] The motion judge found that although the nine applications purported to challenge the overall manner in which the Commissioner exercised his investigative powers under the LRA, the applications were actually challenges to OIC decisions with respect to conduct by individual lobbyists. She continued at para. 35:

This does not raise a substantial constitutional issue nor does it even raise issues of broader implication about the proper interpretation of provisions of the LRA. Rather, at most, it raises issues about the manner in which this Commissioner has exercised his discretion under the Act in individual cases over a limited time of period [sic]. For example, as reviewed above, while Democracy Watch argues in Court File No. 632/20 that the Commissioner’s interpretation of section 3.4 of the LRA was unreasonable, the issue in this case was whether the conflict of interest was sufficiently serious to warrant more action on the part of the Commissioner. This does not raise a serious issue regarding the interpretation of the LRA. Democracy Watch’s view that the Commissioner is too lenient may raise political or policy concerns, but it does not raise serious legal issues that warrant granting public interest standing. [Emphasis added.]

[32] In making the point that these applications did not raise a serious issue of statutory interpretation, the motion judge distinguished this case from Democracy Watch v. Canada (Attorney General), 2021 FC 613 (“Democracy Watch (FC)”), where the issue was one of statutory interpretation and, in particular, whether parliamentary secretaries were included in the term “staff” for the purposes of the relevant provision of the federal Lobbyists’ Code of Conduct and the Lobbying Act, R.S.C. 1985, c. 44 (4th Supp.).

Not a reasonable or effective way to bring the issue before the courts

[33] The motion judge found that DW’s applications did not constitute a reasonable or effective way to bring the issue before the courts.

[34] First, she expressed concern that the proposed applications would conflict with the private interests of the lobbyists who had been under investigation, citing the “potential impact of the proceedings on the rights of others who are equally or more directly affected” as one of the factors the Supreme Court listed in Downtown Eastside, at para. 51. The Supreme Court went on to warn that “courts should pay special attention where private and public interests may come into conflict”: Downtown Eastside, at para. 51. As far as the lobbyists were concerned, these matters were closed. Allowing the appellant, “a stranger to the dispute”, to reopen these matters, she stated, would clearly create a conflict between the lobbyists’ private interests and the public interest advocated by the appellant.

[35] Second, the motion judge observed that the LRA specifically provides that the lobbyists under investigation are not to be identified unless the OIC finds misconduct and determines that public identification would be warranted. Permitting DW’s applications to go ahead would inevitably conflict with this statutory protection. She recognized the appellant’s argument that the lobbyists would not need to be publicly identified, but also noted that it was seeking the full records upon which the Commissioner based his decisions. Those records contain the lobbyists’ identities and details of the complaints and investigations that the LRA does not permit to be made available to the public.

[36] Third, the motion judge stated that the legislative scheme suggested that only lobbyists were to have standing to challenge the OIC’s decisions. She relied on s. 17.8 of the LRA, which provides that a person against whom the Commissioner has made a finding of non-compliance can bring an application for judicial review within 60 days.

[37] Finally, the motion judge considered DW’s argument that because lobbyists are unlikely to challenge a decision that results in no finding of misconduct or penalty, there was no other effective means to challenge the OIC’s decisions. While acknowledging that this argument had some merit, she held that this did not give the court the authority to ignore the statutory scheme in the LRA, which it would effectively be doing if it granted public interest standing.

[38] In conclusion, the motion judge stated at para. 45:

While the applicant may have legitimate concerns, an application for judicial review that essentially focuses on the disposition of individual complaints, without raising more than speculative concerns regarding the disposition of those complaints, is not the proper forum for raising such issues.

[39] As previously mentioned, DW brought a motion to set aside this decision, however a panel of the Divisional Court found no errors and dismissed the motion.

Positions of the Parties

[40] The appellant argues that the motion judge mischaracterized the nature of the applications, which led her to misapply the “serious and justiciable issue” factor of the Downtown Eastside test. It submits that the nine applications clearly and specifically set out how the OIC was unreasonably applying, interpreting, and enforcing the LRA in serious, systemic ways. On this point, the motion judge erred by ignoring similar Federal Court cases which recognized that these were serious issues and granted the appellant public interest standing.

[41] The appellant also submits that the motion judge effectively applied the outdated “only reasonable and effective means” test, rather than the correct “a reasonable and effective means” test. She also gave undue weight to the interests of lobbyists and misread the LRA’s provisions on judicial review and confidentiality. Even if the confidentiality provisions applied, the motion judge erred by not considering the possibility of a confidentiality order.

[42] Relatedly, the interveners submit that the motion judge erred in applying the “reasonable and effective means” test. The crux of their position is that where the interests of private litigants are misaligned with the public interest in legality, public interest standing is a reasonable and effective means of bringing a case to court. The interveners took no position on the merits of the appeal and were broadly concerned with preserving the scope of public interest standing.

[43] The respondent submits that the motion judge made no reviewable error. She considered the required factors and balanced them flexibly and purposively, as she was required to do. There is therefore no basis on which this court could interfere with the motion judge’s discretionary decision, to which it must defer.

Law and Analysis

(a) Standard of Review

[44] A motion judge’s decision to grant or deny public interest standing is discretionary and entitled to deference: British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2022 SCC 27, 470 D.L.R. (4th) 289 (“CCD”), at para. 79. It is trite law that appellate courts are not entitled to interfere with discretionary decisions simply because they would have exercised the discretion differently: Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 CanLII 145 (SCC), [1995] 1 S.C.R. 3, at para. 39, citing Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042, at p. 1046. An exercise of discretion can be set aside, however, when a judge considered irrelevant factors, failed to consider relevant factors, reached an unreasonable conclusion, or acted on the basis of a wrong principle: Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, 489 D.L.R. (4th) 191, at para. 41.

[45] On the issue of public interest standing specifically, appellate intervention is warranted when the court below failed to weigh the three factors identified in Downtown Eastside cumulatively and purposively, or attached “particular weight” to one purpose of public interest standing rather than balancing all the purposes: CCD, at paras. 56, 89, 96. At the same time, standing is “fact- and context-specific”: CCD, at para. 109. Each case must be decided on its own merits.

[46] As the appellant submits, the test for public interest standing has evolved to become more flexible since Downtown Eastside. Nevertheless, the underlying drivers continue to be the sometimes conflicting policies of accountability, access to justice, and the need to preserve scarce resources: see generally CCD, at paras. 29-31. When a judge determines a public interest standing issue, they must weigh the relevant factors and reach a conclusion with a view to striking the most appropriate balance according to the facts of the particular case. Thus, deference to the motion judge, provided that they apply the right considerations, is an integral part of the reconciliation of the policies that underlie public interest standing determinations.

(b) The Test for Public Interest Standing

[47] The heart of the appellant’s submission on appeal is that, despite citing the correct test from Downtown Eastside, the motion judge effectively applied an unreasonably rigid test for public interest standing, and despite instructing herself that the test was to be applied flexibly and purposively, her reasons demonstrate that she did not do so.

[48] I do not agree.

[49] The motion judge cited the correct test for public interest standing and went on to consider each of the three factors. The motion judge did not use public interest standing “as a bar to access”, as DW submits. In accordance with Downtown Eastside, the motion judge instructed herself that the three factors were not a rigid “checklist” or “technical requirements”, but rather were to be considered in a “purposive, flexible and generous manner”: Downtown Eastside, at paras. 36, 53. She also instructed herself that on a motion to quash, the Commissioner had to persuade her that it was “plain and obvious” or “beyond doubt” that the applications could not succeed: see Stewart et al. v. Office of the Independent Police Review Director et al., 2014 ONSC 6150 (Div. Ct.), at para. 18.

[50] As the Commissioner conceded that DW had a serious interest in the issues, the motion judge focused on the first and third prongs of the Downtown Eastside test. In the end, she concluded that this was “not a close call”, and that neither the first nor third prong of the Downtown Eastside framework favoured granting public interest standing.

(c) No Serious Justiciable Issue

[51] To constitute a serious issue, the question raised must be a “substantial constitutional issue” or an “important one”: Downtown Eastside, at para. 42, citing Nova Scotia Board of Censors v. McNeil, 1975 CanLII 14 (SCC), [1976] 2 S.C.R. 265, at p. 268; Minister of Justice (Can.) v. Borowski, 1981 CanLII 34 (SCC), [1981] 2 S.C.R. 575, at p. 589. The claim must be “far from frivolous”, although the court should not examine the merits of the case in other than a preliminary manner: CCD, at para. 49, citing Downtown Eastside, at para. 42. This factor addresses the concern about the allocation of scarce judicial resources and promotes access to justice by ensuring that judicial resources remain available to those who need them most: CCD, at para. 48.

[52] Although cases of public interest standing most often involve the validity of legislation, as in CCD and Downtown Eastside, it is now clear that public interest standing can be granted to challenge administrative state action: see Finlay v. Canada (Minister of Finance), 1986 CanLII 6 (SCC), [1986] 2 S.C.R. 607; Delta Air Lines Inc. v. Lukács, 2018 SCC 2, [2018] 1 S.C.R. 6. In the final cumulative weighing required by Downtown Eastside, the seriousness of an issue may be viewed on a spectrum. Applications challenging individual exercises of discretion may not always weigh as strongly in support of public interest standing as constitutional challenges to legislation, particularly when the decision under review does not affect many people: see Lorne M. Sossin and Gerard Kennedy, Boundaries of Judicial Review: The Law of Justiciability in Canada, 3rd ed. (Toronto: Thomson Reuters Canada, 2024), at §3:19.

[53] The motion judge characterized the applications for judicial review as nine decisions concerning the conduct of individual lobbyists. She concluded that they collectively did not raise a serious issue. She did not accept that DW raised a genuine issue of statutory interpretation.

[54] I agree. Assuming that a decision to discontinue an investigation without making any finding of non-compliance is justiciable, six of the nine notices of application allege that the Commissioner unreasonably exercised his discretion to impose penalties on some lobbyists but not on others. The decision to impose a penalty is squarely within the Commissioner’s discretion: see LRA, s. 17.9. Since there is no right of appeal in the LRA,any application for judicial review would be confined to an assessment of the reasonableness of the Commissioner’s exercise of discretion: see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; Canadian Elevator Industry Education Program v. Nova Scotia (Elevators and Lifts), 2016 NSCA 80, at para. 66.

[55] I accept there is a strong public interest in the issue of lobbying generally. That alone, however, is not sufficient: see generally Canadian Elevator,at para. 57. Moreover, as the motion judge observed, a party cannot transform a review of an individual exercise of discretion into something akin to a public inquiry simply by bringing multiple applications for judicial review at the same time.

[56] While three of the nine applications allege the Commissioner adopted an unreasonable interpretation of s. 3.4 of the LRA, they do not identify any issue of statutory interpretation. Instead, as the motion judge observed, they speculate that the Commissioner has not been properly applying s. 3.4 based on the brief anonymized summaries of his investigations in the Annual Report.

[57] Finally, while all the applications allege institutional bias, the nature of the statutory scheme, and particularly s. 23 of the Members’ Integrity Act, 1994, S.O. 1994, c. 38, are complete answers to that argument: Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781, at para. 22; Democracy Watch v. Canada (Attorney General), 2020 FCA 28, at para. 5, leave to appeal refused, 2020 CanLII 50448 (S.C.C.).

[58] Accordingly, the motion judge made no error in concluding that the applications did not raise a sufficiently serious issue to warrant public interest standing. Her decision was consistent with the purposes of limited standing and of granting public interest standing, including the principles of legality and access to justice. The applications were not an economical use of judicial resources given the issues raised in the notices of application.

[59] It follows that the motion judge also did not err in her treatment of the Federal Court and Federal Court of Appeal decisions that DW put to her, in which those courts considered the test and granted DW public interest standing. Those cases, unlike the present appeal, raised genuine issues of statutory interpretation that transcended its immediate interests: see Democracy Watch (FC); Democracy Watch v. Canada (Attorney General), 2018 FCA 194, 428 D.L.R. (4th) 739, leave to appeal refused, 2019 CanLII 37479 (S.C.C.). In Democracy Watch (FC), for example, the issue was whether parliamentary secretaries could be considered “staff” of a Minister for the purposes of the federal Lobbying Act. The court concluded that “there is merit in a judicial determination of who is and who is not staff”: at para. 59.

[60] DW argues that the motion judge mischaracterized Democracy Watch (FC), which concerned the interpretation of the federal Lobbying Act and the interpretation and application of the Lobbyists’ Code of Conduct. But that case raised a clear issue of statutory interpretation, which the court described as “a key question for judicial review”: at para. 60. As the motion judge found, DW raised no similar issue here. It cannot therefore be said that the motion judge erred in distinguishing this case, which DW concedes was not binding on her in any event.

[61] The parties did not raise the case of Democracy Watch v. Canada (Attorney General), 2022 FCA 208, in which Stratas J.A. granted DW public interest standing to pursue judicial review of the Conflict of Interest and Ethics Commissioner’s (“Ethics Commissioner”) decision regarding Prime Minister Trudeau and the “WE Charity” matter. Stratas J.A. found the issues were serious and justiciable and granted DW public interest standing partly out of a concern that without it, the “Commissioner’s decision will be immunized from any review”: at para. 9. However, in that case, DW alleged that the Ethics Commissioner erred in law and fact in interpreting the Conflict of Interest Act, S.C. 2006, c. 9: at para. 16; Democracy Watch v. Canada (Attorney General), 2024 FCA 158, at para. 5. Moreover, the Conflict of Interest Act contains a privative clause that bars judicial review by anyone except on the grounds of jurisdictional error, procedural unfairness, or fraud: see s. 66. In other words, there was no ability for the public office holder involved to seek judicial review of the Ethics Commissioner’s decision except on those limited grounds.

[62] I do not want to be taken as precluding the possibility that a sufficiently serious issue could arise in the context of an individual application for judicial review, even absent an issue of constitutional or legal validity: see e.g. Ecology Action Centre v. Nova Scotia (Environment and Climate Change), 2023 NSCA 12. But such an issue is not before the court in these applications.

(d) Not a Reasonable and Effective Means to Bring the Matter to Court

[63] The third Downtown Eastside factor requires that the proposed action be a reasonable and effective means to bring the matter before the courts. This requires courts to ask whether granting standing is desirable to ensure lawful action by government actors, and whether granting standing will promote access to justice by disadvantaged persons whose legal rights are affected: CCD, at para. 52, citing Downtown Eastside, at paras. 49, 51. Conversely, this factor is also concerned to prevent the unnecessary overburdening of the justice system, because if there are other means to bring the matter before the court – particularly by those most directly affected by the issues – scarce judicial resources may be put to better use: CCD, at para. 53.

[64] When assessing the third Downtown Eastside factor, courts may examine the following non-exhaustive considerations: what resources and expertise the plaintiff can provide in presenting the issue; whether the case is of public interest and thus transcends the interests of those most directly affected by the challenged law or action; whether there are “realistic alternative means which would favour a more efficient and effective use of judicial resources and would present a context more suitable for adversarial determination”; and the potential impact of the proceeding on others: CCD, at para. 55, citing Downtown Eastside, at para. 51.

[65] The motion judge concluded that the applications for judicial review were not a reasonable and effective means to bring the issues before the court. In particular, she found that permitting the applications for judicial review to proceed would undermine the statutory scheme. She relied both on the confidentiality provisions of the LRA and on s. 17.8, which provides that a lobbyist may seek judicial review from the Commissioner’s decision within 60 days. She reasoned that this section suggested that only lobbyists were to have standing under the LRA.

[66] The appellant argues that the motion judge erred with respect to this consideration because she effectively required that the judicial review application be the only effective means to bring the matter to court, even though Downtown Eastside relaxed this requirement such that an application need only be an effective means to bring the matter before the court.

[67] I do not agree with DW that the motion judge applied the outdated standard of “no other reasonable and effective means”, rather than “a reasonable and effective means”, as Downtown Eastside requires. Rather, she applied this consideration with an eye to the rationales driving public interest standing, as I reviewed earlier in these reasons. Read fairly, the motion judge’s reasoning does not flow from a technical or compartmentalized application of “the only” rather than “a” reasonable means, but from a consideration of the statutory scheme and the broader context of the policy rationales underlying public interest standing. Paragraph 44 of her reasons reads as follows:

Democracy Watch argues that there is no other effective method for challenging the Commissioner’s decisions. Lobbyists have no interest in challenging a decision that results in no finding of misconduct or no penalty. There is some merit to the argument, but it runs contrary to the statutory scheme. Democracy Watch may have legitimate concerns about a scheme that provides for very little public information about the Commissioner’s investigations. However, this does not give the court the authority to ignore the statutory scheme. Giving Democracy Watch public interest standing to bring these applications for judicial review would effectively allow for circumvention of the scheme. This is not a reasonable way to bring the issue before the courts.

[68] This paragraph answers the appellant’s and interveners’ submissions on this point. First, the motion judge expressly applied the “a reasonable means” test rather than “the only” reasonable means. Second, the motion judge readily acknowledged the potential force of the appellant’s argument that judicial review was a reasonable means of getting the matter before the court because the lobbyists themselves were highly unlikely to file complaints. She went on, however, to consider these factors within the context of the statutory scheme as a whole, concluding that granting public interest standing in this case would undermine or actually conflict with it.

[69] The appellant argues that the motion judge gave undue weight to the private interests of the lobbyists and insufficient weight to the principle of legality. It is not the function of an appellate court to reweigh the factors, so long as the judge below has not erred by attaching “particular weight” to any purpose of standing: CCD, at paras. 31, 56, 58. The Supreme Court has been clear that no single factor is determinative: CCD, at para. 89; Downtown Eastside,at para. 20. In any event, I do not agree that the motion judge gave undue weight to any one factor. Her reasons reflect a flexible, cumulative, and proportionate balancing of the required factors.

[70] I do agree that it was inaccurate for the motion judge to suggest that s. 17.8 had the effect of limiting standing to the lobbyists against whom the Commissioner had made a finding of non-compliance. First, it appears that the effect of s. 17.8, which pre-dated the general 30-day time limit for judicial review now found in s. 5(1) of the JRPA, was to set a time limit on judicial review. More importantly, the Supreme Court has repeatedly emphasized that “legislatures cannot shield administrative decision making from curial scrutiny entirely”: Vavilov, at para. 24; Yatar, at para. 61. There is nothing in s. 17.8 that suggests it is to act as a privative clause or that it should be read to derogate from the general right to judicial review in s. 2 of the JRPA.

[71] That said, the motion judge’s error was not overriding: CCD, at para. 96. Section 17.8 was only one part of the statutory scheme she considered, and which she found weighed against granting public interest standing. Considered cumulatively with her conclusion on the first factor, her overall conclusion that public interest standing was inappropriate in these circumstances remains sound.

[72] In addition, I see no error in the motion judge’s conclusion that the applications for judicial review would conflict with the strong confidentiality provisions of the LRA, which extend beyond simply protecting the identity of the lobbyists. Section 17.10(1) expressly prohibits the Commissioner from disclosing any information about an investigation, including the names of the lobbyists, except in certain prescribed circumstances. As the Commissioner submitted on appeal, the applications for judicial review would necessarily have to proceed in a factual vacuum. In light of that, DW could not satisfy the motion judge that the applications would be presented “in a sufficiently concrete and well-developed factual setting”: Downtown Eastside, at para. 51. In the circumstances, a confidentiality order protecting the identities of the lobbyists was not a practical solution.

[73] Read as a whole, the motion judge considered and applied the correct factors, as I discussed above. She explained why she reached the conclusions that she did, taking the statutory scheme into account. In short, she exercised her discretion consistently with the principles and case law on public interest standing.

Disposition

[74] For these reasons, I would dismiss the appeal.

[75] No party requested costs and none are ordered.

Released: February 28, 2025 “A.H.Y.”

“A. Harvison Young J.A.”

“I agree. S. Coroza J.A.”

“I agree. S. Gomery J.A.”