What a recent Supreme Court hearing could mean for housing, immigration and employment tribunals across Canada

Note: An earlier version of this article stated that there is an upcoming parliamentary review of the Conflict of Interest Act. It has now been amended to say that this review is ongoing.  

Advocates for refugees, the environment, legal aid, and civil rights were among those intervening in a Supreme Court of Canada case that could have sweeping impacts on how ordinary people access justice and judicial review. 

Hearings were held at the Supreme Court on Jan. 14 and Jan. 15, 2026, in the case of Democracy Watch v. Attorney General of Canada. One of the central arguments on the table was about the privative clause, a section of legislation that can prevent judicial oversight of decisions made by government and administrative bodies. 

Several of the non-profits and civil society organizations that intervened in the case argued that privative clauses can hinder access to justice for communities, especially those seeking administrative review at tribunals involving housing, immigration, employment rights, and police misconduct.  

For example, sections 114 and 116 of the Ontario Labour Relations Act spell out that any decisions made by the province’s Labour Relations Board shall not be questioned in court. It means that any decision drawn by the Board – in this case, cases about employment, workplace and labour rights – is final, unless the Board itself reconsiders.

Non-profits and charities in Canada are often working with communities that rely on administrative decision-makers to draw a whole range of conclusions about their lives, said Sharry Aiken, a professor of law at Queen’s University and co-chair of the Canadian Council of Refugees’ (CCR) legal affairs committee. 

One of the interveners, the Community & Legal Aid Services Program (CLASP), serves low-income and marginalized individuals.

“Our clients rely on judicial review to challenge administrative decisions that determine their most fundamental needs: housing, social assistance, immigration status, and human rights,” CLASP wrote in their factum. “For them, judicial review is not an abstract doctrine; it is the essential guarantee that public power remains bounded by law.”

CLASP added that privative clauses need strict frameworks around them in order to not cause further and disproportionate harm to vulnerable communities. 

“This effectively denies them access to justice, leaving unlawful decisions without meaningful recourse.” 

Why is the privative clause in the spotlight now?

This case originated in the WE Charity controversy in 2020. The charity had been awarded a multi-million-dollar federal contract, but the then-Prime Minister Justin Trudeau and several members of his family were confirmed to have personal ties with the charity’s leadership. 

Members of the Prime Minister’s family were also paid to appear at WE Charity events. Prime Minister Trudeau was accused of violating the Conflict of Interest Act (COIA), but the Ethics Commissioner later concluded that the Prime Minister did not violate the COIA.

Democracy Watch, an organization focused on improving government accountability, applied for judicial review of that conclusion, which the “Attorney General of Canada moved to strike […], arguing that Democracy Watch lacked standing and that the application was based on grounds barred from judicial review” as per the COIA. 

Under section 66 of the COIA, “the [Ethics] Commissioner’s decisions can only be reviewed on the grounds limited to issues of jurisdiction, procedural fairness, or acting or failing to act ‘by reason of fraud or perjured evidence.’”

The Federal Court of Appeal, on the other hand, ruled that Democracy Watch – despite not being directly impacted by the Ethics Commissioner’s report on the WE Charity case – had public interest standing. 

A section that a government or legislature includes in a statute like section 66 of the COIA is known as a privative clause. A full privative clause completely removes the potential for Canada’s court system to review decisions, while a partial privative clause can bar review except on certain grounds. 

Democracy Watch and several citizen organizations intervening in this case take issue with the lack of access to justice that a privative clause creates, arguing that it is in opposition to the Constitution. 

“This is the first-ever appeal to raise the question of whether the decisions of the Ethics Commissioner are subject to judicial review, and the broader issue of whether a partial privative clause bars judicial review,” wrote the co-counsel for Democracy Watch. 

Should they win, the Federal Court of Appeal will have to assess whether the Ethics Commissioner’s decision in the WE Charity investigation was reasonable, said Duff Conacher, co-ordinator of Democracy Watch.

Why the non-profit sector should be concerned

There is a broader issue at play here, Conacher said. In every province and at the federal level, agencies, boards, commissions and tribunals (ABCTs) make administrative decisions affecting ordinary people and their housing, immigration, social welfare and employment/labour rights, among other issues. 

A lot of those ABCTs have partial privative clauses that would prevent an individual from challenging a decision that could have life-altering consequences, Conacher said.

The outcome of this Supreme Court hearing could impact ABCTs across the country, Conacher said, calling it “amazing” that there has never been a ruling on the constitutionality of partial privative clauses. 

Among those intervening in the hearing were Ecojustice, the Canadian Council for Refugees, and the Canadian Civil Liberties Association. Interveners bring additional perspectives beyond those presented by the applicant and respondent.  

Ian Morin, a lawyer at Ecojustice, said the outcome of this case could have sweeping implications for the extent to which administrative decisions can become subject to review. 

As an environmental law charity, Ecojustice frequently seeks to hold the government accountable for its environmental decision-making, using judicial review as one of its mechanisms. 

Privative clauses are often found in environmental statutes, Morin added. 

“There is an island of decision-making in the environmental space that is either not subject at all to court review, or subject to very narrow court review only on certain questions,” he said. 

In their factum, Ecojustice wrote: “Shielding such decisions from review, even where they are based on findings made in an arbitrary, careless or perverse manner, could have serious consequences – including impacts on health and safety, Aboriginal or other constitutional rights and the sustainability of species, ecosystems or other components of the environment.”

Alongside environmental advocates, those fighting for the rights and protection of refugees in Canada were also prominent interveners. 

The federal court presides over decisions about individuals’ citizenship and refugee statuses, immigration detention, family reunification, and removal from Canada, among other issues, Aiken said. 

At the federal level, immigration is among the highest caseloads, Aiken said. A Federal Court activity summary for the first half of 2025 shows the vast majority of proceedings commenced concerned citizenship, immigration, refugee status and applications for leave. 

Aiken clarified that while there is not a privative clause in Canada’s Immigration and Refugee Protection Act, specific interpretations of the clause “would be an open invitation to executives and governments going forward, at any level, to adopt legislation with privative clauses ousting judicial review.”

Immigrants and refugees do, however, have to ask permission from the court for judicial review, Aiken said. If the court denies, they don’t have to give you reasons for that denial, she added. 

“That is a gatekeeping function that is baked into the immigration regime, if you will. And that already makes access to justice problematic,” she said, adding that a lack of funds and a lack of legal aid already present barriers to justice across Canada.

“Success by the government in this case could open the door for Parliament to introduce similar limits in refugee, immigration or citizenship law, to the profound detriment of the rights of refugees and migrants. […] Judicial review is often the only recourse available to refugees and migrants who have been issued unreasonable or incorrect decisions by such bodies,” the team at the CCR wrote in their factum. 

Making administrative decisions open to review and challenge “is core to the protection of human rights,” the CCR wrote. 

Similarly, the Canadian Civil Liberties Association (CCLA) has taken the position that it is unconstitutional to remove access to judicial oversight, especially as “administrative tribunals deal with an expanding number of diverse issues of profound significance to people’s lives.”

There also needs to be enough protection for those who wish to challenge administrative decision-makers and tribunals before a court, said Anaïs Bussières McNicoll, director of the Fundamental Freedoms Program at the CCLA. 

Trending towards deregulation 

“We are seeing what we characterize as a broad trend in Canada of governments undermining the rule of law and weakening the checks and balances that protect us all,” Bussières McNicoll added, pointing to the growing use of the notwithstanding clause by provincial governments.  

Morin added that governments are trending towards deregulation, especially by creating “law-free zones” to advance capital projects and by exempting companies from provincial laws. 

Democracy Watch is running several parallel campaigns connected to government and corporate accountability. There is an ongoing parliamentary review of the Conflict of Interest Act, Conacher said. 

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