Date: 20171024

Dockets: T-1526-14

T-304-15

T-1539-14

T-1935-14

Citation: 2017 FC 942

Ottawa, Ontario, October 24, 2017

PRESENT:     The Honourable Madam Justice Gagné

BETWEEN:

BOULERICE ET AL.

Applicants

and

ATTORNEY GENERAL OF CANADA, BOARD OF INTERNAL ECONOMY, SPEAKER OF THE HOUSE OF COMMONS

Respondents

and

MAURICE VELLACOTT

Intervener

ORDER AND REASONS

I.                    Nature of the Matter

[1]               This preliminary motion, brought by the Board of Internal Economy [Board] and the Speaker of the House of Commons [Respondents], requires the Court to examine the scope and limits of two equally crucial constitutional imperatives: parliamentary privileges and immunities stemming from the separation of powers between the legislative, executive and judicial branches of the State, and the role of judicial review in preserving the rule of law as a “fundamental postulate of our constitutional structure” (Roncarelli v Duplessis, [1959] SCR 121 at 142).

[2]               The Respondents argue that this Court lacks jurisdiction to hear the four applications for judicial review brought by the Applicants, all members or former members of Parliament for the New Democratic Party of Canada [NDP]. In these applications, they challenge decisions of the Board who found that they had used parliamentary resources and services in contravention of the Board’s by-laws. This, according to the Respondents, is outside of this Court’s jurisdiction pursuant to the Federal Courts Act, RSC 1985, c F-7, the doctrine of parliamentary privilege, and the House of Commons’ exclusive right to manage its internal affairs. The Respondents thus ask that these applications for judicial review be struck without leave to amend, and dismissed in their entirety.

[3]               The Intervener, Mr. Maurice Vellacott, is a former member of Parliament for the Conservative Party. He was granted intervener status to set out the context of his own case before the Board. He supports the position of the Applicants and argues in favour of this Court’s jurisdiction over the matters.

II.                 Decisions under Review

[4]               In its first decision, dated June 2, 2014, the Board found that the NDP mailings, which had been the subject of an investigation, were in contravention of the Board’s by-laws because they were prepared by and for the benefit of a political party.

[5]               Then, on June 11, 2014, the Board declared that the Applicants had to repay the printing costs and envelopes of those mailings, due to their contravention of sections 4(3), 6, and 7 of the Members By-law.

[6]               In a third decision dated August 12, 2014, the Board determined that some NDP members inappropriately used parliamentary resources for expenses related to employment, telecommunications, and travel, in contravention of the Members By-law, and that individual Members’ Office Budgets were used to supplement the NDP National Caucus Research Office Budget.

[7]               Finally, on February 3, 2015, the Board directed the House Administration to inform the NDP members of the costs that must be reimbursed pursuant to the decisions dated August 12, 2014.

[8]               Following the issuance of the Board’s decisions, the Applicants brought applications to this Court seeking judicial review of the above decisions (see Court file numbers T-1526-14, T-304-15, T-1539-14, and T-1935-14). Prior to any evidence being served and filed, the Respondents brought the present motion to strike.

III.               Issues

[9]               This motion raises the following issues concerning the matter of whether these decisions rendered by the Board can be judicially reviewed by this Court:

A.                 Whether decisions of the Board are subject to judicial review by the Federal Court pursuant to the Federal Courts Act?

B.                 Whether decisions of the Board relating to the use of resources by members are proceedings in Parliament and immunized by parliamentary privilege or whether they fall within the House of Commons’ exclusive right to manage its internal affairs?

IV.              Analysis

[10]           Although the Respondents challenge the jurisdiction of this Court on two different counts – a statutory argument and one based on parliamentary privilege – I agree with the Intervener that the analysis and answers to be given to both questions ought to be somewhat aligned. When enacting sections 2, 18 and 18.1 of the Federal Courts Act, the legislator intended to remove judicial review jurisdiction over decisions of all federal boards, commissions or other tribunals from the superior courts of the provinces to the Federal Court. If I find that the decisions under review are not covered by a parliamentary privilege, a finding that the Board is not a “federal board” pursuant to subsection 2(2) of the Federal Courts Act would lead to the odd result that its decisions would still be amenable to judicial review by the superior courts of the provinces, contrary to the clear intent of the legislator.

A.                 Whether decisions of the Board are subject to judicial review by the Federal Court pursuant to the Federal Courts Act?

[11]           The Federal Court is granted exclusive original jurisdiction to hear and determine applications for judicial review of any federal board, commission or other tribunal, pursuant to sections 18 and 18.1 of the Federal Courts Act. The Act defines a “federal board, commission or other tribunal” as follows:

[12]           Its specific application to the Senate and the House of Commons – which do not exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown – is further clarified in subsection 2(2) of the Act, whereby it is stated:

[13]           In light of the relevant legislative provisions, the question that must be answered is whether the Board is excluded from this Court’s jurisdiction pursuant to subsections 2(1) and 2(2) of the Federal Courts Act.

[14]           In my opinion, it is not.

[15]           In order to be a “federal board, commission or other tribunal”, a board must exercise jurisdiction or powers conferred by or under an Act of Parliament. The Board is established under section 50 of the Parliament of Canada Act, RSC 1985, c P-1, federal legislation.

[16]           Under the Parliament of Canada Act, the Board is empowered to act on all financial and administrative matters respecting the House of Commons, its members, its premises, its services and its staff (Parliament of Canada Act, s 52.3).

[17]           The Respondents rely on the Federal Court of Appeal’s decision in Southam Inc v Canada (Attorney General), [1990] 3 FCR 465 (CA), in which the Court held that the Federal Court did not have jurisdiction to entertain claims concerning proceedings of the Senate. In reaching this conclusion, the Court analyzed the three conditions necessary to base jurisdiction in the Federal Court, as prescribed by the Supreme Court of Canada in ITO-Int'l Terminal Operators v Miida Electronics, [1986] 1 SCR 752.

[18]           The Federal Court of Appeal held that the Senate was not a “federal board, commission or other tribunal”. The definition requires that the federal board, commission or other tribunal exercise jurisdiction or powers conferred by or under an Act of Parliament (Federal Courts Act, ss 2(1) “federal board, commission or other tribunal”). Since the Court determined that the privileges, immunities and powers of the Senate are conferred by section 18 of the Constitution Act, 1867, and not by statute, it could not fit within the prescribed definition (Southam, above at para 26).

[19]           In the case of the Board, its jurisdiction and powers are clearly stated at section 52.3 of the Parliament of Canada Act, and are not derived from constitutional privileges. It cannot be said, as argued by the Respondents, that any power found in the Parliament of Canada Act is an expression of the privileges set out in section 18 of the Constitution Act, 1867. It is only the legislative conferral of privileges, immunities and powers found in section 4 of the Parliament of Canada Act, with the limits expressly imposed therein, that derives from section 18 of the Constitution Act, 1867:

[20]           The same cannot be said of the provisions that establish and empower the Board, namely section 52.3 of the Parliament of Canada Act. The majority of the provisions in the Parliament of Canada Act do not concern constitutional parliamentary privileges and they were, in my view, enacted pursuant to section 91 of the Constitution Act, 1867.

[21]           The Federal Court of Appeal in Southam provided that the plain meaning of the words “federal board, commission or other tribunal” support the conclusion that the Senate cannot be classified as such. The Court stated that the Senate – just like the House of Commons, “is an essential part of the process that gives birth to federal boards, commissions or tribunals, and as such the Senate simply is not on the same level as those entities” (Southam, above at para 28).

[22]           This case does not involve the Senate or the House of Commons, institutions central to our free and democratic system of government (Southam, above at para 29 citing Re House of Commons and Canada Labour Relations Board, 1986 CanLII 4052 (FCA) at para 36). Rather, we are faced with a subsidiary entity charged and empowered to administer the use of resources and services by members. The Board, in all of its delegated powers and functions, is clearly not as fundamental to our notion of free democracy that it attracts the same protections afforded to the Senate and the House of Commons.

[23]           Following Southam, subsection 2(2) was added to the Federal Courts Act. It specifically excludes the House of Commons and any committee or member thereof from the jurisdiction of the Federal Court. Although the Respondents argue that this clearly excludes the Board, they cite no case law in support of this assertion.

[24]           In addition to the Senate, the House of Commons, and their members, Parliament deliberately excluded, in subsection 2(2) of the Federal Courts Act, specific bodies and functions, but it did not exclude the Board from the scope of judicial review. Therefore, the Intervener submits that Parliament could not have intended to shield from review by this Court all powers exercised under the Parliament of Canada Act, or it would have done so expressly.

[25]           There is a line of jurisprudence following the conclusion that the Senate is not a “federal board, commission or other tribunal”, as enunciated in Southam and the subsequent precision brought into the Federal Courts Act through subsection 2(2). In Marcus v Waddell, 1997 CanLII 5487 (FCA), the Federal Court of Appeal held that an individual member of Parliament was clearly not a “federal board, commission or other tribunal”. In Galati v Canada (Governor General), 2015 FC 91, this Court confirmed that individual members of the House of Commons are not a “federal board, commission or other tribunal” within the meaning of subsection 2(1) of the Federal Courts Act, and that in the act of voting, cabinet ministers stand undifferentiated from other members of Parliament (Galati, above at paras 63-64). The Court added that the Governor General, in granting royal assent, is also excluded from this Court’s jurisdiction (Galati, above at paras 32, 53). However, where a minister makes a decision, order, or act pursuant to a jurisdiction or power under an Act of Parliament, this may “trigger jurisdiction of this Court” (Galati, above at para 65).

[26]           I also disagree with the Respondents that the Board is no more than a “committee” of the House of Commons. Committees of the House of Commons – be they standing, legislative, special or subcommittee – are specific parliamentary bodies derived from the conduct of the House, its Standings Orders and parliamentary tradition. “A parliamentary committee is a small group of Members created and empowered by the House to perform one or more specific tasks” (Audrey O’Brien and Marc Bosc, eds, House of Commons Procedure and Practice, 2nd ed (Ottawa: House of Commons, 2009) at ch 20 “Committees”). They are not created by, nor do they take their powers from, an Act of Parliament. They examine policy, engage in law-making and exercise functions at the core of the legislative powers.

[27]           The Board, on the other hand, has no such functions. Its only functions are financial and administrative.

[28]           Acknowledging those fundamental differences between a committee of the House and the Board is, in my mind, far from what the Respondents qualify as “a triumph of form over substance.”

[29]           If the Board was excluded from the definition of “federal board” and thus not amenable to judicial review before this Court, a decision whereby it terminates the employment of a member of Parliament’s chauffeur or the House of Commons’ security guards could only be reviewed by the superior court of a province, as those two examples have been held not to fall within any category of parliamentary privilege (Canada (House of Commons) v Vaid, 2005 SCC 30 and Syndicat de la function publique et parapublique du Québec(SFPQ) c Chagnon, 2017 QCCA 271(QL)). Such a result would go against the effect and intent of section 18 of the Federal Courts Act granting this Court exclusive jurisdiction over the decisions of federal boards. This statutory transfer of jurisdiction from the superior courts was not meant to extinguish any existing judicial review oversight.

[30]           Finally, section 52.2 of the Parliament of Canada Act provides that the Board has the capacity of a natural person and may enter into contracts, memoranda of understanding and other arrangements, “[i]n exercising the powers and carrying out the functions conferred upon it pursuant to this Act.” This capacity and these powers are inconsistent with immunity from judicial scrutiny on grounds of parliamentary privilege.

[31]           That is not to say that no decision or action of the Board would benefit from a recognized category of parliamentary privilege, but simply that the Board does not, in my view, fall outside the express jurisdiction granted to this Court by sections 2 and 18 of the Federal Courts Act.

B.                 Whether decisions of the Board relating to the use of resources by members are proceedings in Parliament and immunized by parliamentary privilege or whether they fall within the House of Commons’ exclusive right to manage its internal affairs?

[32]           Parliamentary privileges in Canada take their source from the preamble to the Constitution Act, 1867, which provides for “a Constitution similar in Principle to that of the United Kingdom”. As indicated above, its section 18 further limits the privileges that can be conferred on the House of Commons by Parliament to those held by the House of Commons of Parliament of the United Kingdom at the time of Confederation. Therefore, the Respondents cannot rely on parliamentary privilege exceeding this statutory and constitutional scope.

[33]           The Canadian approach to parliamentary privilege is also limited to that which is necessary to allow the legislature to function (Vaid, above at para 41). The Supreme Court of Canada in Vaid established a two-step approach to determine the existence of a parliamentary privilege: first, the question is whether the category asserted by the party claiming privilege is established by prior authority; and second, whether the party claiming privilege has established necessity.

[34]           The onus is on the Respondents to demonstrate that the decisions at stake fall within an established category of privilege. In my opinion, they failed to do so.

[35]           Recognized categories of privilege were outlined by the Supreme Court of Canada in Vaid, and are as follows: freedom of speech, control by the Houses of Parliament over debates or proceedings in Parliament, the power to exclude strangers from proceedings, and disciplinary authority over members and non-members who interfere with the discharge of parliamentary duties, including immunity of members from subpoenas during a parliamentary session (Vaid, above at para 29.10).

(1)               Proceedings in Parliament

[36]           The Respondents argue that the Board’s activities fall under the category of privilege known as “Proceedings in Parliament” as found in Article 9 of the UK Bill of Rights (entitled “Freedom of Speech”):

That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament (Bill of Rights, 1688 (UK), 1 Will and Mar Sess 2, c 2).

[37]           They argue that the definition of “Proceedings in Parliament” is broad and “includes everything said or done in either House in the transaction of Parliamentary business”, citing the Ontario Court of Justice decision R v Duffy, 2015 ONCJ 694 (QL) at paragraph 88, which relied on the 2006 text, Robert W Hubbard, The Law of Privilege in Canada (Aurora, Ontario: Canada Law Book, 2006) (loose-leaf release 21), ch 6 at 6-32.

[38]           However, the Court in Duffy ignored the specific findings of the Supreme Court of Canada in Vaid that “not ‘everything that is said or done within the Chamber during the transaction of business forms part of proceedings in Parliament. Particular words or acts may be entirely unrelated to any business which is in course of transaction, or is in a more general sense before the House as having been ordered to come before it in due course’ (emphasis added)” (Vaid, above at para 43, citing David Lidderdale, ed, Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 19th ed (London: Butterworths, 1976) at 89).

[39]           The primary purpose of the “Proceedings in Parliament” category of parliamentary privilege is “unquestionably to protect freedom of speech in the House of Commons” (R v Chaytor and others, [2010] UKSC 52 at para 28).

[40]           Whether parliamentary privilege applies to expense claims was considered by the UK Supreme Court in Chaytor. The Court noted that whether a matter could be held to fall within the “Proceedings in Parliament” category of privilege depends on how closely it impacts on the “core or essential business of Parliament” (Chaytor, above at para 47). It held that the immunity which parliamentary privilege provides to proceedings in Parliament is there to protect the members’ freedom to debate in Parliament without interference. It concluded that submitting expense claim forms does not qualify as “Proceedings in Parliament” (Chaytor, above at paras 47-48).

[41]           Since the role of the Court, at this stage, is strictly to determine the existence and scope of a claimed privilege, and not to assess the way it is used or exercised, I am of the view that the UK Supreme Court’s analysis and findings in Chaytor (where the privilege was invoked in a criminal context) apply equally in the context of judicial review.

(2)               Internal Affairs

[42]           Alternatively, the Respondents argue that even if the Board and its activities do not fall within the recognized category of “Proceedings in Parliament”, its functions and decisions fall within the exclusive jurisdiction of the House of Commons and are necessary for the proper functioning of the House. The question here is whether the matter falls within this necessary sphere of matters without which the dignity and efficiency of the House cannot be upheld.

[43]           In Vaid, the Supreme Court of Canada recognized that the constitutional independence of the House of Commons includes the right to manage matters internal to the House without interference from the courts. However, it found that the term “internal affairs” was not an appropriate way to define the privilege asserted in that case, warning that defining a privilege too broadly may result in duplication of matters already recognized as an historical category of privilege (Vaid, above at paras 50-51).

[44]           In New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly), [1993] 1 SCR 319, the Supreme Court of Canada stated that “Canadian legislative bodies properly claim as inherent privileges those rights which are necessary to their capacity to function as legislative bodies” (at 381). The appropriate test for determining whether a claim of privilege is justified is necessity (New Brunswick Broadcasting, above at 381). The Supreme Court of Canada expanded on the test of necessity and stated that it is not a standard for judging the content of a claimed privilege, but it is used to determine the necessary sphere of exclusive or absolute “parliamentary” or “legislative” jurisdiction. If a matter falls within this necessary sphere of matters without which the dignity and efficiency of the House cannot be upheld, courts will not inquire into questions concerning such privilege.

[45]           The matters here do not concern the administration of allowances and benefits to the members of the legislature as they did in Villeneuve v Legislative Assembly et al, 2008 NWTSC 41 (QL) and Filion c Chagnon, 2016 QCCS 6146 (QL), but rather the alleged use of parliamentary resources and services for political purposes instead of parliamentary functions.

[46]           It is for the courts to determine whether necessity sufficient to support a privilege is made out and the onus lies on the party invoking the privilege. Yet the Respondents have cited no authority to support their position that the matters at issue are at the core of parliamentary functions and that without the claimed immunity, the House of Commons would be paralyzed and prevented from discharging its legislative functions. They provide very little in terms of legal arguments as to why the specific decisions of the Board on the use of resources and services by members of Parliament are necessary for upholding the dignity and efficiency of the House of Commons, and its capacity to function as a legislative body.

[47]           In Chaytor, the UK Supreme Court cited with approval a few excerpts of the Joint Committee on Parliamentary Privilege Report (HL paper 43-1, HC 214-1 (1998-99)):

247. The dividing line between privileged and non-privileged activities of each House is not easy to define. Perhaps the nearest approach to a definition is that the areas in which the courts ought not to intervene extend beyond proceedings in Parliament, but the privileged area must be so closely and directly connected with proceedings in Parliament that intervention by the courts would be inconsistent with Parliament’s sovereignty as a legislative and deliberative assembly […]

248. It follows that management functions relating to the provision of services in either House are only exceptionally subject to privilege. In particular, the activities of the House of Commons Commission, a statutory body appointed under the House of Commons (Administration) Act 1978, are not generally subject to privilege, nor are the management and administration of the House departments. The boundary is not tidy. Occasionally management in both Houses may deal with matters directly related with proceedings which come within the scope of article 9. For example, the members’ pension fund of the House of Commons is regulated partly by resolution of the House. So too are members’ salaries and the appointment of additional members of the House of Commons Commission under section 1(2)(d) of the House of Commons (Administration Act. These resolutions and orders are proceedings in Parliament, but their implementation is not.

[48]           Under the House of Commons (Administration) Act 1978 (UK), c 36, the Commission has similar composition and functions to the Board, and thus, the position taken by the UK Supreme Court in Chaytor, which is consistent with that of our Supreme Court in Vaid, applies equally to the decisions under review in the present file.

[49]           I agree with the Intervener that the Respondents’ reliance on the production order in Duffy is misplaced. There, the Ontario Court of Justice did not hold that all matters related to expenses were within the exclusive authority of the Senate, but it noted that the Internal Audit Report at issue in that production order was a report or document presented to a subcommittee of the Senate during in camera deliberations. As the Senate did not claim privilege in relation to expense claims, the Ontario Court of Justice was able to distinguish the circumstances in Duffy from the UK Supreme Court’s decision in Chaytor.

[50]           “If a sphere of the legislative body’s activity could be left to be dealt with under the ordinary law of the land without interfering with the assembly’s ability to fulfill its constitutional functions, then immunity would be unnecessary and the claimed privilege would not exist.” [Citations omitted.] (Vaid, above at para 29.5). The Respondents have not convinced me that the House of Commons’ activities were interfered with or that the House has been prevented from fulfilling its constitutional functions since the Applicants filed their present applications for judicial review.

V.                 Conclusion

[51]           For all of these reasons, I am of the view that the Board is a “federal board, commission or other tribunal” within the purview of section 2 of the Federal Courts Act so that this Court has jurisdiction over those decisions not covered by a recognized category of parliamentary privilege. I am also of the view that the Respondents have not met their onus of demonstrating that the four decisions under review are, in fact, covered by a known parliamentary privilege, nor by the necessary immunity that the law provides for members of Parliament in order for them to do their legislative work. The Respondents’ motion to strike will be dismissed and costs will be granted in favour of the Applicants.

ORDER in T-1526-14, T-304-15, T-1539-14 and T-1935-14

THIS COURT ORDERS that:

1.                  The Board of Internal Economy and the Speaker of the House of Commons’ motion to strike these applications for judicial review is dismissed;

2.                  Costs are granted in favour of the Applicants;

3.                  A copy of the present Order and Reasons be placed in each of the files numbered T-1526-14, T-304-15, T-1539-14 and T-1935-14;

4.                  For the purpose of this proceeding, the style of cause herein is amended to add Maurice Vellacott as Intervener.

"Jocelyne Gagné"

FEDERAL COURT

SOLICITORS OF RECORD

DOCKETS:	T-1526-14, T-304-15,T-1539-14, T-1935-14
STYLE OF CAUSE:	BOULERICE ET AL. v ATTORNEY GENERAL OF CANADA, BOARD OF INTERNAL ECONOMY, SPEAKER OF THE HOUSE OF COMMONS
PLACE OF HEARING:	Montréal, Quebec
DATE OF HEARING:	June 27, 2017, June 28, 2017
order and reasons:	GAGNÉ J.
DATED:	OCTOBER 24, 2017

APPEARANCES:

Julius H. Grey	For The Applicants
James R.K. Duggan Alexander Duggan	FOR THE APPLICANTS
Guy J. Pratte Nadia Effendi	For The Respondents BOARD OF INTERNAL ECONOMY AND SPEAKER OF THE HOUSE OF COMMONS
Nicholas McHaffie	FOR THE INTERVENER MAURICE VELLACOTT

SOLICITORS OF RECORD:

Grey Casgrain, S.E.N.C. Barristers and Solicitors Montréal, Quebec	For The Applicants
Duggan, Avocats – Lawyers Montréal, Quebec	FOR THE APPLICANTS
Alexander Pless Department of Justice Montréal, Quebec	For The Respondent ATTORNEY GENERAL OF CANADA
Borden Ladner Gervais Barristers and Solicitors Toronto, Ontario	FOR THE RESPONDENTS BOARD OF INTERNAL ECONOMY AND SPEAKER OF THE HOUSE OF COMMONS
Stikeman Elliott LLP Barristers and Solicitor Ottawa, Ontario	FOR THE INTERVENER MAURICE VELLACOTT