(Democracy) Watch Out: The Supreme Court Ushers In A New Era Of Judicial Review In 2026 SCC 28

On July 30, 2026, the Supreme Court released its most anticipated administrative law decision of the year: Democracy Watch v. Canada (Attorney General), 2026 SCC 28 [Democracy Watch]. This decision confirms that the Constitution guarantees that every aspect of an administrative decision (both facts and law) is subject to the courts’ supervisory jurisdiction to ensure that it does not exceed its legal limits. 

The privative clause in dispute

In Democracy Watch, Democracy Watch brought an application for judicial review of a report by the Conflict of Interest Ethics Commissioner (the “Commissioner”) on the grounds that the Commissioner made two errors of law and one error of fact. Section 66 of the Conflict of Interests Act(“COIA”)purported to prevent judicial review of most factual and legal errors. 

The Attorney General brought a motion to strike the application for judicial review on the grounds that it was barred by the privative clause in s. 66 of the COIA. Section 66 of the Conflict of Interest Act purports to bar judicial review of the Commissioner’s decisions except on the following grounds:

• The Commissioner acted without jurisdiction, acted beyond its jurisdiction, or refused to exercise its jurisdiction;
• The Commissioner failed to observe a principle of natural justice, procedural fairness, or other procedure that it was required by law to observe; or
• The Commissioner acted, or failed to act, by reason of fraud or perjured evidence.

The Federal Court of Appeal granted the motion to strike, holding that the rule of law only requires administrative decisions be subject to judicial review on the grounds of jurisdiction and that “Parliament’s intention to restrain judicial review and create alternative parliamentary accountability mechanisms should be respected.”¹

The Supreme Court allowed the appeal, remanding the matter back to the court below. The Supreme Court held that the political oversight of the Commissioner was not an adequate alternative remedy to judicial review. Where it is alleged that the Commissioner has exercised his statutory powers in a manner that exceeds their limits, the rule of law requires that the courts be able to exercise their supervisory jurisdiction to remedy any unlawful exercise of legal authority.

Building on Crevier v. Attorney General of Quebec, 1981 CanLII 30 (SCC), the Supreme Court held that sections 96 to 101 of the Constitution Act, 1867, not only constitutionally guarantee judicial review of jurisdictional errors in administrative decisions but all factual and legal errors. The Constitution and the rule of law require that every exercise of public authority be subject to the courts’ supervisory jurisdiction to ensure that it does not exceed its legal limits.²

Section 66 of the COIA unconstitutionally prohibits review of question of fact and law, and therefore, to that extent it is of no force or effect.³

Key administrative law takeaways from Democracy Watch

1. Judicial review remains a last resort: Judicial review is not appropriate if there is an alternative forum to review the legality of an impugned administrative decision (e.g., a statutory right of appeal or an internal review by a board or tribunal).⁴ Applicants have a constitutional right to apply for judicial review, but the supervising court will usually decline to provide relief if the applicant has not exhausted their adequate alternative remedies to judicial review.⁶
2. Context determines the adequacy of alternative remedies: For an alternative remedy to be adequate, it need not be identical, but it must be adequate in all the circumstances to address the applicant’s concern.⁷ “All of the circumstances” includes relative advantages of each forum, their accessibility to the applicant, and the remedies available.⁸ The Supreme Court suggests that “political remedies” will rarely be adequate alternatives to judicial review.⁹
3. Judicial review is entrenched in the constitution: Legislation that purports to oust the constitutional power of the courts to supervise the exercise of delegated power to ensure it respects the boundaries of its inherent limits oversteps the limits of the legislatures’ constitutional authority.¹⁰ Legislation is unconstitutional if it has the effect of ousting judicial review for the legality of any aspect of an administrative decision.¹¹
4. Reasonableness remains the presumptive standard of review: In applications for judicial review, the default is that administrative decisions are reviewed under the reasonableness standard as set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.¹² The less deferential correctness standard of review applies to constitutional questions, general questions of law of central importance to the legal system, questions related to the jurisdictional boundaries between two or more administrative bodies and where else the rule of law requires it.¹³
5. Legislatures may be able to prescribe the standard of review: The reasonableness standard is not constitutionally entrenched.¹⁴ The Supreme Court left open the possibility that legislatures could legislate the standard of review for applications for judicial review. Legislatures may still be able to enact a quasi-privative clause by legislating a highly deferential standard of review akin to the pre-Dunsmuir patent unreasonableness standard.¹⁵
6. Legislatures can prescribe procedures for judicial review: Legislatures can legislate the procedure of judicial review provided they do not oust the supervisory role of the courts (e.g., set timelines to file applications for judicial review).¹⁶
7. There is no such thing as unfettered discretion: The rule of law requires that all legal powers have limits.¹⁷ “An unlimited power is, definitionally, not a legal power.”¹⁸ If the legislature could create an administrative body whose decisions were unreviewable, it could effectively delegate unfettered discretion.

Read the original article on GowlingWLG.com

Footnotes

1. Democracy Watch v. Canada (Attorney General), 2024 FCA 158 at paras 75 and 78.

2. Democracy Watch v. Canada (Attorney General), 2026 SCC 28 at para 8.

3. Democracy Watch v. Canada (Attorney General), 2026 SCC 28 at para 8.

4. Democracy Watch v. Canada (Attorney General), 2026 SCC 28 at para 18.

5. Democracy Watch v. Canada (Attorney General), 2026 SCC 28 at paras 17-18.

6. Democracy Watch v. Canada (Attorney General), 2026 SCC 28 at para 19.

7. Democracy Watch v. Canada (Attorney General), 2026 SCC 28 at para 19.

8. Democracy Watch v. Canada (Attorney General), 2026 SCC 28 at paras 33-36.

9. Democracy Watch v. Canada (Attorney General), 2026 SCC 28 at para 72.

10. Democracy Watch v. Canada (Attorney General), 2026 SCC 28 at para 74.

11. Democracy Watch v. Canada (Attorney General), 2026 SCC 28 at para 62.

12. Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para 17.

13. Democracy Watch v. Canada (Attorney General), 2026 SCC 28 at para 67.

14. The majority of the Supreme Court of Canada merged the common law standards of patent unreasonableness and reasonableness simplicitir into a single reasonableness standard in Dunsmuir v. New Brunswick, 2008 SCC 9. It is possible for legislatures to prescribe patent unreasonableness as the standard of review for statutory appeals: West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22.

15. Democracy Watch v. Canada (Attorney General), 2026 SCC 28 at para 75.

16. Democracy Watch v. Canada (Attorney General), 2026 SCC 28 at para 1.

17. Democracy Watch v. Canada (Attorney General), 2026 SCC 28 at para 1.