The Supreme Court of Canada has resolved one of the most consequential questions left open by Vavilov, and which has divided jurisprudence in lower courts since then—whether judicial review is constitutionally guaranteed or can be barred by privative clauses.1 In Democracy Watch v Canada (Attorney General), 2026 SCC 28, a unanimous Court held that privative clauses cannot constitutionally prevent judicial review for legality—on any ground, including questions of fact and law. The Constitution, the Court held, “guarantees the availability of legality review of all aspects of an administrative decision” (para 8). Legislative attempts to oust any component of that review are simply ultra vires.
The ruling will reverberate across every sector governed by administrative decision-making. But the Court was careful to answer only the question before it—and in doing so, it expressly left others for another day. Chief among them: what exactly does "legality review" mean? And is there a constitutionally mandated minimum standard of review?
Summary of the Decision
The case arose from the Conflict of Interest and Ethics Commissioner’s report concluding that then-Prime Minister Justin Trudeau had not contravened the Conflict of Interest Act, SC 2006, c 9, s 2 (COIA) when he participated in two WE Charity funding decisions. Democracy Watch sought judicial review, alleging errors of fact and law. The central question: does the partial privative clause in s 66 of the COIA—which prohibits review on questions of fact or law—validly bar that review, or is it inoperative to the extent it trenches on the constitutional minimum?
Chief Justice Wagner, writing for the unanimous Court, was emphatic: “the legality of every aspect of an administrative decision, and every exercise of public power, is subject to the supervision of the courts. Where a statutory provision, properly construed, purports to limit any aspect of the courts' constitutionally enshrined supervisory jurisdiction, that provision is ultra vires" (para 76). The Court grounded this principle in the judicature provisions of ss 96 to 101 of the Constitution Act, 1867.
Applying these principles, the Court reached three conclusions. First, s 66 of the COIA, properly interpreted, purports to bar judicial review on questions of fact and law; Parliament’s clear intent to exclude such review cannot be ignored (para 84). Second, the Federal Court of Appeal erred in finding an adequate alternative: political oversight of the Commissioner is not an adequate alternative to judicial review, and the COIA provides that the Commissioner’s conclusions “may not be altered by anyone," making them effectively unreviewable absent judicial review (paras 25-36). Third, to the extent s. 66 bars review on questions of fact and law, it is inconsistent with ss. 96 to 101 of the Constitution Act and is of no force and effect (para 85). The matter was remanded to proceed on the merits.
Impacts of the Decision
The implications extend far beyond the COIA. The Court's holding is framed in sweeping constitutional terms: legislation that purports to oust the courts' supervisory power "oversteps the limits of the legislatures' constitutional authority" (para 72). This applies equally to supervisory powers of the superior courts under s. 96 of the Constitution Act and the Federal Courts (paras 72–73). Partial privative clauses in other federal and provincial statutes are now presumptively vulnerable to constitutional challenge.
On this point, the Court was unequivocal about the breadth of the constitutional guarantee (para 71):
Legislative efforts to limit legality review are ultra vires not because reasonableness review, per se, is constitutionally entrenched, but because the Constitution guarantees the courts’ role in ensuring that all exercises of public power, as they manifest in all aspects of an administrative decision, are sourced in law. Where an administrative decision-maker acts in an official capacity and exercises a delegated power, it does not matter whether that exercise of power concerns questions of fact, of law, of fairness, or any other issue: see Blanchard, at p. 494, per Lamer J. As Chief Justice Khullar explained in her dissenting judgment in Northback Holdings Corporation v. Alberta Energy Regulator, 2025 ABCA 186, 510 D.L.R. (4th) 488, the notion advanced by some academic commentators that judicial review is guaranteed only on questions of law has no sound historical or jurisprudential basis: at paras. 210-22. What matters, for constitutional purposes, is that the courts are constitutionally empowered to supervise the exercise of delegated power to ensure it respects the boundaries of its inherent limits.
Chief Justice Khullar’s carefully reasoned dissent—which surveyed the arc of the Supreme Court’s jurisprudence from Crevier through Vavilov and concluded that the constitutional minimum must include review on questions of fact and mixed fact and law—has now been vindicated by the very court whose precedents she so meticulously traced.
But the Court was deliberate about what it did not decide. It expressly declined to hold that Vavilov-style reasonableness review is the constitutional minimum: “[a]s products of our Court’s jurisprudence, the common law standards of review can be and have been modified over time” (para 67). What is constitutionally guaranteed is “legality review”—“review to ensure that an exercise of public power has not exceeded the boundaries of an administrative decision-maker’s delegated authority” (para 67). The Court observed that “rationality review has a constitutional aspect” and that “[r]ationality is a boundary of legality" (para 69), but the precise contours of this standard, and whether it differs in practice from Vavilov reasonableness, remain undefined.
In other words, the Court left “to another day” the question of “what minimum standard of review is constitutionally guaranteed” (para 70), while acknowledging that “legislatures are competent to prescribe procedures for judicial review, provided that the supervisory role of the courts is not ousted" (para 75). That leaves a gap—somewhere between a full ouster that is clearly impermissible and Vavilov reasonableness that is not constitutionally required—that lower courts will need to map. The boundary between valid procedural constraints and impermissible substantive limits on legality review will be drawn case by case.
The practical impact will be felt most immediately in sectors operating under privative clauses—energy regulation, immigration, environmental assessment, professional discipline, securities regulation and federal labour relations.
1 See e.g., Canada (Attorney General) v Best Buy Canada Ltd, 2021 FCA 161 at paras 46, 59; Brar v British Columbia (Securities Commission), 2023 BCCA 432 at paras 41-44; Stoney Nakoda Nations v His Majesty the King In Right of Alberta As Represented by the Minister of Aboriginal Relations (Aboriginal Consultation Office), 2023 ABKB 700 at paras 22-30; Northback Holdings Corporation v Alberta Energy Regulator, 2025 ABCA 186 at paras 130-133; Altus Group Limited v Saskatchewan Assessment Management Agency, 2025 SKCA 7 at para 35
