Judicial review of commissioner evades privacy protections
The Divisional Court has dismissed Democracy Watch’s nine applications for judicial review against the Ontario Integrity Commissioner for allegedly failing to effectively penalize lobbyists who violated the provincial lobbying laws. The court found Democracy Watch did not raise serious legal issues for public interest standing and the applications conflict with the privacy of the lobbyists who were under investigation.
The applications for judicial review challenged the general way the commissioner exercises his investigative powers under the Lobbyists Registration Act [LRA] but did not raise substantial constitutional issues or implications about the proper interpretation of provisions of the LRA, said Justice Lise Favreau, in her decision.
“As far as the lobbyists are concerned, these matters are now at an end. Allowing the applicant, a stranger to the dispute, to reopen these matters and quash the commissioner’s decisions creates a conflict between the lobbyists’ private interests and the public interest advocated by the applicant.”
Judicial review should not be allowed to transform an investigation into the conduct of specific individuals, whose rights to privacy and finality are protected under the LRA, into a public inquiry into how the commissioner exercises his discretion, said Justice Favreau.
Justin Safayeni, the lawyer for the integrity commissioner, says the court’s decision reflects settled principles on public interest standing but is a useful reminder that there are principled limits on public interest standing.
“It is Democracy Watch thinking that these nine people should have been penalized more harshly and they can hold that view, but public interest standing is supposed to be reserved for cases that raise serious issues that affect society very broadly,” but that is not what the court found, Safayeni says.
Democracy Watch founder Duff Conacher says the judge’s decision to strike all nine applications was “madness.”
“None of them challenged the rulings because even though they were found guilty, they were not penalized. They weren’t even named and as a result, their identities are secret,” he says. “To challenge the ruling, they’d be saying, commissioner, you should have found me guilty instead of letting me off the hook.”
Conacher says Justice Favreau did not cite past rulings to back up her conclusion, and at the federal level, Democracy Watch has been granted public interest standing several times to challenge the Federal commissioner’s rulings enforcing the federal lobbying law.
“The justice ignored the public interest standing test that’s supposed to be applied flexibly and generously and instead in a very strict, narrow, closed minded and subjective way decided the issues while ignoring all legal precedents set by the Supreme Court of Canada and the federal courts.”
Democracy Watch lawyer Nick Papageorge says the advocacy group has filed an appeal before a full panel of the Divisional Court to set aside Justice Favreau’s order dismissing the judicial review applications. “The hearing won’t take place before March 21, 2022, although the hearing date will be set soon.”
Ontario’s integrity commissioner brought a motion to quash Democracy Watch’s nine applications that challenged his decision under the LRA following his investigations into the wrongdoing of lobbyists. Democracy Watch brought an action for the commissioner’s record of proceedings, disputing that his judgments were unreasonable, not made transparently, and raised a reasonable apprehension of bias.
The issues before Justice Favreau were whether Democracy Watch had personal standing in the judicial review applications, whether the review conflicted with the privacy rights of the lobbyists involved and whether the case raised serious issues with a broad societal impact.
The commissioner argued there was undue delay in bringing the applications for judicial review, the issues raised were not justiciable, and that Democracy Watch does not have the standing to bring the applications for judicial review.
Democracy Watch’s first three applications argue that the commissioner failed to enforce s3.4 of the LRA by letting people lobby Ontario premier Doug Ford and his cabinet ministers after they previously campaigned, fundraised or worked for Ontario’s Progressive Conservative party in 2018 or worked for Ford or his ministers since the election.
Section 3.4 prohibits lobbying any politician or other public office holder if it will create a real or potential conflict of interest or make it improper to further the interests of the lobbyist or their clients. The other six lawsuits argue that the commissioner failed to penalize six lobbyists who violated the lobbying law by failing to register and disclose their lobbying for a year or more.
The court rejected Democracy Watch’s argument that the commissioner was unreasonable in enforcing the lobbying law, thereby violating s3.4 of the LRA and wrote the issue was whether the conflict of interest was sufficiently serious to warrant more action on the commissioner’s part.
For a party to establish public standing interest, the party must show that the application raises a serious justiciable issue, have a serious interest in the matter and legal proceedings are a reasonable and effective way to address the issue. The court granted the commissioner’s motion to quash the applications and wrote that granting public interest conflicts with the lobbyists under investigation because the conduct was investigated and concluded.
“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,” the court wrote. “These applications have the air of a fishing expedition designed to circumvent the privacy protections in the legislation.”
The LRA states that lobbyists under investigation must remain unidentified unless the commissioner finds misconduct warranting public identification. The proposed applications for judicial review were neither an effective nor reasonable way to bring the issues before the court, wrote the court.
“While the applicant argues that the lobbyists do not need to be publicly identified, it nevertheless seeks the full records upon which the Commissioner based his decisions. These records contain the lobbyists’ identity and details of the complaint and investigation, which, again, is not information that is to be made available to the public.”
The court also wrote that section 17.8 of the LRA suggests only lobbyists have the standing to challenge the commissioner’s decision. “Allowing these applications for judicial review would inevitably conflict with this protection in the LRA.”