CANADA Law and Practice Contributed by: Sujit Choudhry and Mani Kakkar, Circle Barristers
review). This legal theory has been applied in proceedings brought against political parties, where courts have treated party constitutions as contract terms. 5. Ouster 5.1 Legislative or Contractual Limits on Judicial Review The jurisdiction of the provincial superior courts cannot be completely ousted by legislation, because the existence of those courts is con - stitutionally guaranteed. However, the ques - tion of the constitutionality of partial privative clauses remains unresolved by the Supreme Court. Moreover, the applicability of constitu - tional limits on privative clauses of any kind to the Federal Court – a statutory court, unlike the provincial superior courts – is a significant and unsettled issue in Canadian administrative law. Federal broadcasting, tariff telecommunications and transportation statutes contain complete or partial privative clauses. These issues are likely to come before the Supreme Court soon. 6. Standing 6.1 Requirements for Administrative Law Challenges Claimants have private standing to bring admin - istrative law challenges if they have been directly affected or aggrieved by the decision, that is, if it affects their legal interests or rights, or causes them prejudicial effects. Claimants can be both
were not directly affected by the decision. The courts’ power to confer public interest stand - ing is discretionary, and is based on a three-part test. • Is the matter serious and justiciable? • Is the party seeking standing genuinely inter - ested in the matter? • Is there any reasonable and effective way for the matter to be adjudicated? The overarching goals of this test are to ensure access to justice and legality, while at the same time preventing the crowding out of private liti - gants and preventing vexatious litigants from bringing unmeritorious lawsuits. Third parties may seek leave of the court to inter - vene as amicus curiae. The decision of the court is discretionary. The Supreme Court of Canada considers if the proposed third party: (i) has an interest in the proceeding; and (ii) will make sub - missions that are both useful and different from the parties’ submissions. These criteria favour expertise and experience. 7.2 Roles of Additional Parties Interveners may not introduce new issues which the parties have not raised, may not add to the factual record, or take a position on the merits of the appeal. In addition, interveners cannot merely duplicate the arguments of the parties. The courts have taken an increasingly strict approach to enforcing these criteria. It is often advisable to join with other proposed interven - ers in coalition to avoid any concerns. The most helpful interventions provide a different legal perspective on the issues raised by the parties. 7. Other Parties 7.1 Joinder
individuals and corporations. 6.2 Charities and NGOs
Under the law of public interest standing, a third party such as an NGO or a corporation can bring challenges to government decisions even if they
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