CANADA Trends and Developments Contributed by: Sujit Choudhry and Mani Kakkar, Circle Barristers
Canadian Front Line Nurses et al v AGC, 2024 FC 42 Another case likely headed to the Supreme Court is Canadian Front Line Nurses et al. This is a challenge to the legality and constitutionality of the public order emergency declared by the fed - eral Cabinet in February 2022 under the federal Emergencies Act, in response to disruptive but largely peaceful protests across Canada and at the US–Canada border about vaccine mandates and other public health policies in response to the COVID-19 pandemic. The case is a landmark decision on emergency powers. The Emergencies Act had never been invoked before. The Act is extraordinary. It empowers Cabinet to unilaterally proclaim a public order emergency. Once Cabinet has declared a public order emergency, the Act delegates to Cabinet vast legal authority, including the powers to cre - ate new criminal offences and police powers, and to seize private property. Cabinet may act without recourse to Parliament, without advance notice, and without public debate. Cabinet can exercise emergency powers in core areas of provincial jurisdiction. The Act temporarily con - centrates many of the powers of the provincial and territorial legislatures and executives, and of Parliament itself, in Cabinet. Cabinet invoked the Act and then enacted regu - lations that prohibited mere presence in a public assembly that might reasonably be expected to lead to a breach of the peace, even if they were not engaged in a breach of the peace. It also prohibited persons travelling to a breach of the peace, even if only to observe it. It also enacted regulations that required financial institutions to gather financial information about those partici - pating in the unlawful assemblies and to freeze their assets.
whole is internally split on this issue, and each decision relied on conflicting lines of authority. Some panels of the Federal Court of Appeal have held that privative clauses are unconstitu - tional, and even partial privative clauses are an affront to the rule of law, as they prevent courts from exercising their core function of ensuring the lawfulness of administrative action. Other panels have held legislative intent is paramount and that Parliament has the power to exclude judicial review. This question has significant economic rami - fications because the Court is Canada’s lead - ing court for the review of federal economic regulatory decisions in sectors such as tariffs, transportation, telecommunications and broad - casting, among others. Many statutes contain privative and partial privative provisions. Disa - greement on the scope and effect of privative clauses undermines legal certainty in these eco - nomically significant sectors. This has long been a contentious issue in Cana - dian administrative law. In Crevier v AG (Quebec) [1981] 2 SCR 220, the Supreme Court ruled that complete privative clauses were unconstitution - al. Vavilov raised the question of whether reason - ableness review is constitutionally entrenched, and, if so, whether partial privative clauses that purport to oust reasonableness review on ques - tions of law and fact are unconstitutional. The Court left it to the “Supreme Court itself” to resolve this issue – in effect, anticipating that the unsuccessful party would seek leave to appeal to the Court, and itself requesting the Court to grant leave. In another 2024 decision, Yatar v TD Insurance Meloche Monnex, 2024 SCC 8, the Supreme Court expressly left this issue open for a future case. That case may be here.
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