2019 FCA 33, 2019 FCA 33

A-332-17 2019 FCA 33 Board of Internal Economy and Speaker of the House of Commons ( Appellants ) v . Boulerice et al. and Attorney General of Canada ( Respondents ) and Maurice Vellacott and The Senate of Canada ( Interveners ) Indexed as: Canada (Board of Internal Economy) v. Boulerice Federal Court of Appeal, Noël C.J., Stratas and Laskin JJ.A.—Ottawa, November 14, 2018 and February 20, 2019.

Constitutional Law — Fundamental Principles — Parliamentary privilege — Appeal from Federal Court decision dismissing appellants’ motions to strike four judicial review applications respondents bringing — Motions to strike based on contention that decisions being challenged covered by parliamentary privilege; as such, decisions immunized from judicial review; that House of Commons Board of Internal Economy not “federal board, commission or other tribunal” under Federal Courts Act — Respondents sitting New Democratic Party (NDP) Members of Parliament when launching judicial review applications; contending that four decisions made by Board arbitrary, contrary to parliamentary rules, politically motivated, made in bad faith — In dismissing appellants’ motions to strike, Federal Court Judge finding both that Federal Court having jurisdiction to review decisions made by Board, that decisions in issue not covered by parliamentary privilege — First two decisions at issue dealing with inappropriate mailings; third decision determining that NDP members inappropriately used parliamentary funds for expenses related to employment, telecommunications, travel; fourth decision requiring repayment of some $2.7 million by Members whose budgets misused — Respondents maintaining that Board’s decisions unreasonable, incorrect, contrary to principles of natural justice, contrary to rule of law — Judge concluding that Board not excluded from Federal Courts’ jurisdiction under Federal Courts Act , s. 2(2) — Judge finding that Board’s powers set out in Parliament of Canada Act (PCA) derived from Act of Parliament, not from Constitution Act, 1867, s. 18 — Also holding that Board’s decisions made under power conferred by Act of Parliament; therefore, decisions fell within Federal Court’s jurisdiction under Federal Courts Act , ss. 18 , 18.1 — As to issue of parliamentary privilege, Judge concluding that appellants failing to demonstrate that immunizing Board’s decisions from judicial review was necessary to protect dignity, efficiency of House of Commons — Whether Federal Court erred in drawing conclusions both that the Federal Court had jurisdiction to review decisions made by Board like those of any other “federal board” acting pursuant to Act of Parliament; that decisions in issue not covered by parliamentary privilege — Had Federal Court Judge followed principled approach set out by Supreme Court of Canada in Canada (House of Commons) v.

Vaid, which precludes courts from inquiring into necessity of legislated privilege when it is shown to come within established category, Judge would have had to conclude that decisions in issue covered by parliamentary privilege; therefore, decisions could not be judicially reviewed — Functions performed by Board same as those performed by Senate Committee on Internal Economy: both based on parliamentary privileges legislated in accordance with Constitution Act, 1867, s. 18 ; both constitutional in nature because they are essential aspect of these legislative bodies’ autonomous functions — Parliamentary privilege claimed by appellants that House of Commons having exclusive right to oversee, decide matters pursuant to internal rules governing use made of funds, resources provided to Members of House for purpose of allowing them to perform their parliamentary functions accepted — Privilege claimed in this case coming within established categories of proceedings in Parliament, internal affairs, discipline — Because claimed privilege could be shown to come within one or more established categories, not open to Judge to inquire into its necessity — Concerning necessity, allowing courts to oversee decisions regarding allocation, use made of parliamentary resources in context of judicial reviews would seriously challenge dignity, efficiency of House — As to whether Parliament waived or abrogated House’s exclusive right to control its internal financial affairs, House’s exclusive right to regulate, oversee, decide issues regarding use made of parliamentary funds by Parliamentarians not waived or abrogated by creation of Board, enactment of PCA in 1985, or by any other enactment since then — Appeal allowed.

Federal Court Jurisdiction — Federal Court dismissing appellants’ motions to strike four judicial review applications respondents bringing — Motions to strike based on contention that decisions being challenged covered by parliamentary privilege; as such, decisions immunized from judicial review; that House of Commons Board of Internal Economy not “federal board, commission or other tribunal” under Federal Courts Act — Federal Court Judge finding both that Federal Court having jurisdiction to review decisions made by Board, that decisions in issue not covered by parliamentary privilege — Judge concluding that Board not excluded from Federal Courts’ jurisdiction under Federal Courts Act , s. 2(2) — Judge finding that Board’s powers set out in Parliament of Canada Act derived from Act of Parliament, not from Constitution Act, 1867, s. 18 — Also holding that Board’s decisions made under power conferred by Act of Parliament; therefore, decisions fell within Federal Court’s jurisdiction under Federal Courts Act , ss. 18 , 18.1 — Whether Federal Court erred in concluding it had jurisdiction to review decisions made by Board like those of any other “federal board” acting pursuant to Act of Parliament — Appeal allowed — Had Judge followed analytical approach set out by Supreme Court of Canada in Canada (House of Commons) v.

Vaid, she would have been bound to hold that Court was without jurisdiction to hear underlying judicial review applications because privilege claimed was authoritatively established. This was an appeal from a Federal Court decision dismissing the appellants’ motions to strike four judicial review applications brought by the respondents.

The motions to strike were based on the contention that the decisions being challenged by the applications are covered by parliamentary privilege, and, as such, are immunized from judicial review and that the Board of Internal Economy of the House of Commons (the Board) is not a “federal board, commission or other tribunal” under the Federal Courts Act . The respondents were sitting New Democratic Party (NDP) Members of Parliament when their judicial review applications were launched.

They contended that four decisions made by the Board of Internal Economy, holding that they misused parliamentary funds and requiring them to repay the amounts improperly used, were arbitrary, contrary to parliamentary rules, politically motivated and made in bad faith. In dismissing the appellants’ motions to strike, the Federal Court Judge found both that the Federal Court had jurisdiction to review decisions made by the Board and that the decisions in issue were not covered by parliamentary privilege.

The Board of Internal Economy, like the Senate Committee on Internal Economy, draws its powers from the Parliament of Canada Act (PCA or Act). The Board was created in 1985. It sets out its rules on various matters including the use of parliamentary funds by way of by-laws ( subsection 52.5(1) of the PCA) and has exclusive authority to decide whether a member’s use of parliamentary funds was proper ( subsection 52.6(2) of the PCA). With respect to the contested decisions, the first held that certain mailings contravened the Members By-Law because they were made for political purposes.

The second required that the related expenses be reimbursed by the Members who failed to adhere by this limitation. In the third decision, the Board determined that some NDP members inappropriately used parliamentary funds for expenses related to employment, telecommunications and travel. The Board’s fourth decision required the repayment of some $2.7 million by the Members whose budgets were misused.

In the applications for judicial review relating to the mailings, while the respondents acknowledged that the decisions were rendered on the basis that the mailings were in contravention of the Board’s By-Laws because they were performed for the benefit of a political party, they maintained that the Board’s decisions were unreasonable and incorrect, contrary to the principles of natural justice, and contrary to the rule of law.

In dismissing the appellants’ motion to strike, the Federal Court Judge addressed two issues: whether decisions of the Board are subject to judicial review under the Federal Courts Act and whether decisions of the Board relating to the use of resources by members are immunized from review by parliamentary privilege. Regarding the first issue, the Judge concluded that the Board was not excluded from the Federal Courts’ jurisdiction under subsection 2(2) of the Federal Courts Act . The Judge found that the Board’s powers set out in the PCA are derived from

an Act of Parliament, not from

section 18 of the Constitution Act, 1867 . Identifying

section 52.3 of the PCA as the source of the powers exercised by the Board in this instance, she held that the Board’s decisions were made under a power conferred by

an Act of Parliament. Therefore, they fell within the Federal Court’s jurisdiction under sections 18 and 18.1 of the Federal Courts Act . In disposing of the second issue—parliamentary privilege—the Judge concluded that the appellants failed to demonstrate that immunizing the Board’s decisions from judicial review was necessary in order to protect the dignity and efficiency of the House of Commons.

The appellants argued that the parliamentary privileges held by the Board and the Senate Committee on Internal Economy are defined by the PCA but that their source is the Constitution of Canada; that the Judge mischaracterized the role of the Board within the House; that the parliamentary privilege being claimed was traceable to two established categories; and that the Judge committed a series of legal errors in failing to recognize this. A third category—discipline—was argued during the course of the hearing.

The issue was whether the Federal Court erred in drawing the conclusions both that the Federal Court had jurisdiction to review decisions made by the Board like those of any other “federal board” acting pursuant to

an Act of Parliament and that the decisions in issue were not covered by parliamentary privilege. Held , the appeal should be allowed. Had the Federal Court Judge followed the principled approach set out by the Supreme Court of Canada in Canada (House of Commons) v. Vaid , which precludes the courts from inquiring into the necessity of a legislated privilege when it is shown to come within an established category, she would have had to conclude that the decisions in issue were covered by parliamentary privilege and, therefore, could not be judicially reviewed.

The Judge offered three reasons for holding that the Board’s decisions are not protected by parliamentary privilege: in contrast to the Senate Committee of Internal Economy, the Board draws its powers from

an Act of Parliament rather than the Constitution; according to the decision in R. v. Chaytor and others , dealings with expense claims do not qualify as proceedings in Parliament; and immunizing from judicial review decisions made by the Board concerning the management of Parliament’s internal affairs has not been shown to be necessary to preserve the dignity and efficiency of the House of Commons. All of these conclusions were in error. Concerning the first reason offered by the Judge, the functions performed by the Board are exactly the same as those performed by the Senate Committee on Internal Economy. Both are based on parliamentary privileges legislated in accordance with

section 18 of the Constitution Act, 1867 , and are constitutional in nature because they are an essential aspect of these legislative bodies’ autonomous functions. The rejection of the claimed privilege relying on the decision of the Supreme Court of the United Kingdom in R. v. Chaytor and others was also in error since that case dealt with a different issue involving claimed expenses.

Finally, the Judge’s conclusion that immunizing decisions relating to internal affairs from review by the courts had not been shown to be necessary in order to preserve the dignity and efficiency of the House of Commons disregarded a fundamental aspect of Vaid . The parliamentary privilege claimed by the appellants was the exclusive right of the House to oversee and decide matters pursuant to internal rules governing the use made of funds and resources provided to Members of the House for the purpose of allowing them to perform their parliamentary functions.

The appellants submitted that the privilege claimed in this case came within two established categories, proceedings in Parliament and internal affairs. A third category, the exclusive right of the House to impose discipline in order to maintain the integrity of its internal processes, was added. The claimed privilege fit within the scope of the three established categories asserted by the appellants. The privilege as claimed by the appellants here came within the established category relating to internal affairs.

As to the established category described as discipline, the regulated activities in issue here concerned the use of public funds provided to Members so that they can perform their parliamentary functions. Decisions by Members of the House about the resources to be made available to them to perform their parliamentary functions and issues related to the conduct of Members in the use that they make of these resources are integral to the House’s independence and ability to control its internal affairs.

The decisions made by the Board in this case came within the House’s exclusive right to regulate its own affairs and ensure the integrity of its own processes. The privilege claimed here could also come within the category of parliamentary privilege of discipline as established in case law ( Harvey v. New Brunswick (Attorney General) ).

With respect to the category of proceedings in Parliament, while none of the expenses at issue in this case were provided for under the Act respecting the internal Economy of the House of Commons, and for other purposes (1868 Act) except perhaps those relating to travel, they all came within the class of expenses provided for under the 1868 Act—i.e., expenses which in their day are necessary in order to allow Parliamentarians to discharge their parliamentary functions.

The argument that subsection 52.2(2) of the Act makes it clear that the decisions in issue came within the established category described as proceedings in Parliament was accepted. Even though

subsection 52.2(2) of the Act cannot apply to everything the Board might do, it is difficult to see why this provision would not be givenits full force and effect when dealing with matters wholly internal to the House involving the use of money paid to its Members to allowthem to perform their parliamentary functions. When regard is had to the wording of subsection 52.2(2) of the Act, it reflectsParliament’s intent that, within their proper scope, proceedings before the Board be treated as proceedings in Parliament.

It followed thatproceedings in Parliament was yet another established category within which the claimed parliamentary privilege could be shown to fit.Finally, the House of Commons’ exclusive right to regulate and oversee the use of parliamentary funds by Parliamentarians brings with itthe exclusive right to decide how these rules are to be applied. Therefore, because the claimed privilege could be shown to come withinone or more established categories, it was not open to the Judge to inquire into its necessity.

Concerning necessity, allowing courts to oversee decisions regarding the allocation and use made of parliamentary resources in thecontext of judicial reviews would seriously challenge the dignity and efficiency of the House. Allowing courts to have the last word overthe handling of these affairs would in particular intrude on the autonomy of the House and demean its constitutional role. It would alsoseverely undermine the effectiveness of the internal processes put in place by the House in order to deal with such matters.

As to whether Parliament waived or abrogated the House’s exclusive right to control its internal financial affairs, the House’s exclusiveright to regulate, oversee and decide issues regarding the use made of parliamentary funds by Parliamentarians was not waived orabrogated by the creation of the Board, the enactment of the PCA in 1985, or by any other enactment since then. STATUTES AND REGULATIONS CITED Act respecting the internal Economy of the House of Commons, and for other purposes, S.C. 1868, c. 27, ss. 1, 2, 3, 4.

An Act declaring the Rights and Liberties of the Subject, and setting the Succession of the Crown, 1689, 1 Will. & Mary, Sess. 2, c. 2(U.K.), Art. 9.

An Act relating to the Indemnity to Members and the Salaries of the Speakers, of both Houses of Parliament, S.C. 1867, c. 3.

An Act respecting the National Assembly, C.Q.L.R., c. A-23.1, ss. 9, 42, 85.4.

An Act to define the privileges, immunities and powers of the Senate and House of Commons, and to give

summary protection to personsemployed in the publication of Parliamentary Papers, S.C. 1868, c. 23, s. 1. Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 4. Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.),

Schedule to the Constitution Act,1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], ss. 18, 49. Elections Act, R.S.N.B. 1973, c. E-3. Federal Courts Act, R.S.C., 1985, c. F-7, s. 2 “federal board, commission or other tribunal”, 18, 18.1. House of Commons. Board of Internal Economy. Governance and Administration By-Law, ss. 2, 6, 7. House of Commons. Board of Internal Economy. Members By-Law, ss. 4(3), 19, 24, 29(1)(e), 30, 56, 67, 70. House of Commons. Board of Internal Economy. Rules of Practice and Procedure of the Board of Internal Economy, s. 10. House of Commons. Board of Internal Economy.

Standing Orders of the House of Commons, ss. 37(2),(3), 148. Legislative Assembly and Executive Council Act, S.N.W.T. 1999, c. 22. Parliament of Canada Act, R.S.C., 1985, c. P-1, ss. 4, 5, 19.1, 19.2, 19.3, 19.4, 19.5(1),(2), 19.6, 19.8, 19.9, 50, 52.2 52.3, 52.4(1),52.5(1),(2), 52.6, 52.8, 52.9, 53. Senate. Rules of the Senate of Canada, r. 12-22(2). CASES CITED FOLLOWED: Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667. APPLIED: Villeneuve v. Legislative Assembly et al, 2008 NWTSC 41, [2008] 10 W.W.R 704; Filion c. Chagnon, 2016 QCCS 6146; Harvey v.

NewBrunswick (Attorney General), (SCC), [1996] 2 S.C.R. 876, (1996), 137 D.L.R. (4th) 142. CONSIDERED: R. v. Chaytor and others, [2010] UKSC 52, [2011] A.C. 684; Chagnon v. Syndicat de la fonction publique et parapublique du Québec,2018 SCC 39, [2018] 2 S.C.R. 687; Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R.765, 426 D.L.R. (4th) 647; Filion c. Chagnon, 2013 QCCS 446; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the Houseof Assembly), (SCC), [1993] 1 S.C.R. 319, (1998), 100 D.L.R. (4th) 212; Southam Inc. v.

Canada (Attorney General), (FCA), [1990] 3 F.C. 465, (1990), 73 D.L.R. (4th) 289 (C.A.), revg (FC), [1989] 3 F.C. 147,(1989), 27 F.T.R. 139 (T.D.); Stockdale v. Hansard (1839), 9 Ad. & E. 1, 112 E.R. 1112 (Q.B.); Duffy v. Senate of Canada, 2018 ONSC

7523 ; Tafler v. British Columbia (Commissioner of Conflict of Interest) (1998), (BC CA), 161 D.L.R. (4th)511, 49 B.C.L.R. (3d) 328, sub nom. Tafler v. Hughes, (B.C.C.A.). REFERRED TO: R. v. Parliamentary Commissioner for Standards ex parte Mohamed Al Fayed, [1997] EWCA Civ. 2488 (BAILII), [1998] 1 W.L.R. 669;Re McGuinness’s Application, [1997] NIQB 2 (BAILII), [1997] NI 359; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235;Morin v. Crawford (1999), (NWT SC), 14 Admin. L.R. (3d) 287, 1999 N.W.T.J. No. 5 (QL) (N.W.T. S.C.); McIver v.Alberta (Ethics Commissioner), 2018 ABQB 240 , 423 D.L.R. (4th) 551.

AUTHORS CITED Bourinot, John George. Parliamentary Procedure and Practice in the Dominion of Canada, 4th ed. Toronto: Canada Law BookCompany, 1916. Canada. Parliament. House of Commons. Special Committee on the Review of the Parliament of Canada Act, Minutes of Proceedingsand Evidence, 34th Parl., 2nd Sess., 1990. Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 19th ed. by David Lidderdale, ed. London:Butterworths, 1976. Report of the Special Committee on Reform of the House of Commons, Ottawa: The Comity, 1985. United Kingdom.

Joint Committee on Parliamentary Privilege, Vol. 1, Report and Proceedings of the Committee (1999). APPEAL from a Federal Court decision (2017 FC 942) dismissing the appellants motions to strike four judicial review applications,which motions were based, in particular, on the contention that the decisions being judicially challenged were covered by parliamentaryprivilege, and, as such, were immunized from judicial review. Appeal allowed. APPEARANCES Guy J. Pratte and Nadia Effendi for appellants. James R.K. Duggan, Ad. E., Julius H. Grey, Ad. E., Alexander Herrick Duggan and Geneviève Grey for respondents.

Nicholas McHaffie and Jessica Rutledge for intervener Maurice Vellacott. Guy Regimbald and John J. Wilson for intervener The Senate of Canada. SOLICITORS OF RECORD Borden Ladner Gervais LLP, Toronto, for appellants. Duggan, avocats-lawyers and Grey Casgrain, s.e.n.c., Montréal, for respondents. Stikeman Elliott LLP, Ottawa, for intervener Maurice Vellacott.

Gowling WLG (Canada) LLP, Ottawa, for intervener The Senate of Canada The following are the reasons for judgment rendered in English [1] Noël C.J.: This is an appeal brought by the House of Commons management body, the Board of Internal Economy (also referredto as the Board), and the Speaker of the House of Commons (together, the appellants) from a decision of the Federal Court (2017 FC 942[reasons]) per Gagné J. as she then was (the judge) dismissing their motions to strike four judicial review applications brought byAlexandre Boulerice and others (the respondents).

The motions to strike were based on the contention that the decisions beingchallenged by the applications are covered by parliamentary privilege, and, as such, are immunized from judicial review and that theBoard is not a “federal board, commission or other tribunal” [section 2] under the Federal Courts Act, R.S.C., 1985, c. F-7(FederalCourts Act). [2] The respondents—66 in T-304-15; 55 in T-1935-14 and 23 in T-1539-14 and T-1526-14—were sitting New Democratic Party(NDP) Members of Parliament when their judicial review applications were launched in July and September 2014.

They contend thatfour decisions made by the Board of Internal Economy, holding that they misused parliamentary funds and requiring them to repay theamounts improperly used, were arbitrary, contrary to parliamentary rules, politically motivated and made in bad faith. [3] The intervener, Maurice Vellacott (Mr. Vellacott), is a former Conservative Party Member of Parliament. He was grantedintervener status to provide context concerning his own judicial review application (presently in abeyance) challenging a decision of theBoard.

In his case, the Board held that he claimed per diem and related expenses in circumstances when none were payable given thathis primary place of residence was in the National Capital Region rather than in Saskatchewan. [4] The intervener, the Senate, supports the position of the appellants. It is concerned that the decision dismissing the motions tostrike could affect rights and powers exercised by the Standing Senate Committee on Internal Economy, Budgets and Administration (theSenate Committee on Internal Economy), the management body of the Senate.

This committee is governed by the same statute andoperates essentially the same way as the Board of Internal Economy. [5] In dismissing the appellants’ motions to strike, the Judge found both that the Federal Court had jurisdiction to review decisions

made by the Board like those of any other “federal board” acting pursuant to

an Act of Parliament (section 2 of the Federal Courts Act ) and that the decisions in issue were not covered by parliamentary privilege. [ 6 ] For the reasons that follow, I am of the view that the Judge erred in coming to these conclusions. Had she followed the principled approach set out by the Supreme Court in Canada (House of Commons) v.

Vaid , 2005 SCC 30 , [2005] 1 S.C.R. 667 ( Vaid ), which precludes the courts from inquiring into the necessity of a legislated privilege when it is shown to come within an established category, she would have had to conclude that the decisions in issue are covered by parliamentary privilege and, therefore, cannot be judicially reviewed. BACKGROUND [ 7 ] The Board of Internal Economy, like the Senate Committee on Internal Economy, draws its powers from the Parliament of Canada Act , R.S.C., 1985, c. P-1 (the PCA ).

Section 4 provides both the House of Commons and the Senate with the same privileges, immunities and powers, while

section 5 declares those privileges to be part of the general and public law of Canada. Sections 19.1 and 50 acknowledge respectively the establishment of the Senate Committee on Internal Economy and the creation of the Board. Pursuant to

section 52.3, the Board acts “on all financial and administrative matters respecting the House of Commons, its premises, its services and its staff; and the members of the House of Commons.” The Senate Committee on Internal Economy plays the same role and exercises the same powers for the Senate.

This is best illustrated by the comparative table produced by the appellants (appellants’ compendium, Tab 44) which has been appended to these reasons as Appendix “A”. [ 8 ] From the time of Confederation to the enactment of the PCA and the creation of the Board in 1985, the House of Commons and the Senate enjoyed the privileges held by the United Kingdom House of Commons at the time of Confederation pursuant to

section 1 of

An Act to define the privileges, immunities and powers of the Senate and House of Commons, and to give

summary protection to persons employed in the publication of Parliamentary Papers , S.C. 1868 (31 Vict.), c. 23. During this same period, the internal management of the House of Commons was the responsibility of the Commissioners of Internal Economy appointed by the Governor in Council under sections 1 and 2 of an Act respecting the internal Economy of the House of Commons, and for other purposes , S.C. 1868 (31 Vict.), c. 27. Under this Act, only Members of the House who were also Members of the Queen’s Privy Council for Canada could be appointed as Commissioners.

Practically speaking, this meant that the Commissioners were drawn from among the Ministers of the Crown. [ 9 ] The Board was created in 1985 in response to recommendations made by a Special Committee of the House. Among the recommendations were that Members of the House become more involved in the management of the House and that the new Board better reflect the composition of the House. [ 10 ] Members of the recognized parties of the House of Commons now constitute the Board.

The Board is composed of the Speaker, two Members of the Queen’s Privy Council for Canada appointed by the Governor in Council, the Leader of the Opposition or the Leader’s nominee, and “other members” of the House of Commons who may be appointed from time to time to represent the opposition and governing parties ( subsection 50(2) of the PCA ). As a practical matter, under the rules, members of the governing party may hold the majority when matters come to be decided by the Board (subparagraph 50(2)(b)(ii) of the PCA ). This reflects the manner in which the House operates when it legislates (

section 49 of the Constitution Act, 1867 , 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982 , 1982, c. 11 (U.K.),

Schedule to the Constitution Act, 1982 , Item 1) [R.S.C. 1985, Appendix II, No. 5] ( Constitution Act, 1867 )). [ 11 ] The Board sets out its rules on various matters including the use of parliamentary funds by way of by-laws ( subsection 52.5(1) of the PCA ). It has exclusive authority to decide whether a member’s use of parliamentary funds was proper ( subsection 52.6(2) of the PCA ).

It can investigate matters and may as a result make a direction, or a by-Law, refuse a request for funds, or act as it sees fit (section 10 of the Rules of Practice and Procedure of the Board of Internal Economy ); various coercive measures may be used to impose compliance (section 19 of the Members By-Law ). [ 12 ] The Board of Internal Economy, acting through the Speaker, reports to the House and its minutes are tabled in the House. Members of the House may ask questions of a member of the Board designated by the Board during Question Period (subsections 37(2) and (3) and

section 148 of the House of Commons Standing Orders ). [ 13 ] The Board has the capacity of a natural person and may enter into contracts and other arrangements with third parties (

section 52.2 of the PCA ). In order to provide continuity, members of the Board remain in office when Parliament is dissolved (

section 53 of the PCA ). [ 14 ] In doing its work, the Board is supported by the House Administration (section 2 of the Governance and Administration By- Law ). The House Administration is composed of the Clerk of the House of Commons and its employees, who are not Members of the House (sections 6 and 7 of the Governance and Administration By-Law ). While powers of the Board may be delegated to the Clerk of the House of Commons and its employees, they remain subordinate to the Board (section 2 of the Governance and Administration By- Law ).

THE CONTESTED DECISIONS [ 15 ] Four decisions are challenged in the underlying judicial review applications. At the time they were made the Conservative Party was the governing party. According to the minutes of the Board, three Conservatives, two members of the NDP [New Democratic Party], one Liberal and the Speaker were present when these decisions were made. The two NDP members voted in dissent. [ 16 ] The first two decisions dealt with inappropriate mailings. The first held that certain mailings contravened the Members By-Law (presumably subsection 4(3), paragraph 29(1)(e), and

section 30) because they were made for political purposes. The second required that the related expenses be reimbursed by the Members who failed to adhere by this limitation. [ 17 ] In the third decision, the Board determined that some NDP members inappropriately used parliamentary funds for expenses related to employment, telecommunications and travel. According to the Board, funds from the budget for Members’ offices were used to supplement the NDP’s National Caucus Research Budget. These budgets are for different purposes: the former is for Members of the

House individually to discharge their parliamentary functions at specified locations—i.e., on Parliament Hill or in their constituencies— whereas the latter is for recognized parties to use for research offices (sections 24, 56 and 67 of the Members By-Law ). No funds may be transferred between these budgets ( Members By-Law ,

section 70). [ 18 ] The Board’s fourth decision required the repayment of some $2.7 million by the Members whose budgets were misused. [ 19 ] In the applications for judicial review relating to the mailings, the respondents acknowledge that the decisions were rendered on the basis that the mailings “were in contravention of the Board’s By-Laws [because] they were performed for the benefit of a political party” (applications for judicial review, Appeal Book, Vol. III, pages 853 and 861).

However, they maintain that the decisions are “unreasonable and incorrect”, “contrary to the principles of natural justice”, and “contrary to the rule of law” (applications for judicial review, Appeal Book, Vol. III, pages 853 and 861). [ 20 ] The applications directed at the decisions relating to the use of individual Member’s budgets to supplement the NDP’s National Caucus Research Offices budget are based on the following grounds (applications for judicial review, Appeal Book, Vol.

III, pages 870 and 880): - The decision[s] [are] unreasonable, arbitrary and incorrect; - The decision[s] [are] contrary to the principles of natural justice and of fairness; - The decision[s] [are] contrary to the rule of law; - The decision[s] [are], in fact, an example of political bias and [were] made in bad faith; - The decision[s] [are] absurd in the light of modern technologies that enable people to work everywhere; - There is no legal basis for [these] decision[s] in Canadian law or in parliamentary rules; - The decision[s] [are] illegal since members of Parliament are entitled by law to exercise their parliamentary functions “wherever” and in so doing, are entitled to make use of parliamentary resources to accomplish parliamentary functions.

THE FEDERAL COURT DECISION [ 21 ] In dismissing the appellants’ motion to strike, the judge addressed two issues: whether decisions of the Board are subject to judicial review under the Federal Courts Act , and whether decisions of the Board relating to the use of resources by members are immunized from review by parliamentary privilege.

Although these issues were addressed separately, she acknowledged that the answer to both questions “ought to be somewhat aligned” (reasons, paragraph 10). [ 22 ] Regarding the first issue, the judge concluded that the Board was not excluded from the Federal Courts’ jurisdiction under subsection 2(2) of the Federal Courts Act . Drawing a distinction between the Senate Committee on Internal Economy and the Board, the judge held that the former draws its powers from

section 18 of the Constitution Act, 1867 , but the Board does not (reasons, paragraphs 19 and 20). As well, the judge noted that in addition to not being “as fundamental to our notion of democracy” as the Senate Committee on Internal Economy, the Board is a “subsidiary entity” (reasons, paragraph 22). She also described the Board as different from regular committees, which originate not in statute but in Standing Orders of the House and parliamentary tradition, and exercise functions related to the legislative process (reasons, paragraphs 27 and 28). [ 23 ] In reaching her conclusion on the first issue, the judge found that the Board’s powers set out in the PCA are derived from

an Act of Parliament, not from

section 18 of the Constitution Act, 1867 . Identifying

section 52.3 of the PCA as the source of the powers exercised by the Board in this instance, she held that the Board’s decisions were made under a power conferred by

an Act of Parliament. Therefore, they fell within the Federal Court’s jurisdiction under sections 18 and 18.1 of the Federal Courts Act . [ 24 ] In disposing of the second issue—parliamentary privilege—the judge concluded that the appellants failed to demonstrate that immunizing the Board’s decisions from judicial review was necessary in order to protect the dignity and efficiency of the House (reasons, paragraph 50). [ 25 ] In reaching this conclusion, the judge first considered the category of parliamentary privilege related to proceedings in Parliament.

She cited the Supreme Court’s statement in Vaid that “‘not everything that is said or done within the Chamber during the transaction of business forms part of proceedings in Parliament’ ” [emphasis in original] (reasons, paragraph 38). In her view, this category of parliamentary privilege was primarily aimed at protecting freedom of speech in the House of Commons. Relying on the decision of the Supreme Court of the United Kingdom in R. v.

Chaytor and others , [2010] UKSC 52, [2011] A.C. 684 ( Chaytor ) , she held that dealing with expense claims was not part of proceedings in Parliament (reasons, paragraphs 36 to 41). [ 26 ] Turning to the category of parliamentary privilege relating to internal affairs, she emphasized that this category should not be defined too broadly, as it could then encompass all the activities of Parliament (reasons, paragraph 43).

Instead, in her view, the appellants had to show that the “specific decisions of the Board on the use of resources and services by [M]embers of Parliament are necessary for upholding the dignity and efficiency of the House of Commons, and its capacity to function as a legislative body” (reasons, paragraph 46).

Because the appellants failed to demonstrate this, the judge concluded that the parliamentary privilege relating to internal affairs did not apply to immunize the Board’s decisions from judicial review. [ 27 ] The judge’s reasons can also be read as holding that whatever privileges Parliament might have had in the past, they have since been abrogated or waived.

Although she recognized that the Senate Committee on Internal Economy continues to hold the privileges which it had, this ceased to be the case insofar as the Board is concerned when regard is had to the provisions of the PCA and related amendments to the Federal Courts Act (reasons, paragraphs 19, 21, 22, 24 and 30).

THE PARTIES’ POSITIONS [ 28 ] Shortly before the hearing of the appeal, the Supreme Court released two decisions which bear on the issue of parliamentary privilege: Chagnon v. Syndicat de la fonction publique et parapublique du Québec , 2018 SCC 39 , [2018] 2 S.C.R. 687 ( Chagnon ) and Mikisew Cree First Nation v. Canada (Governor General in Council) , 2018 SCC 40 , [2018] 2 S.C.R. 765, 426 D.L.R. (4th) 647 ( Mikisew ). The parties and interveners were invited to supplement their memoranda of fact and law by filing supplementary written submissions addressing these decisions.

The following description of the parties’ positions encompasses all of their submissions. - The appellants [ 29 ] The appellants argue that the parliamentary privileges held by the Board and the Senate Committee on Internal Economy are defined by the PCA but that their source is the Constitution of Canada.

As these two bodies perform identical functions and both report to and are integral to their respective Houses, they should not be treated differently (memorandum of the appellants, paragraphs 45 to 47). [ 30 ] More generally, the appellants argue that the judge mischaracterized the role of the Board within the House. In this respect, they point to the history of the internal management of the House before the creation of the Board. Prior to 1985, managing the resources of the House was unequivocally integral to Parliament (memorandum of the appellants, paragraphs 8 to 10).

According to the appellants, the enactment of the PCA and the creation of the Board in 1985 did not alter this state of affairs. [ 31 ] The appellants further argue that the parliamentary privilege being claimed is traceable to two established categories and that the judge committed a series of legal errors in failing to recognize this.

A third category—discipline—was argued during the course of the hearing. [ 32 ] Regarding the category of proceedings in Parliament, the appellants contend that the judge erred in restricting its scope to freedom of speech within the House (memorandum of the appellants, paragraph 66). The appellants highlight the fact that her conclusion conflicts with the recently enacted subsection 52.2(2) of the PCA , which expressly provides that “proceedings of the Board are proceedings in Parliament”.

Further, the appellants argue that Parliament correctly expressed the scope of the parliamentary privilege in enacting this provision. Relying on Vaid , R. v. Parliamentary Commissioner for Standards ex parte Mohamed Al Fayed, [1997] EWCA Civ. 2488 (BAILII), [1998] 1 W.L.R. 669, pages 7–8 and Re McGuinness’s Application , [1997] NIQB 2 (BAILII), [1997] NI 359, pages 7–9, the appellants submit that what constitutes a proceeding in Parliament is “determined by the nature of the decision and function of the decision-maker or entity” (memorandum of the appellants, paragraph 67).

In this respect, the appellants highlight that the Board is composed of Members of Parliament who supervise the use of parliamentary resources which are essential and inextricably tied to their duties and responsibilities as Members of Parliament (memorandum of the appellants, paragraph 68).

According to the appellants, the judge misconstrued the decision of the Supreme Court of the United Kingdom in Chaytor by holding that the administrative and financial management functions in issue here are not protected by the recognized category of parliamentary privilege relating to proceedings in Parliament. [ 33 ] Regarding internal affairs, the appellants argue that the decisions of the Supreme Court of the Northwest Territories in Villeneuve v. Legislative Assembly et al , 2008 NWTSC 41 , [2008] 10 W.W.R 704 ( Villeneuve ) and of the Superior Court of Québec in Filion c.

Chagnon , 2016 QCCS 6146 ( Filion 2016 ) confirm that the internal management of parliamentary resources comes within this established category (memorandum of the appellants, paragraph 77). In this regard, the appellants contend that the judge, at paragraph 45 of her reasons, erred in distinguishing these decisions on the basis that, in contrast, the matter in issue here does not concern the administration of allowances and benefits.

In the alternative, should this Court conclude that the claimed privilege was not authoritatively established, the appellants submit that the test of necessity has been met (memorandum of the appellants, paragraphs 81 to 88). [ 34 ] The appellants also refer to the recent decisions of the Supreme Court in Chagnon and Mikisew , and argue that, although not determinative, both support their position that parliamentary privilege applies (written submissions of the appellants, paragraphs 1 to 4). - The respondents [ 35 ] The respondents essentially adopt the reasons of the judge.

They submit that the appellants mischaracterize the Board when they describe it as an integral component of the House and misapply the doctrine of parliamentary privilege, especially the test that the privilege must be shown to be necessary for the autonomy and dignity of the House. [ 36 ] According to the respondents, the Board is an entity independent from the House, and the Board’s functions are administrative, not legislative (memorandum of the respondents, paragraphs 22 and 36).

Relying on Mikisew , they argue that the Board’s decisions would be covered by parliamentary privilege and, thus, immunized from judicial review only if they were part of the legislative process, which is described by the Supreme Court as “the development, passage, and enactment of legislation” (written submissions of the respondents, paragraphs 10 and 16 [ Mikisew , at paragraph 32]). The respondents suggest that House committees would fall within that definition (memorandum of the respondents , paragraphs 10 to 13).

However, they submit that contrary to House committees, which derive their powers and responsibilities from the Standing Orders of the House of Commons, the Board acts pursuant to the PCA (memorandum of the respondents, paragraph 38).

Because of this distinction, the respondents argue that the judge correctly ruled that the Board acted under statutory powers and was therefore subject to judicial review. [ 37 ] Regarding new subsection 52.2(2) of the PCA , the respondents argue that it was introduced because of a recent change in the Board’s procedures that allowed the Board to have open meetings (memorandum of the respondents, paragraph 16).

Although the subsection was enacted “[f]or greater certainty”, the respondents argue that it is a legislative recognition that proceedings of the Board were not proceedings in Parliament when the decisions in issue were rendered (memorandum of the respondents, paragraph 17). [ 38 ] Finally, the respondents argue that in order to succeed, the appellants had to show that the privilege is necessary (written submissions of the respondents, paragraph 27). They view Chagnon as requiring that necessity be addressed whenever a parliamentary privilege is claimed (written submissions of the respondents, paragraph 4) .

This is consistent, they submit, with the fact that “parliamentary privilege is a concept which is becoming narrower in our times both in Canada and in most other democratic jurisdictions” (memorandum of the respondents, paragraph 75). Relying on Chaytor and Vaid , they contend that necessity has not been

demonstrated in this case and that the scope of the category was overstated (memorandum of the respondents, paragraph 62). - Mr. Vellacott [39] Mr. Vellacott, in his capacity as intervener, takes the position that the two issues addressed by the judge merge into one. Hesubmits that subsections 2(1) and 2(2) of the Federal Courts Act are appropriately read as statutory parallels to the common law ofjudicial review and parliamentary privilege (memorandum of Mr. Vellacott, paragraphs 38 and 39). In his words, “judicial reviewjurisdiction ends where parliamentary privilege begins” (memorandum of Mr.

Vellacott, paragraph 45). [40] Mr. Vellacott argues, citing Chaytor, that the management of House resources is not generally the subject of a parliamentaryprivilege. In his view, a distinction must be made between resolutions and orders that set allowable expenses and the implementation ofsuch resolutions and orders by way of decisions (memorandum of Mr. Vellacott, paragraphs 65 to 68). As evidence of the willingness ofthe courts in Canada to assume jurisdiction over the latter, counsel for Mr. Vellacott pointed to the decision of the Québec SuperiorCourt in Filion c.

Chagnon, 2013 QCCS 446 (Filion 2013). [41] Responding to the appellants’ argument that the addition of subsection 52.2(2) to the PCA in 2017 establishes unequivocally thatactions taken by the Board are proceedings in Parliament, Mr. Vellacott submits that identifying a parliamentary privilege anddetermining its scope is the role of the court and not that of Parliament (memorandum of Mr. Vellacott, paragraph 69).

In this regard,statutory law, which includes subsection 52.2(2) of the PCA, is presumed not to change the common law and therefore cannot beinterpreted to extend the scope of the constitutional privilege (memorandum of Mr. Vellacott, paragraph 70). [42] Finally, Mr. Vellacott alleges that Parliament can only benefit from parliamentary privileges established in the United Kingdomafter 1867 if it “enacts a law dealing with a privilege at some point after 1867, which has not happened” (memorandum of Mr. Vellacott,paragraph 83).

Therefore, he submits that Board decisions that apply By-Laws regarding expenses are not part of any historical privilegeas the House of Commons of the United Kingdom “did not provide its House Members with expenses, or indeed even salaries, until1911” (memorandum of Mr. Vellacott, paragraph 84). - The Senate of Canada [43] The Senate intervenes only on the issue of parliamentary privilege, pointing out that neither the Senate nor the Senate Committeeon Internal Economy is a “federal board, commission or other tribunal” within the meaning of

section 2 of the Federal Courts Act(memorandum of the Senate, paragraph 16). [44] The Senate takes issue with the judge’s reliance on New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House ofAssembly), (SCC), [1993] 1 S.C.R. 319, (1998), 100 D.L.R. (4th) 212 (New Brunswick Broadcasting) to hold thatnecessity for the parliamentary privilege had to be assessed in this case. It points out that a distinction in law exists as between legislatedprivileges adopted pursuant to

section 18 of the Constitution Act, 1867 and

section 4 of the PCA on the one hand, and inherent privilegesthat, when established under the test of necessity, enure to all legislative assemblies on the other (memorandum of the Senate, paragraph22). It relies upon Vaid, at paragraph 37: ….

Nevertheless, the framers of the Constitution Act, 1867 thought it right to use Westminster as the benchmark for parliamentaryprivilege in Canada, and if the existence and scope of a privilege at Westminster is authoritatively established (either by British orCanadian precedent), it ought to be accepted by a Canadian court without the need for further inquiry into its necessity.

This resultcontrasts with the situation in the provinces where legislated privilege, without any underpinning similar to s. 18 of the Constitution Act,1867, would likely have to meet the necessity test (Harvey, at para. 73). (Emphasis added by the intervener, the Senate.) [45] According to the Senate, both the category of parliamentary privilege relating to proceedings in Parliament and the categoryrelating to internal affairs apply in this case.

Insofar as the latter is concerned, the Senate argues that the judge distinguished Villeneuveand Filion 2016 on “over-corrected” and “excessively narrow” grounds (memorandum of the Senate, paragraph 27). [46] Finally, the Senate submits that “[t]here can be few matters that speak more directly to the independence of a legislative bodythan protection from judicial (or executive) interference with that body’s own decisions regarding the use and allocation of its ownresources by its own members.

A contrary conclusion would…signal a radical upending of the constitutional separation of powers”(memorandum of the Senate, paragraph 30, emphasis in the original). ANALYSIS AND DECISION [47] The two issues addressed by the judge are inexorably linked: the jurisdiction of the Federal Court over the Board turns onwhether it was acting pursuant to a power “conferred by or under

an Act of Parliament” (section 2 of the Federal Courts Act), and thiscannot be the case if the challenged decisions are protected by a parliamentary privilege originating in the Constitution Act, 1867. As theoutcome of this case turns on whether parliamentary privilege applies, that is where the analysis should begin. [48] The question whether the claimed privilege exists and whether the Board was acting within its scope is one of law. Therefore, itmust be correctly decided (Chagnon, paragraph 17; Housen v.

Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235). [49] The judge offered three reasons for holding that the Board’s decisions are not protected by parliamentary privilege: In contrast to the Senate Committee of Internal Economy, the Board draws its powers from

an Act of Parliament rather than theConstitution (reasons, paragraphs 20 and 26). According to Chaytor, dealings with expense claims do not qualify as proceedings in Parliament (reasons, paragraphs 36 to 41). Immunizing from judicial review decisions made by the Board concerning the management of Parliament’s internal affairs has not beenshown to be necessary to preserve the dignity and efficiency of the House of Commons (reasons, paragraphs 42 to 46 and 50).

[50] All of these conclusions were in error. [51] As to the first reason offered by the judge, the functions performed by the Board are exactly the same as those performed by theSenate Committee on Internal Economy. Both are based on parliamentary privileges legislated in accordance with

section 18 of theConstitution Act, 1867, and are constitutional in nature because they are an essential aspect of these legislative bodies’ autonomousfunctions. The fact that the privilege of the House of Commons and the Senate over their internal financial affairs were continued bylegislative enactments, initially by

section 1 of

An Act to define the privileges, immunities and powers of the Senate and the House [ofCommons, and to give

summary protection to persons employed in the publication of Parliamentary Papers] in 1868 and later by section4 of the PCA, does not alter the constitutional origin of the power being exercised (Southam Inc. v. Canada (Attorney General), (FCA), [1990] 3 F.C. 465, (1990), 73 D.L.R. (4th) 289 (C.A.) (Southam), at pages 479–480). [52] The rejection of the claimed privilege relying on Chaytor was also in error. Chaytor deals with individuals who were chargedwith false accounting in submitting expense claims while they were Members of the House of Commons or House of Lords.

Theyclaimed that their actions were covered by parliamentary privilege and that therefore they could not be prosecuted for their deeds(Chaytor, paragraph 1). The issue was not whether the expenses were incurred for a parliamentary purpose but rather whether theclaimed expenses were incurred at all (Chaytor, paragraph 8).

In holding that the appellants were not protected by parliamentaryprivilege, Lord Phillips—one of the three Justices who wrote and whose reasons, together with those of Lord Rodger, were endorsed bythe majority—drew a distinction between decisions involving the implementation of existing rules and those involving the rulesthemselves.

In his view, only the latter would be protected by privilege because in the United Kingdom, privilege over the former hadbeen waived (Chaytor, paragraph 92): .… If an applicant sought to attack by judicial review the scheme under which allowances and expenses are paid the court would nodoubt refuse the application on the ground that this was a matter for the House. Examination of the manner in which the scheme is beingimplemented is not, however, a matter exclusively for Parliament. [53] As will be seen, there is no basis for holding that such a waiver has taken place in Canada.

For now, I note that the respondentshave attacked the scheme adopted by Parliament in at least two respects—i.e., by taking the position that they are entitled to payment ofmailing costs without denying that these were incurred for political purposes and by asserting that modern technology has done awaywith the requirement that reimbursable office expenses be incurred in specific locations as the rules presently require (applications forjudicial review, Appeal Book, Vol.

III, pages 853, 861, 870 and 880). [54] Lastly, the judge’s conclusion that immunizing decisions relating to internal affairs from review by the courts had not beenshown to be necessary in order to preserve the dignity and efficiency of the House disregards a fundamental aspect of Vaid.

Vaid holdsthat when a legislated privilege at the federal level is shown to come within a recognized category of parliamentary privilege, a courtmust accept that necessity has been established (Vaid, paragraphs 29(9) and 37). [55] The respondents have placed great reliance on the injustice which they say will result if judicial review of the Board’s decisionsis not permitted. They allege a number of improprieties including bad faith. However serious these allegations are, they have no bearingon the question whether the privilege has been shown to exist or not.

If it does, it lies within the exclusive competence of Parliament todetermine whether its rules have been complied with (Vaid, paragraph 30). [56] Vaid is the leading case on the issue of parliamentary privilege in this country. Unlike almost every case in this area of law, it hasthe distinction of being unanimous and has been repeatedly cited by courts and commentators in Canada, the United Kingdom and othercountries with a Westminster-style constitution.

As here, the parliamentary privilege in issue in Vaid was a legislated privilege.According to Vaid (at paragraph 39): … the first step a Canadian court is required to take in determining whether or not a privilege exists within the meaning of theParliament of Canada Act is to ascertain whether the existence and scope of the claimed privilege have been authoritatively establishedin relation to our own Parliament or to the House of Commons at Westminster (Ainsworth Lumber, at para. 44). [57] As this passage indicates, legislated parliamentary privileges can originate from our own Parliament or from the UnitedKingdom.

This is because of the combined effect of

section 18 of the Constitution Act, 1867, as it was amended in 1875, and

section 4 ofthe PCA.

Section 18 of the Constitution Act, 1867, as amended, provides: Privileges, etc., of Houses 18.

The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by themembers thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act ofthe Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powersexceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom ofGreat Britain and Ireland, and by the members thereof.

I note that the use of the words “de la présente loi” in the French text is obviously in error when regard is had to the words “of such Act”in the English text which, being a United Kingdom statute, is the only official version.

Section 4 of the PCA provides in turn: Parliamentary privileges, immunities and powers 4 The Senate and the House of Commons, respectively, and the members thereof hold, enjoy and exercise (

a) such and the like privileges, immunities and powers as, at the time of the passing of the Constitution Act, 1867, were held, enjoyedand exercised by the Commons House of Parliament of the United Kingdom and by the members thereof, in so far as is consistent withthat Act; and

(

b) such privileges, immunities and powers as are defined by Act of the Parliament of Canada, not exceeding those, at the time of thepassing of the Act, held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the membersthereof. [58] Legislated parliamentary privileges can extend to any enjoyed by the United Kingdom House of Commons and its Members atthe time of the enactment of those privileges into Canadian law and paragraph 4(

b) of the PCA authorizes Parliament to further definethem by way of legislation (Vaid, paragraph 33; see also Harvey v. New Brunswick (Attorney General), (SCC), [1996]2 S.C.R. 876, (1996), 137 D.L.R. (4th) 142 (Harvey), paragraph 66). [59] In contrast, inherent parliamentary privileges derive their constitutional status “from the very nature of the institution” and fromthe founding colonies’ desire expressed in the

preamble of the Constitution Act, 1867 to adopt “a Constitution similar in Principle to thatof the United Kingdom” (New Brunswick Broadcasting, page 351). [60] Necessity for the protection of the dignity and efficiency of the House is the historical foundation for all parliamentary privileges(Vaid, paragraph 29(5)). However, at the federal level, once a legislated parliamentary privilege is shown to come within an establishedcategory, necessity need not be proven again (Vaid, paragraph 29(9)): Proof of necessity is required only to establish the existence and scope of a category of privilege.

Once the category (or sphere ofactivity) [for a claimed privilege] is established, it is for Parliament, not the courts, to determine whether in a particular case the exerciseof the privilege is necessary or appropriate.

In other words, within categories of privilege, Parliament is the judge of the occasion andmanner of its exercise and such exercise is not reviewable by the courts: “Each specific instance of the exercise of a privilege need not beshown to be necessary” (New Brunswick Broadcasting, at p. 343 …) [Emphasis in the original removed]. [61] An established category is one whose existence and scope has been accepted as necessary in order to protect the dignity andefficiency of the House (Vaid, paragraph 29(6)).

This demonstration can rest on judicial precedents from Canada, the United Kingdomand other Westminster democracies, on historical acquiescence or acceptance of the category relied upon by those affected by theparliamentary privilege (Vaid, paragraphs 29(8) and 37) and, I would add, because of the notable reliance placed on them by the courts insuch matters, doctrinal opinions by recognized expositors of the law of parliamentary privilege. [62] The parliamentary privilege claimed by the appellants is the exclusive right of the House to oversee and decide matters pursuantto internal rules governing the use made of funds and resources provided to Members of the House for the purpose of allowing them toperform their parliamentary functions. [63] The issue is whether the privilege so described has been authoritatively established.

A legislated privilege is authoritativelyestablished if it is recognized as such in its own right or if it comes within the scope of an established category (Vaid, paragraph 39). [64] In their memorandum, the appellants submitted that the privilege claimed in this case came within two established categories,proceedings in Parliament and internal affairs.

The privilege relating to proceedings in Parliament is associated with the right of freespeech in the Senate or the House of Commons, the right of members to discharge their duties as Senators or Members of the House ofCommons which extends to legislative and deliberative functions, and the work involved in holding government to account (Vaid,paragraph 41). The other category, internal affairs, is based on the recognition in the United Kingdom at the time of Confederation thatthe autonomy of the Houses of Parliament required that their members have exclusive control over their own affairs.

During the hearingof the appeal, counsel for the appellants added a third category, the exclusive right of the House to impose discipline in order to maintainthe integrity of its internal processes. [65] The confines within which these categories operate are not easily ascertained and the analysis is made more difficult by the factthat they often overlap.

Although Parliament’s sovereignty when engaged in its legislative duties is undoubted (Vaid, paragraph 45), not“everything that is said or done within the Chamber … forms part of proceedings in Parliament” [emphasis in original] (Vaid, paragraph43, quoting David Lidderdale, ed., Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 19th ed.(London: Butterworths, 1976), at page 89). On the flip side, there may be activities with which courts ought not to interfere even thoughthey take place outside the House (Harvey, paragraph 67).

Whatever the category, the activity sought to be protected must be so closelyconnected with what takes place in the House that allowing outside interference would demean its dignity and efficiency. [66] In my view, the claimed privilege fits within the scope of the three established categories asserted by the appellants.

The featureto keep in mind as we address each of these categories is that we are dealing with decisions pertaining to funds and resources provided toMembers of the House in order to allow them to carry out their parliamentary functions, which include representing constituents,researching matters relevant to legislation, deliberating, legislating and holding the government to account. - Internal affairs [67] Vaid deals with a legislated privilege which was said to come within the category relating to “‘internal affairs’”.

During thecourse of the hearing in the Supreme Court, the narrower category described as “‘the management of [House] employees’” wasacknowledged to be more precise and appropriate having regard to the privilege claimed (Vaid, paragraph 50). [68] In Vaid, the claimed privilege had the effect of thwarting the rights of the chauffeur of the Speaker of the House of Commonsunder the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (Human Rights Act),

section 4. As was emphasized (at paragraph 40), thechauffeur was a “stranger to the House”, an ordinary employee and not a Member of Parliament. Although the management of someHouse employees appeared to be a well-established category in the United Kingdom (Vaid, paragraph 62), the Court questioned whetherthe scope of that category extends to employees such as Mr. Vaid.

In this respect, the Court quoted with approval the opinion expressedin the British Joint Committee Report to the effect that (Vaid, paragraph 51): …. [It] would be going too far if it were to mean, for example, that a dispute over the … dismissal of a cleaner could not be decided by acourt or industrial tribunal in the ordinary way. [para. 241]

[69] Emphasizing the need for Parliament not to overreach in matters involving persons who are not Members of the House, theSupreme Court held that the claimed privilege had not been shown to come within an established category (Vaid, paragraph 70). Thus, inVaid, an inquiry into whether the claimed privilege was necessary in order to preserve the dignity and efficiency of the House had to bemade.

After considering the matter, the Court held that this necessity had not been demonstrated. [70] More recently in Chagnon, the Supreme Court, citing Vaid, again emphasized the need to scrutinize a claimed privilege when itimpacts on persons who are not members of the legislative assembly (Chagnon, paragraphs 25 and 42).

At issue in Chagnon was theQuébec National Assembly’s right to manage its employees, specifically, the exclusive right claimed by the President of the NationalAssembly—who plays the same role as the Speaker in other jurisdictions—to dismiss security guards acting within the Assembly forimproper behaviour. The majority, after applying the necessity test, held that it had not been shown to be necessary in order to preservethe dignity and efficiency of the National Assembly to prevent security guards from exercising their labour law rights in contesting theirdismissal. [71] According to the respondents and Mr.

Vellacott, Chagnon modifies the state of the law in that it requires that a necessity analysisbe conducted whenever a privilege is claimed, be it legislated or inherent (written submissions of the respondents, paragraph 4; andwritten submissions of Mr. Vellacott, paragraph 5, footnote 1). I do not believe that to be the case. [72] First, as noted in Chagnon, provincial legislative assemblies have inherent parliamentary privileges and the majority reached itsdecision on the basis that this was the nature of the privilege claimed in that case (Chagnon, paragraphs 1, 2 to 18, 23 and 27).

Vaidmakes it clear that when dealing with such privileges at the provincial level, courts must ensure that “the category of inherent privilegecontinues to be necessary to the functioning of the legislative body today” (emphasis in original) (Vaid, paragraph 29(6) citing NewBrunswick Broadcasting). The majority in Chagnon accepted this proposition (Chagnon, paragraph 26). [73] Second, the majority in Chagnon found that the parliamentary privilege claimed in that case did not fit within any establishedcategory. As a result, necessity had to be examined regardless of the inherent nature of the privilege.

Specifically, the majority pointedout that although the decision in Vaid was rendered on the assumption that there existed in the United Kingdom an established categoryof parliamentary privilege which gives the House exclusive control over “some of its employees”, the conclusion ultimately reached inVaid was that the existence of this category had not been established because the Court was unable to identify any employee to whom theprivilege had been applied (Vaid, paragraph 101).

The Court in Chagnon further observed that as of the time of the judgment inChagnon, “U.K. courts [had] not yet recognized the management of any parliamentary employees to be protected by privilege” (atparagraph 35).

Thus, no established category had been shown to exist (Chagnon, paragraphs 36 and 37). [74] As a result, Chagnon does not displace the orthodoxy in Vaid that when a legislated parliamentary privilege is shown to fit withinan established category, necessity cannot be revisited. [75] The important point which both Vaid and Chagnon emphasize is that parliamentary privileges which take away the rights of non-parliamentarians will be scrutinized and reduced to their essential expression. However, the present matter involves onlyparliamentarians.

We are dealing with the right of the House to oversee rules governing the use of public funds made available to itsMembers in order to allow them to discharge their parliamentary functions, and to impose compliance. These activities involveParliamentarians acting as Parliamentarians governing Parliamentarians concerning parliamentary functions and obligations. As observedin Stockdale v.

Hansard (1839), 9 Ad. & E. 1, 112 E.R. 1112 (Q.B.) in a passage quoted in Vaid, at paragraph 39, the “jealousy” withwhich a parliamentary privilege is viewed by the courts when it impacts on the rights of strangers to the House turns to “tenderness”when dealing with matters that are entirely internal to the House.

This conciliatory approach is consistent with the respect which thecourts and Parliament owe one another in the conduct of public duties (Vaid, paragraph 20). [76] That the courts will be more circumspect when dealing with matters wholly internal to the House has not been lost onParliamentarians when regard is had to the treatment they have given to their financial affairs over time.

The House has regulated andoverseen the use of parliamentary funds by its Members for more than 150 years and I was unable to detect, among the abundance ofcases which have been placed before us, any instance before this one where sitting Parliamentarians—or sitting Members of theprovincial or territorial assemblies—have resorted to the courts in order to settle internal disputes pertaining to the use which they makeof parliamentary funds.

While former Members have sought judicial intervention on a number of occasions, the judicial reviewapplications before us appear to be the first where sitting Members of the House have tried to implicate the courts in this type of dispute.This type of unequivocal acquiescence underscores that Parliamentarians have understood throughout that judicial intervention in suchmatters would undermine the dignity and efficiency of the House (Vaid, paragraph 29(8)). [77] There are five relatively recent decisions that touch upon a legislative assembly’s role in overseeing the use made by its Membersof funds provided to them for the purpose of allowing them to perform their legislative functions: Chaytor, Filion 2013, Filion 2016,Villeneuve and Duffy v.

Senate of Canada, 2018 ONSC 7523 . The last—a decision of the Ontario Superior Court of Justiceupholding the parliamentary privilege claimed by the Senate over its internal affairs—was released after the hearing and is beingappealed. I will therefore refrain from commenting on this decision. [78] Chaytor is the most recent of the other four. Before turning to it, it is important to point out that courts in the United Kingdom donot recognize internal affairs as a category of parliamentary privilege per se.

Rather, internal affairs, including financial matters internalto the House, will be covered by parliamentary privilege if they can be shown to come within the “‘exclusive cognisance of Parliament’”(Chaytor, paragraph 13). This phrase embraces

article 9 of the Bill of Rights of 1689 [An Act declaring the Rights and Liberties of theSubject, and setting the Succession of the Crown, 1869, 1 Will. & Mary, Sess. 2, c. 2 (U.K.)], but is broader (Chaytor, paragraphs 30 and51).

In the words of Lord Phillips, “exclusive cognisance refers not simply to Parliament, but to the exclusive right of each House tomanage its own affairs without interference […] from outside Parliament” (Chaytor, paragraph 63). [79] As alluded to earlier, Lord Phillips in Chaytor came to the conclusion that decisions involving the scheme governing the use ofparliamentary funds were within the exclusive cognisance of Parliament, but that any parliamentary privilege that might have applied todecisions which merely apply existing rules had been waived.

Because decisions authorizing the payment of expense claims upon thesebeing certified as having been incurred came within this last description, the privilege failed (Chaytor, paragraphs 89 to 93).

[ 80 ] Lord Rodger, whose reasons were equally adopted by the other Justices, disposed of the matter on an entirely different basis. The only issue from his perspective was whether the matter for which the appellants were being prosecuted was within the exclusive jurisdiction of Parliament. If not, there was no basis on which the appellants could claim to have a right to stop the prosecution on the ground of parliamentary privilege ( Chaytor , paragraph 104).

In the course of his reasons, Lord Rodger considered whether the system of allowances, and the steps available to the appellants under it, were covered by parliamentary privilege ( Chaytor , paragraph 120): .… a system of allowances can rightly be seen as providing a necessary support to Members in carrying out all their parliamentary activities, including their core activities . It is therefore quite possible that the rules of the system would have fallen within the area for which the House would claim exclusive cognizance.

And it may be that the same could have been said of decisions by the Fees Office and, on appeal, by the supervising Committees, as to a particular claim by a Member for payment of an allowance.

A challenge to any of these matters in the ordinary courts by a Member or by anyone else might well have called into question decisions taken by Committees of the House, or on their behalf, on a matter which was intended to be under the exclusive control and cognizance of the House and its Committees. [Emphasis added.] [ 81 ] Because the exact nature of the privilege claimed would only become apparent as the criminal proceedings unfolded, Lord Rodger concluded his reasons with the following caveat ( Chaytor , paragraph 126): .… If the trial goes ahead, it may turn out that, contrary to expectations, some issue arises which is said to touch on the core activities of MPs or of the House itself.

If that were actually so, the proceedings might be trespassing on an area for which the House would claim exclusive cognizance and to which

article 9 would apply. [ 82 ] It can be seen that Lord Rodger’s decision is not based on the waiver pronounced by Lord Phillips. The view that he expressed is that any decision pertaining to allowances which impacts on the core activities of the House or its Members, is covered by privilege and that the criminal trial would reveal if this was the nature of the privilege being claimed. [ 83 ] Because the reasoning of both Lord Phillips and Lord Rodger was endorsed by the majority without qualification, it is impossible to say which of the two approaches was adopted.

The most that can be said based on Chaytor is that in the United Kingdom, matters concerning allowances paid to Members of the House in the performance of their functions are covered by parliamentary privilege if the decision being challenged impacts on the core activities of the House or its Members, but that this privilege may have been waived in part with respect to decisions that merely apply existing rules.

I will come back to this later in discussing the waiver issue as it arises in this case. [ 84 ] Villeneuve is a 2008 decision dealing with the parliamentary privilege claimed by the Legislative Assembly of the Northwest Territories and its Board of Management which was said to come within the established category relating to internal affairs. The case was argued on the basis that the parliamentary privilege being asserted had been legislated pursuant to the Legislative Assembly and Executive Council Act , S.N.W.T. 1999, c. 22 . Before considering this decision more fully, a brief

summary of the facts is necessary. [ 85 ] While a Member of the Legislative Assembly (MLA), Mr. Villeneuve swore a declaration indicating that he resided outside Yellowknife, and additional allowances were paid to him on that basis. He was audited and as a result, a complaint was filed alleging that he may have made a false declaration. In the meantime, an election was held and Mr. Villeneuve lost his seat. After considering its options, the Board of Management, whose functions are analogous to those of the Board in the present case ( Villeneuve , paragraph 4 ), concluded that Mr.

Villeneuve had received allowances to which he was not entitled and ordered repayment by way of set off. [ 86 ] Mr. Villeneuve sought judicial review of this decision.

In response, the Assembly and the Board moved to strike the application on the basis that the decision was covered by parliamentary privilege because it fell within two established categories: the Assembly’s inherent power to discipline its Members and the Assembly’s exclusive power to regulate its internal affairs. [ 87 ] In a thorough decision, which the judge in this case distinguished on doubtful grounds (reasons, paragraph 45), Charbonneau J. accepted that the two claimed categories had been historically recognized ( Villeneuve , paragraphs 23 and 24 ). Of concern to her, however, was the fact that Mr.

Villeneuve was no longer a MLA when the decision to withhold his allowance was made ( Villeneuve , paragraphs 25 and 26 ). After referring to Vaid , and noting that courts are apt to look more closely at cases where a parliamentary privilege impacts on the rights of persons outside the legislature, she accepted Mr. Villeneuve’s argument that it had not been established that the scope of the two categories in issue extended to persons in Mr. Villeneuve’s position ( Villeneuve , paragraph 26 ). [ 88 ] Applying Vaid , she therefore held that necessity had to be demonstrated.

She began by considering whether the parliamentary privilege relating to internal affairs had been shown to be necessary ( Villeneuve , paragraph 32 ).

After finding that “[h]ow members are compensated, and what allowances they receive to enable them to do their work as MLAs, are the types of internal matters over which the legislature must have complete control and be free from outside interference, as an independent branch of government” ( Villeneuve , paragraph 34 ), she queried whether this remained the case when dealing with a person who is no longer a MLA. [ 89 ] She concluded her analysis as follows ( Villeneuve , paragraph 39 ): I find that the administration of allowances and benefits that MLAs are entitled to receive during their tenure is a matter that is purely internal to the legislature.

The legislature has, through the Act , delegated this responsibility to the Board. I find that the fundamentally internal character of those decisions does not change even though some may be made after the recipient of the allowance or benefit is no longer a MLA. So long as the decision relates to allowances and benefits connected to the person’s tenure as a MLA, the Board’s decisions require the same protection as those the Board makes about benefits and allowances of persons who are MLAs. [Emphasis added.] [ 90 ] Filion 2016 deals with a proceeding brought by a former Member of the Québec National Assembly.

He was claiming the payment of a transitional allowance being withheld by the Office of the National Assembly—an

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