Doing Down Doré Deference: E.T. v. Hamilton-Wentworth District School Board 2017 ONCA 893

In a remarkable set of concurring reasons in E.T. v. Hamilton-Wentworth District School Board 2017 ONCA 893, Lauwers JA (with the support of Miller JA) attacks the methodology set out by the Supreme Court of Canada in Doré v Barreau du Québec [2012] 1 SCR 395 and Loyola High School v Québec [2015] 1 SCR 613 for the review of administrative decisions infringing Charter rights.

His first line of attack is that the project of adapting the multi-stage proportionality test to administrative decision-maker might have ‘miscarried’ (at para. 110):

Abella J. states in para. 4 of Loyola that, under Doré, “the discretionary decision-maker is required to proportionately balance the Charter protections to ensure that they are limited no more than is necessary given the applicable statutory objectives that she or he is obliged to pursue.” The language used by Abella J. seems to suggest that the statutory objectives have indefeasible priority over Charter rights, contrary to the Oakes methodology. Perhaps the logic of para. 4 is that if a statutory objective is pressing and substantial (understood in the Oakes sense), that would be sufficient to justify the limit of the Charter right, irrespective of any countervailing considerations. See Doré, para.6. I am uncertain (at para. 111).

Lauwers JA goes on, in a passage worth quoting at length, to discuss whether Doré can coherently be extended to individual administrative decision-makers as opposed to adjudicative tribunals:

First, in the necessary constitutional analysis, who has decided that the underpinning statutory objectives are pressing and substantial? Is the line decision maker competent and qualified to make that constitutional assessment? As I see it, applying the Doré/Loyola approach to a line decision maker effectively imports a presumption that the statutory objective on which the decision rests is always “pressing and substantial”. But this is a contestable proposition. Not every legislative or policy objective implemented by a challenged line decision would have this character. But a presumption would effectively reverse the s. 1Charter onus to the rights claimant’s disadvantage.

Second, does such a presumption put the rights claimant in the position of having to challenge the legislative objective in order to defeat the presumption, when all she wants to do is challenge a specific decision?

Third, who is called upon to exercise the “justificatory muscles” to which Abella J. refers in paragraph 5 of Doré, when there is no adjudication at the moment of the challenged decision?

Fourth, what sort of justification must the line decision maker offer for the challenged decision? Is it to be provided at the moment of decision, or is it in the hands of creative lawyers when the decision is challenged judicially? In my view, in order to justify a Charter limit, the record of evidence considered by the line decision maker should demonstrate the elements of accountability, intelligibility, adequacy and transparency courts expect from administrative tribunals.

Finally, what is the applicable standard of review? Is it to be “reasonableness” as the “deferential standard,” derived from Dunsmuir v. New Brunswick,2008 SCC 9 (CanLII), [2008] 1 S.C.R. 1 at para. 47? This is implied in Doré at para. 47, but that was in relation to a regulator functioning in an adjudicative setting, not to a line decision maker.

Can these decision makers be considered expert in the manner generally understood by administrative law to justify a deferential standard of review? Within a narrow professional compass, individual school board employees can have a measure of expertise in the education profession, acquired by qualifications and training, and by experience, but these vary among individuals. When they are confronted with the claim that their decision is not sufficiently respectful of Charter rights, will they understand how to reason from constitutional principles?

[Further, can we be sure that these line decision makers will inevitably be impartial and fair, even when their own decisions are challenged? Can we be sure that their supervisors, also being human, will be impartial and fair, and not defensive of the conduct of their subordinates? The administration of justice has developed numerous mechanisms to ensure impartiality and fairness on the part of decision makers, but none of them apply to discretionary line decision makers (at paras. 117-123.

There is much to agree with here. As I wrote in 2014 in “Prescribing Greater Protection for Rights“:

References to “rigorous Charter protection” notwithstanding,[1] it is difficult to see how this explicitly deferential standard of review better protects Charter rights than does the Oakes test. Instead of the robust, well-known and well-defined proportionality analysis, reviewing courts are henceforth required to conduct some sort of balancing test. The ultimate conclusion in Doré is not encouraging. Justice Abella upheld the sanction imposed on the lawyer, holding that given the “excessive degree of vituperation in the letter’s context and tone”, the decision to reprimand the applicant “cannot be said to represent an unreasonable balance of Mr. Doré’s expressive rights with the statutory objectives”.[2] There is much emphasis in her discussion on the need to maintain civility in the legal profession, but there is no searching analysis of the extent to which the disciplinary committee considered or gave weight to the applicant’s interests in freedom of expression. Criticism may be robust, but may not exceed the “public’s reasonable expectations of a lawyer’s professionalism”.[3] However, the fact that the letter was not made publicly available does not feature in the analysis. No attention is paid to the context in which the letter was written, most likely at a time when the author’s tempers were running temporarily high. Absent too is any consideration of whether a formal reprimand was necessary to achieve the statutory objectives, though this is not surprising considering the replacement of the proportionality test with a less robust balancing exercise.

Justice Abella was also anxious to point out the necessity for decision-makers to “ask how the Charter value at issue will best be protected in view of the statutory objectives”.[4] Emphasis on the need to consider and respect Charter values is all very well. However, it runs into a difficulty identified by Iacobucci J. in Little Sisters Book and Art Emporium v. Canada (Minister of Justice): “it hardly seems appropriate to entrust the Customs bureaucracy, in its administration of the Customs legislation, to deal with the matter through proper recognition of the constitutional values in play”.[5] There is nothing wrong with requiring administrative decision-makers to take values into account, but conducting judicial review only for compliance with values carries significant risks. Review of Charter violations may become under-powered. A decision-maker who fails to give sufficient weight to a Charter right might still arrive at a decision which is reasonable in an administrative-law sense. As long as the decision-maker took the Charter right into account and arrived at a decision within the range of reasonable outcomes, the decision should be upheld. But if a full-fledged Oakes analysis were applied, it would not be enough to merely take the right into account and give it some weight; the proportionality of the interference would have to be justified and an explanation given as to whether less intrusive alternatives were considered. This difficulty is heightened if the nebulous category of Charter values is employed, rather than that of Charter rights.[6]

By adopting the concurring reasons of Deschamps and Abella JJ. in Multani, the Court has if anything, weakened the foundations of the already shaky Slaight framework. Previously, free-wheeling administrative discretion used to infringe Charter rights would nonetheless be subject to rigorous review for compliance with the Oakes test. Now, however, free-wheeling administrative discretion remains, and the only check on its exercise is whether the decision-maker arrived at a “proportionate balancing” of Charter rights with its statutory objectives. Justice Charron’s concern that Charter rights could be reduced to “mere administrative law principles” seems all the more apt in light of Doré.

I am no fan of Doré and, notwithstanding my oft-expressed belief that, in light of the current state of the jurisprudence, the most logical next step for Canadian administrative law would be to embrace across-the-board reasonableness review, I would much prefer to see a robust proportionality test applied in cases involving infringements of fundamental rights (see further A Theory of Deference in Administrative Law, chapter 5). It will be interesting to see what the Supreme Court of Canada says about deference on questions of constitutional law in its decision, expected next year, in the Trinity Western University litigation.

This content has been updated on December 13, 2017 at 16:13.