The Standard of Review on Whether Charter Protections Have Been Infringed by an Administrative Decision: Vabuolas v. British Columbia (Information and Privacy Commissioner), 2025 BCCA 83 and Robinson v. Canada (Attorney General), 2024 FC 2092

Blogging has been slow recently but I expect to regain a head of steam in the next few weeks. There are a few issues bubbling away under the surface.

One relates to the thorny question of the standard of review of administrative decisions that allegedly infringe upon the Charter. As we know, an administrative decision might engage a Charter right (Lauzon v. Ontario (Justices of the Peace Review Council), 2023 ONCA 425, at para. 151), or a Charter value (Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31). When it does so, the standard of review is reasonableness, based on the controversial decision in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395, which remains good law.

What, however, is the standard of review applicable to a determination as to whether the Charter is engaged? In York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22, the Supreme Court held that issues relating to the scope of Charter rights are subject to correctness review. This would seem to indicate that any definitional question about whether a Charter right is applicable is to be assessed for correctness.

As to Charter values, a number of recent cases have addressed the issue. Most recently, in Vabuolas v. British Columbia (Information and Privacy Commissioner), 2025 BCCA 83, Horsman JA commented:

At the very least, York Region seems to suggest that different standards of review may apply to the two stages of the analysis: (1) correctness to the preliminary question identified in Loyola as to whether the Charter applies (which would include the scope of the Charter protection and the appropriate framework of analysis), and (2) reasonableness to the proportionate balancing that occurs at the second stage (at para. 96).

Southcott J has come to the same conclusion in a couple of recent Federal Court cases. In Robinson v. Canada (Attorney General), 2024 FC 2092 and Mombourquette v. Canada (Attorney General), 2024 FC 2093 he concluded that “the question whether Charter rights or values are engaged is assessed on a correctness standard and, if answered in the affirmative, the necessary balancing of those rights or values with statutory objectives is assessed on the standard of reasonableness” (Robinson, at para. 69).

I think both Horsman JA and Southcott J are right about the implications of recent Supreme Court jurisprudence. Both note, however, that the Supreme Court has not addressed this question squarely. As a result, some caution is needed about coming to hard-and-fast conclusions about the state of the law on this question.

There is no doubt, to my mind, that the correctness standard applies to the definition of Charter rights. That was the case even under the post-Dunsmuir case-law, Doré notwithstanding. The tricky issue is whether the same applies to Charter values, especially where an administrative decision-maker has given reasons. Southcott J addressed this point in Robinson but insisted that the correctness standard should apply even in such circumstances:

I appreciate that the performance of a court’s task in considering whether Charter rights or values are engaged in a particular case may differ depending on whether the administrative decision-maker has itself considered whether such rights or values are engaged. If the decision-maker has conducted such an analysis, then the court has the benefit of that reasoning that may inform its own analysis. However, I do not consider the existence of reasons from the decision-maker on Charter engagement to translate into a requirement that the court’s review of those reasons must be conducted on the standard of reasonableness. Nor can I identify a principled reason why, as the Respondent would advocate, the standard of review applicable to the engagement question should differ depending on whether or not the administrative decision-maker has itself considered and analysed the question (at para. 63).

As I say, I think Southcott J is right in his application of Supreme Court jurisprudence. I also think his response to the scenario of an administrative decision-maker providing reasons on the interpretation of the scope of a Charter right is sound. Such questions are ‘constitutional questions’ under Vavilov and require uniform answers from the courts. One’s freedom of expression right should not change depending on the identity of the administrative decision-maker one appears before.

I am less sure about whether this is right as a matter of first principles as far as Charter values are concerned. If (as I have argued) Charter rights are hard constraints on administrative decision-makers but Charter values are simply matters to be taken into account, this suggests that the standard of review as to whether the Charter is engaged might be different. In other words, if Charter rights and Charter values are conceptually distinct, then it cannot be said that the same standard must necessarily apply to the question of whether a Charter right or value has been engaged in a particular case. Charter values are relatively amorphous and context-sensitive, but this is arguably a feature rather than a bug, as the whole point of resorting to Charter values is to facilitate administrative decision-makers’ engagement with the Constitution (see here and here). If that is so, why not give administrative decision-makers some space (via the application of the reasonableness standard) to articulate their understanding of a Charter value in their particular domain of specialization and expertise?

Now, in respect to powerful critiques of the CSFTNO decision (e.g. Sullivan v. Canada (Attorney General), 2024 FCA 7) I have suggested recently that we should speak in terms of Charter purposes rather than Charter values (see here). But the argument for deference on the threshold question of whether a Charter purpose is engaged still holds. Charter purposes are set out in Supreme Court jurisprudence. However, Vavilov makes clear that court precedents are not straitjackets are far as administrative decision-makers are concerned:

Any precedents on the issue before the administrative decision maker or on a similar issue will act as a constraint on what the decision maker can reasonably decide. An administrative body’s decision may be unreasonable on the basis that the body failed to explain or justify a departure from a binding precedent in which the same provision had been interpreted. Where, for example, there is a relevant case in which a court considered a statutory provision, it would be unreasonable for an administrative decision maker to interpret or apply the provision without regard to that precedent. The decision maker would have to be able to explain why a different interpretation is preferable by, for example, explaining why the court’s interpretation does not work in the administrative context (at para. 112).

As I say, I think both Horsman JA and Southcott J are faithful to the Supreme Court jurisprudence. But the Supreme Court has not yet addressed the specific question of the standard of review applicable to a decision on whether a Charter value (or purpose) is engaged. And I think there is at least an argument that reasonableness might be the appropriate standard of review.

This content has been updated on March 28, 2025 at 19:39.