Considering Charter Values: Iacovelli v. College of Nurses of Ontario, 2014 ONSC 7267
As is well-known, the Supreme Court of Canada stated in Doré v. Barreau du Québec,  1 SCR 395 that administrative decision-makers must consider Charter values in the exercise of discretionary powers. However, this duty has recently been cast in very limited terms by a strong bench of Ontario’s Divisional Court in Iacovelli v. College of Nurses of Ontario, 2014 ONSC 7267.
There was an inquiry about I, a nurse who had a substance abuse problem. An addiction specialist who was I’s treating physician proposed a regimen of regular treatment and testing but advised the respondent that it would not be necessary to have I see another physician. Subsequently, having considered a letter from I’s physician, a discipline committee ordered I to undergo an examination by an independent addiction specialist. I sought judicial review of this order.
The committee’s role is quite limited. It is “an investigative and screening body that reviews issues of incapacity, professional misconduct and/or incompetence that arise from complaints” (para. 17). It is a gatekeeper that refers issues to the appropriate final decision-maker where there are reasonable and probable grounds to do so. McKinnon J. rejected I’s argument that the committee, gatekeeper that it may be, should also consider Charter values and ensure that its decision minimally impaired I’s interests.
First, a gatekeeper such as the committee cannot be compared to the administrative tribunal considered in Doré. It is “one step removed from the broad exercises of administrative discretion envisaged by the Supreme Court in Doré ” as it is “an investigative and gatekeeping body” whose “role is strictly proscribed by the legislation” (at para. 47). Indeed, the committee “is poorly suited to undertake a free-standing “Charter values” analysis” because it does not have the benefit of adversarial submissions; here, the applicant had not raised Charter values at all (para. 49).
Second, the committee simply did not have any room to consider Charter values. Its role was strictly to consider the existence of reasonable and probable grounds, not to undertake “a freestanding consideration of Charter values” (at para. 48). Indeed, the applicant’s argument that his “fundamental rights to bodily and psychological integrity, medical privacy, and freedom from discrimination on the ground of disability” were implicated was true of “every exercise of the…power to require a medical examination of a member suspected or known to be incapacitated” (at para. 54). The legislature had struck a balance between Charter values and the statutory objectives of the committee (at para. 57).
With respect, I think the Divisional Court misconceives the role given to Charter values by the Supreme Court in Doré. This is an ambiguous phrase, of course, which is difficult to interpret. On the one hand, one might think that Charter values are in the penumbra of Charter rights. But this leads to the objection that the Charter is being given a larger scope than that intended by its drafters and justified by its text. On the other hand, one might think that Charter values are simply the common values of a liberal democratic society that are inherent in the Charter. But this sounds awfully like John Willis’s “civil servant values” and it is difficult to see what the Charter adds, aside from a rhetorical gloss.
In an attempt to thread a needle between these two problematic extremes, Angela Cameron and I suggested (though perhaps not as explicitly as possible) the following approach in “Furthering Substantive Equality Through Administrative Law“: in all cases, Charter values emerge from the decision-making context, from reading the relevant statutory provisions in light of Charter guarantees and the characteristics of the individual(s) before the decision-maker. Moreover, to avoid excessive administrative formalism, it is not necessary to follow the strict, step-by-step requirements of Charter jurisprudence.
To take the committee in the present case as an example, if it were considering a complaint against a nurse who was a member of a minority group viewed with suspicion by many members of the community, it could not close its eyes to this fact in light of its gatekeeping role and the Charter guarantee of equality.
Similarly, when faced with a nurse who has, say, a debilitating physical condition, the committee might be constrained in the range of orders it should make in light of the Charter protection of security of the person. This is not to suggest that the Charter should be extended, or that Charter values should be collapsed into civil servant values, but simply to note that the relevant considerations for the decision-maker have to be understood in light of the statute, facts and Charter. In my view, this is the approach Abella J. mandated in Doré, one step removed from the “free-standing” analysis that McKinnon J. assumed here.
And the approach was mandated for all administrative decision-makers. No distinction is made in Doré between tribunals and other bodies. Once the role of Charter values is properly understood as requiring case-by-case contextual analysis, any decision-maker can undertake it. It is far removed from the step-by-step formalism of Charter analysis for proportionality.
One legitimate concern that arises is that Charter values may be invoked after the fact to attack otherwise impeachable decisions. This surely exercised McKinnon J. here, as the applicant seemingly did not mention Charter values at all until he applied for judicial review (at para. 49). This point goes to a tension in Doré between the duty of administrative decision-makers to consider Charter values and the role of a reviewing court which has to assess the reasonableness of the resulting decision and whether a proportionate balance was reached. The tension can be resolved by recognizing that administrative decision-makers have duties to consider Charter values but that Charter values cannot be magicked up post hoc by an applicant who never drew the decision-maker’s attention to them, absent exceptional circumstances. Such a restriction on raising matters for the first time on judicial review is, of course, familiar.
In summary, the right result was probably reached here, but the reasons given are difficult to reconcile with Doré and the appropriate role of Charter values.
This content has been updated on January 17, 2015 at 14:05.