The Two Aspects of the Doré Decision: Judicial Review and Administrative Justice

This is an excerpt from my forthcoming article The Doré Duty: Fundamental Rights in Public Administration, to appear shortly in the Canadian Bar Review.

There are two aspects to the decision of the Supreme Court of Canada in Doré v Barreau du Québec:[1] the decision imposes a framework for judicial review of administrative action infringing Charter rights (the judicial review aspect) and a separate framework for consideration of the Charter by administrative decision-makers (the administrative justice aspect).[2]

            As far as judicial review is concerned, the Supreme Court held in Doré that when an administrative decision is challenged for breaching a Charter right, the question for the reviewing court is “whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play.”[3] This aspect of Doré has been subject to considerable critical commentary.[4] In subsequent decisions, the Supreme Court has qualified the deferential language of Doré[5]and made clear that the “burden of justification” on a decision-maker who infringes Charter rights will be “a heavy one”[6] but there is still debate about whether these qualifications go far enough.[7]

            There was a separate administrative justice aspect to Doré, which imposed a procedural duty on administrative decision-makers to take Charter values into account. As a general proposition, the Court stated, “administrative decisions are always required to consider fundamental values” because the Supreme Court’s jurisprudence confirms that “administrative bodies are empowered, and indeed required, to consider Charter values within their scope of expertise.”[8] The Court went on to set out a specific methodology:

How then does an administrative decision-maker apply Charter values in the exercise of statutory discretion? He or she balances the Charter values with the statutory objectives. In effecting this balancing, the decision-maker should first consider the statutory objectives … Then the decision-maker should ask how the Charter value at issue will best be protected in view of the statutory objectives. This is at the core of the proportionality exercise, and requires the decision-maker to balance the severity of the interference of the Charter protection with the statutory objectives…[9]

This is best understood as grounded in administrative justice, which relates to “those qualities of a decision-making process that provide arguments for the acceptability of its decisions.”[10] The explicit requirement to consider Charter values is distinct from the standard of review to be applied to decisions that allegedly infringe the Charter. It is a standalone procedural duty. Note that “values” and “rights” play different roles that track the administrative justice/judicial review distinction: “values” must be taken account of by the decision-maker during the decision-making process, but “rights” act as constraints on the lawfulness of the final decision.[11] Whereas a decision-maker need only be “alive” to Charter values,[12] if an administrative decision infringes a Charter right, the decision-maker must demonstrate that “[he or she] has furthered his or her statutory mandate in a manner that is proportionate to the resulting limitation on the Charter right.”[13] Charter “values” do not constrain administrative decision-makers as much as Charter rights.

            Two questions immediately arise: what is a Charter value and what is a procedural duty? I will address these questions in turn before setting out the Doré duty in more detail. In setting out the Doré duty in more detail, I will discuss the Supreme Court of Canada’s reformulation of administrative law in Canada (Minister of Citizenship) v Vavilov and explain how reasonableness review of decision-makers’ attempts to discharge procedural duties now functions. In short, whilst Doré is best understood as imposing a procedural duty, compliance with that procedural duty is to be assessed by reference to the Vavilov framework.

[1] 2012 SCC 12 [Doré].

[2] Paul Daly, “The Autonomy of Administration” UTLJ [forthcoming in 2023].

[3] Supra note 1 at para 57.

[4] See e.g.Paul Daly, “Prescribing Greater Protection for Rights: Administrative Law and Section 1 of the Canadian Charter of Rights and Freedoms” (2014) 65 SCLR(2d) 247 and “The Court and Administrative Law: Models of Rights Protection” in Matthew Harrington, ed, The Court and the Constitution: A 150-Year Retrospective (Toronto: LexisNexis, 2017) 57; The Honourable Peter D Lauwers, “Reflections on Charter Values: A Call for Judicial Humility” (Speech delivered at the Runnymede Society, Toronto, 12 January 2018); Audrey Macklin, “Charter Right or Charter-Lite? Administrative Discretion and the Charter” (2014) 67 SCLR (2d) 561. Cf Lorne Sossin & Mark Friedman, “Charter Values and Administrative Justice” (2014) 67SCLR(2d) 391; Richard Stacey, “A Unified Model of Public Law: Charter Values and Reasonableness Review in Canada” (2021) 71:3 UTLJ338. See generally Yan Campagnolo, “L’interaction du droit constitutionnel et du droit administratif” dans Stéphane Beaulac et Jean‑François Gaudreault‑DesBiens, dirs, JurisClasseur Québec, Collection droit public, Droit administratif (Montréal: LexisNexis, 2021).

[5] Loyola High School v Quebec (Attorney General), 2015 SCC 12 at para 38 [Loyola]; Law Society of British Columbia v Trinity Western University, 2018 SCC 32 at paras 57–58 [Trinity Western].

[6] Paul Daly, “Unresolved Issues after Vavilov” (2022) 85 Sask L Rev89 at 110.

[7] See e.g. ET v Hamilton-Wentworth District School Board, 2017 ONCA 893 at para 11, Lauwers & Miller JJA, concurring [ET]; Trinity Western University, supra note 5 at paras 175, Rowe J, 302–314 Côté and Brown JJ, dissenting;Mark Mancini, “The Conceptual Gap between Doré and Vavilov” (2021) 43:2 Dal LJ 793.

[8] Doré, supra note 1 at para 35 [emphasis in original], citing Geneviève Cartier, “The Baker Effect: A New Interface Between the Canadian Charter of Rights and Freedoms and Administrative Law — The Case of Discretion”, in David Dyzenhaus, ed, The Unity of Public Law (Portland, Oregon: Hart, 2004) 61 at 86.

[9] Doré, supra note 1 at paras 55–56.

[10] Jerry Mashaw, Bureaucratic Justice: Managing Social Security Disability Claims (New Haven: Yale University Press, 1983).

[11] See especially Trinity Western, supra note 5 at para 56: “As the Benchers were alive to the issues, we must then assess the reasonableness of their decision” [emphasis added].

[12] Ibid at para 55.

[13] Ibid at para 82.

This content has been updated on June 17, 2023 at 17:59.