Triggering the Doré Duty
This is an excerpt from my forthcoming article “The Doré Duty: Fundamental Rights in Public Administration“, to appear shortly in the Canadian Bar Review.
The Doré duty is about Charter values, not Charter rights. The Supreme Court stated in Loyola High School v Quebec (Attorney General) that the trigger for the duty is an administrative decision that “engages the protections enumerated in the Charter.”[1] Engagement here is to be understood broadly, covering “both the Charter’s guarantees and the foundational values they reflect.”[2] In other words, it is not necessary for the decision-maker to determine whether a decision will infringe a Charter right in order to consider Charter values: “In the administrative context, this Court has recognized that ‘any exercise of statutory discretion must comply with the Charter and its values.’”[3] Indeed, it would have been strange for the Supreme Court to use the language of Charter “values” in Doré had it meant to refer to Charter “rights”. Moreover, requiring a decision-maker to engage in a legalistic exercise of Charter jurisprudence would be at odds with the spirit of Doré which, as further discussed below, is to prompt decision-makers to engage with the Constitution in an informal, good faith manner.[4]
Of course, the Charter value must be relevant to the decision to be taken. Much of the time, a Charter value will be relevant because it has been raised in the decision-making process or because the context makes it obviously relevant: for example, the values underpinning s. 23 of the Charter will invariably be relevant in the context of a decision touching minority language rights. In more difficult cases, the value might not have been raised before the decision-maker or might have been considered obviously irrelevant to the decision to be taken. In borderline cases where relevancy is difficult to determine and the decision-maker has not addressed the point in its reasons, it will be appropriate for a reviewing court to look to the record to make a judgement call on whether the Charter value ought to have been addressed by the decision-maker.[5] Of course, a reviewing court also has the discretion not to entertain an argument which was not first addressed to an administrative decision-maker.[6]
Types of Decision
It is clear from the decision in Doré itself that the Doré duty applies to exercises of discretion.[7] In any situation where the decision-maker must make an “individualized assessment”,[8] it is necessary for the decision-maker to determine whether its ultimate disposition of the matter is consistent with Charter values.
However, Doré is not limited to exercises of discretion or other decisions requiring individualized assessments. Subsequently, the Supreme Court applied the Doré duty to legislative-type policy-making in the Law Society of British Columbia v Trinity Western case: there, the Law Society of British Columbia had, after a referendum of its members, adopted a resolution refusing to approve a new law school; the process leading to the adoption of this resolution was assessed for compliance with the Doré duty.[9] Several lower courts have addressed the Doré duty in the context of assessing administrative policies.[10]
Furthermore, recall the statement quoted above that “administrative decisions are always required to consider fundamental values,” including Charter values.[11] The Court of Appeal for Ontario considered this statement in Taylor-Baptiste v Ontario Public Service Employees Union[12], and concluded that Charter values can be taken into account by administrative decision-makers when interpreting statutes. In determining whether “a person’s conduct had violated the strictures of a statutory or regulatory rule,” it was legitimate for the Ontario Human Rights Tribunal to take Charter values into account.[13]
The debate in Taylor-Baptiste was about whether an administrative decision-maker has to identify ambiguity in a statute before having to resort to Charter values. The Court of Appeal rightly rejected this proposition. As the Supreme Court observed in R v Clarke, in the administrative context, ambiguity is “not the divining rod that attracts Charter values” because administrative decision-makers “must act consistently with the values underlying the grant of discretion, including Charter values.”[14] When determining legislative intent by reference to the traditional tools of text, purpose and context,[15] Charter values can be a relevant contextual consideration for an administrative decision-maker,[16] just like international law[17] or (perhaps) the constitutional imperative of reconciliation.[18] What a decision-maker cannot do is apply the presumption of constitutional compliance in the absence of an ambiguity.[19] However, where Charter values are relevant to the interpretation of a statutory provision, the decision-maker should take them into account.
The Doré duty, therefore, applies to all types of administrative decisions: to exercises of discretion (and other decisions involving individualized assessments), policy-making and statutory interpretation.
[1] Loyola, supra note 5 at para 4.
[2] Ibid [emphasis added].
[3] Trinity Western, supra note 5 at para 41, citing R v Conway, 2010 SCC 22 at para 41. See also Baker, supra note 43 at para 56: “though discretionary decisions will generally be given considerable respect, that discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter”; Divito v Canada (Public Safety and Emergency Preparedness), 2013 SCC 47 at para 49.
[4] Cf ET, supra note 7 at paras 112–125.
[5] Cf Paul Daly, “The Role of Charter Values: Taylor-Baptiste v. Ontario Public Service Employees Union, 2015 ONCA 495”, (22 July 2015), online (blog): Administrative Law Matters <https://www.administrativelawmatters.com/blog/2015/07/22/the-role-of-charter-values-taylor-baptiste-v-ontario-public-service-employees-union-2015-onca-495/> [perma.cc/].
[6] Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 (CanLII) at paras 22–29. See also Paul Daly, “Considering Charter Values: Iacovelli v. College of Nurses of Ontario, 2014 ONSC 7267”, (17 January 2015), online (blog): Administrative Law Matters <https://www.administrativelawmatters.com/blog/2015/01/17/considering-charter-values-iacovelli-v-college-of-nurses-of-ontario-2014-onsc-7267/> [perma.cc/].
[7] Doré, supra note 1 at para 55.
[8] Gordon v British Columbia (Superintendent of Motor Vehicles), 2022 BCCA 260 at para 59.
[9] Trinity Western, supra note 5 at paras 55–56.
[10] See e.g. Canadian Centre for Bio-Ethical Reform v South Coast British Columbia Transportation Authority, 2018 BCCA 344 [Canadian Centre for Bio-Ethical Reform 1]; Canadian Centre for Bio-Ethical Reform v Grande Prairie (City), 2018 ABCA 154 [Canadian Centre for Bio-Ethical Reform 2]; Guelph and Area Right to Life v City of Guelph, 2022 ONSC 43 [Guelph and Area Right to Life]. See also Commission scolaire francophone v Minister of Education, 2020 NWTSC 28 at paras 68, 105–107, 116, rev’d in AB v Northwest Territories (Minister of Education, Culture and Employment), 2021 NWTCA 8 [AB], leave to appeal to SCC granted, 2022 CanLII 28613 (SCC).
[11] Doré, supra note 1 at para 35.
[12] 2015 ONCA 495.
[13] Ibid at para 57.
[14] 2014 SCC 28 at para 16, citing Doré,at para 24. See further also John Mark Keyes & Carol Diamond, “Constitutional Inconsistency in Legislation—Interpretation and the Ambiguous Role of Ambiguity” (2017) 48:2 Ottawa L Rev 315 at 335–343.
[15] Vavilov, supra note 41 at para 118.
[16] Duncan v Retail Wholesale Union Pension Plan, 2017 BCSC 2375 at para 81.
[17] Society of Composers, Authors and Music Publishers of Canada v Entertainment Software Association, 2022 SCC 30 at paras 44–46 [Entertainment Software].
[18] AltaLink, supra note 23 at para 124, Feehan JA, concurring.
[19] See by analogy the discussion of the equivalent international law presumption in Entertainment Software, supra note 63 at paras 47–48.
This content has been updated on July 3, 2023 at 12:02.