Facts:
Five sets of parents living in the Northwest Territories wished to enrol their children in one of the Territory’s two French language schools. None of the parents had a constitutional right under s. 23 of the Charter to have their children educated in French. As a result, they were required to request that the Minister of Education, Culture, and Employment exercise her discretion to admit their children.
In each case, the Conseil scolaire francophone des Territories du Nord-Ouest (“CSFTNO”) assessed the children and recommended their admission, essentially because it would promote the development of the Francophone community of the Northwest Territories. Nevertheless, the Minister denied each of the applications for admission. She determined that the applicants did not meet the criteria for the admission of non-rights holders under the Territory’s directives and that admitting the children would require her to admit other children in similar circumstances, which would have unpredictable budgetary consequences.
The parents and the CSFTNO sought judicial review of the Minister’s decisions. The Supreme Court of the Northwest Territories allowed the application, holding that the Minister did not proportionately balance the protections under s. 23 of the Chater. The Court of Appeal for the Northwest Territories allowed the Minister’s appeal, concluding that the decisions were reasonable.
The parents and the CSFTNO appealed to the Supreme Court.
By the time of the Supreme Court hearing, all of the children were either admitted to the French schools or moved out of the Northwest Territories. Nonetheless, the Supreme Court decided to rule on the matter anyway.
Decision
(per Wagner C.J. and Karakatsanis, Côté, Martin, Kasirer, Jamal and O’Bonsawin JJ.): appeal allowed; the Minister’s decisions were unreasonable because she did not properly balance the values underlying s. 23 of the Charter against the government’s interests.
The parties agreed that the standard of review is reasonableness. The Court must apply the framework set out in Doré v. Barreau du Québec1 for assessing the reasonableness of decisions that engage the Charter. The Doré framework applies not only to administrative decisions that directly infringe Charter rights, but also where the decision simply “engages a value underlying one or more Charter rights, without limiting these rights” (para. 64). Thus, the framework is still applicable, despite the fact that none of the applicant parents held rights under s. 23.
Where an administrative decision limits Charter values, it will only be reasonable if the decision-maker conducted a proportionate balancing of the Charter values with the statutory objectives. While reasonableness review typically has courts simply assess whether the decision-maker took all relevant considerations into account, reasonableness under the Doré framework requires the court to consider the weight accorded by the decision-maker to the relevant considerations.
In this case, the values underlying s. 23 of the Charter were engaged by the Minister’s decisions because they were likely to impact the preservation and development of the French language minority community in the Territory. The Minister was therefore required to consider these values in exercising her discretion to decide whether to admit the applicants to the French schools. However, the Minister’s reasons show that she did not truly take these values into account. Instead, the Minister mischaracterized the parents’ motivation for applying and gave disproportionate weight to the potential costs. As a result, the decisions were unreasonable.
Commentary:
For a while, particularly following Vavilov2, many have questioned the Supreme Court’s continued commitment to the framework for assessing administrative decisions that engage the Charter, as established in Doré and Loyola High School v. Quebec (Attorney General).3 Indeed, as recently as 2018, Justice Côté herself penned a lengthy dissent (together with Justice Brown), which outlined a number of her fundamental concerns with the Doré analysis(including its reliance on Charter values).4 In this case, however, the Supreme Court has not only unanimously reaffirmed the Doré/Loyola framework, but also expanded its scope and intensity.
While Côté J. claims that the case is “a straightforward application” of Doré (para. 59), the decision does tweak (or at the very least clarify) the framework in at least two key ways.
First, the Court holds that the Doré framework can apply even where the decision has no impact on the Charter rights of the applicants. Here, it was undisputed that the applicant parents had no rights under s. 23; their rights could not possibly have been infringed. Nevertheless, the Court held that the Minister needed to consider the impact of her decisions on other third parties, whose interests under s. 23 were impacted. The Court also relatedly holds that Doré balancing is still necessary when Charter values are engaged, even if no actual rights are limited.
One might argue that these conclusions flow from the unique collective and positive nature of s. 23 rights (which Côté J. highlighted in the first paragraphs of her decision). It will therefore be important to see whether the Court embraces this expanded view of Doré in the context of other Charter rights and values, which do not necessarily share the same collective dimension as the language rights at issue here.
Second, the Supreme Court’s decision articulates and reflects a particularly robust form of review under the Doré framework. In conducting the reasonableness review pursuant to Doré, not only must the courts consider whether the decision-maker took into account the relevant Charter rights and values, but the court must also “inquire into the weight accorded by the decision maker to the relevant considerations in order to assess whether a proportionate balancing was conducted” (para. 72; emphasis added). This appears to tread very closely to saying that the court can re-weigh the relevant factors to determine whether the decision-maker ‘got it right’ when it comes to proportionality—which is typically anathema to the deferential posture of reasonableness review. In this way, reasonableness review where the Charter is engaged is even more robust than elsewhere.
As a practical matter, the decision suggests Doré review will be a more intense exercise moving forward. Administrative decision-makers engaged in discretionary decision-making should be sure to address how their decision may have engaged Charter values (even if there is no rights infringement that has taken place), including by impacting the Charter-protected interests of other parties. Administrative decision-makers will then have to identify the relevant constitutional considerations and show that they have been weighed against the relevant statutory objectives as part of the proportionate balancing exercise.
- 2012 SCC 12. ↩︎
- Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. ↩︎
- 2015 SCC 12. ↩︎
- Law Society of British Columbia v Trinity Western University, 2018 SCC 32 at paras 302-314. Justice Rowe also shared some of these concerns in the course of his concurring opinion: see paras 162-208. ↩︎