Doubling down on Doré

The Supreme Court’s most recent administrative law decision, NWT, unequivocally affirms the 2012 Doré decision. It’s a surprising turn of events for the legal community: Contrary to what many assumed after the landmark 2019 Vavilov decision was released, reports of Doré’s demise were greatly exaggerated.

What you need to know

• In the aftermath of the Vavilov decision, many commentators speculated that the Supreme Court would soon overturn its 2012 decision in Doré v. Barreau du Québec, which provides for deferential review of administrative decisions that engage the Charter of Rights and Freedoms (Charter).
• Doré held that, for administrative decisions that engaged the Charter, i) the administrative decision-maker was required to weigh the Charter protections against the statutory objectives; but ii) courts would generally defer to the decision.
• The Court’s most recent decision on Charter analysis in administrative decision-making—the first since its overhaul of administrative law in Vavilov—unequivocally affirms Doré, suggesting that reports of its demise were greatly exaggerated.
• While the Doré framework tends to make it easier for administrative decisions to be upheld on appeal, NWT imposes obligations on administrative decision-makers to consider Charter values even when the individual or entity at issue does not hold the Charter right in question.
• In NWT, the Court held that the decision-maker needed to consider section 23 of the Charter—which provides certain rights to minority-language speakers—even though the applicants were majority-language speakers and could not assert section 23 themselves.

The Charter and administrative decision-making

The Supreme Court of Canada has historically struggled to provide systematic guidance to administrative decision-makers and reviewing courts when administrative decisions engage the Charter. In 2012, a unanimous Court—overturning a case from just six years prior—held that deferential reasonableness review applies to discretionary decisions made by an administrative decision-maker that engage “Charter values”. Administrative decisions must, under this approach, reflect “a proportionate balancing” of the Charter protections and the statutory objectives at issue.

That decision—Doré v.  Barreau du Québec—has faced a decade of sharp criticism. Critics say that: a) it demands deference to government actors’ own determination of whether their actions violate constitutionally protected civil liberties; b) it reverses the burden of proof, requiring judicial review applicants to show why the state’s infringement is justified; and c) it rests on “Charter values”, an uncertain concept that some Supreme Court judges have subsequently called “mere rhetorical devices by which courts can give priority to particular moral judgments”.

In 2019, the Supreme Court revamped Canadian administrative law in its Vavilov decision. Despite its sweeping treatment of the law of judicial review, Vavilov left Doré’s future for another day. Many commentators speculated that this silence signaled that Doré’s days were numbered.

Not so fast: Doré is still golden

In the Supreme Court’s first reference to Doré since Vavilov, a unanimous Court unequivocally affirmed it. In Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, Justice Coté—once one of Doré’s sharper critics—called the case “a straightforward application” of Doré. NWT simply applies Doré, ignoring the critiques lobbed at Doré from both outside and inside the Supreme Court.

NWT makes it unlikely that we will see Doré’s once-anticipated obituary any time soon. Parties seeking judicial review of administrative decisions on Charter grounds will need to work within the confines of Doré. This includes accepting that courts will continue to defer to administrative decision-makers’ balancing of Charter values against statutory objectives.

The need to consider non-rights holders

In addition to affirming Doré, NWT breaks new ground by finding that administrative decision-makers need to consider Charter values even where the affected persons do not hold those rights.

NWT involves five anglophone parents challenging a decision to refuse to admit their children to a French language school on the basis that the school board failed to properly consider section 23 of the Charter. Section 23 guarantees a certain level of access to minority language schools for certain minority language speakers. These anglophone parents were not members of a minority language group and, therefore, had no constitutional right for their children to receive instruction in French. 

Nevertheless, the Supreme Court held that the administrative decision did not constitute a proportionate balancing of the values reflected in section 23 and the relevant governmental interest. The evidence before the Court suggested that increasing the use of French among English-speaking children was a means to preserve and develop the language and culture of the French language community in the Northwest Territories.

NWT affirms Doré’s deferential posture towards discretionary decisions, even if they implicate the Charter. But the need to examine Charter values—even when no party before the decision-maker holds the Charter right being asserted—broadens the scope of what administrative decision-makers must consider, and, in turn, gives greater scope to challenge the ultimate decision. So while the Court has affirmed Doré, it has clarified that the deference it requires does not amount to a rubber stamp when administrative decisions implicate the Charter.