Charter values and deference in non-adjudicated administrative decisions

  • April 19, 2018
  • Anna Rosenbluth

The Ontario Court of Appeal, in its recent decision in E.T. v Hamilton-Wentworth District School Board, 2017 ONCA 893, provided a significant critique of the deferential approach to consideration of the Charter by administrative decision-makers, which appears to have taken hold as a result of the Supreme Court of Canada's decision in DorĂ© v Barreau du QuĂ©bec, [2012] 1 SCR 395, 2012 SCC 12, and particularly emphasized the need for attention to the context within which such decisions are made.   


In Doré, the Supreme Court held, regarding a discipline decision by a quasi-judicial adjudicative administrative body, that the reasonableness standard applied to the review of administrative decision-makers' application of the Charter in "adjudicated" discretionary decisions (at paras. 4-8). This represented a substantial departure from the majority reasoning in Multani v Commission scolaire Marguerite-Bourgeoys, [2006] 1 SCR 256, 2006 SCC 6, which held that such deference could reduce fundamental rights and freedoms "to mere administrative law principles" (para. 16). Three years later, in Loyola High School v Quebec (Attorney General), [2015] 1 SCR 613, 2015 SCC 12, the court applied the same deference to its review of the Quebec Minister of Education, Recreation and Sport's refusal to exempt a Catholic high school from a curriculum teaching world religions from a neutral perspective. This decision was not quasi-judicial or adjudicative, but the court did not consider whether the rationale for deference that it had applied in Doré was equally applicable in this very different decision-making context.

In Hamilton-Wentworth, the appellant practised the Greek-Orthodox religion. He had two children enrolled in an elementary school with the respondent school board. He had advised the school board that his religious beliefs required him to shelter his children from what his religion regarded as "false teachings," including topics such as sex education and portrayals of homosexual and bisexual conduct. He asked for advance notice of any classroom discussion of these issues so that he could decide whether to withdraw his children from those lessons or classes. After the school board refused this request, the applicant applied to the Ontario Superior Court of Justice for an order that the school board provide him with the advance information he had requested. The applications judge dismissed his application, and he appealed that decision to the Ontario Court of Appeal.

The decision

In majority reasons written by Lauwers JA with Miller JA concurring (separate reasons were given by Sharpe JA), the court dismissed the appeal, finding that the appellant had not established that his freedom of religion had been infringed by the school board's policy. However, in obiter, the majority noted that the shift in context from Doré to Loyola was "not a small one" (para. 109) and went on to express "serious concerns" about the application of the Doré framework with respect to decisions of "line decision makers" such as the teachers, principals and supervisory officers responsible for implementing school board policies (para. 50). The majority noted that such individuals "typically lack Charter expertise" (para. 114) and expressed the following additional concerns about applying the Doré framework in this type of non-adjudicative decision-making context:

  • Not every legislative or policy objective implemented by a challenged line decision is pressing and substantial and a "line decision maker" may not be competent to make this "constitutional assessment." Applying the DorĂ©/Loyola approach to such decisions effectively reverses the s. 1 Charter onus to establish a pressing and substantial objective, to the rights claimant’s disadvantage (para. 117).
  • A presumption that a non-adjudicative decision-maker is always guided by a pressing and substantial objective may "put the rights claimant in the position of having to challenge the legislative objective in order to defeat the presumption, when all she wants to do is challenge a specific decision" (para. 118).
  • It is not clear who is responsible for justifying the Charter infringement when there is no adjudication at the moment of the challenged decision, or what sort of justification a line decision-maker must provide (paras. 119-120).
  • Do line decision-makers have sufficient expertise with respect to Charter rights to justify a deferential standard of review and can we be sure that line decision makers reviewing one another's decisions will inevitably be impartial and fair (paras. 122-123)?

Lauwers JA concluded that he "would be reluctant to apply a robust concept of “reasonableness” burdened by a standing obligation of judicial deference to a line decision maker’s discretionary decision due to the "real risk" that a claimant’s Charter rights would not be understood and given effect by the decision maker (para. 125).


The comments of the majority in Hamilton-Wentworth underscore the importance of context in assessing the standard of review for administrative Charter decisions at a time when the Supreme Court is moving away from consideration of contextual factors in decisions such as Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd., [2016] 2 SCR 293, 2016 SCC 47 and Wilson v Atomic Energy of Canada Ltd., [2016] 1 SCR 770, 2016 SCC 29. Administrative decisions are made in myriad different contexts, from the decisions of quasi-judicial tribunals to decisions of hospital administrators (eg. Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624, 1997 CanLII 327 SCC)), public transit authorities (eg. Greater Vancouver Transportation Authority v Canadian Federation of Students — British Columbia Component, [2009] 2 SCR 295, 2009 SCC 31), immigration officers (eg, Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, 1999 CanLII 699 (SCC)), and school teachers and administrators. While it is one thing to presume that administrative decision-makers, whether adjudicative or non-adjudicative, have expertise regarding their home statute, it is another thing altogether to presume that all administrative decision-makers have expertise in applying the Charter within their decision-making context.

Anna Rosenbluth is a staff lawyer with Legal Aid Ontario