The song remains the same: The Doré/Loyola framework after TWU

  • January 07, 2019
  • Guy Régimbald and John J. Wilson

In the companion appeals of Trinity Western University v Law Society of Upper Canada1 and Law Society of British Columbia v Trinity Western University2, seven of nine Supreme Court justices upheld the Law Societies’ decisions to withhold accreditation from Trinity Western University’s proposed law school. In both cases, TWU, an evangelical Christian post-secondary institution, and Brayden Volkenant, a graduate of TWU’s undergraduate program who would have likely applied to TWU’s proposed law school, sought judicial review of the respective Benchers’ decisions on the basis that they violated section 2(a) of the Charter.

The issue dividing the majority and dissenting opinions in both cases was whether the law societies had reasonably exercised their discretion in accordance with the test set out in DorĂ© v Barreau du QuĂ©bec3 and Loyola High School v Quebec (Attorney General)4 (the DorĂ©/Loyola framework).5 In contrast to the more formalized test for justification of a Charter-infringing law set out in R v Oakes,6 the DorĂ©/Loyola framework requires a court to consider whether an administrative decision maker’s decision proportionately balances the Charter rights and values engaged in light of the statutory and factual contexts in which it is taken.7

Of particular interest for administrative and constitutional lawyers is that, as a result of submissions from the parties and interveners about whether and how the DorĂ©/Loyola framework amended the Oakes tests for administrative law decisions, the TWU decisions include four sets of judgments taking a mix of positions on the role of Charter values, the relationship between the DorĂ©/Loyola framework and the Oakes test, and where the burden of proof properly lies in the DorĂ©/Loyola analysis. This article aims to briefly untangle these judgments and explain their import. 

Per the majority, the Doré/Loyola framework remains unaltered.

In both decisions, Justices Abella, Moldaver, Karakatsanis, Wagner, and Gascon appear to endorse the existing Doré/Loyola framework, raising no concerns with and making no substantive changes to the doctrine. In TWU v LSUC, the majority expressly takes the position that Charter rights are no less protected under the framework:

[30] Administrative decisions that engage the Charter are reviewed based on the framework set out in Doré and Loyola. The Doré/Loyola framework is concerned with ensuring that Charter protections are upheld to the fullest extent possible given the statutory objectives within a particular administrative context. In this way, Charter rights are no less robustly protected under an administrative law framework.

The majority simply goes on to recognize that an administrative decision’s engagement of both Charter rights and values triggers review using the framework, which is concerned with the proportionality of the Charter protections at play under the factual and statutory contexts:

[31] Under the precedent established by this Court in DorĂ© and Loyola, the preliminary question is whether the administrative decision engages the Charter by limiting Charter protections — both rights and values (Loyola, at para. 39). If Charter protections are engaged, the question becomes ‘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’ (DorĂ©, at para. 57; Loyola, at para. 39).

As such, and insofar as this is the majority judgment of the court, the Doré/Loyola framework, strictly speaking, remains unaltered.

Per Chief Justice McLachlin: there is affinity between DorĂ©/Loyola and Oakes; Charter rights, not values should be the focus of the analysis; the former’s scope should be consistently applied; the burden of proof for justification rests with the state.

In LSBC v TWU, Chief Justice McLachlin, after noting that the contours of the DorĂ©/Loyola framework “continue to elicit comment from scholars and judges,”8 makes several suggestions for doctrinal clarification.

She begins by appearing to elide the two tests (or at least, indicate that they have a common purpose) when describing the second step of the DorĂ©/Loyola framework as determining “whether the limitation of the right is proportionate in light of the state’s objective, and hence is justified as a reasonable measure in a free and democratic society under s.1 of the Charter.9

Second, she makes a number of more general comments, two of which represent doctrinal change.

First, she emphasizes that the court’s initial focus must be on whether the claimant’s Charter right has been infringed, limiting the role of Charter values to aiding in defining the scope of rights.10

Second, she stresses that courts must ensure that regardless of which state actor’s actions are impugned, the scope of Charter rights must be given a consistent interpretation.11

Third, and again appearing to elide the Oakes and DorĂ©/Loyola framework, because “this is a matter of justification of a rights infringement under s. 1 of the Charter,” she states that “the onus is on the state actor that made the rights-infringing decision (in this case the LSBC) to demonstrate that [those limits] are reasonable and demonstrably justifiable in a free and democratic society.”12

Finally, she notes that the language of “deference” and “reasonableness” may be unhelpful, on the basis that any decision having an unjustified or disproportionate impact on a Charter right will always be unreasonable.13

Arguably, the first and third of these comments, had they been endorsed by a majority of the court, would represent changes to the Doré/Loyola framework.

Per Justice Rowe: Charter rights, not values must be the focus of the inquiry; the Doré/Loyola framework requires analytical rigour in its application; the burden of proof for justification rests with the state.

Although Justice Rowe ultimately would have decided the appeals without recourse to the DorĂ©/Loyola framework14,  he did, in obiter, offer several clarifications to the doctrine.

First, after echoing Chief Justice McLachlin’s view that Charter rights, not Charter values, must be the focus of the inquiry and acknowledging that the latter may nonetheless assist in the adjudication of claims based on the former15, he finds that where state actors have infringed a Charter right, the state must meet the burden of justification imposed by section 1, even in an administrative context:

[175]   The point is this. In cases where Charter rights are plainly at stake, courts and other decision-makers have a constitutional obligation to address the rights claims as such and to do so explicitly. An analysis based on Charter values should not eclipse or supplant the analysis of whether Charter rights have been infringed. Where Charter rights have been infringed by administrative actors, reviewing courts must determine whether the state meets the burden of justifying the infringement according to s. 1. This is not a matter of doctrinal preference. It is a constitutional obligation imposed by the Charter.

Second, he calls for a return to the purposive delineation of the scope of Charter rights, reiterates that the scope of a right and the analysis of the justifiability of its infringement under section 1 are conceptually disctinct, and therefore stresses that analytical rigour must be applied to judicial review of rights-infringing claims.16

Third, and following Chief Justice McLachlin, he agrees that the Doré/Loyola framework did not alter the burden of proof for the adjudication of Charter claims in the administrative context. As such, after a claimant has demonstrated that an administrative decision has infringed his Charter rights, it is presumptively unreasonable and the state must provide justification.17

Per Justices Côté and Brown: the Doré/Loyola framework subverts section 1; Charter values do not enjoy any Charter protection; burden of proof rests with state actor.

Justices CĂ´tĂ© and Brown, in dissent, after expressly declining to reconsider the DorĂ©/Loyola framework, offered three “fundamental concerns” with the state of the doctrine, which, in their view “betrays the promise of our Constitution that rights limitations must be demonstrably justified.”18

First, Justices Côté and Brown take the view that rather than, as section 52 of the Constitution Act, 1982 provides, rights trump statutory objectives, the Doré/Loyola framework only guarantees Charter rights to the extent that their enjoyment is consistent with the objectives of the enabling statute:

This is evident in the majority’s own reasons. The state, it says need only show that its decision “gives effect, as fully as possible to the Charter protections at stake given the particular statutory mandate” (para. 80, quoting Loyola, at para. 39 (emphasis added)). Or, “[p]ut another way, the Charter protection must be ‘affected as little as reasonably possible’ in light of the applicable statutory objectives” (para. 80, quoting Loyola, at para. 40 (emphasis added)). In other words, under DorĂ©, Charter rights are guaranteed only so far as they are consistent with the objectives of the enabling statute. When push comes to shove, statutory objectives — including, presumably, unconstitutional statutory objectives — trump the right. But s. 52 of the Constitution Act, 1982, which provides for the primacy of the Constitution, suggests to us that it should be the other way around — that rights trump statutory objectives and decisions taken thereunder. Further, s. 1 of the Charter does not guarantee certain rights and freedoms subject only “to the limits imposed by statutory objectives,” but to limits that are “demonstrably justified in a free and democratic society…”19

Second, the dissent agrees with the Chief Justice and Justice Rowe that Charter values do not receive any independent protection under the Charter.20

Finally, and again, agreeing with the Chief Justice, the dissent finds that the onus for justification of an infringement rests with the decision maker, not the claimant.21


As noted above, the majority judgments in the TWU decisions do not, strictly speaking, appear to alter the Doré/Loyola framework. That said, the three remaining sets of judgments offered pointed criticisms, and in some cases, shared suggestions as to how the doctrine could be improved.

Guy RĂ©gimbald is a partner and John J. Wilson an associate with Gowling WLG (Canada) LLP

End notes

1. Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33 [“TWU v LSUC”].

2. Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 [“LSBC v TWU”].

3. DorĂ© v. Barreau du QuĂ©bec, 2012 SCC 12 (CanLII). 

4. Loyola High School v. Quebec (Attorney General), 2015 SCC 12 (CanLII) [“Loyola”]. 

5. However, Justice Rowe, concurring in the result with the majorities in both appeals, found that the decision did not engage section 2(a) of the Charter, and assessed the reasonableness of the Benchers’ decisions under the usual principles of judicial review. See TWU v LSUC at paras 48-55 and LSBC v TWU at paras 152-259.

6. R. v. Oakes, [1986] 1 SCR 103.

7. Loyola at para 39.

8. LSBC v TWU at para 111.

9. LSBC v TWU at para 112.

10. LSBC v TWU at para 115.

11. LSBC v TWU at para 116.

12. LSBC v TWU at para 117.

13. LSBC v TWU at para 118.

14. See TWU v LSUC at paras 48-55 and LSBC v TWU at paras 152-259.

15. LSBC v TWU at paras 166, 170.

16. LSBC v TWU at paras 185, 189, 194.

17. LSBC v TWU at para 196

18. LSBC v TWU at 266.

19. LSBC v TWU at 305.

20. LSBC v TWU at 307.

21. LSBC v TWU at 312-314.