Developments in Administrative Law: The 2014-2015 Term

In its seminal 2008 judgment in Dunsmuir v New Brunswick and in subsequent decisions, the Supreme Court has done much to address essential questions regarding how Canadian courts should approach the review of administrative decisions, including those that engage the Charter. Notably, it has clarified and simplified the standard of review framework by making reasonableness the presumptive standard of review of administrative decision makers’ interpretation of their enabling and related legislation. In Mouvement Laique Quebecois v Saguenay (City) and Tervita Corp. v Canada (Commissioner of Competition), two decisions from its 2014-2015 term, the Court recognized relatively contained “contextual exceptions” to the presumption of reasonableness review based, respectively, on legislatures’ express conferral on courts and tribunals of shared first instance jurisdiction over questions of statutory interpretation and on their formulation of statutory provisions that expressly contemplate correctness review. These decisions serve as reminders that in determining the proper standard of review for a specific question, courts still seek to ascertain whether legislatures intended the tribunal or the reviewing court to answer that question. The majority judgment in Loyola High School v Quebec (Attorney General) goes some way towards clarifying the role of Charter values in the framework for the review of exercises of discretion that engage the Charter rights of affected parties, unanimously adopted by the Court in its 2012 judgment in Dore v Barreau du Quebec. By defining Charter values as values that underpin and give meaning to each Charter right and help determine both the extent of a rights infringement in the context of administrative decision making and when limitations on the right are proportionate in light of the applicable statutory objectives, the Court has firmly placed the question of whether a Charter right is engaged at the core of the inquiry. However, the decision of the concurring judges to subject the impugned decision to review based on a truncated section 1 analysis signals a weakening commitment to the Dore framework and the resurgence on the Court of familiar fault lines regarding the proper relationship between administrative and constitutional law.

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