Monday, 4 November 2013

Using Administrative Law to Advance Substantive Equality

This is a second extract from my paper, co-written with Angela Cameron, on Furthering Substantive Equality through Administrative Law: Charter Values in Education. What follows is written for the context of education law, but applies much more broadly.



What spaces exist for the furthering of substantive equality within the existing administrative law framework? Five can be identified.

First, consider the apparent importance accorded to general norms. Questions of general law are both of central importance to the legal system as a whole and outside a decision-maker’s specialized area of expertise fall in the judicial domain.[1] Should a decision-maker make a misstep in answering such a question, the courts stand ready to intervene.[2] Enforcement of these general norms, then, is within the judicial bailiwick. Ensuring that certain important factors are taken into account in decision-making processes might amount to the sort of general norm that deserves Canada-wide enforcement. If there are important characteristics of vulnerable individuals which are common to multiple regulatory regimes, reviewing courts could ensure that administrative actors give the characteristics due consideration. Failure to do so would result in decisions being quashed and remitted for reconsideration of the previously overlooked characteristics. 

For example, prior to the reorientation of judicial review doctrine in Dunsmuir v. New Brunswick,[3] the Court applied a standard of review of correctness in TWU,[4] a case in which the respondent had refused to accredit the teacher training program of a private university. The refusal was based on the homophobic internal policy of the school, Responsibilities of a Membership in the Community of Trinity Western University, to which students and faculty were to adhere. Justices Iacobucci and Bastarache noted that “[t]he existence of discriminatory practices is based on the interpretation of the TWU documents and human rights values and principles. This is a question of law that is concerned with human rights and not essentially educational matters.”[5] TWU provides some support for the existence of a general norm of non-discrimination, which reviewing courts can stand ready to enforce. It may be that the TWU foundation has been washed away by the recent waves of reform.[6] However, regardless of its precise place as a matter of judicial review doctrine, non-discrimination is doubtless a key benchmark against which ministers, civil servants, school boards, principals and teachers should judge themselves.

Second, the Canadian definition of unreasonableness has ample scope for the furthering of substantive equality claims. Failing to pay heed to the need to accord substantively equal treatment to vulnerable individuals or failing to take into account evidence which is relevant because of the need to accord substantively equal treatment could cause a decision-making process to lack the necessary “justification, transparency and intelligibility” or a decision to fall outside the range of acceptable and rational solutions.[7] This may be a more appropriate means of furthering substantive equality claims in Canadian administrative law. Elevating considerations to mandatory status as general norms could reduce the degree of deference accorded to administrative actors, whereas conceiving of failures to take important characteristics into account as tending to lead to unreasonableness strikes a balance between administrative autonomy and the aim of furthering substantive equality. 

Third, administrative actors must take Charter values into account in exercising their discretion. Values must be distinguished from guarantees: even in cases where an individual cannot surmount the formal thresholds of specific Charter rights, “the values they reflect” can still be a relevant consideration for administrative actors.[8] In furthering substantive equality, this distinction is critical. Although many vulnerable individuals would not be able to surmount the high thresholds of, say, section 7 of the Charter, they can invoke the values underpinning them. An individual’s life, liberty and security of the person may not be threatened to such an extent that section 7 is itself engaged, but where administrative decisions touch upon these aspects of vulnerable people’s lives, discretion should be exercised in an appropriately sensitive manner. More broadly still, the notions of compassion and fairness, in a broader setting of constitutionalism, democracy and the rule of law, animate the provisions of the Charter. For the vulnerable individual, these notions are full of vitality. Section 15’s guarantee of substantive equality looms especially large in this decision-making picture, whether or not the formal threshold of section 15 is surpassed.

Fourth, when it comes to statutory values, a broad view should be taken of statutory purposes. As public documents, statutes should be construed by reference to institutional and social values. Imbuing statutory provisions with values such as knowledge, fairness, integrity and compassion will give further guidance to administrative actors as to how they should exercise their authority, to institutions formulating guidelines, and courts in their reviewing roles. For example, the overarching principle of tolerance in British Columbia’s School Act[9] has been held to have the effect that while a school board is “indeed free to address the religious concerns of parents, it must be sure to do so in a manner that gives equal recognition and respect to other members of the community”.[10]

Fifth, “soft law” can be adapted to the requirements of substantive equality. Statutes provide baselines and, by and large, high ceilings. Institutions and those arguing within them can exploit this space to improve the lot of vulnerable individuals. At base, though, the exercise of discretion is a human endeavour and should be treated as such. Training administrative actors what to look for and how to react to it remains paramount. Adapting law and discretion is important, but we should not lose sight of the human element at the heart of government.


[1]       Smith v. Alliance Pipeline, [2011] S.C.J. No. 7, [2011] 1 S.C.R. 160, at para. 26 (S.C.C.), per Fish J.
[2]       Law Society of New Brunswick v. Ryan, [2003] S.C.J. No. 17, [2003] 1 S.C.R. 247, at para. 268 (S.C.C.), per Iacobucci J.
[3]       [2008] S.C.J. No. 9, [2008] 1 S.C.R. 190 (S.C.C.) [hereinafter “Dunsmuir”].
[4]       TWU, supra, note 8.
[5]       Id., at para. 18.
[6]       See, e.g., Syndicat du personnel technique et professionnel de la Société des alcools du Québec (SPTP) c. Société des alcools du Québec, [2011] J.Q. no 12598, [2011] R.J.D.T. 993, at para. 71 (Que. C.A.).
[7]       Dunsmuir, supra, note 87, at para. 47.
[8]       Doré, supra, note 3, at para. 3, per Abella J.
[9]       R.S.B.C. 1996, c. 412 [hereinafter “School Act”].
[10]     Chamberlain, supra, note 28, at para. 19.

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