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.
[4] TWU, supra, note 8.
[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.
[9] R.S.B.C.
1996, c. 412 [hereinafter “School Act”].
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