Charter Application by Administrative Tribunals: Statutory Interpretation

Canadian courts have come to accept that the constitution is not some sort of holy grail that administrative decision-makers should not touch. As it is the supreme law of the land, its writ ought to run in any government agency, and its authority may be invoked by individuals in almost any decision-making setting.

But does invoking the authority of the constitution, and in particular its Charter of Rights and Freedoms, require an individual to frame their arguments as a lawyer would in the formal setting of a courtroom? In Doré v. Barreau du Québec, 2012 SCC 12, the Supreme Court of Canada suggested that the answer was 'No'. Decision-makers should pay attention to Charter "values", not necessarily Charter "rights", in the exercise of their discretionary authority. The message is: less legalism in administrative decision-making.

Defining Charter values is a difficult task, but let's bracket it for the purposes of this post (for competing takes, see my paper with Angela Cameron and this recent one by Lorne Sossin and Mark Friedman). There is a more difficult question: what is the role of Charter values in statutory interpretation by administrative decision-makers?

The Ontario Human Rights Tribunal said the following in a recent decision concerning the province's Human Rights Code:

The boundaries of what falls under the social areas of services, accommodation, … and employment are not always clear. An adjudicator must undertake an interpretation of the broad words in the Code to determine, in a contested case, whether this is the type of activity that it regulates. … The need for a large and liberal approach to the rights in the Code does not relieve those applying it from the difficult task of interpreting its boundaries...

Taylor-Baptiste v. O.P.S.E.U., 2014 ONSC 2169.

One might ask how this ‘fits’ with two contemporary rules of statutory interpretation, (1) that where the legislation is “clear” there is only one reasonable answer and the courts must insist upon it and (2) that Charter values can only be considered if the statutory provisions are ambiguous.

Two responses are possible, one radical, one modest. A radical (like me) would say that the rules of statutory interpretation do not bind administrative decision-makers, who are free to fashion their own approaches to pursuing their statutory mandates. If courts want to go around enforcing “clear” statutory provisions after the fact, that is their business. As Abella J. recently put it, in an otherwise orthodox opinion on statutory interpretation: "Only in the administrative law context is ambiguity not the divining rod that attracts Charter values" (R. v. Clarke, 2014 SCC 28, at para. 16).

Someone more modest would say that where the statutory provisions are ambiguous/broad/vague -- as in the Taylor-Baptiste case mentioned above -- Charter values must be considered. This fits with R. v. Conway, 2010 SCC 22, which, although it only really bites where a remedy is sought, could be considered engaged when a decision-maker flouts clear statutory language to achieve a Charter-values-inspired policy goal. Even-handedness requires acknowledging that, in Clarke, Abella J. suggested that Doré is relevant only to exercises of discretion, but her opinion is not clear on this point.

On either the radical or the modest approach, Charter values have an important role to play in interpretation by administrative decision-makers.

That does not resolve the question whether Charter values now fully occupy the field previously occupied by Charter values. Subject to one caveat, I would say they do. Doré represents a laudable attempt to de-formalize the administrative process by removing the need to engage in a full-fledged Charter infringement and s. 1 analysis, which is liable to be time-consuming, costly and difficult for the lay litigant. Charter values are to infuse the exercise of discretion -- and, as I suggested, statutory interpretation too. The extent to which they do so depends on one's view of the scope of administrative autonomy and, in particular, the appropriate role of principles of statutory interpretation in the administrative process.

Caveat: the individual retains the option of asking for a Charter remedy, in which case I presume a formal Charter analysis remains necessary. An individual who pursues this option runs the risk of being told that the remedy sought is unavailable given the constraints of the statutory scheme. For tactical reasons, I suspect, few individuals will pursue this particular avenue.