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?

Deference on Questions of Procedural Fairness

Historically, judges have developed and enforced the rules of procedural fairness. Little or no deference is owed to procedural choices made by administrative decision-makers.

In an important new decision, however, Bich J.A. of the Québec Court of Appeal has challenged the prevailing orthodoxy. Bich J.A. taught law at my institution, the Université de Montréal, before her appointment to the bench and is a recognized authority on labour law and administrative law. She has been mooted as a possible appointee to the Supreme Court of Canada. Which is to say, her judgment in Syndicat des travailleuses et travailleurs de ADF - CSN c. Syndicat des employés de Au Dragon forgé inc., 2013 QCCA 793 demands careful attention from administrative lawyers across Canada and, indeed, beyond.

Lost in Translation

I have posted previously about the Supreme Court of Canada's decision in Doré v. Barreau du Québec, 2012 SCC 12. It is a very important decision about the importance of Charter rights in administrative decision-making and judicial review. But there seems to be a difference between the French and English versions of the decision, written in English by Justice Abella.