How to Administrate the Charter: 3 (+1) Approaches

In Multani v Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, the Supreme Court of Canada held, by a score of 8-0, that a school board had erred in banning an orthodox Sikh student from wearing a kirpan, a ceremonial metal dagger, to school. While the media focused on the competing values at stake (pitting freedom of religion against school safety), the real controversy, at least for the SCC, lay elsewhere.

The SCC was faced with the question of how to approach a Charter challenge to the decision – but not the underlying rule or law – of an administrative body: should courts apply an administrative law standard of review or conduct a full Charter analysis under the Oakes test? Previous decisions by the SCC seemed to provide support for both of these positions.

The other score of the Multani decision was 5-2-1 (the 1 being a tie of sorts). Five of the judges held that principles of Charter analysis took precedence over principles of administrative law. Two judges held that an administrative standard of review, namely that of reasonableness, should be applied even when Charter issues are raised. Finally, Justice LeBel stood alone in advocating a flexible approach where some cases could be decided on administrative law principles while others required a modified Oakes test that eliminated some unnecessary elements. But this summary does not adequately reflect the complex issues that emerge from these divergent approaches.

The SCC Decision

The majority decision, penned by Justice Charron, held that all decisions by a school board are subject to the Charter because the board is created through statute and its powers are limited to those provided by statute: “Since the legislature cannot pass a statute that infringes the Canadian Charter, it cannot, through enabling legislation, do the same thing by delegating a power to act to an administrative decision maker.” Further, the majority felt that the protection of rights enshrined in the Charter would be diluted if left to the devices of administrative law.

Justices Deschamps and Abella reluctantly admitted that there is an aesthetic appeal to this unified approach, at least in the abstract. But their “concurring” judgment proposes that an Oakes analysis should be reserved for “norms of general application,” such as statutes or regulations, and should not be applied to individual decisions or orders made by administrative bodies. They drew a distinction between establishing a norm and deciding a dispute through a process established by statute, arguing that the latter could not fall within the meaning of “prescribed by law” under s. 1 of the Charter.

But s. 1 is a justification provision that allows a government action that would otherwise violate the Charter to be saved. Failure to comply with its requirements does not mean the Charter is inapplicable; it means the action is inexcusable. If Justices Deschamps and Abella are correct and administrative tribunal decisions are not “prescribed by law” under s. 1, any infringements of guaranteed rights cannot then be reviewed under a standard of reasonableness, as they propose, but should instead be quashed.

However, Justices Deschamps and Abella may be on to something here. According to the majority’s reasoning, all decisions or orders made by administrative tribunals, including those that decide disputes between private parties, must comply with the Charter. It is a short hop and a step from this to a situation where the Charter regulates the interaction of private actors. It is one thing for an administrative tribunal to require a public school to comply with the Charter by allowing a student to wear a kirpan; it would be quite a different matter to require the same standard for a private school.

An Application of Dolphin Delivery?

In RWDSU v Dolphin Delivery Ltd, [1986] 2 SCR 573 [Dolphin Delivery], the SCC was faced with a similar issue with regard to the application of the Charter to courts: “The courts are, of course, bound by the Charter as they are bound by all law. It is their duty to apply the law, but in doing so they act as neutral arbiters, not as contending parties involved in a dispute.” At this early stage in the development of Charter jurisprudence, the SCC held that the Charter did not apply to disputes between private parties governed by the common law. Surely the majority decision does not intend to create an anomalous system where the Charter could apply to disputes between private parties before administrative tribunals but not before the courts.

The Deschamps and Abella judgment, pointing to the Dolphin Delivery case, flirts with this line of reasoning but never quite reaches a full embrace: “[l]ike the courts, [administrative tribunals] cannot be treated as parties with an interest in a dispute. A tribunal’s decision should not be subject to a justification process as if it were a party to a dispute.” While I would tend to agree with this general principle, on the facts of this case, its application may be off.

Analysis

In Multani, the administrative tribunal is in fact a party to the dispute; the school board acts as both the party whose action gave rise to a Charter claim and as the tribunal that decided this dispute. The Charter should apply to the school board not because it is a tribunal created by statute but because it is a government actor, providing public education under the direction of legislature, and its actions are the subject of the proceedings.

If the SCC had drawn this distinction – between administrative bodies that act as neutral arbiters of private disputes and those that themselves are parties to the disputes – some of the concerns expressed by the concurring judgments could be addressed while still maintaining the majority’s general principle that governmental action cannot violate the Charter unless fully justified under s. 1. Only a small exception would be carved out where a tribunal is acting as a neutral arbiter between private parties and its decision is not directly prescribed by statute – the same exception provided to courts in Dolphin Delivery.

This exception may only arise in very rare instances. Most administrative bodies, such as public school boards, worker’s compensation boards, and immigration boards, would be subject to the Charter directly as governmental parties to the dispute. Further, even administrative tribunals that decide disputes between private parties, such as labour boards and human rights commissions, usually have limited jurisdiction to enforce the provisions of certain statutes. These statutes themselves would be subject to Charter scrutiny.

However, in this conception, the individual decisions of these tribunals, if they do not result from the direct application of a statute, would not be covered by the Charter because they would not be characterized as governmental interference in guaranteed rights. These decisions would be left to be reviewed under appropriate administrative standards.

Perhaps concern about the encroachment of the Charter on the relationships between private individuals is a purely theoretical one. Certainly, there is little jurisprudence to suggest such a result would occur. But the wording of the majority decision, which makes the Charter apply to all administrative body decisions, is broad enough to open up this possibility. A future decision in the context of a dispute between two private parties may be necessary to clarify the SCC’s position in this matter.