The Supreme Court of Canada Affirms Deference to Administrative Tribunals that Engage Charter Rights
July 3, 2018
In Law Society of British Columbia v Trinity Western University and a companion appeal, Trinity Western University v Law Society of Upper Canada, the majority of the Supreme Court of Canada affirmed the appropriate test for reviewing the decisions of administrative tribunals that engage rights found in the Canadian Charter of Rights and Freedoms. This is significant for those who practice labour law as it confirms that the courts will show deference to administrative decision makers that are called upon to consider Charter rights.
Trinity Western University (“TWU”) is an evangelical Christian university in Langley, British Columbia that planned to open a law school. In 2014, both the Law Society of British Columbia (“LSBC”) and the Law Society of Upper Canada (“LSUC”) declined to recognize TWU as an approved faculty of law. At the heart of both decisions was the proposed law school’s covenant, which would have required students to sign a document agreeing not to engage in sexually intimate same-sex relationships while attending the school. On judicial review, the Supreme Court of British Columbia quashed the LSBC’s decision and the British Columbia Court of Appeal dismissed the LSBC’s appeal. In Ontario, both the Divisional Court and the Ontario Court of Appeal upheld the LSUC’s decision.
The LSBC appealed to the Supreme Court of Canada, which reversed the decision of the BC Court of Appeal, endorsing the LSBC’s decision not to approve the proposed TWU law school. TWU simultaneously appealed the Ontario Court of Appeal’s decision. Both cases were heard together and a majority of the Supreme Court sided with the law societies, allowing the LSBC’s appeal and dismissing TWU’s appeal of the Ontario decision.
In its reasons, the majority of the Court affirmed the prevailing test for judicial review of administrative decisions which engage the Charter, known as the Doré/Loyola framework. This was the framework used by the Ontario Labour Relations Board in its recent decision in Govan Brown, where it found that the date of application test in construction industry certification proceedings did not violate freedom of expression, as protected under s.2(b) of the Charter, nor freedom of association, as protected under s.2(d) of the Charter. You can find the details of this decision in the March 29th, 2018 edition of the KM Labour Law Blog.
The first step of the Doré/Loyola test is to determine whether a Charter right or value is engaged by the administrative decision. If it is, the court must then ask, considering the Charter interest at stake, the nature of the decision, and the factual and statutory context, whether the decision maker has proportionately balanced the Charter protections that are engaged.
The majority found the decisions of the LSBC and LSUC decisions to be reasonable because, despite the fact that both law societies had limited the Charter’s protection of freedom of religion for students wishing to attend TWU’s law school, the limitation proportionally balanced this Charter right with the statutory objectives that each is governed by; namely, to act in the public interest. The majority held that it was not in the public interest to accredit a law school which restricted access to LGBTQ students.
Implications for Labour Law
Significantly, the majority of the Court reinforced the principle that administrative decision makers, including arbitrators and labour relations boards, are experts at balancing Charter protections with the statutory objectives of their enabling statutes and are therefore in the best position to account for Charter protections in a given factual context. The Supreme Court’s decision confirms that reviewing courts will continue to be deferential to labour tribunals that adjudicate Charter claims, provided that their decisions fall “within the range of possible, acceptable outcomes.”
 2018 SCC 32.
 2018 SCC 33.
Authored by Adriana Zichy, Summer Student