Preserving the Charter in administrative law : a critique of the Supreme Court of Canada's decision in Law Society of British Columbia v. Trinity Western University
University of British Columbia
Master of Laws - LLM
This thesis explores the Doré/Loyola framework in light of the recent Supreme Court of Canada decision, Law Society of British Columbia v. Trinity Western University (“LSBC v. TWU”). Using primarily traditional legal research, along with critical legal, interdisciplinary, and social-legal elements, this research critiques the Doré/Loyola framework and advocates for stronger protection of minority rights in administrative justice. While the Doré/Loyola framework purports to provide oversight to administrative decisions to ensure they do not run roughshod over the Charter, regrettably, as demonstrated by LSBC v. TWU, the framework does not provide this necessary protection. Instead, it expands the scope of discretion available to both administrators and judges through the Charter values framework. Further, the framework imagines a conflict of rights, which is both an incorrect and unhelpful formulation. Lastly, statutory objectives can too easily outweigh Charter rights, as Doré makes it possible to read a statutory objective as incorporating a Charter value or right. Recognition of other competing Charter rights, which are not recognized in the statutory language, is then compromised. This is particularly disadvantageous to minority rights as it leaves them subject to the changing views of the majority in society. In LSBC v. TWU, this risk was heightened through the use of a referendum which required voters to choose between the rights of two minority groups and give priority to one over the other. In order to ameliorate concerns with the Doré/Loyola framework, reasonable accommodation needs to be returned to the analysis. Instead of focusing primarily on how to balance statutory objectives and Charter protections, administrative decision-makers should be encouraged to find creative options to accommodate Charter protections where possible. In this way, the promises of the Charter, including minority rights, will be better preserved in administrative justice. This paper is an important contribution to emerging research on the intersection of the Charter and administrative justice. The Doré/Loyola framework is a recent addition to administrative law, and LSBC v. TWU was released within a year of writing this thesis. Consequently, as there has yet to be a significant body of academic work addressing LSBC v. TWU, it is an opportune time to analyze the Doré/Loyola framework as utilized in this case.
Attribution-NonCommercial-NoDerivatives 4.0 International
Law, Peter A. Allard School of