Mary Liston

This thesis examines the uncertainty in Canadian public law arising from the Supreme Court of Canada’s decision in Doré v Barreau du Québec [Doré] regarding judicial review of rights-limiting administrative decisions. Prior to Doré, the courts applied differing approaches when reviewing the constitutionality of discretionary administrative decisions, vacillating between review under the Charter or an administrative law approach. With Doré, the Court has attempted to resolve the longstanding debate about the appropriate methodological approach to judicial review of administrative decisions for compliance with the Charter, holding that an administrative law approach should be applied. The “Doré approach” requires an assessment of whether the administrative decision reflects a proportionate balancing of the relevant Charter values with the statutory objectives. I analyze the Doré approach, with reference to the historical jurisprudence and academic literature. I suggest that a number of questions and uncertainties are raised by the Court’s lack of guidance on how this approach deals with some of the significant tensions in the relationship between administrative law and the Charter. In particular, the Doré approach does not guarantee that administrative decisions infringing on Charter rights and freedoms are subject only to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (as required by section 1 of the Charter).I propose an analytical methodology for judicial review of rights-limiting administrative decisions that is carried out within an administrative law framework but incorporates the spirit of section 1 of the Charter (and the proportionality analysis adopted by the Court in R v Oakes). This approach builds on the Doré “proportionate balancing” approach to create a review framework that: 1. Provides greater assurance that rights-limiting administrative decisions will only be justified if the limit meets the rule of law principles underlying the section 1 “prescribed by law” requirement, and 2. Scrutinizes the decision in a more rigorous manner than the review undertaken in Doré. This recommended approach offers a more coherent and unified conception of the relationship between administrative law and the Charter, and better respects the requirements in section 1 of the Charter.

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This thesis examines the concept of “deference” in relation to judicial review of administrative decisions in Canada, and then compares this approach to judicial review to that which exists in the United Kingdom, New Zealand and Australia. Canadian courts have adopted a system of “substantive review” of administrative decisions, at least since 1979 (if not earlier), and will generally show deference to the decision-maker. It is important to note that Canadian courts have interpreted the word “deference” not as subservience (an approach that would make judicial review pointless), but as a form of “respectful attention” to the decision under review. Canadian courts recognise that they do not have a monopoly of wisdom on matters of statutory interpretation, but will step in to set a decision aside when that decision is unreasonable in some sense. Courts in the United Kingdom have recognised at least since 1987 that the classic standard of Wednesbury unreasonableness – that the decision is “so unreasonable that no reasonable person could have made it” – is not suitable for all kinds of administrative decisions, and have moved to a system whereby there is a “variegated standard” of reasonableness on judicial review for matters not covered by the Human Rights Act 1998, and a proportionality approach for those that are. The law in New Zealand is not as clear, because the Supreme Court has yet to squarely approach the issue, but the lower courts certainly appear to be moving in a similar direction. However, Australian courts vehemently deny that they show any deference to administrative decision-makers, and Australian academic commentators are equally insistent that such an approach is legally suspect at best and mere obsequiousness to government at worst. This is despite the fact that Australia has always recognised Wednesbury unreasonableness as a ground of judicial review. This thesis attempts to dispel some of the Australian arguments against a deference approach, particularly in relation to s.75 of the Australian Constitution, and concludes that Australia would be best off adopting a form of substantive review of administrative decisions, similar to that which exists in Canada.

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Access to justice, particularly access to civil legal services, is a well-recognized problem for the Canadian legal system, with a recent estimate suggesting that 44.6 per cent of Canadians over the age of 18 – approximately 11.6 million people – have experienced a civil legal problem over the last three years, but also that less than 10 per cent of those individuals obtained legal assistance for that problem. Another problem for the Canadian legal system is the high rate of dissatisfaction among young lawyers – particularly the high rate of attrition among women and minorities. This thesis suggests a corrective for both these problems: an innovative type of law firm that provides accessible civil legal services while also providing an attractive work environment for lawyers. Through a case study of Pivot Legal LLP, a small firm formerly located in Vancouver’s Downtown Eastside, this thesis examines whether it is possible to run a sustainable legal practice that includes providing legal services to low- and middle-income individuals. Based on this case study, there is reason to believe that an innovative law firm model that provides low cost legal services is possible and would be a useful contribution to other efforts to improve access to justice.

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