I. Introduction

An important hallmark of our legal system is that superior courts clarify and provide certainty of legal principles in Canada. Nowhere can this be more important than in the sphere of consistent determinations of the meaning and content of fundamental rights and freedoms. With several ways to get a case to final adjudication in Canada, a question that must be addressed is whether how a case gets to our highest court affects the result.

Traditionally, legal cases of first instance in civil courts start with an application or a statement of claim as the starting place for a court process. The trial judge is the trier of fact. Cases can be appealed on questions of law. If the trial judge misunderstood or misapplied the law, that is grounds for appeal. The standard of review in appeals is correctness for questions of law. That means that if an appellate court is of the opinion that the lower court wrongly interpreted the law, the appellate court will overturn the lower court decision and substitute its interpretation.

Another way cases can get to court is after having been decided by an administrative decision-maker. In our modern administrative state, there are many, many administrative decision-makers. Two hundred and twenty-four administrative bodies post their decisions to the Canadian Legal Information Institute website.[1] Many of these administrative bodies are tribunals. As well, Canadian laws also provide for administrative decisions in the form of ministerial decisions on a wide variety of issues from education to immigration. All administrative decision-makers are governed by the statutes that creates them and that gives them jurisdiction over certain subject matters and remedies.

Some legislation that gives an administrative decision-maker authority also sets out a statutory appeal mechanism. For example, some tribunal decisions may be appealed to a provincial court of appeal. If there is not a right of appeal, the administrative decision can be brought to court on an application for judicial review. Unfortunately, for the last several decades, the courts have failed in their quest for legal certainly, fairness and consistency in defining, redefining and redefining yet again what this “standard for judicial review” consists of and how it can be consistently applied. There have been three part; four part; correctness; reasonableness; and even patently unreasonable tests. Every time the Supreme Court of Canada attempts to clarify the standard, it seems to become more complex. Justice David Stratas laments, “Our administrative law is a never-ending construction site where one crew builds structures and later crews tear them down to build anew, seemingly without an overall plan.”[2] Why is it so easy for courts to determine when they can allow an appeal based on an error in law from a lower court but go into pretzel-like contortions when faced with the same question from an administrative tribunal?

In the first decades of the Charter, administrative tribunals were not considered competent to consider the Charter in their decisions.[3] It has now become clear that administrative tribunals are expected to address Charter rights and Charter values and courts are required to grant a measure of deference to tribunal decisions. While it is reasonable for courts to defer to administrative tribunals where they have recognized expertise, there is no evidence that tribunals are trained and competent in addressing Charter rights. Federal Tribunal Chair Donald Buckingham bemoans the lack of training for administrative tribunal members.[4] He further notes that many tribunals do not require that their members have legal training.[5] It is therefore quite astonishing that appellate courts review trial judges’ decisions about Charter violations on a correctness standard but when tribunals rule on Charter violations, the same courts often apply a reasonableness standard.

This paper analyzes three cases that were all appealed to the Supreme Court of Canada. Each involves different standards of review because each case had a different appeal route. The first case, Alberta v. Hutterian Brethren of Wilson Colony,[6] started as an application under section 24 of the Charter and then proceeded as a straightforward appeal. This case is included to show how courts apply the correctness standard. The second case, Mouvement laïque québécois v. Saguenay (City),[7] was an appeal of a decision of a human rights tribunal in Quebec, which has a statutory right of appeal. The third is the series of cases involving Trinity Western University and its proposed law school that culminated in two of the cases being decided by the Supreme Court of Canada[8] where the university brought applications for judicial review from decisions of provincial law societies, which refused approval of the law school. In 2019, the Supreme Court of Canada took another run at articulating the standard of review for administrative decisions, in the case of Canada (Minister of Citizenship and Immigration) v. Vavilov.[9] This paper concludes with some thoughts on whether this new Vavilov standard would have made a difference in how any of our three cases would have been decided had they come before the Supreme Court of Canada today.

Protection of human rights is of high importance to Canadians. So it is essential that appellate courts hold lower court judges as well as tribunals and administrative decision-makers to high standards when considering human rights. This paper considers freedom of religion in particular. Freedom of religion is considered a “fundamental freedom” in section 2 of the Charter of Rights and Freedoms. For many Canadians, religion is part of their identity; allegiance to a higher being is of profound importance.[10] Religion involves both beliefs and practices and is practiced both individually and in community. So it should go without saying that whether a particular legal case originates in a trial court, or at a tribunal, or by any administrative decision-maker, religious adherents should be able to expect the same level of protection of this fundamental freedom.

II. Correct and “reasonable” points of departure for standards of review

A. Standards of review for appeals

The leading case for standards of review on appeal is Housen v Nikolaisen.[11] The standard of review on questions of law is correctness: “On a pure question of law, the basic rule with respect to the review of a trial judge’s findings is that an appellate court is free to replace the opinion of the trial judge with its own.”[12] Findings of fact by a trial judge cannot be overturned unless it can be established that there is a “palpable and overriding error.”[13] Questions of mixed fact and law are on a sliding scale depending on whether the issue is more on the law side, and subject to a correctness standard, or more on the evidence as a whole, and subject to the palpable and overriding error standard.[14]

B. Standards of review for administrative law

If the case is a review of an administrative decision, be it a ministerial decision or a tribunal decision, the appellate court must apply an administrative law standard of review. The Supreme Court of Canada has articulated and re-articulated and often re-articulated again what this standard is and how it should be applied.

Until recently, Dunsmuir,[15] decided in 2008, was the legal profession’s best guide for standards of review. Doré,[16] decided in 2012, added the framework for administrative law reviews where Charter values were engaged, Dunsmuir sets out two standards of review: correctness and reasonableness. Courts should apply the correctness standard where issues of the jurisdiction of the tribunal are concerned but should defer to the tribunal’s expertise by applying a reasonableness standard for issues within the tribunal’s jurisdiction.

The Doré case addressed the issue of the standard of review when a tribunal addressed Charter rights. Justice Abella, for a unanimous court, set out the approach:

In the Charter context, the reasonableness analysis is one that centres on proportionality, that is, on ensuring that the decision interferes with the relevant Charter guarantee no more than is necessary given the statutory objectives. If the decision is disproportionately impairing of the guarantee, it is unreasonable. If, on the other hand, it reflects a proper balance of the mandate with Charter protection, it is a reasonable one.[17]

Justice Abella further states that the reasonableness standard also applies when a tribunal addresses Charter values.[18] She surmises, “If, in exercising its statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory objectives, the decision will be found to be reasonable.”[19]

The Supreme Court of Canada supplemented the interpretation of the standard of review when an administrative decision-maker addresses Charter values in the Loyola case, decided in 2015. Charter values are defined as “those values that underpin each right and give it meaning.”[20] The Supreme Court of Canada stated, “The Doré/Loyola framework is concerned with ensuring that Charter protections are upheld to the fullest extent possible given the statutory objectives within a particular administrative context.”[21]

This is not as straightforward as it seems. Justice Layh, of the Saskatchewan Court of Queen’s Bench, makes it clear that applying these standards are not easy for courts: “[N]otwithstanding the Supreme Court’s continuing leadership in setting the standards of judicial review, locating the goalposts of correctness and reasonableness has remained an elusive target for those obliged to follow this leadership.”[22] Tribunal Chairs have added their complaints to those of judges. Donald Buckingham, then Chair of a federal tribunal, notes the “seemingly absurd result” of administrative tribunal decision-makers and trials judges interpreting the Charter in that while:

we continue down the path of allowing the reasonableness standard to apply to administrative tribunal decisions on questions of Charter interpretation concerning Charter values, trial judges will be held to a higher level standard of scrutiny by appeal courts than will be administrative decision-makers on judicial review, a review completed at times by the very same appeal court judges.[23]

Clearly, there has been felt need for re-articulation of the standards of review for administrative decisions. This came in the Vavilov decision, released in December 2019, which is discussed in Part IV below.[24] But first, let’s examine the elements of three cases concerning the protection of religious freedom in Canada.

III. Lost on the trail: three pivotal cases leading down a murky and muddy path

A. Alberta v. Hutterian Brethren of Wilson Colony

1. Background of the case

The first case of this analysis is Alberta v. Hutterian Brethren of Wilson Colony.[25] The Supreme Court decided this case in 2009. The case came to the court as an application for a declaration of unconstitutionality. The Alberta government changed a regulation in 2003 to require all holders of drivers licences to have their photograph on the drivers licence. Prior to this change, there was an exemption available for those with conscientious objections to having a photograph taken.[26] The province said that it made the change to prevent identity theft and preserve the integrity of the licensing system.

Having a photo taken violates the religious beliefs of Wilson Colony Hutterites. They believe it violates the Second Commandment, which prohibits making a ‘graven image’. Hutterites are an Anabaptist religious group that settled in Western Canada. Their distinctive is to live in colonies on communal farms. While Hutterites live in their own houses, they eat all their meals in the community dining hall. All of their land and equipment is communally owned. Hutterian Brethren take a very literal interpretation of the Bible and follow it conscientiously. They follow federal and provincial law like all Canadians and had in the past had no difficulty with securing provincial drivers licences as there was an exemption for those with conscientious objection to having their photo taken.[27]

2. An administrative deadlock with the Government of Alberta

The Hutterites tried to negotiate with the government for an exemption to the photo requirement but their requests for accommodation were denied. Wilson Colony then brought an application for a declaration of unconstitutionality of the regulation. They argued that it required that they either violate their religion or not be able to continue their communal way of life because they would not be able to drive their produce to market.

3. Actions from the courts of the province

The issue was heard by a chambers judge.[28] Justice LoVecchio undertook a typical constitutional analysis. He determined that the Regulation violated the section 2(a) Charter rights of the Hutterites. He then turned to a section 1 analysis. He found that the requirement for the photo driver’s licence was rationally connected to the objective of the integrity of the system, in particular, that it be safeguarded from fraud.[29] While the Alberta government had also argued that there was concern about identity theft, the chambers judge ruled that a photo drivers licence is not an identity document. The chambers judge ruled that the minimal impairment part of the Oakes test was not met. Justice LoVecchio therefore struck down the Regulation requiring a photograph.

This went on appeal to the Alberta Court of Appeal.[30] There was no discussion of the standard of review. Justice Conrad gave a different interpretation to the evidence as found by the chambers judge. She doubted that the purpose of the photo driver’s licence was to maintain the integrity of the system. She doubted the rational connection between the requirement for the photo and the integrity of the system. As this was a matter of law, and of constitutional interpretation, Conrad J did not grant any deference to the chambers judge. Justice Conrad agreed with the result of the chamber judge but not the reasons. She therefore denied the appeal.

4. At the Supreme Court of Canada

When the matter reached the Supreme Court of Canada, McLachlin CJ wrote the majority decision.[31] She did not accord any deference to the chambers judge nor to the Alberta Court of Appeal. Rather, the Chief Justice granted deference to the government in addressing the issue of identity theft. She trivialized the degree of impact of the requirement on Hutterites.

Much of the regulation of a modern state could be claimed by various individuals to have a more than trivial impact on a sin­cerely held religious belief. Giving effect to each of their religious claims could seriously undermine the universality of many regulatory programs, including the attempt to reduce abuse of driver’s licences at issue here, to the overall detriment of the community.[32]

Chief Justice McLachlin found the chambers justice’s findings about the purposes for the photo requirement to be more persuasive than those of the appeal justice. However, there was no discussion in the ruling about deference to the chambers judge.

In the end, McLachlin CJ ruled in favour of the government. While she was not convinced that there was a significant violation of religious freedom, she assumed that there was.[33] Chief Justice McLachlin then conducted a full section 1 analysis under the Oakes test. She found that the regulation was prescribed by law.[34] The importance of the integrity of the driver’s licence system was a pressing and substantial objective.[35] Further, McLachlin CJ ruled that the requirement for universality of the photo requirement is rationally connected to the integrity of the driver’s licence system.[36] She then found that the requirement met the minimal impairment test given the risk of identity theft.[37] Finally, McLachlin CJ came to the last part of the Oakes test, the proportionality analysis. The salutary effects related to the government objectives of enhancing the integrity of the driver’s licence system. With respect to the deleterious effects, she ruled, without any evidence on this point, that Hutterites could arrange for third party transport for their needs.[38] Therefore, they need not have drivers’ licences or drive. The deleterious effects on Hutterites were thusly minimized.

Justice Abella dissented, Fish J concurring. She found that the benefits to the driver’s licence system of having 250 Hutterites forced to have photographs for their licences minimal considering that over 700,000 Albertans do not have driver’s licences at all.[39] Yet the impact on the Hutterites and Wilson Colony would be considerable.[40] Abella J undertook a full Oakes analysis and found that the photo requirement violated both the minimal impairment and proportionality parts of the analysis.

Justice LeBel also dissented. On the determination of a violation of religious freedom, LeBel J emphasized that religious freedom is not only about the individual’s freedom but also about communities of faith.[41] When he addressed the Oakes test, he stressed that the onus is on the state to prove that a violation of a Charter right is both pressing and substantial and proportional to the objective.[42] He said, “Section 1 and the Oakes test are designed to reach a proper equilibrium between the rule of law, the roles of courts, Parliament or legislatures, and executives, and the democratic life of our country.”[43] Justice LeBel found that the government of Alberta did not prove that the requirement for a photo driver’s licence was a proportionate response to the problem of identity theft.[44]

5. The takeaway

While this case was an application for a declaration of unconstitutionality of a Regulation, it really arose from a government decision not to accommodate the Hutterite request for an exemption. Yet because it was a court application, no deference is granted to the chambers judge. Further, a full Oakes test is applied with the onus on the government of Alberta to prove that the regulation meets the minimal impairment and proportionality requirements.

In the Doré decision, Justice Abella refers to the decision in Hutterian Brethren to illustrate the difference between administrative review and consideration of the constitutionality of a law:

As explained by Chief Justice McLachlin in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, the approach used when reviewing the constitutionality of a law should be distinguished from the approach used for reviewing an administrative decision that is said to violate the rights of a particular individual (see also Bernatchez). When Charter values are applied to an individual administrative decision, they are being applied in relation to a particular set of facts. Dunsmuir tells us this should attract deference (para. 53; see also Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 39). When a particular “law” is being assessed for Charter compliance, on the other hand, we are dealing with principles of general application.[45]

The Hutterian Brethren could have brought their case as a judicial review application challenging the refusal of the Alberta government to accommodate their religious beliefs and practices. However, a judicial review would bring in a different standard of review, likely that of reasonableness. In this case, then, the Hutterian Brethren stood a better chance of having the courts accommodate their religious practice with an application and a court proceeding rather than judicial review of an administrative decision.

B. Mouvement laïque québécois v. Saguenay

1. Background of the case

Our second case is Mouvement laïque québécois v. Saguenay (City).[46] The City of Saguenay’s municipal council meetings started with the mayor reciting a prayer. At the beginning and ending of the prayer, the mayor and most councillors crossed themselves. On the wall of one council chamber was a crucifix. On the wall of another council chamber was a sacred heart with a votive candle. Alain Simoneau was an atheist who attended council on a regular basis. He was uncomfortable with the show of Christianity.

Simoneau and the Mouvement laïque Québécois (MLQ) filed complaints with the Commission des droits de la personne et des droits de la jeunesse (hereafter called the Commission) in March 2007. MLQ is an organization dedicated to the secularization of Quebec. The complainants asked that the prayers be stopped on the basis that they infringed the freedom of conscience and religion of non-Christians, including Simoneau, under the Quebec Charter of Human Rights and Freedoms.[47] The Commission decided not to pursue the case but recommended that Simoneau defend his own rights at the Human Rights Tribunal, which he did.[48]

2. The administrative decision

The Human Rights Tribunal issued a decision in 2011 finding in favour of Simoneau.[49] The Tribunal considered evidence and ruled that the prayer preferred one religion and violated the requirement of state neutrality towards religion. The Tribunal ordered that the Council cease having public prayers to open the meeting and remove all religious symbols from the Council chambers. It also awarded Simoneau $30,000 in damages.

3. Action from courts of the province

The City of Saguenay appealed the decision. Despite being a tribunal, the Quebec Charter provides a statutory right of appeal from a Human Rights Tribunal decision to the Quebec Court of Appeal.[50] In fact, section 109 precludes judicial review of tribunal decisions.

The Quebec Court of Appeal considered the standard of review applicable to a specialized tribunal like the Human Rights Tribunal.[51] Because the issue of state neutrality was of importance to the legal system generally, Justice Gagnon determined that the standard of review was correctness.

Justice Gagnon ruled that state neutrality does not require that religion be excluded. As the Supreme Court of Canada later surmised:

In [Gagnon’s] view, the duty of neutrality must be complied with in a manner that is consistent with society’s heritage and traditions, and with the state’s duty to preserve its history (para. 69). Protection of the diversity of beliefs must be reconciled with the cultural reality of society, which includes its religious heritage (para. 72).[52]

Justice Gagnon examined the prayer and determined that it expressed “universal values” and could not be identified with any one religion.[53] Therefore, Mr. Simoneau’s rights were not violated. Any violation was considered “trivial”.[54]

4. At the Supreme Court of Canada

At the Supreme Court of Canada, Justice Gascon took the opportunity to clarify the standard of review in the situation where there is a statutory right of appeal from a specialized tribunal. The Court of Appeal in a previous appeal from a Human Rights Tribunal decision had applied the appellate standard of review for three reasons:

First, the Tribunal does not have exclusive jurisdiction over the implementation of the Quebec Charter; a complainant can choose to apply either to the Tribunal or to the ordinary courts (para. 31). Second, the Tribunal’s recognized expertise in relation to the facts [TRANSLATION] “does not extend to general questions of law” (para. 33). Third, the appeal provided for in s. 132 of the Quebec Charter is a statutory appeal and not a judicial review proceeding.[55]

The appeal was not as of right but rather as required by section 132 of the Quebec Charter, leave must be obtained from a judge of the Court of Appeal before an appeal can proceed. Also, section 133 of the Quebec Charter, the founding statute of the Tribunal, outlines the rules related to appeals.[56] The standard for appellate review is “correctness” for a question of law and “palpable and overriding error” for a question of mixed fact and law.[57]

Rather than adopt the standard of review as that of an appeal, however, the Supreme Court of Canada instead adopted the standard of review for judicial review.[58] Justice Gascon found that the Tribunal is at its heart a specialized administrative tribunal, despite its similarity to a court in having an adversarial process and subject to appeals to the Court of Appeal. Law professor Paul Daly expresses frustration with this unnecessary confusion because Gascon J could have, and should have, treated the appeal from the Tribunal in the same manner as an appeal from the trial court.[59] Justice Gascon’s interpretation seems to fly in the face of the Quebec Charter.

The Supreme Court of Canada therefore ruled that the Court of Appeal must apply the standard of review in Dunsmuir.[60] That is, the Tribunal must be granted deference when ruling on issues within its area of expertise, including the interpretation of the Quebec Charter of Rights. The standard for these issues is reasonableness. However, the standard is correctness when the Tribunal addresses issues of law of general importance that are outside its jurisdiction. In this case, Gascon J found that the issue of state neutrality was a law of general importance but then went further to state that any presumption of deference to the Tribunal was rebutted because the case could have been brought in the courts. Daly comments that Justice Gascon, “muddies the already murky waters of the relationship between Dunsmuir’s categorical approach and context.”[61] Under the framework of Dunsmuir, either the standard is correctness for issues of law of general importance that are outside the Tribunal’s jurisdiction or the standard is reasonableness. There should not be a rebuttable presumption.

Justice Gascon segmented the Tribunal’s decision and applied the standards of correctness and reasonableness to different parts. He said that the Court of Appeal properly applied the correctness standard to the question of state neutrality because it is a question of law of general interest.[62] However, in other areas, the Tribunal made decisions that were within its expertise which therefore required deference. These included whether the prayer was religious, the extent to which it interfered with Simoneau’s freedom and whether it was discriminatory. The standard of review for these parts of the decision, therefore, was reasonableness.

Justice Gascon went on to interpret the concept of state neutrality. He found that the Tribunal correctly interpreted the duty of religious neutrality of the state. He then examined the Tribunal’s findings of fact and ruled that it was reasonable to find that the prayer was religious and that it was discriminatory in preferring theism to atheism. Justice Gascon upheld the Tribunal ruling that the City of Saguenay must cease its practice of prayer before council meetings.

Notably, Justice Abella concurred in the result but disagreed strenuously on establishing different standards of review for different parts of a tribunal’s ruling. She said:

Extricating the question of the “state’s duty of religious neutrality that flows from . . . freedom of conscience and religion” and other aspects of the Tribunal’s decision from the rest of its discrimination analysis is in direct conflict with this jurisprudence and creates yet another confusing caveat to this Court’s attempt in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, to set out a coherent and simplified template for determining which standard of review to apply. It also contradicts Dunsmuir’s directive that, based on the specialized expertise of tribunals, reasonableness applies when tribunals are interpreting their home statute: para. 54.[63]

5. The takeaway

On its face, it appears that interpreting the duty of state neutrality towards religion under the Quebec Charter should form part of the expertise of a Quebec Human Rights Tribunal. If the court is deferring to the Tribunal’s expertise, this is within that expertise. However, Justice Gascon emphasized the importance of consistency in the law on this issue, therefore justifying the application of the correctness standard. It is difficult to understand how this aspect of the Tribunal’s decision attracts a higher standard of review. Be that as it may, given that Justices Gascon and Abella applied different standards of review to the issue of state neutrality, this case is a good study to determine if different standards of review make a difference in interpretation of the issues.

In addressing the issue of state neutrality under the Quebec Charter, Justice Gascon referenced the jurisprudence under the Canadian Charter, noting the similarity between the two charters. He concluded, “When all is said and done, the state’s duty to protect every person’s freedom of conscience and religion means that it may not use its powers in such a way as to promote the participation of certain believers or non-believers in public life to the detriment of others.”[64] Justice Gascon reviewed the Court of Appeal decision in this light. “In this regard, contrary to what the Court of Appeal suggested, I do not think that the state’s duty to remain neutral on questions relating to religion can be reconciled with a benevolence that would allow it to adhere to a religious belief.”[65] Again, Gascon J reiterated the requirement “that the state abstains from taking a position on questions of religion.”[66] Because it was state officials, the mayor and councillors of the City of Saguenay, who were praying, the impugned prayer violated the requirement of state neutrality.

Justice Gascon then turned to analyzing the Tribunal’s decision regarding the religious practices. He reviewed the Tribunal’s findings of fact with respect to the prayer in detail, including arguments related to expert witnesses and comparison to the prayer recited in the House of Commons. In all respects, he found that the Tribunal’s ruling was reasonable.

Justice Abella concurred in the result. Her dissent is quite short and focused on why the standard of review should have been reasonableness throughout. She found that the Tribunal’s decision was reasonable and within the “daily fare” of the role of the Tribunal. She said:

Since state neutrality is about what the role of the state is in protecting freedom of religion, part of the inquiry into freedom of religion necessarily engages the question of state religious neutrality. It is not a transcendent legal question meriting its own stricter standard, it is an inextricable part of deciding whether discrimination based on freedom of religion has taken place.[67]

Because the majority and the dissent are in agreement with both the Tribunal and with the interpretation of state neutrality, the standard of review did not make a difference in the outcome of this case.

Despite the two judgments’ ruling that at least part of the Tribunal’s ruling be accorded deference, this is a case where the appellate standard of correctness should have been applied. In Quebec, applicants can apply to a Human Rights Tribunal or to the courts to enforce their rights under the Quebec Charter. The clear intention of the Quebec legislature is that whether a claimant took one route or the other, either can be appealed to the Court of Appeal on the same basis. It is nonsensical to give deference to a tribunal but not to a court in this circumstance.

C. The Trinity Western University cases

1. Background of the cases

Prior to 2006 there had not been a new law school approved in Canada in 30 years. In 2006, Lakehead University put forward a proposal for a new law school, which raised the issue of what institution was competent to approve new law schools. The development of a proposal for a law school at Trinity Western University began in 2007. Then in 2009, the British Columbia government proposed a new law school at Thompson Rivers University. The Federation of Law Societies of Canada (FLSC), the umbrella organization of provincial law societies, began to develop a process for approval of new law schools. In 2011, the FLSC Common Law Degree Implementation Committee issued its Final Report outlining the national requirements for the purpose of entry of Canadian common law school graduates to Canadian law society admission programs.[68] The report further recommended that the FLSC establish an Approval Committee to determine law school compliance with the national requirements.[69] The report was adopted and an Approval Committee established.

When Trinity Western University submitted its proposal in June 2012, it believed that the FLSC had become the approval body for new law schools. This proposal was the first under the new process. The FLSC undertook a rigorous process to review Trinity Western’s admission policies and proposed program. Trinity Western required all faculty, staff and students to agree to a Community Covenant on an annual basis. This four-page document set out aspiration standards for how the community functions, including everything from prohibiting plagiarism to self-care. It included a requirement that people refrain from “sexual intimacy that violates the sacredness of marriage between a man and a woman.” This became highly controversial. After a public consultation, the FLSC decided that there was nothing in the proposal or about the university that prevented it from approval. It therefore approved the proposal in December 2013.

As a British Columbia university, Trinity Western was required to obtain permission from the Ministry of Higher Education before establishing any new program. The university submitted its proposal to the Ministry the same day it submitted it to the FLSC. The Ministry went through its own rigorous approval process simultaneous to the FLSC process. This included a site visit from five experts, including deans, associate deans and former deans of law schools. The British Columbia Ministry of Higher Education approved the proposal the day following that of the FLSC.

2. The administrative decisions

So, how did the law societies get involved? They are the gatekeepers to the practice of law. Only students from “approved law schools” can article and be admitted to the law society to practice law in each province. Following approval of the FLSC Final Report in 2011, most provincial law societies amended their by-laws to automatically approve any law school that was approved by the FLSC Approval Committee. Three provinces held hearings and made decisions not to approve the FLSC approval. In the home province of Trinity Western, the Law Society of British Columbia (LSBC) had a complex series of processes whereby it approved and then reversed its approval. In Nova Scotia, the Nova Scotia Barristers Society refused approval but it did not have the authority to do so as it had delegated this to the FLSC. In Ontario, the Law Society of Upper Canada (LSUC) refused approval. Trinity Western brought applications for judicial review of all three refusals. In British Columbia and Nova Scotia, Trinity Western was successful at the trial and appellate courts. Only the LSBC appealed to the Supreme Court of Canada. In Ontario, Trinity Western was unsuccessful at both trial and appellate courts. The LSBC and LSUC cases were joined at the Supreme Court of Canada, which ultimately ruled against Trinity Western.

a. British Columbia

The LSBC had amended its by-laws to automatically approve any law school approved by the FLSC but quietly amended the by-law in September 2013 to allow a motion to disapprove a law school that had been automatically approved.[70] Thus, when the FLSC approved the law school proposal, it was automatically approved in British Columbia. Given the timing, it appears that the law society gave itself a veto in anticipation of the Trinity Western proposal. It is therefore not surprising that a motion to disapprove quickly came before the law society. The LSBC benchers held public consultations. After a very contentious debate, the benchers voted against disapproval.

There is a little-used provision in the Law Society of BC by-laws that allows for a referendum under certain conditions. This was triggered. The Benchers agreed to be bound by the referendum. The vote was against accreditation. The Benchers followed with a vote to disapprove the law school proposal for Trinity Western University. Following this vote, the Minister withdrew his consent. This meant that Trinity Western could not start a law school.

b. Ontario

The LSUC (now the Law Society of Ontario) had not amended its by-laws and therefore retained the ability to approve law schools.[71] The LSUC began its consideration of the Trinity Western University law school proposal with a process of public consultations culminating in a highly politicized hearing process. The issue was the university’s community covenant, which the law society characterized it as a “discriminatory admissions policy.” The LSUC voted against approval of the law school for the purposes of Trinity Western graduates being able to article and be admitted to the LSUC.

3. Action from courts of the provinces

a. British Columbia

Trinity Western brought an application for judicial review of the LSBC’s decision. Justice Hinckson of the BC Supreme Court considered the standard of review applicable to three different aspects of the decision. He applied the correctness standard to the LSBC’s interpretation of its jurisdiction to disapprove the law school proposal on the basis that the Supreme Court of Canada applied the correctness in the 2001 ruling on Trinity Western’s education case.[72] With respect to the question of whether the law society exercised procedural fairness in the manner in which the referendum was conducted, Hinckson J also applied the correctness standard on the authority of the 2014 Supreme Court of Canada ruling in Mission Institution v. Khela.[73] Finally, on the issue of whether the law society fettered its discretion by binding itself to the outcome of the referendum, Hinckson J determined that as this issue was one of procedural fairness, the standard of correctness should be applied.[74] Justice Hinckson ruled that while the LSBC had jurisdiction to disapprove the law school, it had improperly fettered its discretion and not exercised procedural fairness. He therefore overturned the LSBC decision.

The LSBC appealed. The Court of Appeal determined that it need not exercise deference to the Benchers’ decision given that they failed to engage in the proportionality analysis required by Doré.[75] Rather, the Benchers fettered their discretion by holding a binding referendum on approval of the Trinity Western law school.[76] The court therefore undertook its own review of the proportionality analysis to determine if denying approval to the law school “represents a reasonable balancing of statutory objectives and Charter rights.”[77] The Court of Appeal found that the impact on Trinity Western’s religious freedom was severe because the university would not be able to establish a law school. However, the impact on LGBTQ persons was minimal as most LGBTQ persons would not choose to attend Trinity Western’s law school. [78] The LSBC decision was unreasonable because it limited Trinity Western’s religious freedom more than was necessary to achieve the statutory objectives.[79]

b. Ontario

Trinity Western applied for judicial review of the LSUC’s decision. In Ontario, all judicial review applications are heard by the Divisional Court. This is comprised of a three-judge panel, drawn from the Ontario Superior Court. Trinity Western argued, based on the recently decided Saguenay ruling, that the standard of review should be correctness because the issue of religious freedom involved a law of general importance.[80] The Divisional Court rejected that and instead ruled that the LSUC’s decision was in the context of the role of the LSUC as the legal regulator in Ontario.[81] Further, the LSUC “was uniquely qualified to determine how the public interest, as it relates to the regulation of the legal profession in this Province, would be best advanced.”[82] It therefore adopted the reasonableness standard of review.

The LSUC benchers, who made the decision, held two days of debate and then voted to deny approval. The only reasons given were the transcript of the debate. The Divisional Court was not troubled by the LSUC’s lack of written reasons. The court ruled that it could understand the basis on which the decision was reached.[83] The court was also not convinced that the previous precedent established in the 2001 Trinity Western University v. British Columbia College of Teachers[84] was determinative as it was different legislation and a different profession.

The court then turned to the constitutional issues at issue and applied the Doré approach:

In that decision, the court set out a two-stage process for an administrative decision-maker’s application of Charter values in the exercise of a discretionary decision. First, the decision-maker must balance the applicable Charter values with the statutory objectives the decision-maker is to fulfill. Second, the decision-maker asks how the Charter values at issue will be best protected in view of those statutory objectives.[85]

It agreed that there was a violation of religious freedom for Trinity Western University and Brayden Volkenant, the representative student.[86] However, the court ruled that this violation had to be “balanced” by the Charter value of equality for LGBTQ persons.[87] The court ultimately determined that the law society’s decision to deny approval to the Trinity Western University law school was reasonable and that it interpreted equal access as part of its public interest mandate.[88]

The Ontario Court of Appeal also rejected the argument that the correctness standard of review should apply.[89] The Doré ruling involved a disciplinary tribunal of the Barreau du Quebec and applied a reasonableness standard. The Court of Appeal found that there was no appreciable difference between the expertise of a disciplinary tribunal and that of the benchers of a law society.[90] The court further ruled that the issues raised did not involve the jurisdiction of the LSUC, but rather fell squarely in the “statutory mandate to act in the public interest.”[91]

4. At the Supreme Court of Canada

At the Supreme Court of Canada, the two TWU cases were joined but separate decisions were rendered for each case.

a. British Columbia

The majority decision in Supreme Court of Canada focused on the expertise of the law society as the governing body of a self-regulating profession.[92] Thus, the majority ruled that law societies should be afforded a high level of deference.[93] This was despite the law society having no expertise in human rights. The majority stated:

[I]t should be beyond dispute that administrative bodies other than human rights tribunals may consider fundamental shared values, such as equality, when making decisions within their sphere of authority – and may look to instruments such as the Charter or human rights legislation as sources of these values, even when not applying these instruments.[94]

The majority found “that the reasonableness review is concerned both with ‘the reasonableness of the substantive outcome of the decision, and with the process of articulating that outcome’ (Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38)”.[95] The majority held that the LSBC acted “quite properly” in considering the Community Covenant as part of the consideration of whether to approve the law school proposal.[96]

On the specific issue of whether the LSBC Benchers fettered their discretion in allowing the outcome of the referendum to determine their approval, the point on which the Court of Appeal based its decision, the majority ruled “The LSBC Benchers were entitled to proceed as they did in this case.”[97] The majority stated that such a vote could be used even where, as here, it resulted in the violation of Charter rights.

The majority applied the Doré/Loyola approach and considered whether the LSBC decision was reasonable in light of the Charter rights at issue. “Since Charter protections are implicated, the reviewing court must be satisfied that the decision reflects a proportionate balance between the Charter protections at play and the relevant statutory mandate.”[98] The majority then adopted a very similar reasoning to that already outlined in the Ontario decision. In sum, “Given the LSBC’s interpretation of its statutory mandate, approving TWU’s proposed law school would not have advanced the relevant statutory objectives, and therefore was not a reasonable possibility that would give effect to Charter protections more fully in light of the statutory objectives.”[99]

Chief Justice McLachlin concurred in the result but wrote a separate judgment partly to clarify the standard of review. She agreed with the majority that the standard should be reasonableness.[100] She then suggested “how to address some of the gaps and omissions in the framework set out in” Doré/Loyola.[101] Chief Justice McLachlin identified two steps in the Doré/Loyola analysis: (1) determine if the decision limits a Charter right and (2) determine whether the limitation is proportionate to the state’s objective, which analysis is similar to that under section 1 of the Charter.[102] With respect to the standard of review, she said, “Quite simply, where an administrative decision-maker renders a decision that has an unjustified and disproportionate impact on a Charter right, it will always be unreasonable.”[103] The Chief Justice characterized the limit on TWU’s religious freedom as significant.[104] However, she found that the LSBC interest in maintaining equality and not condoning discrimination to be sufficient to disapprove the Trinity Western law school.

Justice Rowe found that the law society decision should be granted deference and so applied the reasonableness standard of judicial review found in Dunsmuir.[105] He found that the LSBC decision did not violate the Charter rights of Trinity Western and therefore met the reasonableness standard. Justice Rowe, however, took the opportunity to address an issue raised by counsel for Trinity Western University. Counsel argued that the same analysis should apply for Charter violations at tribunals as applied to appeals from court decisions.[106] Justice Rowe’s first point was, “An analysis based on Charter values should not eclipse or supplant the analysis of whether Charter rights have been infringed.”[107] Justice Rowe criticised the reliance the Doré framework places on Charter values.[108] His next point was that when courts determine if a Charter right has been infringed in the first step of the Doré/Loyola framework, the court must first use a purposive approach to delineating the scope of the Charter right. Thirdly, he emphasized that the claimant has the burden of proof to show that his or her Charter right has been infringed. Justice Rowe applied his framework to determine that Trinity Western University had not proven there was a violation of its religious freedom.[109]

Justices Brown and Côté dissented vigorously. They held that the LSBC had no statutory authority to address the governance of law schools so acted outside its authority when disapproving the Trinity Western University law school.[110] The only jurisdiction the LSBC had was to determine the fitness for practice of an applicant for licensing.[111] The dissent agreed with the Court of Appeal that the LSBC Benchers had improperly fettered their discretion by adopting the outcome of a referendum to disapprove the law school, thereby failing in their duty to balance the Charter infringement with their statutory objectives.[112] Thus, when applying the proportionality step of the Doré/Loyola framework, the LSBC Benchers did not engage in any proportionality analysis.[113] Justices Brown and Côté disagreed with the majority on this point, “But, and with respect, the majority simply cannot point to any basis whatsoever for suggesting that the Benchers conducted any balancing at all, let alone proportionate balancing.”[114]

The dissent is highly critical of the proportionality analysis required in the second step of the Doré/Loyola framework:

Indeed, the Chief Justice’s attempt to clarify that framework, combined with the majority’s continued defence of the “robustness” of proportionality as set out in the Doré/Loyola framework, simply reinforce our view that the orthodox test — the Oakes test — must apply to justify state infringements of Charter rights, regardless of the context in which they occur. Holding otherwise subverts the promise of our Constitution that the rights and freedoms guaranteed by the Charter will be subject only to “such reasonable limits prescribed by law as can be demonstrably justified” (s. 1 ).[115]

The dissent further notes that while the Oakes test puts the onus on the state to justify infringing a Charter right, the Doré/Loyola framework does not make the same onus requirement.[116] These are serious critiques for protection of Charter rights in the administrative law context.

b. Ontario

The majority decision of the Supreme Court of Canada followed the Doré/Loyola framework, without reference to the standard of review in Dunsmuir. The first issue was whether Trinity Western’s Charter rights were violated. The majority held that the “religious rights of TWU’s community members were limited, and therefore engaged, by the LSUC’s decision.”[117] This then led to determining whether the decision was reasonable. It is considered “reasonable if it reflects a proportionate balancing of the Charter protection with the statutory mandate.”[118] Also, “The reviewing court must be satisfied that the decision gives effect as fully as possible to the Charter protections at stake given the statutory mandate.”[119] The majority found that the LSUC’s decision not to accredit was proportionate.

In our view, the LSUC did not limit religious freedom to a significant extent. As discussed in the companion appeal, the LSUC’s decision only interferes with TWU’s ability to operate a law school governed by the mandatory Covenant. This limitation is of minor significance because a mandatory covenant is not absolutely required to study law in a Christian environment in which people follow certain religious rules of conduct, and attending a Christian law school is preferred, not necessary, for prospective TWU law students.[120]

With respect, this finding shows a lack of understanding of the nature of a Christian university. Trinity Western University did not propose to establish a stand-alone law school. Rather, it proposed to establish a law school as an addition to professional programs in education, nursing and business. There is no indication that the LSUC had the requisite expertise to assess what a Christian university might or might not require to fulfill its mandate. There is also no indication that the LSUC has expertise on the Charter and its application to particular decisions.

The majority went on find that the university’s Community Covenant posed a risk of “significant harm to LGBTQ people.”[121]

Both Rowe J and McLachlin CJ concurred with the result but each for different reasons. On the issue of the standard of review, Rowe J found that courts should exercise deference when reviewing decisions of law societies.[122] He did not find that the LSUC decision infringed Trinity Western University’s Charter rights and so applied the Dunsmuir reasonableness standard. Chief Justice McLachlin also applied a reasonableness standard. She wrote an extensive decision for the British Columbia ruling and merely adopted it in the Ontario ruling.[123]

Justices Brown and Côté dissented. They did not address the standard of review. However, it is clear that their view is that the LSUC acted beyond its jurisdiction:

A careful reading of the Law Society Act, R.S.O. 1990, c. L.8 (“LSA”), and the LSUC’s relevant by-laws leads us to the unavoidable conclusion that the only proper purpose of an LSUC accreditation decision is to ensure that individual applicants are fit for licensing. It follows that the exercise of the LSUC’s statutory discretion to deny accreditation to TWU was taken for an improper purpose, and is therefore invalid.[124]

No deference is owed to a tribunal acting beyond its jurisdiction. Tribunals are creatures of statute and can only act within the confines of that statute. Therefore, as Brown and Côté JJ asserted that the LSUC considered issues beyond their statutory mandate, the denial of accreditation should be struck down.

5. The takeaways

Justice Lauwers, of the Ontario Court of Appeal, joined in the concerns of the four justices not in the majority in an article in the Supreme Court Law Review. He raised four problems. First, the majority decision effectively reverses the onus on those claiming that an administrative decision violated their rights.[125] Under normal Charter litigation, the state must prove that the violation is justified under section 1 of the Charter but this is not the case for the proportionality analysis. Second, the majority judgment gives the tribunal’s statutory objectives priority over Charter rights.[126] Third, the majority has made “Charter values” equivalent to Charter rights.[127] They use a new term: “Charter protections.” The problem with this new formulation is that Charter values are nowhere articulated. Finally, Lauwers J took issue with the majority’s proportionality analysis. His concern is that the majority has made a significant ruling on the type of pluralism that constitutes Canadian society, but did not undertake any philosophical analysis before doing so. “What the majority implicitly advanced was a vision of convergence pluralism, against which the dissent explicitly posed a vision of accommodation pluralism.”[128] The nature of Canadian pluralism has been at the forefront of policy debates at least since the Bouchard-Taylor Commission Report in Quebec in 2008.[129]

Justice Lauwers further expresses great concern with the “bright line” the majority has drawn between cases where a Charter rights claimant challenges a tribunal’s decision versus where it challenges the provision authorizing the decision.[130] In the former case, the Doré/Loyola approach applies but in the latter, a full Charter analysis with the Oakes test applies. Therefore, unless a claimant challenges the constitutionality of the founding statute, administrative tribunals can bypass first step of the Oakes test because there is an assumption that the statute has a pressing and substantial objective. This leaves the administrative tribunal rushing to a proportionality analysis. Tribunals also no longer are required to give cogent reasons for their decisions. Reviewing courts are therefore left without a factual record or reasons to review?

Justice Lauwers, and the four Supreme Court of Canada justices who did not concur with the majority, all make serious critiques. The majority judgment results in a two-tiered standard for violations of Charter rights. The administrative tribunal proportionality balancing simply does not provide the same rigorous justification required by the Oakes test. In addition, because the tribunals by-pass the first step of the Oakes test, if there is a judicial review, the claimant must show that there is not a pressing and substantial objective, thereby creating a reverse onus.[131] While this critique addresses the Doré/Loyola proportionality approach, if the correctness standard was applied to Charter issues, the appellate court could apply an Oakes analysis and require the state to show that there is a pressing and substantial objective rather than the claimant being forced to show that the tribunal decision was unreasonable.

IV. Is there a lamp to light to the murky path forward?: Subsequent clarification of the standard of review

In December 2019, the Supreme Court of Canada released its decision in Canada (Minister of Citizenship and Immigration) v. Valvilov,[132] which arose from a judicial review of a decision of the Registrar of Citizenship denying Alexander Vavilov Canadian citizenship. In the reasons for decision, the Supreme Court of Canada articulated its revised approach to standards of review. Within several months, hundreds of cases had referenced Vavilov as setting out the standard of review. However, the cases analyzed in this paper pre-date Vavilov. The question one might pose, therefore, is would our three pivotal cases have been decided differently with this new articulation of the standard of review?

The new approach is that the presumption that reasonableness is the standard of review in all cases. This presumption can be rebutted in two specific circumstances. First, has the legislature indicated that it intends a different standard of review to apply? It can do so by prescribing a different standard of review or by providing for an appeal to an appellate court.[133] If there is a statutory right of appeal, the appellate standard of review applies. Second, does the rule of law require that the correctness standard be applied? This can happen if there is a constitutional question, a general question of law of central importance to the legal system as a whole or a question related to the jurisdictional boundaries between two or more administrative bodies.

How would the newly articulated principles in Vavilov have affected the cases analyzed above? As the Vavilov standard only addresses administrative law standards of review on appeal, it would not have any impact on the standard of review in a case like Hutterian Brethren. The general rules for appellate review remain for appeals from trial court decisions.

But what about cases dealing with statutory reviews or appeals of administrative decisions? Lawrence David argues that Vavilov overturns the entire line of cases dealing with statutory review of administrative decisions; a line of cases that includes the Saguenay decision.[134] It is immediately apparent that the standard of review in the Saguenay case should not have been reasonableness but correctness. Both the majority and dissent in that case applied a reasonableness standard to at least part of the Human Rights Tribunal’s decision. However, the case arose as an appeal from a Human Rights Tribunal. Thus, according to the Valvilov ruling at paragraphs 36-37, the Saguenay case would now be subject to the same standard of appellate review as a court. The majority specifically notes that this articulation of the standard of review is a departure from past practice.[135] Oddly, however, the majority refers to the Saguenay case several times throughout the Valvilov ruling[136] but does not indicate that the standard of review would be different with this new articulation of the standard of review.

Finally, what will be the impact of the Vavilov standard for ordinary, garden-variety judicial reviews of administrative decisions? Academics and lawyers have been hotly debating the extent to which Vavilov changes the previously articulate standard of review, particularly where Charter rights or Charter values are implicated. The majority decision specifically states that it is not addressing the Doré framework in Vavilov except to affirm that correctness is the standard when the challenge is to the enabling statute.[137] Mark Mancini, however, argues that Vavilov is a significant departure from Doré.[138] He notes that the Supreme Court focused on the expertise of the decision-maker as the rationale for the reasonableness standard in Doré but in Vavilov, the focus is on the legislative intent.[139] Mancini concludes that Doré can only continue to stand as precedent with significant amendments. Paul Daly takes the opposite view from Mancini, arguing, “In fact, the conceptual framework of Vavilov supports the continued application of Doré.”[140] Daly says that the presumption of reasonableness as the standard of review is strengthened and the exceptions are clarified.

So the Vavilov standard still leaves plenty of murkiness along the dark paths of judicial reviews of administrative decisions. Nor is it any clearer that this new standard would have changed the result in the Trinity Western cases, a decision that may have had powerful political and cultural overtones. The majority judgment did not address the standard of review in a robust fashion. The two minority judgments and the dissent were critical of the majority for this reason.

V. Conclusions

This paper examines and brings into sharp focus the continuing challenges of the standards of review for administrative tribunals. While the Supreme Court of Canada has recently attempted to clarify the standard, it does not appear to have brought greater clarity.

Yet much is at stake when one tries to sort out this hot mess that is administrative standards of review are rights and freedoms guaranteed by the Charter. As administrative decision-maker Donald Buckingham concludes, "Administrative decision-makers are entrusted with highly complex and important issues that may have broad impact on society."[141]Administrative tribunals form an important part of the regulatory state. So there is significant potential to undermine these rights when courts do not provide appropriate oversight. As Lauwers J points out, when rights claimants have an effective reverse onus and tribunals are not even required to provide reasons for their decision, it seriously undermines rights protection in Canada. He surmises, “Judges and tribunal members need the supporting constraint of the rule of law, in all of its mundane and exalted elements, to keep them on the right track and off the wrong track of embedding their subjective moral commitments in law through result-selective reasoning.”[142]

When courts are reviewing decisions of tribunals that involve Charter rights or Charter values, the only appropriate standard is that of appellate review: that is, correctness. Anything less undermines the rights and freedoms protected by the Charter. If that standard is the gold standard for civil court judges, why would it not also be for administrative decision-makers when it comes to issues of fundamental human rights?

  1. www.canlii.org.

  2. David Stratas, “The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency” (2016) 42 Queen’s LJ 27, 29.

  3. Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 SCR 570; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 SCR 5; Cooper v. Canada (Human Rights Commission), [1996] 3 SCR 854.

  4. Donald Buckingham, “From Dunsmuir to Doré and Beyond: Why Administrative Law Matters in the Protection of Religious Freedom in Canada” (2016) 75 SCLR (2d) 179, para 38.

  5. Ibid.

  6. 2009 SCC 37, [2009] 2 SCR 567 (hereinafter Hutterian Bretheran SCC).

  7. Mouvement laïque québécois v. Saguenay (City) 2015 SCC 16, [2015] 2 SCR 3.

  8. Law Society of British Columbia v. Trinity Western University 2018 SCC 32, [2018] 2 SCR 293 [57] (hereinafter LSBC v. TWU); Trinity Western University v. Law Society of Upper Canada 2018 SCC 33, [2018] 2 SCR 453 (hereinafter TWU v. LSUC).

  9. 2019 SCC 65.

  10. See Janet Epp Buckingham, Fighting over God: A Legal and Political History of Religious Freedom in Canada (McGill-Queen’s University Press 2014).

  11. 2002 SCC 33, [2002] 2 SCR 235.

  12. Ibid [8].

  13. Ibid [10].

  14. Ibid [36].

  15. Dunsmuir v. New Brunswick 2008 SCC 9, [2008] 1 SCR 190.

  16. Doré v. Barreau du Québec 2012 SCC 12, [2012] 1 SCR 395.

  17. Ibid [7].

  18. Ibid [45].

  19. Ibid [58].

  20. Loyola High School v. Quebec (Attorney General) 2015 SCC 12, [2015] 1 SCR 613 [34].

  21. LSBC v. TWU (n 8) [57].

  22. Skyline Agriculture Financial Corp v Farm Land Security Board 2015 SKQB 82, [2015] 8 WWR 98 (Sask QB) [35].

  23. Buckingham (n 4) [37].

  24. Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65.

  25. Hutterian Bretheran SCC (n 6).

  26. Hutterian Brethren of Wilson Colony v. Alberta 2006 ABQB 338, 398 AR 5 (2006 QB) [1].

  27. Hutterian Brethren SCC (n 6) [1].

  28. Ibid.

  29. Ibid [14].

  30. Hutterian Brethren of Wilson Colony v. Alberta 2007 ABCA 160, 417 AR 68 (CA 2007).

  31. Hutterian Brethren SCC (n 6).

  32. Ibid [36].

  33. Ibid [34].

  34. Ibid [40].

  35. Ibid [42].

  36. Ibid [52].

  37. Ibid [62].

  38. Ibid [97].

  39. Ibid [115].

  40. Ibid [114].

  41. Ibid [182].

  42. Ibid [186].

  43. Ibid [187].

  44. Ibid [200].

  45. Dunsmuir (n 15) [36].

  46. Mouvement laïque (n 7).

  47. Québec Charter of Human Rights and Freedoms RSQ, c C-12.

  48. Mouvement laïque (n 7) [10].

  49. Simoneau c. Tremblay, [2011] RJQ 507 (H.R.T.).

  50. Québec Charter of Rights (n 47) s 132.

  51. Saguenay (Ville de) c. Mouvement laïque québécois, [2013] RJQ 897, 363 DLR (4th) 62 (QCCA).

  52. Mouvement laïque (n 7) [20].

  53. Saguenay (n 51) [88].

  54. Ibid [115].

  55. Mouvement laïque (n 7) [34].

  56. Québec Charter of Rights (n 47) s 133.

  57. Mouvement laïque (n 7) [33].

  58. Ibid [38].

  59. Paul Daly, “Struggling Toward Coherence in Canadian Administrative Law? Recent Cases on Standard of Review and Reasonableness” (2016) 62 McGill LJ 527, paras 26-32.

  60. Mouvement laïque (n 7) [46]-[48].

  61. Ibid [29].

  62. Ibid [49].

  63. Ibid [166].

  64. Ibid [76].

  65. Ibid [78].

  66. Ibid [132].

  67. Ibid [168].

  68. Federation of Law Societies of Canada, Common Law Degree Implementation Committee, Final Report (August 2011). <http://docs.flsc.ca/Implementation-Report-ECC-Aug-2011-R.pdf> accessed 9 November 2020.

  69. Ibid, Recommendation 16.

  70. Law Society Rules, s. 2-27 (31 December 1998, as amended) <https://www.lawsociety.bc.ca/Website/media/Shared/docs/publications/mm/LawSocietyRules_2015-03.pdf> accessed 12 November 2020.

  71. See Law Society of Ontario, By-law 4, ss. 7, 9. Available online: <https://lawsocietyontario.azureedge.net/media/lso/media/legacy/pdf/b/by/by-law-4.pdf> accessed 13 November 2020.

  72. Trinity Western University v. The Law Society of British Columbia (2015) 85 BCLR (5th) 174 (SC) [90].

  73. Ibid [96] referencing Mission Institution v. Khela 2014 SCC 24, [2014] 1 SCR 502 [79].

  74. Ibid [98]-[99].

  75. Ibid [145].

  76. Ibid [91].

  77. Ibid [147].

  78. Ibid [191].

  79. Ibid [192].

  80. Trinity Western University v The Law Society of Upper Canada (2015) 126 OR (3d) 1 (Div Ct) [36].

  81. Ibid.

  82. Ibid [37]. See also ibid [42].

  83. Ibid [49].

  84. 2001 SCC 31, [2001] 1 SCR 772.

  85. TWU v LSUC (n 80) [92].

  86. Ibid [91].

  87. Ibid [104].

  88. Ibid [124].

  89. Trinity Western University v. The Law Society of Upper Canada (2016) 131 OR (3d) 113 (CA) [65].

  90. Ibid [67].

  91. Ibid [69].

  92. LSBC v. TWU (n 8) [34]-[38].

  93. Ibid [38].

  94. Ibid [46].

  95. Ibid [52].

  96. Ibid [46].

  97. Ibid [50].

  98. Ibid [59].

  99. Ibid [84].

  100. Ibid [110].

  101. Ibid [111].

  102. Ibid [112].

  103. Ibid [118].

  104. Ibid [134].

  105. Ibid [159].

  106. Ibid [164].

  107. Ibid [175].

  108. Ibid [171].

  109. Ibid [210].

  110. Ibid [273].

  111. Ibid [280].

  112. Ibid [294].

  113. Ibid [301].

  114. Ibid.

  115. Ibid [304].

  116. Ibid [312].

  117. TWU v. LSUC (n 8) [33].

  118. Ibid [35].

  119. Ibid [35] quoting Loyola (n 15) [39].

  120. Ibid [38].

  121. Ibid [39].

  122. Ibid [49].

  123. Ibid [46].

  124. Ibid [58].

  125. Peter D Lauwers, “What Could Go Wrong with Charter Values?” (2019) 91 SCLR (2d) 1, paras 204-206.

  126. Ibid para 208.

  127. Ibid para 210.

  128. Ibid para 233.

  129. Gérard Bouchard, Charles Taylor, Building the Future: A Time for Reconciliation, Report de la Commission de consultation sur les pratiques d’accommodement reliées aux différences culturelles (Gouvernement du Québec 2008).

  130. Lauwers (n 125) para 275.

  131. Ibid para 206.

  132. Vavilov (n 24).

  133. Ibid [33].

  134. Lawrence David, “Horizontal Stare Decisis and the Charter in the Supreme Court of Canada” (2020) 97 SCLR (2d) 27, para 43.

  135. Ibid para 41.

  136. Ibid paras 7, 25, 48, 59 and 60.

  137. Ibid para 57.

  138. Mark Mancini, “The Conceptual Gap Between Doré and Vavilov” (2020) 43 Dalhousie LJ ___ Available at <https://ssrn.com/abstract=3586079> accessed 13 November 2020.

  139. See Vavilov (n 24) [46].

  140. Paul Daly, “Unresolved Issues after Vavilov II: The Doré Framework,” (Administrative Law Matters, 6 May 2020) <https://www.administrativelawmatters.com/blog/2020/05/06/unresolved-issues-after-vavilov-ii-the-dore-framework/?repeat=w3tc> accessed 13 November 2020.

  141. Buckingham (n 4) para 40.

  142. Lauwers (n 125) para 341.