AB v Northwest Territories: A New Low for the Doré/Loyola Framework

Abstract

Since the advent of the Canadian Charter of Rights and Freedoms in 1982, the relationship between the Charter and administrative law has been somewhat rocky. The unique nature of administrative decisions has been perceived by some jurists as requiring an unnecessarily nuanced approach to Charter issues in the administrative law context, resulting in problematic decisions untethered from jurisprudential Charter reasoning and the text of the Charter itself. The most notable of these cases are Doré v Québec and Loyola High School v Québec (Attorney General). The legacy of these decisions, sometimes referred to as the Doré/Loyola framework, regrettably established that on judicial review, administrative decisions need only demonstrate a proper balancing of implicated Charter rights or elusively-defined Charter values with relevant governmental objectives, and that these decisions will only be reviewed on a standard of reasonableness rather than correctness. The recent decision of the Northwest Territories Court of Appeal in AB v Northwest Territories (Minister of Education, Culture and Employment) (“AB”) highlights how far down a slippery slope of constitutional misinterpretation the framework has allowed the law to slide.