TWU, Law Society of British Columbia v Trinity Western University, discretionary decisions, correctness standard
This case comment focuses on what the Supreme Court of Canada’s 2018 decision in Law Society of British Columbia v Trinity Western University tells us about how courts should review the discretionary decisions of administrative decision-makers for compliance with the Charter. The majority describes this as an application of the framework from Doré and Loyola, and I argue that the Court missed a chance to bring that framework into conceptual harmony with that from Oakes. The Court should be reluctant to use the framework of reasonableness and deference set out in Doré and Loyola when the decision-maker (the Law Society of British Columbia) fails to produce explicit written reasons for their decision. I also argue, though, that the Court didn’t actually defer to the Law Society. As a descriptive matter, I argue that the Court here used a correctness standard, albeit with a degree of deference and leeway akin to that used in the Oakes framework. As a normative matter, I argue that this is the correct approach, and that the court should highlight the conceptual harmony between the two approaches rather than allowing language of reasonableness and deference to obscure what courts are doing here. I conclude by presenting a path to harmonizing the approaches from Doré and Loyola with that from Oakes.
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Sancho McCann, "Finding Harmony: Law Society of British Columbia v Trinity Western University" (2019) 28 Dal J Leg Stud 1.