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Judicial Review - SOR - Charter
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Dore | Loyola
. Brisco v. Ontario Civilian Police Commission [IMPORTANT]
In Brisco v. Ontario Civilian Police Commission (Ont Divisional Ct, 2025) the Divisional Court dismissed a police officer's JR, here against "a decision of the Ontario Civilian Police Commission, which upheld a hearing officer’s finding that he engaged in misconduct for making a donation to what the hearing officer found to be illegal protests in Ottawa and Windsor" and related penalty.
Here the court nicely states the tricky JR SOR treatment for Charter issues - ie. the correctness exception for 'determination/application' of the Charter, but still the reasonableness standard for Charter 'balancing':[12] The standard of review for whether the Commission failed to recognize the Charter value of freedom of assembly is correctness: York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22, 492 D.L.R. (4th) 613, at paras. 63, and 69. However, the parties agree the balancing of Charter values is reviewable on a reasonableness standard: Doré, at paras. 43-54; Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, 487 D.L.R. (4th) 631, at para. 60. . Zarabi-Majd v. Toronto Police Service
In Zarabi-Majd v. Toronto Police Service (Ont Divisional Ct, 2025) the Divisional Court dismissed a police officer-brought JR, this against a dismissed appeal by the Ontario Civilian Police Commission, that against a TPS discipline hearing finding that the applicant "was found guilty of four counts of discreditable conduct and four counts of insubordination, and was dismissed from the TPS".
The court explores the difficult issue of JR SOR 'reasonableness' exceptions where Charter issues are argued. Here it reached different conclusions in two related administrative hearings [see esp. para 41-42]: 1. a discipline merits hearing which the applicant did not attend and the issue was whether Charter s.7 and 15 applied (correctness), and 2. a discipline sanctions hearing which they did attend and the issue was whether Charter s.2(b) ['freedom of expression'](reasonablness):a. Standard of review
[37] The parties do not agree on the standard of review we should apply to the Commission’s decision that the security of the person and equality interests are not engaged in this case. Ms. Zarabi-Majd argues that that decision should be reviewed on a correctness standard. The TPS, on the other hand, argues the standard of review is reasonableness. This difference in position stems from two recent decisions of the Supreme Court of Canada: the 2023 decision in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31 and the more recent decision in York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22, both of which involve the judicial review of administrative decisions that engaged Charter rights or values.
[38] To determine what standard of review applies, we must start with the Supreme Court of Canada’s decision in Doré v. Barreau du Québec, 2013 SCC 12. The issue in Doré was very similar to the issue in this case – whether the disciplinary decision of the Barreau du Québec to reprimand a lawyer for the content of a letter he wrote to a judge infringed the lawyer’s freedom of expression under s. 2(b) of the Charter. The Court grappled with whether to apply a reasonableness standard of review to the Barreau du Quebec’s decision (because it involved the exercise of discretion by an administrative tribunal with expertise) or a correctness standard of review (akin to the review done by the courts when considering whether an infringement of a Charter right is justified under the s. 1): Doré at para. 52. The Court concluded that the reasonableness standard of review should apply. The Court held that the question on judicial review of an administrative decision that engages Charter rights or values is whether the decision reflects a proportionate balancing of the Charter protections at play with the objectives of the statutory framework within which the decision was made: Doré at paras. 57-58.
[39] In 2019, the Supreme Court conducted a sweeping review of the standards of review applicable on judicial review in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. The Court concluded that the presumptive standard of review is reasonableness and reviewing courts should only depart from that presumption in very limited circumstances: Vavilov, at para. 10. For example, a correctness standard will apply to some legal questions, including constitutional questions and general questions of law of central importance to the legal system: Vavilov, at paras. 53-57. In Vavilov, the Supreme Court expressly declined to overrule or alter the framework articulated in Doré.
[40] Two more recent Supreme Court cases have addressed the standard of review that applies on judicial review where an administrative decision engages Charter rights or values. First, in Commission scolaire francophone, the Supreme Court held that, post-Vavilov, reasonableness continues to be the standard of review that applies when reviewing discretionary decisions that engage Charter rights or values: Commission scolaire francophone at para. 60. However, in York Region, the Supreme Court ruled that a correctness standard applies to constitutional questions related to “whether a Charter right arises, the scope of its protection, and the appropriate framework of analysis.” The Court reasoned that those were the sorts of constitutional questions that require “a final and determinate answer from the courts”: York Region, at para. 63, Vavilov at paras. 53 and 55.
[41] At first blush, the Supreme Court’s rulings in Commission scolaire francophone and York Region may appear inconsistent. In our view, however, there is a way to reconcile the two decisions, which is to apply a correctness standard to the issue of whether the Charter applies or how a Charter right should be defined (following the decision in York Region) and to apply a reasonableness standard to the issue of whether the decision is a proportionate limit on the applicable Charter rights or values (following the decisions in Commission scolaire francophone and Doré).
[42] We, therefore, find the standard of review of the Commission’s decision that ss. 7 and 15 are not engaged is correctness. But a reasonableness standard applies to the Commission’s decision that Ms. Zarabi-Majd’s dismissal is a proportionate limit on her freedom of expression. . Peterson v. College of Psychologists of Ontario
In Peterson v. College of Psychologists of Ontario (Div Court, 2023) the Divisional Court considered Charter s.2(b) expressive freedom issues in a judicial review of a regulatory order (here, from the College of Psychologists) that imposed a 'specified continuing education or remedial program' ('SCERP') on a member in relation to social media statements. Note that such orders are not viewed as ones of 'professional discipline, but more ones of maintaining professionalism - particularly wrt non-clinical public statements. They tends to have a much more persuasive (even educational) nature, and in these days of social media, culture wars and COVID they are often quite 'political'.
In these quotes the court reviews the Dore/Loyola doctrine of balancing Charter freedoms in with the administrative mandate of the Psychology Act, 1991, and their interaction with JR standard of review deference ('reasonableness'):Doré and Vavilov – the legal framework
[30] In Doré, the Supreme Court addressed the question of “how to protect Charter guarantees and the values they reflect in the context of adjudicated administrative decisions.” (para. 3.) As the Court elaborated in Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293, at para. 57 ("Trinity Western"), the Doré framework is "concerned with ensuring that Charter protections are upheld to the fullest extent possible given the statutory objectives within a particular administrative context."
[31] This requires an administrative decision-maker, such as the ICRC, to proportionately balance Charter rights and values and its statutory objectives. This is a highly contextual inquiry. A decision-maker must first consider the statutory objectives it is seeking to uphold, and then, secondly, “ask how the Charter value at issue will best be protected in view of the statutory objectives.” This requires conducting a proportionality exercise, balancing “the severity of the interference of the Charter protection with the statutory objectives.” However, as with the proportionality test under s. 1 of the Charter, which will be met if the measure falls within a range of reasonable alternatives, “in the context of a review of an administrative decision for reasonableness, … decision-makers are entitled to a measure of deference so long as the decision…‘falls within a range of possible, acceptable outcomes’.” (Doré at para. 56)
[32] The Supreme Court elaborated on the Doré framework in Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613 ("Loyola"), and Trinity Western, observing that the Doré approach is not to be a “watered-down version of proportionality”, but is to be “robust.” On an application for judicial review, therefore, the role of the Court is to ensure that the administrative decision-maker “proportionately” balanced the impact on Charter rights and the statutory objectives which “gives effect, as fully as possible to the Charter protections at stake given the particular statutory mandate” (Loyola, at para. 39).” As the Court stated in Trinity Western at para. 80:Put another way, the Charter protection must be “affected as little as reasonably possible” in light of the applicable statutory objectives (Loyola, at para. 40). When a decision engages the Charter, reasonableness and proportionality become synonymous. Simply put, a decision that has a disproportionate impact on Charter rights is not reasonable. [33] However, it is also clear that the Doré approach still requires deference. A reviewing court need not agree with the outcome, as that would impose a standard of correctness; nor must a decision-maker “choose the option that limits the Charter protection least”; rather, the question is “always whether the decision falls within a range of reasonable outcomes.” (Trinity Western, at para. 81). As Abella J. put it at para. 58 of Doré: “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.”
[34] Vavilov does not change the standard of review which remains, clearly, a test of reasonableness, showing deference to, and respect for, decision-makers and their specialized expertise. Rather, Vavilov focuses the reviewing court on “the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome.” As the Court continued at para. 83:The role of courts in these circumstances is to review, and they are, at least as a general rule, to refrain from deciding the issue themselves. Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the ‘correct’ solution to the problem. [35] A reasonable decision, we are told in Vavilov at para. 85, “is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker.” However, reasons “must not be assessed against a standard of perfection”, they need not include all arguments, nor should they “always be expected to deploy the same array of legal techniques that might be expected of a lawyer or judge.” As the Court put it, “‘Administrative justice’ will not always look like ‘judicial justice’ and reviewing courts must remain acutely aware of that fact.” (Vavilov, at paras. 91 -92)
[36] Reasons must be read “in light of the history and context of the proceedings in which they were rendered”, including the evidence and submissions of the parties. As the Court continued at para. 94 of Vavilov, “[t]his may explain an aspect of the decision maker’s reasoning process that is not apparent from the reasons themselves, or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency.”
[37] Further, the degree of justification found in reasons, like reasonableness review itself, must reflect the stakes of the decision. As the Court stated at para. 133 of Vavilov:Where the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes. The principle of responsive justification means that if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention. This includes decisions with consequences that threaten an individual’s life, liberty, dignity or livelihood. At paras 38-49 the court applies the case facts to this law, and then continues:[50] High standards are imposed on members of the College of Psychologists who, like members of other regulated professions, take on responsibilities to their profession and to the public. As the Supreme Court observed in Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 SCR 513, at para. 36, “[t]he importance of monitoring competence and supervising the conduct of professionals stems from the extent to which the public places trust in them.”
[51] Even when “off duty”, courts have recognized that members of regulated professions can still harm public trust and confidence in their profession by their statements and conduct. As the British Columbia Court of Appeal put it in Kempling v. British Columbia College of Teachers, 2005 BCCA 327, 255 DLR (4th) 169, at para. 43, citing the Supreme Court in Ross: “When a teacher makes public statements espousing discriminatory views, and when such views are linked to his or her professional position as a teacher, harm to the integrity of the school system is a necessary result.”
[52] A similar situation arose recently in Pitter v. College of Nurses of Ontario and Alviano v. College of Nurses of Ontario, 2022 ONSC 5513, 164 OR (3d) 433, in which two nurses spoke out on social media and at a public gathering against masks and vaccines during the COVID-19 pandemic. Both identified themselves as registered nurses. The College of Nurses’ ICRC identified concerns with certain statements which were misleading and spread what could be dangerous misinformation. As this Court held, at para. 14:Given its statutory mandate, it was reasonable for the ICRC to be concerned about the Applicants’ statements. As the committee noted, in their public statements, both Applicants identified themselves as health professionals. Ms. Pitter publicly identified herself as a nurse practitioner and Ms. Alviano publicly identified herself as a registered nurse. This not only put the public at risk of being guided by false information, but also risked impacting the reputation of the profession. [53] In Pitter, the Court upheld the ICRC’s direction that the nurses be cautioned and attend remedial education through a SCERP.
[54] Many other professional discipline cases have involved situations in which a member’s misconduct in their personal life, or outside the immediate context of practising their profession, has nevertheless resulted in regulatory action. As observed by Copeland J. (as she then was) in Dr. Jha at para. 119:It is well-established that actions of members of a profession in their private lives may in some cases be relevant to and have an impact on their professional lives – including where the conduct is not consistent with the core values of a profession and/or where there is a need for a regulated profession to maintain confidence of the public in the profession and not be seen to condone certain types of conduct by its members: Wigglesworth at pp. 562-563; Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727, 113 O.R. (3d) 420 at paras 97-98; Re Cwinn and Law Society of Upper Canada (1980), 1980 CanLII 1694 (ON SC), 1980 CanLII 1964, 28 O.R. (2d) 61 (Div. Ct.), leave to appeal refused 28 O.R. (2d) 61n (C.A.); Adams v. Law Society of Alberta, 2000 ABCA 240, 82 Alta. L.R. (3d) 21. [55] Like the legal profession, the health professions recognize limitations on free expression to maintain "boundaries of civility" and professionalism: Ontario (College of Physicians and Surgeons of Ontario) v. Waddell, 2020 ONCPSD 9; Rathe v. College of Physicians and Surgeons of Ontario, 2013 ONSC 821; Ontario (College of Physicians and Surgeons of Ontario) v. Wright, 2018 ONCPSD 19.
[56] Here, the Panel of the College of Psychologists’ ICRC – an expert body - reviewed its Code and Standards and expressed concern that Dr. Peterson’s public statements, insofar as they contained degrading and demeaning language, may be inconsistent with its professional standards and could undermine public trust in the profession. The court continues with the Charter balancing - in light of the statutory objects of the Psychology Act, 1991 [paras 57-67] and the Vavilov 'reasonableness' JR standard of review [paras 68-76]. The case attracted a lot of media attention.
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