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However, the Court cannot meaningfully do so when there is an absence of evidence of the
CEO’s consideration of the Charter values at play. In these circumstances, the CEO’s reasons
or logistical concerns in changing the election date, but do not truly consider the option of
another date, which is a power within his statutory mandate.
[62]
I acknowledge that it is possible for a decision-maker to implicitly consider Charter
values. In the companion case to TWU, Trinity Western University v Law Society of Upper
Canada, 2018 SCC 33, the Court concluded at paragraph 29 that despite the fact there were no
reasons offered by the decision-maker, the Court could conduct judicial review based on the
reasons which “could be offered” and the record. This is consistent with the Supreme Court’s
previous findings in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62 at para14 [Newfoundland Nurses] that courts should conduct a
holistic review of administrative decisions with regard to the record.
[63]
The Supreme Court has been clear that reviewing courts owe deference to administrative
decision makers such as the CEO. However, this Court cannot defer to a decision that does not
provide any explicit or implicit evidence of proportionate Charter balancing. It is the CEO’s
responsibility to consider the Charter rights and values and provide evidence of engagement
with the Charter.
[64]
On this judicial review, it is not the role of this Court to consider an appropriate date for
the federal election. Rather this Court is only concerned with whether the CEO properly
2019 FC 964 (CanLII)
and explanations for pressing forward with the fixed election date focus primarily on operational