On July 2, 2015, the Ontario Divisional Court released its
decision in TrinityWestern University & Braydon
Volkenant v. The Law Society of Upper Canada. Borden Ladner
Gervais LLP ("BLG") acted on behalf of the Law Society
(Guy J. Pratte, Nadia Effendi and Duncan A.W. Ault).
Trinity Western University ("TWU") had sought to have
its prospective law school accredited by the Law Society of Upper
Canada (the "Law Society"). TWU is a private University
in British Columbia. Its purpose is to provide a Christian
post-secondary education. TWU requires its students and faculty to
sign a code of conduct known as the Community Covenant which sets
out behaviour its signatories are expected to follow. The Community
Covenant embodies TWU's evangelical Christian values, and
includes a prohibition against "sexual intimacy that violates
the sacredness of marriage between a man and a woman."
In April 2014, the Law Society voted to deny accreditation to
TWU by a vote of 28-21. TWU and one of its students subsequently
brought an application for judicial review to have the Divisional
Court reverse the Law Society's decision.
The case before the Divisional Court engaged fundamental issues
of Constitutional, human rights and administrative law –
including the delineation of equality rights, religious freedoms
and the Law Society's jurisdiction as an administrative
decision maker. As characterized by the Court, the Law Society was
"essentially asked to approve and accept students from an
institution that engaged in discrimination against persons who did
not share the religious beliefs that were held by TWU, and the
student body that it prefers to have at its institution."
In a unanimous decision, the Divisional Court upheld the Law
Society's denial of accreditation. In so doing, the Court
accepted the key arguments advanced by BLG on behalf of the Law
The essence of the Court's decision is its assessment of the
Law Society's balancing of the different rights and values at
stake. The Court recognized the Law Society's long-standing
commitment and statutory mandate to ensure equal access to a law
licence based on merit, and not on any discriminatory factors. The
Court accepted that the Law Society's decision appropriately
considered the equality rights under the Charter of
those who would be excluded from law school at TWU, and that it
reasonably balanced those rights against the sincerely-held
religious beliefs of TWU and its prospective attendees.
The Court accepted that the Law Society had the jurisdiction to
consider the admissions policy of a law school seeking its
accreditation. The Court concluded this jurisdiction was rooted in
the Law Society's long history of removing barriers to entry to
the legal profession that are not merit-based.
With respect to the applicable standard of review, the Court
accepted that reasonableness was the appropriate standard to apply
to the Law Society's decision.
In a 2001 decision involving an essentially identical Community
Covenant, the Supreme Court of Canada held that the British
Columbia College of Teachers denial of accreditation of TWU's
teachers' college amounted to an infringement of the
school's freedom of religion. TWU asserted that the Law Society
was bound by the Supreme Court's earlier decision. Here, the
Divisional Court accepted that the Law Society's statutory
mandate and functions were sufficiently unique that it was not
bound by the Supreme Court's earlier authority. The Court
further noted that human rights law had evolved considerably in the
intervening 15 years and that, as a result, some of the
"presumptions or predispositions that may have existed in the
past... cannot now be safely relied upon for the continuation of
attitudes that were previously enunciated."
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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