Canada: Divisional Court Upholds The Law Society Of Upper Canada's Decision Regarding Trinity Western University

Last Updated: July 9 2015
Article by Duncan A. W. Ault and Nadia Effendi

Most Read Contributor in Canada, September 2016

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 Society.

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."

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