Canada: TWU's Law School Still TBD: Reviewing The Ontario Div Court Decision In TWU v LSUC

The controversy continues with the release of the Ontario Divisional Court decision in Trinity Western University v The Law Society of Upper Canada, 2015 ONSC 4250, upholding the Law Society of Upper Canada's decision not to accredit TWU's proposed law school.

There are now conflicting decisions about TWU's law school from courts in Ontario and Nova Scotia, where TWU's judicial review was successful: Trinity Western University v Nova Scotia Barristers' Society, 2015 NSSC 25 (under appeal to the NSCA).

This blog post will review both decisions, and canvass some key differences between them.1

TWU is an evangelical Christian university (see the Ontario decision at paras 6-8). Its planned law school has been controversial primarily because of the "Community Covenant" that all law students would have to sign. As summarized in the Ontario decision, the Covenant prohibits "sexual intimacy that violates the sacredness of marriage between a man and a woman," including a prohibition on sexual intimacy between people of the same sex, whether or not they are married (see paras 12-17). TWU has maintained that LGBTQ students can still be admitted to the university, and could still be admitted to the law school.

Recall that the law societies in both Ontario and Nova Scotia voted against accrediting TWU:

  • Ontario: On April 24, 2014, Convocation voted to reject TWU as an accredited law school, meaning applicants to the licensing regime in Ontario cannot have law degrees from TWU.
  • Nova Scotia: The next day, on April 25, 2014, the Council of the Nova Scotia Barristers' Society passed a conditional resolution not to allow graduates from TWU's law school to article in Nova Scotia. The condition was this: TWU graduates would be entitled to apply if law students were exempted from the Community Covenant, or the Covenant was amended. The regulatory amendments that followed changed the definition of "law degree" to permit Council to exclude degrees from a law school that discriminated in its admission or enrollment criteria. (See the NS decision at paras 55-60.)

TWU and a prospective law student, Brayden Volkenant, applied for judicial review in both jurisdictions. They succeeded in Nova Scotia but not in Ontario, although the Nova Scotia decision is currently under appeal.

To briefly refresh on the Nova Scotia decision, released in January:

  • On administrative law grounds, Justice Campbell found it was unreasonable for the NSBS to attempt to indirectly regulate the internal policies of a law school when it had no jurisdiction to do so directly (NS decision at paras 171-175).
  • On constitutional law grounds, the NSBS resolution and regulation were also unreasonable for infringing freedom of religion. Justice Campbell held that evangelical Christians sincerely believe that they must surround themselves with others who share and practice the same beliefs, and it was not for the NSBS to interfere with their religious freedom (NS decision at paras 223-270).

Ontario's Divisional Court, unlike the Nova Scotia Supreme Court, accepted that there was "institutional discrimination...inherent in the manner in which TWU is choosing to operate its law school" (Ontario decision at para 115; see especially paras 112-125). And the Law Society was allowed to do something about it:

[116] In exercising its mandate to advance the cause of justice, to maintain the rule of law, and to act in the public interest, the respondent was entitled to balance the applicants' rights to freedom of religion with the equality rights of its future members, who include members from two historically disadvantaged minorities (LGBTQ persons and women). It was entitled to consider the impact on those equality rights of accrediting TWU's law school, and thereby appear to give recognition and approval to institutional discrimination against those same minorities. Condoning discrimination can be ever much as harmful as the act of discrimination itself. [emphasis added]

The Ontario decision therefore stands in stark contrast to the Nova Scotia decision. The following divergences are especially noteworthy:

  • The regulatory framework: The Divisional Court explicitly distinguished the Nova Scotia decision on this basis, stating at para 129 that "the NSBS did not have the statutory authority, under its governing statute, that the respondent has here," referencing the LSUC's statutory directive "to maintain and advance the cause of justice and the rule of law." Further, the Div Court said the NSBS does not share LSUC's history of controlling Bar admission requirements. However, Nova Scotia's Legal Profession Act, s 4 is quite similar to Ontario's Law Society Act, section 4.2, in its emphasis on the public interest. Although the Div Court is correct that the Nova Scotia Act does not directly reference "the cause of justice and the rule of law," perhaps the difference is not really in the statutory schemes, but in each Court's interpretation of the "public interest" and how much leeway that gives a law society to regulate and decide on accreditation.(Justice Campbell acknowledged that his decision did not review all of the extensive record so it is also possible the Ontario Court did not have the full flavour of the NSBS's regulatory regime: NS decision at para 27.)
  • Law society efforts to fight discrimination and promote diversity: The law societies in both Ontario and Nova Scotia presented evidence of their efforts to combat discrimination and advance equality and diversity in the legal profession, to help place their decisions on TWU in historical context (Ontario decision at paras 21-25; NS decision at paras 62-80). There seem to be more similarities than differences in what the law societies presented – the divergence is really in how relevant each Court found this contextual evidence, and whether it factored into the balance of rights.
  • Jurisdiction over accreditation: Remember that Justice Campbell found the NSBS was essentially trying to interfere with TWU's internal policies when it did not have the statutory or regulatory jurisdiction to do so. The Div Court in Ontario seemed to accept Justice Campbell's characterization of the Nova Scotia situation, but said "there is no issue regarding the respondent's jurisdiction in this case" (para 130).
  • Discrimination at TWU: The Ontario Court discussed the discrimination issue at length, finding that TWU discriminates by excluding students who do not share the same religious convictions; excluding LGBTQ applicants from admission unless they "bury a crucial component of their very identity, by forsaking any form of intimacy with those persons with whom they would wish to form a relationship" (para 113); and, as a result, impeding equal access to legal education, and to the legal profession (paras 98-102). It was reasonable for the Law Society to regulate in response to that discrimination by refusing to accredit TWU. Justice Campbell had reached the exact opposite conclusion (NS decision at para 245); in his words, "TWU is not engaging in unlawful discrimination." He did not agree that the NSBS's regulation could play any role in preventing discrimination in Nova Scotia (see e.g. paras 180, 194, 209 of the NS decision). The Divisional Court expressly refused to follow Justice Campbell's decision on this fundamental point (Ontario decision at paras 133-135).
  • Balancing competing rights: In the Nova Scotia decision, Justice Campbell said there were no conflicting rights to balance against freedom of religion – despite the NSBS's stated goals of protecting and promoting equality rights, and preventing discrimination (NS decision at para 239; see also the costs decision at paras 36, 41, 54). On the other hand, the Divisional Court in Ontario readily agreed that there were "competing Charter rights" at issue in the LSUC's decision, and concluded: "To reach a conclusion by which TWU could compel the respondent, directly or indirectly, to adopt the world view that TWU espouses would not represent a balancing of the competing Charter rights" (Ontario decision at paras 42, 115).
  • Precedential value of SCC's 2001 TWU decision: The Supreme Court in Trinity Western University v British Columbia College of Teachers, [2001] 1 SCR 772 agreed with the lower courts that a BCCT decision denying certification to a teacher training program at TWU, based on the assumption that graduates would engage in discriminatory practices, had to be overturned. On its face this decision supports TWU in the current round of judicial review proceedings. In the Nova Scotia proceedings, Justice Campbell agreed with TWU, and concluded: "The decision in TWU v. BCCT has not been overtaken by other developments and is not an expression of outdated concepts involving the intersection of rights" (para 207). The Divisional Court in Ontario, for its part, was less convinced of BCCT's continued precedential value (paras 59-72). After distinguishing BCCT on the facts and evidence, the Court noted:

[70] Lastly on this point, and although it is not integral to our decision, we observe that the area of human rights is one that continues to evolve. The attitudes of the general population towards such issues changes almost daily. Certainly those attitudes, as they relate to the issues that are raised in this case, especially towards LGBTQ persons, have changed considerably in the last fifteen years. As such, this area of law is probably the most fluid of any area of law in terms of the appropriate application of legal principles and the context in which they come to be applied. Some of the presumptions or predispositions that may have existed in the past, and which may have informed decisions at that time, cannot now be safely relied upon for the continuation of attitudes that were previously enunciated.

TWU argued before the Div Court that, if the LSUC's refusal to accredit was upheld—which it was—then it may not be able to open its proposed law school after all, because the door would be closed to the "single largest market for law school graduates" (para 84). But the Court said this was an economic argument and not a legal argument about religious freedom (para 85; see also para 120).

In conclusion, these two decisions will not be the final word on law society regulation related to TWU – an appeal in Nova Scotia is already underway (although hearing dates have not yet been set), and TWU may also seek leave to challenge the Div Court decision in the Court of Appeal for Ontario. The Supreme Court of Canada could be the next step after that. In the meantime, the fate of TWU's law school remains TBD.

Footnote

[1] The decisions will be referred to as "the Ontario decision" and "the Nova Scotia decision," respectively, where context requires. Justice Campbell's costs decision in the NS proceedings is now reported at Trinity Western University v Nova Scotia Barristers' Society, 2015 NSSC 100.

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