Canada: Supreme Court Defers To Law Societies In Denial Of TWU's Law School

Last Updated: July 4 2018
Article by Jason Kully and Gregory Sim

In the related decisions of Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, and Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33, the Supreme Court of Canada concluded that the Law Societies of British Columbia and Ontario could deny accreditation to Trinity Western University's (TWU) proposed law school. This is the final word in a long-running legal battle of particular interest to the legal profession and to members of the LGBTQIA community. Professional regulatory organizations will also be interested in the Supreme Court's comments on the role of regulators and the deference owed to regulator's academic accreditation decisions.

Trinity Western University (TWU) is a private Christian university located in British Columbia. All students and faculty at TWU must follow a religious-based code of conduct, known as a "covenant", that allows sexual intimacy only between a man and a woman who are married. TWU had long sought to open a law school. This proved to be contentious in the legal community due to the covenant.

The Law Society of British Columbia and the Law Society of Ontario decided not to accredit TWU's proposed law school, a decision that fell within their role as the gatekeepers to the profession. The Law Societies' decisions were challenged on the grounds that the decisions violated freedom of religion and other rights protected by the Charter.

After proceeding through the superior courts of British Columbia and Ontario, the issue before the Supreme Court of Canada was whether the Law Society of British Columbia's and the Law Society of Ontario's decisions not to accredit TWU's proposed law school contravened the Charter.

The majority of the Court stated that it was required to determine if the Law Societies' decisions were reasonable and, that to be considered reasonable, the decisions had to strike a proportionate balance between the limitation on the religious rights of TWU and its community and the Law Societies' statutory objective.

In determining that TWU's proposed law school should not be accredited, the Law Societies had concluded that TWU's covenant imposed inequitable barriers on entry to the school and that this also imposed inequitable barriers on entry to the profession, which risked decreasing diversity in the bar. The Law Societies concluded that approving the law school would also harm LGBTQIA individuals. For these reasons, approval of the school would undermine the public interest in the administration of justice.

The majority of the Supreme Court concluded it was reasonable for the Law Societies to conclude that promoting equality by ensuring equal access to the legal profession, supporting diversity within the bar, and preventing harm to LGBTQIA law students were valid means by which they could pursue their overarching statutory duty of protecting the public interest. The "public interest" is a broad concept and what it requires depends on the particular circumstances. Accordingly, it was appropriate to consider these issues in determining the requirements for admission to the legal profession, including whether a law school should be accredited. The Court observed that the Law Societies were entitled to deference in determining how the public interest mandate would be furthered as such deference reflects legislative intent, acknowledges the law society's institutional expertise, follows from the breadth of the "public interest", and promotes the independence of the bar.

The Court next had to decide whether it was reasonable for the Law Societies to deny approval of TWU's law school given the impact the denial had on the freedom of religion.

Since the decision to deny approval was a discretionary administrative decision that engaged the Charter, the Law Societies' decisions were reviewed based on the administrative law framework set out in Doré v Barreau du Québec, 2012 SCC 12, and Loyola High School v Quebec (Attorney General), 2015 SCC 12. Under this framework, an administrative decision will be reasonable if it reflects a proportionate balancing of the Charter right or value with the statutory mandate. This approach recognizes that an administrative decision-maker, exercising a discretionary power under a home statute, typically brings expertise to the balancing of a Charter protection with the statutory objectives at stake. The Court observed that deference is warranted when determining whether the decision reflects a proportionate balance.

The majority of the Court found the decisions of the Law Societies to refuse to accredit TWU's law school struck a proportionate balance and were reasonable. The majority also observed that the benefits of protecting the public interest, including maintaining equal access to and diversity in the legal profession and preventing the risk of significant harm to the LGBTQIA community, were important. The majority also noted that the limitation on religious rights was relatively minor, as the Law Societies did not stop anyone from following their own religious beliefs and instead only prevented the beliefs from being imposed on students of the law school. Finally, the majority noted that the Law Societies had only two choices: either approve or not approve the schools, thereby limiting the balancing.

Beyond their recognition of the importance of diversity and equality, the majority decisions offer important insights for professional regulators, including:

  1. A professional regulator is entitled to deference when it is determining how to best fulfill its role of protecting the public interest. In the context of an accreditation decision, a determination of the public interest may include promoting diversity, removing inequitable barriers, and reviewing educational programs to ensure the values of profession are not harmed by the program. Further, the "public interest" is broad and may vary based on the circumstances. This recognizes that regulators, as the body entrusted with the self-regulation of a profession, are in a unique position to determine what is important to the profession and to the public it serves.
  2. Deference will be afforded to professional regulators even when the regulator's decision engages the Charter and important considerations such as religious liberty and equality for the LGBTQIA community. The Supreme Court stated that a regulator is in the best position to balance a Charter right or value with the regulator's statutory objective. Further, when an administrative decision engages the Charter, reasonableness and proportionality become synonymous. This does not mean that the administrative decision-maker must choose the option that least limits the Charter right or value. The question for the reviewing court is always whether the decision falls within a range of reasonable outcomes. This affords regulators and their tribunals significant authority to address and oversee all aspects of the profession, including Charter rights and values.
  3. A professional regulator is not required to provide formal reasons for all types of decision-making. The majority of the Supreme Court stated there was no requirement for the Law Societies to give reasons for the accreditation decision and proceeded to examine the record to determine the rationale for the decision. This is a significant recognition by the Supreme Court that some types of administrative decisions are not required to be explained with detailed reasons, even when significant considerations such as the public interest and Charter rights and values are engaged.  

The Supreme Court of Canada's decisions represent another high-water mark in the recognition of the deference that should be afford to professional regulators in light of their expertise and the broad mandate entrusted to them by the legislature. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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