After the Law Society Benchers denied Trinity Western University’s (‘TWU’) application for the accreditation of its proposed law school, TWU applied for judicial review, arguing in part that the Law Society should only have considered whether the school could produce competent lawyers, and not broader public interest factors, when making the decision. The court held that the Law Society was, by its mandate and statutory authority, entitled to consider a broad spectrum of public interest considerations when making its decision, including that TWU’s Community Covenant, which students were required to agree to, was discriminatory to LGBTQ persons. The court concluded that the Law Society’s decision was reasonable because the Law Society had properly balanced the relevant Charter values (TWU’s rights to freedom of religion, and future members’ equality rights) with the statutory objectives.
Administrative law – Accreditation – Barristers and solicitors – Charter of Rights and Freedoms – Compliance with legislation – Decisions of administrative tribunals – Freedom of Religion – Judicial Review – Law Societies – Professional governance and discipline – Public Interest – Reasonableness simpliciter – Sexual orientation – Standard of Review – Universities
Trinity Western University v. Law Society of Upper Canada,  O.J. No. 3492, 2015 ONSC 4250, Ontario Superior Court of Justice, July 2, 2015, F.N. Marrocco A.C.J.S.C.J., E.F. Then and I.V.B. Nordheimer JJ.
TWU is a private post-secondary institution that provides students with a Christian education. In order to be enrolled, students must read, understand and agree to the terms of the Community Covenant, which is a code of conduct embodying TWU’s evangelical Christian religious values. One of the central issues that arose from the Covenant for LGBTQ people is the prohibition against “sexual intimacy that violates the sacredness of marriage between a man and a woman.”
In April 2014, the Benchers of the Law Society of Upper Canada voted to deny accreditation to the law school that TWU proposed to create. TWU then applied for judicial review. The parties disagreed regarding what matters the Law Society could and could not take into consideration in arriving at its decision to deny accreditation. TWU took the position that the Law Society’s consideration should have been solely focused on the issue of whether TWU’s law school would graduate competent lawyers, not broader public interests. The Ontario Superior Court of Justice disagreed, finding that the principles set out in the Law Society Act engaged the Law Society in a much broader spectrum of considerations with respect to the public interest when they are deciding whether or not to accredit a law school.
After deciding that the appropriate standard of review was reasonableness, the court held that the first step in the analysis of the reasonableness of the decision was to determine whether the decision involved an infringement of TWU’s freedom of religion. The court found that it did. Once the infringement was established, the next step was to apply the framework set out in Dore. This involves a two-stage process: (1) the decision-maker must balance the applicable Charter values with the statutory objectives the decision-maker is to fulfill; and (2) the decision-maker asks how the Charter values at issue will be best protected in view of those statutory objectives. The court said that on judicial review, the question is whether the decision reached reflects a proportionate balancing of the Charter protections at play. If, in exercising its statutory discretion, the Law Society had properly balanced the relevant Charter values with the statutory objectives, its decision would be considered reasonable.
The court said that in exercising its mandate to advance the cause of justice, maintain the rule of law, and act in the public interest, the Law Society was entitled to balance TWU’s 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). The court held that the Law Society was also entitled, in the exercise of its statutory authority, to refuse to accredit TWU’s law school arising from the discriminatory nature of the Covenant. The court concluded that the Law Society engaged in a proportionate balancing of the Charter rights that were engaged by its decision and its decision cannot, therefore, be found to be unreasonable. As a result, TWU’s application for judicial review was dismissed.
This case was digested by Kara Hill of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact her directly at firstname.lastname@example.org or review her biography at http://www.harpergrey.com.
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