BC Supreme Court found Benchers improperly delegated their authority to the Law Society members the refusal to approve Trinity Western’s faculty of law program

25. January 2016 0

The Petitioners, a student and a University, successfully sought judicial review of a decision made by the Respondent (Law Society of British Columbia) to refuse approval for the University’s faculty of law program.

Administrative law – Admission to profession – Approval process – Barristers and solicitors – Charter of Rights and Freedoms – Correctness – Decisions of administrative tribunals – Judicial Review – Jurisdiction – Law Societies – Professional governance and discipline – Standard of Review – Ultra vires – Universities

Trinity Western University v. Law Society of British Columbia, [2015] B.C.J. No. 2697, 2015 BCSC 2326, British Columbia Supreme Court, December 10, 2015, C.E. Hinkson C.J.S.C.

The Respondent, Law Society of British Columbia (“LSBC”), is a self-governing body created by the Legal Profession Act. The Benchers are the governing council of the LSBC.

The Petitioners, Trinity Western University (the “University”) and a student (Brayden Volkenant), sought the LSBC’s approval for the University’s proposed faculty of law program. As of September 2013, this approval was required for students to qualify for the LSBC’s admission program to obtain a licence to practice law in BC.

The Benchers decided to vote in April 2014 to decide whether to pass a motion refusing to approve the University’s faculty of law (the “Motion”). In preparation for this meeting, the LSBC obtained a legal opinion stating that the applicable LSBC rule did not contemplate the Benchers disapproving a faculty of law on a ground that is unrelated to the question of academic qualification. In April 2014, the Benchers voted to defeat the Motion. The LSBC then decided to approve the academic qualifications of the University’s graduates.

After the Motion was defeated, some members of the LSBC requisitioned a special general meeting of the LSBC members to consider a resolution to direct the Benchers to disapprove the University’s faculty of law (the “SGM Resolution”). The LSBC then sent a notice to its members enclosing a letter in support of the SGM Resolution. The LSBC then held the special general meeting on June 10, 2014 and asked its members to vote on the SGM Resolution. The SGM Resolution passed by a vote of 3,210 to 968.

At their meeting in September 2014, the Benchers then refused to implement the SGM Resolution and reject the University’s faculty of law. The Benchers decided to hold a referendum of the LSBC members, asking whether they should implement the SGM Resolution and reject the University’s faculty of law. The Benchers decided that the referendum results would be binding on them if at least 1/3 of LSBC members voted, and 2/3 of members voted in favour of the resolution. The Benchers also decided that implementing the resolution would not be a breach of their statutory duties.

The referendum was held in October 2014 and 74% of the LSBC members voted in favor of having the Benchers implement the SGM Resolution. The Benchers then treated the referendum as binding and voted 25-1 to implement the SGM Resolution. This decision reversed the Benchers’ earlier approval of the University’s faculty of law. The Minister of Advanced Education then withdrew its approval for the University’s proposed faculty of law.

The Petitioners sought judicial review of the LSBC’s refusal to approve the University’s faculty of law. The Petitioners sought a declaration that the decision is ultra vires of the LSBC and it unjustifiably infringes their Charter rights. The Petitioners also sought orders in the nature of certiorari, mandamus, and prohibition.

In considering the issues, the Court reviewed other litigation in BC relating to the University’s other degree programs, and other litigation in other provinces relating to the University’s faculty of law program.

The Court held it was bound to apply the standard of correctness to the question of the LSBC’s jurisdiction to reject the University’s proposed faculty of law. The Court held the standard of correctness applied to the review of the LSBC’s compliance with its duty of procedural fairness. The Court held the issue of sub-delegation (and fettering of discretion) was an issue of process and also warranted review on the standard of correctness.

The Court first considered the issue of jurisdiction. The Court held the LSBC had a broad statutory authority including the duty to preserve and protect the rights and freedoms of all parties. It was directly related to the LSBC’s duties to refuse to approve a proposed faculty of law based on its admissions policies. The Court held the LSBC correctly found it had the jurisdiction to disapprove the academic qualifications of a proposed faculty of law, as long as it followed the appropriate procedures and framework for doing so.

The Court next considered the issues of process. The Petitioners argued that the Benchers improperly delegated their authority to the members of the LSBC, thus fettering their discretion. The LSBC argued the Benchers were informed by the views of the membership but exercised their independent judgment to make a decision. The Court rejected the LSBC’s argument because the evidence was clear that the Benchers allowed the members to dictate the outcome of the matter. The Benchers thereby wrongly fettered their discretion by allowing a non-binding vote to replace their judgment.

In addition, the Court held the Petitioners were entitled to, and deprived of, a meaningful opportunity to present their case to the individuals with the discretion to make the decision.

The Court did not make a decision regarding the collision of competing Charter rights in issue.

The Court quashed the LSBC’s decision and restored the results of the April 2014 vote of the Benchers. The Court refused to grant the other relief sought by the Petitioners.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at [email protected] or review his biography at .http://www.harpergrey.com.

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