Decisions of law societies not to accredit proposed law school at Trinity Western University reasonable

Administrative law – Decisions reviewed – Law Societies – Charter of Rights and Freedoms – Freedom of Religion – Judicial review – Appeals – Standard of Review – Reasonableness

Law Society of British Columbia v. Trinity Western University and Trinity Western University v. Law Society of Upper Canada, [2018] S.C.J. No. 32 and [2018] S.C.J. No. 33, 2018 SCC 32 and  2018 SCC 33, Supreme Court of Canada, June 15, 2018, B. McLachlin C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, R. Wagner, C. Gascon, S. Côté, R. Brown and M. Rowe JJ.

Trinity Western University (“TWU”) is an evangelical Christian post-secondary institution.

TWU requires its students and faculty to adhere to a religiously-based code of conduct, the mandatory Community Covenant Agreement (“Covenant”), which prohibits sexual relations outside of marriage between a man and a woman. TWU applied to the Law Society of British Columbia (“LSBC”) and the Law Society of Upper Canada (“LSUC”) for accreditation of a proposed law school.

The LSBC held a referendum regarding accreditation. The members voted to implement a resolution declaring TWU’s proposed law school was not an approved faculty of law because of the Covenant. The Benchers of the LSBC passed that resolution.

The LSUC denied accreditation, based on a resolution passed by the Benchers of the LSUC.

The majority of the Supreme Court of Canada held the decisions to refuse accreditation to TWU’s proposed were reasonable and should be upheld. The Court concluded:

• The decisions not to accredit TWU’s proposed law school represented a proportionate balance between s. 2(a) of the Charter and the statutory objectives of law societies to uphold and protect the public interest in the administration of justice, in accordance with the Doré/Loyola analytical framework and proportionality analysis. The proportionality analysis requires consideration of whether there are other reasonable possibilities that would give effect to Charter protections more fully in light of the relevant statutory objectives.
• The basis for the decisions – that the Covenant effectively imposed inequitable barriers on entry to the law school and the legal profession – was reasonable, and consistent with the overarching interest of the law societies in protecting the values of equality and human rights. Law societies, as governing bodies of a self-regulating profession, are entitled to deference in the determination of the manner in which their broad public interest mandate will be best furthered.
• The mandatory Covenant was not absolutely required to study law in a Christian environment. TWU conceded that eliminating the mandatory covenant would not prevent any member of the community from adhering to his or her beliefs.

In dissent, Justices Côté and Brown held pursuant to the enabling statutes of the LSBC and LSUC, the only proper purpose of a faculty of law approval decision is to ensure individual graduates are fit to become members of the legal profession because they meet minimum standard of competence and ethical conduct; as there were no concerns regarding fitness of prospective TWU graduates, the only defensible exercise of the law societies’ discretionary powers would have been to accredit TWU’s proposed law school. The minority held state neutrality required the law societies neither favour nor hinder any particular belief (or non-belief), by accommodating diverse beliefs and values in accordance with the principles of secularism and pluralism.

This case was digested by Joel A. Morris, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Joel A. Morris at jmorris@harpergrey.com.

To stay current with the new case law and emerging legal issues in this area, subscribe here.