Reviewing Elected Decision-makers: Trinity Western University v The Law Society of Upper Canada, 2015 ONSC 4250

I am a little late to Trinity Western University v The Law Society of Upper Canada, 2015 ONSC 4250, the second in what is likely to become a lengthy string of judicial decisions on whether TWU’s law school should be accredited by Canada’s law societies. The first decision, favourable to TWU, came from Nova Scotia — I criticized it here — but the Ontario decision has come out the other way. I think it is much more convincing on all counts.

Readers will recall that the basic issue is TWU’s Community Covenant, a document to which students must subscribe. By doing so they give various commitments, including a commitment not to have sex outside of marriage. But because marriage is defined as the union of a man and a woman, the Covenant discriminates against members of the LGBT community. Is this enough to permit a law society to refuse to accredit TWU graduates?

The Divisional Court applied a reasonableness standard to the necessary “weighing of competing interests” — religious rights versus equality — “in the overall context of the impact of any decision on the legal profession in Ontario and the obligation of that profession to serve the public interest” because the Law Society’s “special expertise, developed over two centuries, in legal education and the licensing of lawyers”  made it “uniquely qualified to consider those interests in the context of the competing Charter rights, as they arose in this case” (at para. 42).

In doing so, the Divisional Court had to grapple with an interesting problem. The decision at issue was taken by the Benchers of the Society, a group of elected decision-makers. No formal reasons were given. Yet the debates were public and formed part of the record for judicial review. The Divisional Court concluded that it could proceed on the basis of the record, having posed itself the following question: “what is important, when considering the appropriate standard of review, is whether it is possible for this court, on a review, to understand the basis upon which the decision was reached, and the analysis that was undertaken in the process of reaching that decision” (at para. 49). In addition, “given the democratic process that is inherent in reaching such a decision, it is likely unrealistic to expect that reasons will be provided” (at para. 50). I think this is correct — here the record adequately does the job of communicating the basis of the decision to the court and, of course, to all affected parties (see especially para. 103) — but it will be interesting to see how this issue is treated as the case moves through the judicial system. The main alternative, I suppose, is that a court should remand for formal reasons to be given; treating the absence of formal reasons as a breach of procedural fairness would be quite a long shot given the current state of the law.

In terms of the statutory context, the Divisional Court acknowledged that the Law Society is not limited to purely functional considerations such as the quality of the law degree offered by an institution when it decides on an application for accreditation but can rather look to a “broader spectrum of considerations with respect to the public interest when they are exercising their functions, duties and powers, including whether or not to accredit a law school” (at para. 58). This is surely correct too. It is not enough, as Dwight Newman recently suggested, that “the national Federation of Law Societies’ report carefully examined the proposed law school curriculum and structures, and found that TWU was proposing to offer a solid legal education”. The Law Society had to make its own, independent accreditation decision. Otherwise, it would have run afoul of the well-known administrative law rule against rubberstamping recommendations. And in making that decision, it could legitimately look to more general considerations than whether, for example, TWU graduates would receive adequate training in the substance of Canadian law.

The Divisional Court also rejected the suggestion that the Law Society’s hands were tied by the 2001 Supreme Court of Canada decision that struck down a refusal to accredit TWU as a trainer of teachers. First, “the public interest mandate of the British Columbia College of Teachers was directly, and solely, linked to the setting of standards for the education, professional responsibility and competence of its members” (at para. 60). Second, the evidence was different in the 2001 case (at paras. 61-65). Third, in the 2001 case there was no evidence that people would find it difficult to become teachers if the TWU programme were not accredited, whereas here, “being eliminated from TWU as a place to attend law school means, for many persons, that their likelihood of gaining acceptance to any law school is decreased” (at para. 67). So here, the equality concerns are greater. Fourth, TWU law graduates could still apply individually for membership of the Law Society (at para. 68 and also 126-128). Fifth, the Law Society was subject to the provincial human rights legislation, unlike TWU which benefits from an exemption in British Columbia (at para. 69). Finally, the law on equality has simply evolved: “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” (at para. 70).

On the merits, the balance struck between the competing rights was reasonable:

[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.

[117]      The respondent 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 Community Covenant.  It remains the fact that TWU can hold and promote its beliefs without acting in a manner that coerces others into forsaking their true beliefs in order to have an equal opportunity to a legal education.  It is at that point that the right to freedom of religion must yield…

[118]      It was open to the respondent to take a decision that it viewed as not only promoting its statutory mandate but, as importantly, being seen as promoting that mandate.  It was also open to the respondent to view accrediting TWU’s law school, while professing equal opportunity and equal treatment for its members, its prospective members, and for the legal profession as a whole, as fundamentally inconsistent, if not hypocritical.

…

[121]      If TWU wanted to operate its law school for purely religious purposes, it would be content to proceed with its view of the proper law school but with the full knowledge that its students would only be automatically eligible for membership in the Bar of some Provinces, while not of others.  The trade-off for TWU law students would be the benefit of a religious based legal education against the disadvantage of a potentially narrower market for their skills upon graduation.  That trade-off does not take into account that TWU graduates would nonetheless be entitled to apply to the respondent for admission to the Bar of Ontario, and the respondent would be obliged to provide them with a timely, open, and efficient, accreditation process in order to minimally impair their freedom of religion and association.

As I have written before, TWU has an uphill climb to establish that refusals to accredit its degrees are unreasonable, for a very simple reason identified early on by the Divisional Court:

The nature of the question that was before the respondent for determination allowed for different answers to be given, not only different answers at the time but different answers at different times when the question might arise.  It is also a question that might allow for different answers among different professions, who operate under different statutory and regulatory regimes (at para. 41).

I think this is a strong decision from the Divisional Court, one that is likely to exert significant influence as the TWU litigation moves, surely inexorably, towards the Supreme Court of Canada.

This content has been updated on September 7, 2015 at 15:22.