Trinity Western University v. Law Society of Upper Canada (Court of Appeal)

June 29, 2016

Ontario Court of Appeal: The Law Society acted reasonably in deciding not accredit Trinity Western University’s proposed law school.

Trinity Western University (TWU) is an evangelical Christian institution that requires all students and staff to sign a “Community Covenant” in which they agree that the only healthy form of sexuality occurs within a marriage between a man and a woman. Breaching the Covenant can lead to sanctions, up to and including expulsion.

TWU wants to establish a law school, and sought to have the Law Society of Upper Canada agree that it would accredit the law school. This would allow graduates of the law school to automatically be eligible to be called to the bar in Ontario.

The Law Society determined that it was not in the public interest to accredit a law school with a discriminatory admissions policy. That decision was upheld by the Divisional Court.TWU appealed the Divisional Court’s decision.

On June 29, 2016, the Ontario Court of Appeal dismissed TWU’s appeal.

The Court of Appeal noted that, in determining whether to accredit the proposed law school, the Law Society was required to balance TWU’s religious freedom, on the one hand, with its own statutory obligation to promote a legal profession based on merit and excluding discriminatory classifications. The Court accepted that the impugned provision of TWU’s Community Covenant “is deeply discriminatory to the LGBTQ community”, relying in part on the submissions of the interveners Out on Bay Street and OUTlaws:

In their factum, the interveners Out on Bay Street and OUTlaws say:

15.     The Covenant is not merely an expression of TWU’s beliefs. The Covenant is a document that discriminates against LGBTQ persons by forcing them to renounce their dignity and self-respect in order to obtain an education.

17.     LGBTQ persons applying to TWU, or who come out while at TWU, will experience the stigma of not belonging and other destructive effects of regulating queer sexuality.

The Court rejected TWU’s argument that the benchers of the Law Society failed to engage in a proper balancing exercise. It noted that the benchers had TWU’s submissions and several legal opinions before them, and that 29 benchers spoke on the issue in a “thoughtful, respectful, and even eloquent” way, knowing that “they were making an historic decision”.

The Court concluded that the Law Society’s decision was reasonable for several reasons. Noting that the Law Society was a gatekeeper of entry to the legal profession, the Court stated:

There is nothing wrong with a law society, acting within its jurisdiction, scrutinizing the admission process of a law school in deciding whether to accredit the law school. In doing so with respect to TWU’s application, the LSUC could pay heed to what Iacobucci and Bastarache JJ. said in TWU 2001, at para. 25: “a homosexual student would not be tempted to apply for admission, and could only sign the so-called student contract at considerable personal cost.” As well, the LSUC could take account of the fact that all law schools currently accredited by it provide equal access to all applicants in their admissions processes. An accredited TWU would be an exception.

The Court also noted that the Law Society was subject to the Human Rights Code, even if TWU was not, and that the Code explicitly provides that every person has a right to equal treatment with respect to membership a self-governing profession without discrimination because of (among other things) sexual orientation, gender identity, gender expression and marital status. The Court also held that there was an important distinction to be made when a religious institution and its members seek to exercise their religious beliefs in a manner that discriminates against others. It concluded:

Taking account of the extent of the impact on TWU’s freedom of religion and the LSUC’s mandate to act in the public interest, the decision to not accredit TWU represents a reasonable balance between TWU’s 2(a) right under the Charter and the LSUC’s statutory objectives. While TWU may find it more difficult to operate its law school absent accreditation by the LSUC, the LSUC’s decision does not prevent it from doing so. Instead, the decision denies a public benefit, which the LSUC has been entrusted with bestowing, based on concerns that are entirely in line with the LSUC’s pursuit of its statutory objectives.

Lawyers at the Trinity Western hearing"Marlys Edward represented the interveners Out on Bay Street and OUTlaws in the appeal.

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Lawyers

Marlys Edwardh, C.M.

Practice Areas

Appeals & Judicial Review, Constitutional Law, Human Rights & Equity Law