Law Society reasonably refused to accredit a law school at TWU
Law Society reasonably balanced the right to religious freedom with the equality rights of future Law Society members
The Divisional Court has held that the Law Society of Upper Canada acted reasonably when it refused to accredit a law school proposed by Trinity Western University.
Background
Trinity Western University (TWU) is an evangelical Christian institution. It 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.
The Law Society determined that it was not in the public interest to accredit a law school with a discriminatory admissions policy. TWU brought an application for judicial review, alleging that the Law Society decision breached its religious rights.
The Divisional Court’s decision
The Divisional Court dismissed TWU’s application. Applying a low threshold test, it concluded that the Law Society’s decision interfered with TWU’s right to freedom of religion. However, it held that the Law Society reasonably balanced that right with the equality rights of its future members, including LGBTQ persons.
In this regard, the Court held, among other things, that:
- The Law Society had a public interest obligation to fulfill as part of its statutory authority and took an appropriate approach to the interpretation of that interest, including its position that it is in the public interest to ensure equal access to legal education and the legal profession.
- The Community Covenant is not merely aspirational but operates in a discriminatory fashion, requiring individuals to adhere to a particular view and belief system or face serious consequences.
- The fact that the Covenant may not constitute unlawful discrimination under B.C. human rights legislation does not mean that the Covenant is not discriminatory. And while TWU is not subject to the Ontario Human Rights Code, the Law Society is. This would include s. 6 of the Code, which provides that individuals have a right to equal treatment in respect to membership in a self-governing profession without discrimination.
- TWU’s right to establish a law school does not include the right to compel the Law Society to accredit it and lend its tacit approval to the institutional discrimination. The Law Society was entitled to consider the impact of accreditation on the equality rights of its future members, as well as the tacit approval of institutional discrimination that accreditation would convey – “Condoning discrimination can be ever much as harmful as the act of discrimination itself.”
- The Law Society was not limited to considering actual acts of discrimination committed by members of the Bar after admission. It was entitled to consider the impact of discrimination on the opportunities of persons to become members of the Bar. Equality of opportunity is a value that state actors, like the Law Society, as always entitled to respect and promote.
- The denial of accreditation would not preclude TWU from opening a law school and requiring students to sign the Covenant. It would simply mean that TWU would not have access to the Ontario market. Graduates of TWU would still be entitled to apply to the Law Society for admission and the Law Society would be obliged to provide them with a process to evaluate and rule on those requests.
- The Supreme Court of Canada’s 2001 decision involving TWU and its teacher training program was not binding, since it involved different facts, a different statutory regime and a fundamentally different question.
- Similarly, the recent Nova Scotia decision was distinguishable on several grounds and, moreover, the Court did not agree with the approach taken by the Nova Scotia judge.
The Court also dismissed arguments that the Law Society was biased against TWU and that its decision infringed its rights to freedom of expression and freedom of association.
TWU is expected to seek leave to appeal the Divisional Court’s decision.
Postscript: This case was appealed to the Ontario Court of Appeal and the Supreme Court of Canada.
Practice Areas
Appeals & Judicial Review, Constitutional Law, Human Rights Law