Jennifer Taylor

Introduction

Appeal courts in Ontario¹ and Nova Scotia² have now issued decisions about Trinity Western University’s proposed law school (“TWU”) in British Columbia, and at first glance they couldn’t be more different. The Court of Appeal for Ontario made sweeping statements about Charter rights, and ruled against TWU; the Nova Scotia Court of Appeal focused on the more esoteric issue of the vires of regulations, ruling in favour of TWU.

Upon further review, however, there are similarities. For example, both decisions consider how far legal regulators can go in protecting the “public interest” pursuant to their statutory frameworks. And in light of the NSCA’s comments on a possible path forward for regulating the TWU issue, the result may eventually be the same in both provinces.

Refresher on prior litigation in Nova Scotia and Ontario

Recall that in 2014 the Law Society of Upper Canada (“LSUC”) and the Nova Scotia Barristers’ Society (“NSBS”)³ —the governing bodies for the legal profession in Ontario and Nova Scotia, respectively—both voted to refuse to accredit TWU, primarily because of the “Community Covenant” that all law students would have to sign in accordance with the university’s professed Biblical worldview. As Justice MacPherson explained:

[6] TWU wants to establish a law school. Although members of the lesbian, gay, bisexual, transgender and queer (“LGBTQ”) community may apply to the proposed law school, they will not be admitted unless they are willing to sign and adhere to TWU’s Community Covenant, described below, which forbids sexual intimacy except between married heterosexual couples. The consequence is that LGBTQ students are discriminated against in terms of admission to, and life at, TWU. TWU, on the other hand, says that its Community Covenant is protected by its right to freedom of religion.⁴

That, essentially, is the conflict of rights that has fuelled much of this litigation: the right of LGBTQ+ students to equality and freedom from discrimination, versus the right of TWU and its evangelical Christian students to freedom of religion.⁵

In practice, the law societies’ refusal to accredit TWU’s proposed law school would mean that a prospective articling student who’d graduated from TWU would not be entitled to article in Ontario or Nova Scotia.⁶

TWU applied for judicial review of both law societies’ decisions refusing to accredit. Justice Jamie Campbell of the Nova Scotia Supreme Court issued a decision in early 2015 siding with TWU; Ontario’s Divisional Court sided with LSUC in a decision released last July. The NSBS appealed the Nova Scotia decision, while TWU appealed the Ontario decision. The appeals were heard in the spring.

The Court of Appeal for Ontario, in a decision released on June 29, 2016, affirmed the Law Society of Upper Canada’s decision refusing to accredit TWU. This decision means that eventual TWU law graduates will not be able to apply to article and be licensed in Ontario (unless something changes, like the ONCA decision being overturned by the Supreme Court of Canada).

Less than a month later, on July 26, 2016, the Nova Scotia Court of Appeal reached the opposite conclusion about the Nova Scotia process, and agreed with TWU that the Barristers’ Society had acted improperly in refusing to accredit. Both decisions were unanimous (by a panel of three Judges in Ontario, and five Judges in Nova Scotia).

Comparing the procedures behind the LSUC and NSBS refusals to accredit TWU

So how could two courts of appeal reach such different results on such similar facts?

It goes back to the processes that LSUC and the NSBS followed to address TWU’s accreditation request before each society, within their respective regulatory schemes. Each of the law societies has a statutory mandate that refers to the public interest – in Ontario, the LSUC “has a duty to protect the public interest”;⁷  in Nova Scotia, the NSBS’s statutory purpose “is to uphold and protect the public interest in the practice of law.”⁸

Both law societies had also agreed that the Federation of Law Societies of Canada—the umbrella body representing Canada’s 14 law societies—had “the power to review new common law degree programs to ensure that graduates are adequately prepared for admission to the [B]ar.”⁹  The Federation had issued the requisite approvals for TWU.¹⁰

Ontario’s Law Society Act allows LSUC to make its own by-laws that establish classes for lawyer licensing.¹¹  For Canadian applicants, By-law 4 defines “accredited law school” as “a law school in Canada that is accredited by the Society.”¹²  So there was an extra step for TWU to take, beyond Federation approval.

When TWU requested accreditation in Ontario (after the Federation’s preliminary approval)¹³, LSUC began a public process to consider that request, in accordance with its by-laws. This culminated in the vote against accreditation on April 24, 2014. The ONCA called this “a comprehensive and very fair decision-making process.”¹⁵

It’s important to remember that there was no issue before the Court of Appeal for Ontario about the legitimacy of or legal authority for LSUC’s vote. Also, LSUC did not have to enact any new provisions to support the vote or its result.

Nova Scotia’s process was a different story.

The NSBS took two distinct actions in response to TWU’s request for accreditation, which followed the Federation’s preliminary approval.¹⁶  First, Council passed a resolution in April 2014 (the “Resolution”), stipulating that it would not approve TWU unless law students were exempted from the Community Covenant, or the Covenant was amended. That resolution included a direction to “the Executive Director to consider any regulatory amendments that may be required to give effect to this resolution and to bring them to Council for consideration at a future meeting.”¹⁷

Second, in July 2014, Council voted to amend the definition of “law degree” in its regulations, as follows (the “Amended Regulation”; new part in bold):¹⁸

(b) “law degree” means i) a Bachelor of Laws degree or a Juris Doctor degree from a faculty of common law at a Canadian university approved by the Federation of Law Societies of Canada for the granting of such degree, unless Council, acting in the public interest, determines that the university granting the degree unlawfully discriminates in its law student admissions or enrolment policies or requirements on grounds prohibited by either or both the Charter of Rights and Freedoms and the Nova Scotia Human Rights Act;

Because the NSBS was exercising a “subordinate legislative function” in enacting the Amended Regulation,¹⁹  it had to ensure the subordinate legislation was consistent with its enabling statute.²⁰ The Court of Appeal found it was not; the NSBS had no authority to enact this Amended Regulation.

The main problem with the Amended Regulation was that it purported to determine whether “the university granting the degree unlawfully discriminates…” (emphasis added). The Legal Profession Act²¹did not actually authorize the NSBS to decide whether a university in another province engaged in unlawful discrimination.

For this reason, the Amended Regulation was ultra vires:

[60] The Amended Regulation does not merely authorize the Council to weigh human rights or Charter values in the exercise of an administrative discretion to promote diversity in the practice of law. Nor does it just say the Council may consider a ruling, issued by a tribunal constituted under the Human Rights Act or a court of competent jurisdiction under the Charter, that the University has violated the Human Rights Act or Charter. Rather, the Amended Regulation directs the Council to make a free-standing determination whether the University “unlawfully” contravened the Human Rights Act and Charter.

[61] The Society acknowledges that the Charter does not apply to Trinity Western. It is a private university. … Trinity Western did not “unlawfully” violate an enactment that has no application to it.

[62] Trinity Western’s conduct respecting the Covenant occurred in British Columbia, not Nova Scotia. Nova Scotia’s Human Rights Act applies to civil rights “in the Province”: Constitution Act, 1867, s. 92(13). It has no application to events that occurred entirely outside Nova Scotia. 

[underlining added]

The Court pointed out that a “ruling of ‘unlawfulness’ is supposed to follow an adjudication that applies facts to law.”²²  But there was no such adjudication here.²³ 

The NSCA did not have to get into the Charter issues that were raised once it found the Amended Regulation (and the Resolution) to be “invalid.”²⁴ That conclusion was all about the vires of subordinate legislation, and not at all about the Charter.

By comparison, in Ontario, there were no issues of vires arising from LSUC’s vote refusing to accredit. This why the Divisional Court, and then the Court of Appeal, could go right into the Charter analysis of whether “LSUC engaged in a proportionate balancing of freedom of religion and equality and made a reasonable decision by refusing to accredit TWU’s proposed law school.”²⁵ The Court of Appeal said yes: LSUC’s “public interest” mandate allowed it to consider the discriminatory effect of the Community Covenant on LGBTQ+ people, and balance their equality rights against TWU’s freedom of religion.²⁶  LSUC’s refusal to accredit achieved “a reasonable balance.”²⁷

A path forward for the NSBS – Following in Ontario’s footsteps?

Although the NSCA struck down the Amended Regulation and declined to suggest how it might be re-drafted, the Court still offered a possible path forward.

Importantly, the Court of Appeal accepted that the NSBS would have jurisdiction “to fashion requirements for membership based on features of the law graduate’s institution, as opposed to the law degree,” if done through “a properly worded regulation.”²⁸  (That “properly worded regulation” could not, based on the NSCA’s decision, purport to adjudicate whether TWU has unlawfully discriminated.)

This might involve the NSBS bringing the law school approval process “in house” such that the Society could more closely scrutinize the institutionrather than the applicant:

[85] Section 5(8)(b) of the Legal Profession Act enables the Council to make regulations “establishing requirements to be met by members, including educational, good character and other requirements.” 

…

[88] If the Society may enact a regulation that adopts the Federation’s approval of the university, then similarly the Society may enact a regulation to bring the approval process, or aspects of it, in house. Such a regulation, if it squares with the Katz principles, would be authorized by s. 5(8)(b).

[89] There are sound reasons to feature an approval of the degree-granting institution as a criterion for the law graduate’s admission to membership in the Society. For example, some law schools may be taken presumptively to generate satisfactory legal education, and others not. The “approval of the institution” enables the licensing law society to assess the quality of the applicant’s legal education without undertaking a separate detailed inquiry into the particulars of each applicant’s law school experience. That outcome fully conforms to the Society’s mandate of assessing “the public interest in the practice of law” under s. 4(1) of the Legal Profession Act.

Here, the NS Court of Appeal referred to the Ontario scheme as an “instructive” example for the NSBS,²⁹  noting that the Court of Appeal for Ontario had “accepted that the accreditation system” in LSUC’s By-law 4 “was authorized by the [Ontario] Law Society Act.”³⁰

The NS Court of Appeal also noted that Justice Campbell was wrong if he meant to suggest that the Barristers’ Society could never regulate in relation to TWU:

[93] Nova Scotia’s Legal Profession Act enables the Society’s Council to enact a properly worded regulation, relating to qualifications for membership, that incorporates the Society’s approval of the institutionwhich issued the applicant’s law degree. By “properly worded” we mean a regulation that satisfies the Katz criteria. To the extent that Justice Campbell’s reasons in the decision under appeal indicate otherwise, we respectfully disagree.

[emphasis the Court’s]

Many have had difficulty with society decisions like those of LSUC and the NSBS because they could seem to ‘punish’ an eventual applicant who wanted to article in Ontario or Nova Scotia, rather than sanctioning the institution for imposing the Community Covenant. The Nova Scotia Court of Appeal discussed this issue,³¹ but left the NSBS to wrestle with it:

At this juncture, the court must exit the field of hypothesis. In the abstract it is not apparent how Council may alter its approach and wording by redrafting the invalid Amended Regulation of July 23, 2014. It is up to the Council to enact its new regulation.³² 

Conclusion

At this point, it’s unclear whether the NSBS will seek leave to appeal the Nova Scotia decision to the Supreme Court of Canada, or move to enact a new regulation in accordance with the Court of Appeal’s pathway. TWU, however, has said it will seek leave to appeal the Ontario decision. The litigation over this law school is not over yet, but in the meantime, the NSBS now has appellate guidance on how it may “properly” regulate in this area.

¹ Trinity Western University v The Law Society of Upper Canada, 2016 ONCA 518 [“ONCA”].
² The Nova Scotia Barristers’ Society v Trinity Western University, 2016 NSCA 59 [“NSCA”].
³ In Ontario, the LSUC decision was made by “Convocation”; in Nova Scotia, the “Council” of the NSBS was the decision-maker. This post simply refers to “LSUC” and “the NSBS” for convenience.
⁴ See also: NSCA at para 9.
⁵ ONCA at paras 2-4.
⁶ Whether TWU graduates could re-apply after taking courses at another law school through the National Committee on Accreditation process (as graduates from international law schools must do) was not discussed in either decision.
⁷ ONCA at paras 102-103, citing the Law Society Act, RSO 1990, c L.8.
⁸ NSCA at para 50.
⁹ ONCA at para 36. See also NSCA at para 10.
¹⁰ ONCA at paras 37-39.
¹¹ Also summarized by the NSCA at paras 91-92.
¹² ONCA at para 35; emphasis added.
¹³ ONCA at para 37.
¹⁴ ONCA at paras 40-49.
¹⁵ ONCA at para 144.
¹⁶ NSCA at para 10.
¹⁷ NSCA at para 66.
¹⁸ NSCA at para 19.
¹⁹ NSCA at paras 42, 46.
²⁰ NSCA at para 43, citing Katz Group Canada Inc. v Ontario (Health and Long-Term Care), 2013 SCC 64.
²¹ Legal Profession Act, SNS 2004, c 28.
²² NSCA at para 66.
²³ NSCA at para 66.
²⁴ NSCA at para 38. See paras 72-75 for a discussion of why the Resolution was unauthorized and unreasonable, regardless of the vires of the Amended Regulation.
²⁵ ONCA at para 52(3)(b).
²⁶ See the ONCA at paras 93-94 for a discussion of freedom of religion’s “collective aspect.” The freedom of religion of TWU’s individual witness, Brayden Volkenant, was also at stake.
²⁷ ONCA at para 143 but see also paras 132, 135.
²⁸ NSCA at paras 83-84.
²⁹ NSCA at para 90; see also paras 91-92.
³⁰ NSCA at para 92.
³¹ NSCA at paras 94-101.
³² NSCA at para 101.