Canada: Court Of Appeal Upholds Law Society Of Upper Canada's Decision To Not Accredit Proposed Law School

Religious freedom versus equality rights: how do we balance competing rights under the Canadian Charter of Rights and Freedoms (Charter)? The Ontario Court of Appeal (Court) shed light on the issue last week when it upheld the decision of the Law Society of Upper Canada (LSUC) to not accredit the proposed law school at Trinity Western University (TWU).

BACKGROUND

TWU is a private, evangelical Christian university in Langley, B.C. It requires its students, faculty and administrators to sign and abide by the terms of the TWU Community Covenant, which includes a provision requiring students to abstain from "sexual intimacy that violates the sacredness of marriage between a man and a woman." Individuals who violate the Community Covenant may be sanctioned if a complaint is received by TWU.

In December 2013, TWU was granted preliminary approval by a committee of the Federation of Canadian Law Societies to open a law school in September 2015 (later changed to September 2016). However, individual law societies were left to decide whether to accredit the proposed law school (thereby allowing its graduates to practice law in a particular province).

The LSUC, which has authority over admission into the legal profession in Ontario, is one of three provincial law societies that voted not to accredit TWU's proposed law school. Decisions by the law societies of Nova Scotia and British Columbia to deny accreditation were overturned by the superior courts in those provinces (appellate decisions pending).

In reaching its decision, the LSUC followed a process that included considering written submissions from TWU, 210 submissions from members of the profession and public, receiving three written legal opinions from leading administrative and constitutional law lawyers, and listening to a presentation from TWU's president. Its benchers then voted 28-21 (with one abstention) not to accredit the proposed law school.

Central to the LSUC's decision was section 4.1 of its enabling statute, which obligates the organization to ensure all practicing lawyers in Ontario satisfy appropriate standards of learning, professional competence and professional conduct, and section 4.2, which stipulates that the LSUC must have regard to the "public interest" in carrying out its functions, duties and powers.

TWU and a former TWU student (the appellants) appealed the LSUC's decision to the Divisional Court, which dismissed the appeal in June 2015.

COURT OF APPEAL DECISION

The Court dismissed the appellants' appeal from the Divisional Court decision, providing guidance on standards of judicial review, administrative process and the latitude given to administrative bodies to balance competing Charter rights.

Regarding the standard of review, the Court determined that the LSUC's decision not to accredit TWU "fell squarely within its statutory mandate to act in the public interest." As such, its decision was to be reviewed on a reasonableness, as opposed to a correctness, standard. In other words, the Court was only to assess whether the LSUC's decision fell within an acceptable range of outcomes based on the evidence.

The Court described the process adopted by the LSUC as "excellent," and cautioned against assessing speeches given in a democratic process in the same manner as a court's reasons.

With respect to the Charter rights at issue, the Court stated that in this case "the LSUC was required to balance the statutory objectives of promoting a legal profession based on merit and excluding discriminatory classifications with the limit that denying accreditation would place on the appellants' religious freedom." The LSUC had appropriately interpreted its duty to govern in the public interest as including "the desirable goal of promoting a diverse profession."

The Court concluded that the LSUC's denial of accreditation interfered with the religious freedoms of TWU and prospective law students who sincerely believe that the Community Covenant furthers the practice of their faith. However, the Court also found that the Community Covenant was "deeply discriminatory" to members of the LGBTQ community. The Court therefore held the LSUC's decision was a reasonable balance between competing Charter rights and the law society's statutory objectives.

Notably, the Court confirmed that while the LSUC could not prevent TWU from the practice of a religious belief itself, the law society was justified in denying the school the public benefit of accreditation, because of the impact of this belief on members of the LGBTQ community.

IMPLICATIONS ON ACCREDITATION FOR FUTURE TWU STUDENTS

Assuming the decision stands, future graduates from TWU's law school would be unable to practice law in Ontario. However, with court challenges taking place in Nova Scotia and British Columbia, it is likely that a final determination on this issue will be made by the Supreme Court of Canada (SCC). Before the Ontario Court of Appeal, TWU did not press the argument that an earlier SCC decision balancing freedom of religion and equality rights and overturning a denial of accreditation by the British Columbia College of Teachers was binding and determinative of this judicial review. However, the SCC's prior decision, along with conflicting decisions from lower courts in Nova Scotia and British Columbia, create significant uncertainty regarding the final resolution of this clash between equality rights and religious freedom.

ADMINISTRATIVE LAW IMPLICATIONS

The decision continues a trend of significant deference to decisions of professional regulatory bodies. Here, the reasonableness standard applied even though Charter rights were at stake, and the law society failed to give comprehensive reasons for its decision.

The decision also illustrates the importance of a fair process when making decisions that impact Charter rights. While the LSUC did not release a comprehensive set of reasons, the process it followed allowed the Court to determine that it gave sufficient consideration to the Charter rights at issue.

Lastly, based on the decision, private organizations that implement discriminatory policies in furtherance of a legal objective — even one which is protected by the Charter — may be denied a public benefit.

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