Nova Scotia Barristers' Society v. Trinity Western University et al., (2015) 368 N.S.R.(2d) 256 (CA)

• Judge: Scanlan, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: December 10, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 368 N.S.R.(2d) 256 (CA);2015 NSCA 113

Barristers Soc. v. Trinity Western (2015), 368 N.S.R.(2d) 256 (CA);

    1160 A.P.R. 256

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. DE.048

The Nova Scotia Barristers' Society (appellant) v. Trinity Western University and Brayden Volkenant (respondents) and Association for Reform Political Action (ARPA) Canada, Canadian Council of Christian Charities, The Catholic Civil Rights League and Faith and Freedom Alliance, The Attorney General of Canada, The Evangelical Fellowship of Canada and Christian Higher Education Canada, Justice Centre for Constitutional Freedoms, Schulich School of Law Outlaw Society, The Advocates' Society, Canadian Bar Association, and Christian Legal Fellowship, The Canadian Secular Alliance (intervenors)

(CA 438894; 2015 NSCA 113)

Indexed As: Nova Scotia Barristers' Society v. Trinity Western University et al.

Nova Scotia Court of Appeal

Scanlan, J.A.

December 18, 2015.

Summary:

Trinity Western University (TWU) was a private Christian university in British Columbia with a proposed law school. All students were required to sign the TWU Community Covenant promising to adhere to a code of conduct in line with evangelical teachings, including a promise not to engage in sexual intimacy outside the traditionally defined marriage of a man and a woman. TWU received no government funding, was not subject to the Canadian Charter of Rights and Freedoms, and had never been found to have infringed rights under the British Columbia human rights legislation. The Nova Scotia Barristers' Society (NSBS) passed a resolution to not recognize proposed TWU law degrees unless TWU changed its policy by excluding law students from the Community Covenant, which the NSBS saw as discriminatory. The NSBS decision not to approve "the proposed law school", even though the proposed TWU law degree was approved by the national Federation of Law Societies, was contrary to the Regulations under the Legal Professions Act existing at that time. Accordingly, the Regulations were amended to permit the NSBS to not recognize a "law degree" recognized by the Federation where NSBS determined, in the public interest, that the university discriminated against law students contrary to the Charter or the Nova Scotia Human Rights Act. TWU applied for judicial review.

The Nova Scotia Supreme Court, in a judgment reported (2015), 355 N.S.R.(2d) 124; 1123 A.P.R. 124, applied the reasonableness standard of review and allowed the application. The NSBS had no authority under the Legal Professions Act to regulate university or law school policies. The Act gave the NSBS jurisdiction to deal with the educational and other qualifications of persons who applied to practice law in Nova Scotia (i.e., regulating the competence of Nova Scotia lawyers). The Community Covenant, however morally reprehensible to some, was irrelevant to whether a TWU law graduate met the qualifications to practice law in Nova Scotia. Alternatively, if the NSBS had the authority to not recognize TWU law degrees because of the Community Covenant, the decision would be set aside because "it did not exercise [that authority] in a way that reasonably considered the concerns for religious freedom and liberty of conscience". The NSBS appealed. Ten organizations obtained intervenor status. The Canadian Constitution Foundation had missed the deadline for applying for intervenor status. The Foundation moved under rules 90.19 and 90.37(12)(h) to extend the time to apply for leave for intervene and for the right to intervene.

The Nova Scotia Court of Appeal, per Scanlan, J.A., denied an extension of time to apply for leave to intervene absent a reasonable excuse for the delay. Even if the Foundation was unaware of the deadline, once they learned of it two further months passed before the application to extend the time period. Alternatively, had an extension been granted, the court would have denied the right to intervene where the Foundation brought nothing additional to the appeal that the parties, or other intervenors, were unable to bring.

Practice - Topic 685

Parties - Adding or substituting parties - Intervenors - On appeal - Trinity Western University (TWU) was a private Christian university in British Columbia with a proposed law school - All students were required to sign the TWU Community Covenant promising to adhere to a code of conduct in line with evangelical teachings, including a promise not to engage in sexual intimacy outside the traditionally defined marriage of a man and a woman - TWU received no government funding, was not subject to the Canadian Charter of Rights and Freedoms, and had never been found to have infringed rights under the British Columbia human rights legislation - The Nova Scotia Barristers' Society (NSBS) passed a resolution to not recognize proposed TWU law degrees unless TWU changed its policy by excluding law students from the Community Covenant, which the NSBS saw as discriminatory - The NSBS decision not to approve "the proposed law school", even though the proposed TWU law degree was approved by the national Federation of Law Societies, was contrary to the Regulations under the Legal Professions Act existing at that time - Accordingly, the Regulations were amended to permit the NSBS to not recognize a "law degree" recognized by the Federation where NSBS determined, in the public interest, that the university discriminated against law students contrary to the Charter or the Nova Scotia Human Rights Act - The NSBS decision was quashed on judicial review - The NSBS appealed - The Canadian Constitution Foundation had missed the deadline for applying for intervenor status - The Foundation moved under rules 90.19 and 90.37(12)(h) to extend the time to apply for leave for intervene and for the right to intervene - The Nova Scotia Court of Appeal, per Scanlan, J.A., denied an extension of time to apply absent a reasonable excuse for the delay - Even if the Foundation was initially unaware of the deadline, once the Foundation became aware of the need to move to extend the time they waited two further months before bringing the motion - Alternatively, had an extension been granted, the court would have denied the right to intervene where the Foundation brought nothing additional to the appeal that the parties, or other 10 intervenors, were unable to bring.

Cases Noticed:

R. v. Chehil (M.S.) (2009), 281 N.S.R.(2d) 187; 893 A.P.R. 187; 2009 NSCA 85, refd to. [para. 21].

Logan v. Workers' Compensation Appeals Tribunal (N.S.) et al., [2006] N.S.R.(2d) Uned. 5; 2006 NSCA 11, refd to. [para. 22].

Andrews et al. v. Keybase Financial Group Inc. et al. (2015), 355 N.S.R.(2d) 184; 1123 A.P.R. 184; 2015 NSCA 9, refd to. [para. 22].

A.B. v. Bragg Communications Inc. et al. (2010), 294 N.S.R.(2d) 203; 933 A.P.R. 203; 2010 NSCA 70, refd to. [para. 22].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 90.19(1), rule 90.19(2) [para. 17]; rule 90.19(4); rule 90.19(5) [para. 17]; rule 90.37(12)(h) [para. 6].

Counsel:

Peter Rogers, Q.C., for the appellant;

Brian Casey, Q.C., for the respondents;

David Dalrymple, for the proposed intervenor Canadian Constitution Foundation.

This motion was heard on December 10, 2015, at Halifax, N.S., in Chambers before Scanlan, J.A., of the Nova Scotia Court of Appeal, who delivered the following judgment on December 18, 2015.