Trinity Western University et al. v. Nova Scotia Barristers' Society, (2016) 376 N.S.R.(2d) 1 (CA)

• Judge: Fichaud, Beveridge, Farrar, Bryson and Bourgeois, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: July 26, 2016
• Jurisdiction: Nova Scotia
• Citations: (2016), 376 N.S.R.(2d) 1 (CA);2016 NSCA 59

Trinity Western Univ. v. Barristers Soc. (2016), 376 N.S.R.(2d) 1 (CA);

    1185 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. JL.018

The Nova Scotia Barristers' Society (appellant) v. Trinity Western University and Brayden Volkenant (respondents) and Association for Reformed 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; Christian Legal Fellowship; The Canadian Secular Alliance (intervenors)

(CA 438894; 2016 NSCA 59)

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

Nova Scotia Court of Appeal

Fichaud, Beveridge, Farrar, Bryson and Bourgeois, JJ.A.

July 26, 2016.

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 at (2015), 355 N.S.R.(2d) 124; 1123 A.P.R. 124, applying the reasonableness standard of review, 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. At issue was whether the amended regulation was ultra vires the Legal Professional Act and whether the resolution was unauthorized. Alternatively, the issue was whether the amended regulation and resolution infringed TWU's freedom of religion under the Charter.

The Nova Scotia Court of Appeal dismissed the appeal. The amended regulation was ultra vires the Legal Profession Act and the resolution was unauthorized. The NSBS lacked statutory authority to enact regulations and adopt a resolution allowing the NSBS Council to issue rulings on whether someone in British Columbia "unlawfully" violated the Nova Scotia Human Rights Act or the Charter. The court noted that TWU, as a private university, was not even subject to the Charter. It was unnecessary to determine the freedom of religion issue.

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - [See Barristers and Solicitors - Topic 492 ].

Barristers and Solicitors - Topic 345

Admission to practice or as student-at-law - Qualifications - Canadian law degrees - 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 Nova Scotia Supreme Court, applying the reasonableness standard of review, allowed TWU's judicial review 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 the NSBS did not reasonably consider the implications of its actions on the Charter protected freedom of religion of the TWU and its students in a way that was consistent with Canadian legal values of inclusiveness, pluralism and respect for the rule of law (no rational connection or minimal impairment) - NSBS appealed - The Nova Scotia Court of Appeal dismissed the appeal - The Charter did not apply to TWU, a private university - The Nova Scotia Human Rights Act did not apply to activities occurring entirely outside of Nova Scotia - Empowering the NSBS to "determine" that TWU "unlawfully discriminates" contrary to the Charter or the Nova Scotia Human Rights Act was completely unrelated to the NSBS's regulation-making authority - The amended regulation was ultra vires the enabling legislation - The resolution was also invalid, as it was complementary and indivisible to the amended regulation - The NSBS could enact a properly worded regulation respecting qualifications for membership that incorporated the NSBS's approval of the institution that issued the law degree - The trial judge did not err in finding the NSBS was focussed on TWU's behaviour in a manner unrelated to the practice of law in Nova Scotia - See paragraphs 48 to 75, 94.

Barristers and Solicitors - Topic 492

Admission to practice or as student-at-law - Judicial review or appeals - Standard of review - Trinity Western University (TWU) was a private Christian university 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 - The Nova Scotia Barristers' Society (NSBS) voted not to recognize proposed TWU law degrees unless TWU changed its policy on student conduct, which the NSBS saw as discriminating against gay, lesbian, bi-sexual and transgendered students - 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 existing Regulations under the Legal Professions Act - Accordingly, the Regulations were amended to permit the NSBS to not recognize a "law degree" recognized by the Federation where the university's policies were discriminatory - TWU applied for judicial review - The trial judge stated that the standard of review of the NSBS decision that it had authority under the Act to refuse to recognize the TWU law degree on the ground that it was not in the public interest to do so, given its belief that the TWU Community Covenant was discriminatory, was reasonableness - The Nova Scotia Court of Appeal held that "The Council's enactment of the Amended Regulation was a subordinate legislative function, not a discretionary administrative decision. [Vires of legislation was determined applying the Katz (SCC 2013) standard of review, not the Dunsmuir reasonableness standard]. The Council's adoption of the Resolution was an administrative decision. Whether the Resolution was authorized by the Legal Profession Act and its regulations is governed by Dunsmuir's reasonableness." - See paragraphs 40 to 47.

Barristers and Solicitors - Topic 7656

Regulation - Powers of governing bodies - Judicial review of (incl. standard of review) - [See Barristers and Solicitors - Topic 492 ].

Education - Topic 4125

Universities - Courses or programs - Approval of - Considerations - [See Barristers and Solicitors - Topic 345 ].

Statutes - Topic 5367

Operation and effect - Delegated legislation - Regulations - Validity of - Ultra vires - Whether purpose authorized by empowering statute - [See Barristers and Solicitors - Topic 345 ].

Counsel:

Marjorie A. Hickey, Q.C., Peter Rogers, Q.C., and Jane O'Neill, for the appellant;

Brian Casey, Q.C., and Kevin Sawatsky, for the respondents;

André Marshall Schutten, for the Association for Reformed Political Action (ARPA) Canada;

Barry W. Bussey, for the Canadian Council of Christian Charities;

Philip H. Horgan, for the Catholic Civil Rights League and Faith and Freedom Alliance;

Albertos Polizopoulos and Kristin Debs, for the Evangelical Fellowship of Canada and Christian Higher Education Canada;

Jay Cameron, for the Justice Centre for Constitutional Freedoms;

Jack Townsend, for Schulich School of Law OUTlaw Society;

Bruce T. MacIntosh, Q.C., for the Advocates' Society;

David Grossman, Amy Sakalauskas, and Susan Ursel for the Canadian Bar Association;

David St. Clair Bond, Derek B.M. Ross, and Deina Warren, for Christian Legal Fellowship;

Tim Dickson and Catherine George, for the Canadian Secular Alliance.

This appeal was heard on April 6-8, 2016, at Halifax, N.S., before Fichaud, Beveridge, Farrar, Bryson and Bourgeois, JJ.A., of the Nova Scotia Court of Appeal.

On July 26, 2016, the following judgment was delivered by the Court.