Trinity Western University et al. v. Law Society of Upper Canada et al., 2015 ONSC 4250

• Judge: Marrocco, A.C.J., Then and Nordheimer, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: July 02, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONSC 4250;(2015), 336 O.A.C. 265 (DC)

Trinity Western Univ. v. LSUC (2015), 336 O.A.C. 265 (DC)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. AU.011

Trinity Western University and Brayden Volkenant (applicants) v. The Law Society of Upper Canada (respondent) and The Attorney General of Canada, Christian Legal Fellowship, Justice Centre for Constitutional Freedoms, Evangelical Fellowship of Canada, Christian Higher Education Canada, Out on Bay Street, OUTlaws, Criminal Lawyers' Association and the Advocates' Society (interveners)

(250/14; 2015 ONSC 4250)

Indexed As: Trinity Western University et al. v. Law Society of Upper Canada et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Marrocco, A.C.J., Then and Nordheimer, JJ.

July 2, 2015.

Summary:

The Law Society of Upper Canada (LSUC) Benchers voted to deny accreditation to a law school that Trinity Western University (TWU) proposed to create. TWU was an evangelical Christian university, that required its students to agree to the terms of a Community Covenant (i.e., a code of conduct that embodied evangelical Christian beliefs on human dignity and moral conduct). Trinity applied for judicial review, seeking an order declaring that the LSUC's decision was unauthorized and otherwise invalid and approving TWU's application for accreditation. Among other things, TWU argued that the LSUC violated the right to freedom of religion (Charter, s. 2(a)).

The Ontario Divisional Court dismissed the application for judicial review.

Administrative Law - Topic 550

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Effect of lack of (incl. on standard of review) - The Ontario Divisional Court stated that "... an elected body that reaches a decision, which is then the subject of a judicial review, does not lose the right to have its decision adjudicated on a reasonableness standard just because there are no reasons for a court to review. Indeed, given the democratic process that is inherent in reaching such a decision, it is likely unrealistic to expect that reasons will be provided ..." - See paragraph 50.

Administrative Law - Topic 550

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Effect of lack of (incl. on standard of review) - [See second Barristers and Solicitors - Topic 7656 ].

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - [See both Barristers and Solicitors - Topic 7656 ].

Barristers and Solicitors - Topic 345

Admission to practice or as student-at-law - Qualifications - Canadian law degrees - [See first, second and third Barristers and Solicitors - Topic 7651.1 ].

Barristers and Solicitors - Topic 492

Admission to practice or as student-at-law - Judicial review or appeals - Standard of review - [See both Barristers and Solicitors - Topic 7656 ].

Barristers and Solicitors - Topic 7651.1

Regulation - Powers of governing bodies - Respecting accreditation of law schools - Trinity Western University (TWU) was an evangelical Christian university - All students had to agree to the terms of the Community Covenant (a code of conduct that embodied evangelical Christian beliefs on human dignity and moral conduct) - The Community Covenant prohibited, inter alia, "sexual intimacy that violated the sacredness of marriage between a man and a woman" - The Law Society of Upper Canada (LSUC) Benchers voted to deny accreditation to the law school - TWU (and a TWU graduate/potential law student) applied for judicial review, arguing that the LSUC's decision infringed the freedom of religion (Charter, s. 2(a)) - The Ontario Divisional Court held that the decision had the effect of interfering with freedom of religion - However, the LSUC in the course of exercising its statutory authority, engaged in a proportionate balancing of the TWU's right to freedom of religion with the LSUC's members' and future members' right to equal opportunity, and arrived at a reasonable conclusion - In reaching this conclusion, the court considered the speeches given at Convocation by the Benchers as a whole - See paragraphs 73 to 125.

Barristers and Solicitors - Topic 7651.1

Regulation - Powers of governing bodies - Respecting accreditation of law schools - Trinity Western University (TWU) was an evangelical Christian university - All students had to agree to the terms of the Community Covenant (a code of conduct that embodied evangelical Christian beliefs on human dignity and moral conduct) - The Community Covenant prohibited, inter alia, "sexual intimacy that violated the sacredness of marriage between a man and a woman" - The Law Society of Upper Canada (LSUC) Benchers voted to deny accreditation to the law school - TWU applied for judicial review - The TWU claimed that the issues raised on the application had already been determined in its favour by the Supreme Court of Canada in TWU University v. B.C. College of Teachers (2001), and there was therefore no issue left to resolve - The Ontario Divisional Court rejected TWU's argument - It was an overstatement to say that the B.C. College preordained the result in this case - See paragraphs 59 to 72.

Barristers and Solicitors - Topic 7651.1

Regulation - Powers of governing bodies - Respecting accreditation of law schools - Trinity Western University (TWU) was an evangelical Christian university - The Law Society of Upper Canada (LSUC) Benchers voted to deny accreditation to the law school - TWU applied for judicial review, arguing that according to s. 4.1 of the Law Society Act, the sole focus of the LSUC in determining the issue of accreditation was whether the TWU's law school would graduate competent lawyers - TWU argued that s. 4.1 took precedent over the LSUC's duty to regulate the profession in the public interest as set out in s. 4.2 of the Act - In other words, the only public interest that the LSUC could consider was the public interest in having lawyers who were competent - The Ontario Divisional Court disagreed with TWU's submission - See paragraphs 52 to 58.

Barristers and Solicitors - Topic 7651.1

Regulation - Powers of governing bodies - Respecting accreditation of law schools - [See both Barristers and Solicitors - Topic 7656 ].

Barristers and Solicitors - Topic 7656

Regulation - Powers of governing bodies - Judicial review of (incl. standard of review) - The Law Society of Upper Canada (LSUC) Benchers voted to deny accreditation to a proposed law school at Trinity Western University (TWU), an evangelical Christian university - TWU applied for judicial review, claiming that the LSUC's decision was unauthorized and otherwise invalid - TWU argued that the decision in Mouvement laïque québécois et al. v. Saguenay (SCC 2015) had changed the legal landscape on standard of review and, therefore, the standard of review was correctness - The Ontario Divisional Court discussed the standard of review - The court disagreed that the Mouvement case substantively changed the legal principles as set out in Dunsmiur (SCC 2008) - The court stated that the majority in Saguenay did apply the correctness standard to one question that arose in that case, that is, "the scope of the state's duty of neutrality that flows from freedom of conscience and religion", as it arose in the context of that appeal - However, as the court explained, that question of general importance did not arise in this case - Consequently, the standard of review applicable to the LSUC's decision was reasonableness - See paragraphs 33 to 51.

Barristers and Solicitors - Topic 7656

Regulation - Powers of governing bodies - Judicial review of (incl. standard of review) - The Law Society of Upper Canada (LSUC) Benchers voted to deny accreditation to a proposed law school at Trinity Western University (TWU), an evangelical Christian university - TWU applied for judicial review - TWU argued that the standard of review was correctness because the LSUC did not provide any reasons for its decision - The Ontario Divisional Court disagreed, holding that the standard of review was reasonableness - Here the decision was the result of a vote, not a normal deliberative process - Adequacy of reasons was not a stand-alone basis for quashing a decision - Reasons were not always required - Where reasons were not given, or inadequate, the court should look at the record in order to assess the reasonableness of the decision - In the absence of reasons, what was important, when considering the appropriate standard of review, was whether it was possible for the court, on review, to understand the basis upon which the decision was reached, and the analysis that was undertaken in the process of reaching that decision - The court had no difficulty in concluding that it could achieve that understanding on the record before it - See paragraphs 44 to 51.

Civil Rights - Topic 385

Freedom of conscience and religion - Infringement of - Schools - Religious education (incl. codes of conduct) - [See first Barristers and Solicitors - Topic 7651.1 ].

Civil Rights - Topic 8467

Canadian Charter of Rights and Freedoms - Interpretation - Interrelationship among Charter rights - [See first Barristers and Solicitors - Topic 7651.1 ].

Education - Topic 4125

Universities - Courses or programs - Approval of - Considerations - [See first Barristers and Solicitors - Topic 7651.1 ].

Cases Noticed:

Mouvement laïque québécois et al. v. Saguenay (City) (2015), 470 N.R. 1; 2015 SCC 16, refd to. [para. 32].

Dunsmuir v. New Brunswick - see New Brunswick (Board of Management) v. Dunsmuir.

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 35].

Bruker v. Marcovitz, [2007] 3 S.C.R. 607; 370 N.R. 1; 2007 SCC 54, refd to. [para. 36].

Doré v. Barreau du Québec, [2012] 1 S.C.R. 395; 428 N.R. 146; 2012 SCC 12, refd to. [para. 38].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 47].

Catalyst Paper Corp. v. North Cowichan (District), [2012] 1 S.C.R. 5; 425 N.R. 22; 316 B.C.A.C. 1; 537 W.A.C. 1; 2012 SCC 2, refd to. [para. 50].

Trinity Western University et al. v. College of Teachers (B.C.) et al., [2001] 1 S.C.R. 772; 269 N.R. 1; 151 B.C.A.C. 161; 249 W.A.C. 161, dist. [para. 59].

Bedford et al. v. Canada (Attorney General), [2013] 3 S.C.R. 1101; 452 N.R. 1; 312 O.A.C. 53; 303 C.C.C.(3d) 146; 2013 SCC 72, refd to. [para. 70].

Loyola High School v. Quebec (Attorney General) (2015), 468 N.R. 323; 2015 SCC 12, refd to. [para. 74].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 74].

Hutterian Brethren of Wilson Colony et al. v. Alberta, [2009] 2 S.C.R. 567; 390 N.R. 202; 460 A.R. 1; 462 W.A.C. 1; 2009 SCC 37, refd to. [para. 77].

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, refd to. [para. 87].

R. v. Edwards Books & Art Ltd. - see R. v. Videoflicks Ltd. et al.

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253, refd to. [para. 109].

Whatcott v. Human Rights Tribunal (Sask.) et al., [2013] 1 S.C.R. 467; 441 N.R. 1; 409 Sask.R. 75; 568 W.A.C. 75; 2013 SCC 11, refd to. [para. 113].

Adler et al. v. Ontario et al. (1994), 73 O.A.C. 81; 19 O.R.(3d) 1 (C.A.), refd to. [para. 120].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 138, footnote 15].

Trinity Western University et al. v. Nova Scotia Barristers' Society (2015), 355 N.S.R.(2d) 124; 1123 A.P.R. 124; 2015 NSSC 25, dist. [para. 129, footnote 13].

Mounted Police Association of Ontario et al. v. Canada (Attorney General) (2015), 466 N.R. 199; 2015 SCC 1, refd to. [para. 141].

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1, refd to. [para. 141].

British Columbia (Minister of Education) v. Moore et al., [2012] 3 S.C.R. 360; 436 N.R. 152; 328 B.C.A.C. 1; 558 W.A.C. 1; 2012 SCC 61, refd to. [para. 142].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 2(a) [para. 91].

Law Society Act, R.S.O. 1990, c. L-8, sect. 4.1 [para. 53]; sect. 4.2 [para. 28].

Authors and Works Noticed:

Dickson, Brian, Legal Education (1986), 64:2 Can. Bar Rev. 374, p. 377 [para. 98, footnote 10].

Counsel:

R. Staley, D. Bell and R. Agarwal, for the applicants;

G. Pratte, N. Effendi and D. Ault, for the respondent;

C. Rupar, for the intervener, The Attorney General of Canada;

P. Jervis and D. Ross, for the intervener, Christian Legal Fellowship;

D. Santoro, for the intervener, Justice Centre for Constitutional Freedoms;

A. Polizogopoulos and K. Barsoum Debs, for the interveners, Association for Evangelical Fellowship of Canada and Christian Higher Education Canada;

M. Edwardh, F. Mahon and P. Saguil, for the interveners, Out on Bay Street and OUTlaws;

J. Norris and B. Davies, for the intervener, Criminal Lawyers' Association;

C. Paliare and J. Radbord, for the intervener, The Advocates' Society.

This application was heard in Toronto, Ontario, from June 1 to 4, 2015, before Marrocco, A.C.J., Then and Nordheimer, JJ., of the Ontario Divisional Court. The following decision was released by the court on July 2, 2015.