SCC confirms non-accreditation of TWU law school based on discrimination of school “covenant” against LGTBQ students

The Supreme Court of Canada recently confirmed, as reasonable, the decision of two law societies – the Law Society of BC and the Law Society of Upper Canada (now the Law Society of Ontario) — to refuse to accredit a Christian university’s proposed law school, due to the need for the school’s students to sign a mandatory “Covenant” requiring that they abstain from abstain from sexual intimacy outside of marriage between one man and one woman, and the adverse impacts of the Covenant on LGTBQ students: Law Society of British Columbia v. Trinity Western Canada, 2018 SCC 32, and Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33.

The court reversed the decision of the BC Court of Appeal (which decided that the LSBC regulatory decision was invalid), and upheld the decision of the Ontario Court of Appeal (which decided that the LSUC regulatory decision justifiably infringed freedom of religion). We have previously written about the facts underlying these cases: see our blog article about the BCCA decision (2016 BCCA 423) here, and our blog article about the ONCA decision (2016 ONCA 518) here.

The decision of the Law Society of BC: The law is clear since the Dore case (which we wrote about here) that delegated authority must be exercised in light of constitutional guarantees and the values they reflect. Decision-makers must consider their statutory objectives, and ask how the Charter value will be best protected. Decision-makers must balance the severity of any interference with the Charter protection with statutory objectives.

In the matter before the BC courts, the BCCA had originally decided that the impact of the LSBC’s decision on freedom of religion was severe, and that the actual impact of the “covenant” on LGTBQ students would be insignificant in real terms, as few LGTBQ students would wish to apply to TWU. The BCCA also decided that the LSBC’s decision to refuse accreditation infringed religious rights more than necessary. A large majority of the Supreme Court of Canada disagreed, however, with the BCCA’s conclusions in several important ways.

First, a limitation preventing TWU imposing a mandatory covenant on all law students, including non-religious LGTBQ students, as a requirement of accreditation, was of “minor significance” to freedom of religion because a mandatory covenant is “not absolutely required for the religious practice at issue: namely, to study law in a Christian learning environment in which people follow certain religious rules of conduct.” In other words, LSBC requiring that the covenant not be mandatory only prevented Christian students from studying law in the “optimal” religious learning environment.

Second, in terms of the impact of the Covenant on LGTBQ students, since most LGBTQ people would be deterred from applying to TWU’s proposed law school, the 60 law school seats created by TWU’s proposed law school would be effectively closed to the vast majority of LGBTQ students. “Those who are able to sign the Covenant will be able to apply to 60 more law school seats per year, whereas those 60 seats remain effectively closed to most LGBTQ people.” [95]

Thus the decision of LSBC to not accredit TWU’s law school significantly advanced the LSBC’s statutory objectives, i.e., to promote and protect the public interest in the administration of justice by preserving and protecting the rights and freedoms of all persons and ensuring the competence of the legal profession. [92] The decision prevented concrete, not abstract, harms to LGBTQ people and to the public in general. [103] The decision It also maintained public confidence in the legal profession, which could be undermined by the LSBC’s decision to approve a law school that forces LGBTQ people to deny who they are for three years to receive a legal education. [103]

A debate – judicial review of decisions without reasons: One aspect of the TWU decision relating to the LSBC’s decision that our firm had a lively debate about, as possibly problematic, arises from the absence of any reasons for decision by the Benchers of the LSBC – equivalent to the board or council of other regulators — combined with the willingness of the court to assess reasonableness with attention to “the reasons offered or which could be offered in support of a decision” [56]. The case illustrates a situation of a court “looking to the record” to assess the reasonableness of a decision without any written or oral reasons. While this outcome may be the logical outcome of the court’s decision in Newfoundland and Labrador Nurses’ Union (2011 SCC 62), a minority of justices questioned the basis on which the majority could point to any basis for saying that the Benchers conducted any balancing of interests at all, given both the absence of reasons, and no record of the “post-referendum deliberation” that occurred in the case.

The absence of a duty to provide reasons may be a contentious issues. Some of the lawyers of our firm viewed boards as administrative decision-makers like municipal councils that need not provide reasons. For decision-makers addressing“polycentric” issues, written reasons may be an inefficient requirement. On the other hand, others of us viewed reasons as essential to regulatory bodies whose mandate is to meet the public interest in supervising a profession, which is distinctly different from a municipality’s democratic structure. Reasons ought to be provided where the regulator is defining the public interest and Charter issues are present, because transparency requires notice of their vision of the public interest, and the principles they are applying. Reasons provide accountability.

Law Society of British Columbia v. Trinity Western Canada, 2018 SCC 32

And also Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33