In our 2015 regulatory round-up (here), we described the ongoing dispute arising in the Trinity Western cases, where three professional regulatory bodies – law societies in three provinces (B.C., Ontario and Nova Scotia) — refused to accredit a religious university which required that students sign a “community covenant” requiring that they abstain from sexual intimacy outside of marriage between one man and one woman. An Ontario court initially affirmed the refusal of the Law Society of Upper Canada (LSUC) to accredit the university’s law school (2015 ONSC 4250, available here). The Ontario Court of Appeal affirmed LSUC’s decision to refuse accreditation, despite infringing rights of religious freedom, given the impact of the covenant on rights of students – potential members of the profession – to be free from discrimination.
The Court of Appeal recognized that the issue was not decided by an earlier case — Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31 – a case where a regulatory body refused to accredit TWU on the basis that the covenant might affect the ability of TWU graduates to teach in public schools in a non-discriminatory matter. The decision of LSUC was made on a different basis, namely, that accrediting a law school that prevents access through a discriminatory policy is not in the public interest.
Infringement of religious freedom: The court accepted that LSUC denying accreditation to TWU infringed the Charter right of TWU and its students to freedom of religion. It declined to accept LSUC’s argument that freedom of religion does not extend to practices that interfere with the rights and freedoms of others. It chose to adopt a broad definition of freedom of religion.
The meaning of LSUC’s “public interest” mandate: The court found, however, that LSUC could, in fulfilling its function of ensure that all persons providing legal services meet standards of learning, professional competence and professional conduct, have regard to its duty to “protect the public interest”. [103] LSUC was entitled to interpret its home statute, which refers to the public interest, as including a mandate to integrate equity and diversity values and principle’s into LSUC’s model policies, services, programs and procedures. [106] LSUC was entitled to set and maintain standards of learning, competence and conduct against “the backdrop of the composition of the legal profession, including the desirable goal of promoting a diverse profession”. [108] Said another, quality is based on merit, and merit excludes discriminatory classifications. [109]
Furthermore, the court accepted that TWU’s admission policy, in conjunction with its community covenant, “discriminates against the LGBTQ [lesbian, gay, bisexual, transgender and queer] community on the basis of sexual orientation”, contrary to section 15 of the Charter and section 6 of Ontario’s Human Rights Code.
In terms of the reasonableness of LSUC’s decision, the court considered speeches by various benchers of LSUC (i.e., board members), as well as legal opinions designed to guide the benchers and 210 submissions from members of the profession and the public. The court found the decision reasonable.
- First, the regulator could scrutinize the admission process of a law school, where homosexual students would not be tempted to apply, and could only sign the covenant “at considerable personal cost”. [132]
- Second, the accreditation that LSUC denied to TWU was in the nature of a benefit, rather than state action interfering with religious belief itself. [136] The court analogized the case to the situation in the U.S. case of Bob Jones University v. United States, 461 U.S. 574 (1983), where the Internal Revenue Service was able to take away a university’s tax-exempt status where it only admitted black students if they were already married, in order to prevent interracial dating and marriage. [136] The court noted that, “TWU, like Bob Jones University, is seeking access to a public benefit – the accreditation of its law school. In determining whether to confer that public benefit, LSUC had to consider whether doing so would meet its statutory mandate to act in the public interest. [138]
Accordingly, LSUC was entitled to take the position that the public interest in ensuring equal access to the profession justified a degree of interference with religious freedoms. [142] Its decision “denies a public benefit, which the LSUC has been entrusted with bestowing, based on concerns that are entirely in line with the LSUC’s pursuit of its statutory objectives.” [143]
The TWU litigation in BC: In British Columbia, a superior court heard and allowed TWU’s application for review (2015 BCSC 2326, available here). The B.C. Court of Appeal heard the Law Society’s appeal on June 1-3, 2016. The Law Society has posted its factum here.
Trinity Western University v. The Law Society of Upper Canada, 2016 ONCA 518
(available from the ONCA’s website here )
Lisa C. Fong and Michael Ng