Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33 – Law of professions — Barristers and solicitors — Charter
On appeal from a judgment of the Ontario Court of Appeal (2016 ONCA 518) affirming a decision of Divisional Court (2015 ONSC 4250).
Trinity Western University (“TWU”) is an evangelical Christian postsecondary institution that seeks to open a law school that requires its students and faculty to adhere to a religiously‑based code of conduct, the Community Covenant Agreement (“Covenant”), which prohibits “sexual intimacy that violates the sacredness of marriage between a man and a woman”. The Covenant would prohibit the conduct throughout the three years of law school, even when students are off‑campus in the privacy of their own homes. The Law Society of Upper Canada (“LSUC”) is the regulator of the legal profession in Ontario. The LSUC decided, by resolution of its Benchers, to deny accreditation to TWU’s proposed law school because of its mandatory Covenant. TWU and V, a graduate of TWU’s undergraduate program who would have chosen to attend TWU’s proposed law school, sought judicial review of the LSUC’s decision on the basis that it violated religious rights protected by s. 2(a) of the Charter. They were unsuccessful in their application for judicial review in the Ontario Divisional Court and in their subsequent appeal to the Court of Appeal.
Held (7-2): The appeal should be dismissed.
Per Abella, Moldaver, Karakatsanis, Wagner and Gascon JJ.:
The LSUC’s decision not to accredit TWU’s proposed law school represents a proportionate balance between the limitation on freedom of religion guaranteed by s. 2(a) of the Charter and the statutory objectives that the LSUC sought to pursue. The LSUC’s decision was therefore reasonable.
It is clear that the LSUC was entitled to consider TWU’s admissions policy to determine whether to accredit the proposed law school. The LSUC’s enabling statute requires the Benchers to consider the overarching objective of protecting the public interest in determining whether a particular law school should be accredited. The LSUC was entitled to conclude that equal access to the legal profession, diversity within the bar, and preventing harm to LGBTQ law students were all within the scope of its duty to uphold the public interest. The LSUC has an overarching interest in protecting the values of equality and human rights in carrying out its functions.
Administrative decisions that engage the Charter are reviewed based on the framework set out in Doré v. Barreau du Québec, 2012 SCC 12,  1 S.C.R. 395, and Loyola High School v. Quebec (Attorney General), 2015 SCC 12,  1 S.C.R. 613. For the reasons set out in the companion appeal of Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 (“Law Society of B.C.”), the LSUC’s decision not to accredit TWU’s proposed law school engaged the religious freedom of members of the TWU community. Evangelical members of TWU’s community have a sincere belief that studying in a community defined by religious beliefs contributes to their spiritual development. This belief is supported through the universal adoption of the Covenant, which helps to create an environment in which TWU students can grow spiritually. By interpreting the public interest in a way that precludes the accreditation of TWU’s law school governed by the mandatory Covenant, the LSUC has interfered with these beliefs and practices in a way that is more than trivial or insubstantial. The result is that the religious rights of TWU’s community members were limited, and therefore engaged, by the LSUC’s decision.
Under the Doré/Loyola framework, an administrative decision which engages a Charter right will be reasonable if it reflects a proportionate balancing of the Charter protection with the statutory mandate. The reviewing court must consider whether there were other reasonable possibilities that would give effect to Charter protections more fully in light of the objectives. The reviewing court must also consider how substantial the limitation on the Charter protection was compared to the benefits to the furtherance of the statutory objectives in this context.
In this case, the LSUC only had two options — to accredit, or not accredit, TWU’s proposed law school. Given the LSUC’s mandate, accrediting TWU’s proposed school would not have advanced the relevant statutory objectives, and therefore was not a reasonable possibility that would give effect to Charter protections more fully in light of the statutory objectives.
The LSUC’s decision also reasonably balanced the severity of the interference with the benefits to the statutory objectives. The LSUC’s decision only interferes with TWU’s ability to operate a law school governed by the mandatory Covenant. This limitation is of minor significance because a mandatory covenant is not absolutely required to study law in a Christian environment in which people follow certain religious rules of conduct, and studying law in an environment infused with the community’s religious beliefs is preferred, not necessary, for prospective TWU law students.
On the other side of the scale, the decision significantly advanced the statutory objectives by ensuring equal access to and diversity in the legal profession and preventing the risk of significant harm to LGBTQ people. The LSUC’s decision means that TWU’s community members cannot impose those religious beliefs on fellow law students, since they have an inequitable impact and can cause significant harm. The LSUC chose an interpretation of the public interest which mandates access to law schools based on merit and diversity, rather than exclusionary religious practices.
Given the significant benefits to the statutory objectives and the minor significance of the limitation on the Charter rights at issue, and given the absence of any reasonable alternative that would reduce the impact on Charter protections while sufficiently furthering those objectives, the decision made by the LSUC represented a proportionate balance. Therefore, the decision was reasonable.
Per McLachlin C.J.:
There is agreement with the majority that under its enabling statute the LSUC had jurisdiction to deny accreditation to TWU’s proposed law school. However, there is disagreement with the majority on the framework for reviewing Charter‑infringing administrative decisions, the severity of the infringement in this case, and the reasons for which the LSUC’s decision is justified, for the reasons set out in the companion appeal of Law Society of B.C.
Per Rowe J.:
There is agreement with the majority that the LSUC had the jurisdiction to consider the effect of the mandatory Covenant in deciding not to accredit the proposed law school at TWU. For the reasons set out in the companion appeal of Law Society of B.C., however, this decision did not infringe any of the Charter rights raised by TWU. The decision must consequently be reviewed under the usual principles of judicial review. In this case, the standard of review is reasonableness, as the decision under review falls within the category of cases where deference is presumptively owed to decision‑makers who interpret and apply their home statutes. The decision of the LSUC will command deference if it meets the criteria set out in Dunsmuir. Reasonableness does not always require the decision‑maker to give formal reasons. In this case, the Court must look to the record to assess the reasonableness of the decision.
With regard to process, the record of the Benchers’ deliberations provides an account of the manner in which the decision was reached and the reasons why the Benchers voted to refuse to accredit the proposed law school. With regard to substance, the LSUC only had two options — to accredit, or not accredit, TWU’s proposed law school. In choosing not to accredit, the LSUC’s decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. Therefore, the LSUC’s decision to deny accreditation was reasonable.
Per Côté and Brown JJ. (dissenting):
A careful reading of the Law Society Act (“LSA”) and the LSUC’s relevant by‑laws leads to the unavoidable conclusion that the only proper purpose of an LSUC accreditation decision is to ensure that individual applicants are fit for licensing. Because there are no concerns relating to competence or conduct of prospective TWU graduates, the only defensible exercise of the LSUC’s statutory discretion in this case would have been for it to approve TWU’s proposed law school. It follows that the exercise of the LSUC’s statutory discretion to deny accreditation to TWU was taken for an improper purpose, and is therefore invalid.
The LSA limits the scope of the LSUC’s mandate to the regulation of legal practice starting at (but not before) the licensing process. The functions, duties and powers set out by the LSA relate only to the governance of the LSUC itself, to the provision of legal services by lawyers, law firms and lawyers of other jurisdictions, and to the regulation of articled students and licensing applicants. By‑Law 4 made pursuant to s. 62(0.1)4.1 of the LSA, which provides for the making of by‑laws “governing the licensing of persons to practise law in Ontario”, sets requirements for individual licensing, one being that applicants obtain a degree from an accredited law school. The By‑law’s scope cannot be extended beyond the limits of the LSUC’s mandate. The crux of By‑Law 4 is individual licensing; the accreditation of law schools is only incidental to this purpose. Law school accreditation only acts as a proxy for ascertaining whether graduates from that school are presumptively fit for licensing. Also, while s. 62(0.1)23 of the LSA empowers the LSUC to make by‑laws “respecting legal education, including programs of pre‑licensing education or training”, it does not grant the LSUC the power to regulate law schools, including their admission policies. Ensuring equal access to and diversity in the legal profession does not fall within the LSUC’s mandate to ensure competence in the legal profession. The LSUC is mandated to set minimum standards; this statutory objective relates to competence rather than merit.
Moreover, the decision not to accredit TWU’s proposed law school is a profound interference with the TWU community’s freedom of religion. It interferes with that community’s expression of religious belief through the practice of creating and adhering to a biblically grounded covenant. Even were the public interest to be understood broadly, accreditation of TWU’s proposed law school would not be inconsistent with the LSUC’s statutory mandate. In a liberal and pluralist society, the public interest is served, and not undermined, by the accommodation of difference. The unequal access resulting from the Covenant is a function not of condonation of discrimination, but of accommodating religious freedom. Only a decision to accredit TWU’s proposed law school would reflect a proportionate balancing of Charter rights and the statutory objectives which the LSUC sought to pursue.
Reasons for judgment: Abella, Moldaver, Karakatsanis, Wagner and Gascon JJ.
Concurring Reasons: McLachlin C.J.
Reasons Concurring in the Result: Rowe J.
Joint Dissenting Reasons: Côté and Brown JJ.
Neutral Citation: 2018 SCC 33
Docket Number: 37209