Charter-ing A Different Course? Two Decisions On TWU's Proposed Law School

Introduction

Appeal courts in Ontario1 and Nova Scotia2 have now issued decisions about Trinity Western University's proposed law school ("TWU") in British Columbia, and at first glance they couldn't be more different. The Court of Appeal for Ontario made sweeping statements about Charter rights, and ruled against TWU; the Nova Scotia Court of Appeal focused on the more esoteric issue of the vires of regulations, ruling in favour of TWU.

Upon further review, however, there are similarities. For example, both decisions consider how far legal regulators can go in protecting the "public interest" pursuant to their statutory frameworks. And in light of the NSCA's comments on a possible path forward for regulating the TWU issue, the result may eventually be the same in both provinces.

Refresher on prior litigation in Nova Scotia and Ontario

Recall that in 2014 the Law Society of Upper Canada ("LSUC") and the Nova Scotia Barristers' Society ("NSBS")3 —the governing bodies for the legal profession in Ontario and Nova Scotia, respectively—both voted to refuse to accredit TWU, primarily because of the "Community Covenant" that all law students would have to sign in accordance with the university's professed Biblical worldview. As Justice MacPherson explained:

[6] TWU wants to establish a law school. Although members of the lesbian, gay, bisexual, transgender and queer ("LGBTQ") community may apply to the proposed law school, they will not be admitted unless they are willing to sign and adhere to TWU's Community Covenant, described below, which forbids sexual intimacy except between married heterosexual couples. The consequence is that LGBTQ students are discriminated against in terms of admission to, and life at, TWU. TWU, on the other hand, says that its Community Covenant is protected by its right to freedom of religion.4

That, essentially, is the conflict of rights that has fuelled much of this litigation: the right of LGBTQ+ students to equality and freedom from discrimination, versus the right of TWU and its evangelical Christian students to freedom of religion.5

In practice, the law societies' refusal to accredit TWU's proposed law school would mean that a prospective articling student who'd graduated from TWU would not be entitled to article in Ontario or Nova Scotia.6

TWU applied for judicial review of both law societies' decisions refusing to accredit. Justice Jamie Campbell of the Nova Scotia Supreme Court issued a decision in early 2015 siding with TWU; Ontario's Divisional Court sided with LSUC in a decision released last July. The NSBS appealed the Nova Scotia decision, while TWU appealed the Ontario decision. The appeals were heard in the spring.

The Court of Appeal for Ontario, in a decision released on June 29, 2016, affirmed the Law Society of Upper Canada's decision refusing to accredit TWU. This decision means that eventual TWU law graduates will not be able to apply to article and be licensed in Ontario (unless something changes, like the ONCA decision being overturned by the Supreme Court of Canada).

Less than a month later, on July 26, 2016, the Nova Scotia Court of Appeal reached the opposite conclusion about the Nova Scotia process, and agreed with TWU that the Barristers' Society had acted improperly in refusing to accredit. Both decisions were unanimous (by a panel of three Judges in Ontario, and five Judges in Nova Scotia).

Comparing the procedures behind the LSUC and NSBS refusals to accredit TWU

So how could two courts of appeal reach such different results on such similar...