Ontario Court Of Appeal Upholds Law Society's Decision To Deny Accreditation To Trinity Western University

Trinity Western University v. Law Society of Upper Canada, 2016 ONCA 518

In a unanimous decision, Justices MacPherson, Cronk and Pardu of the Ontario Court of Appeal upheld the Law Society of Upper Canada's (the "Law Society" and "LSUC") decision to deny accreditation to Trinity Western University's ("TWU") proposed law school. TWU requires as a condition of admission that applicants sign a Community Covenant pledging, among other things, to abstain from sexual intimacy outside of heterosexual marriage. The Law Society engaged in an unprecedented process and lengthy debate which was followed by a majority vote against accreditation. The key issue before the Court was whether the Law Society's decision to deny accreditation reasonably balanced TWU's freedom of religion with the Law Society's public interest mandate; in particular, the public interest in ensuring LGBTQ students have access to every accredited law school. Writing for the Court, Justice MacPherson held (at para. 129):

In my view, the answer to this question is 'Yes', indeed 'Clearly yes'.

The Court upheld all aspects of the decision of the Ontario Divisional Court (2015 ONCA 4250), which had upheld the Law Society's decision on TWU's application for judicial review. The Court agreed with the lower court that the Law Society's decision infringed TWU's freedom of religion. However, it found that the Law Society's benchers reasonably balanced that infringement with the public interest in maintaining merit as the only criterion for entry into the legal profession, thereby ensuring equality of opportunity in access to the legal profession in Ontario.

The Court also agreed with the Divisional Court that the Supreme Court of Canada's decision in Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31 was not binding precedent in this case because it was distinguishable on its facts.

The Court of Appeal also concurred with the Divisional Court that the standard of review of the Law Society's decision was reasonableness. The question of accreditation was squarely within the Law Society's statutory mandate, and as such a presumption of reasonableness applied. The balancing the Law Society engaged in was fact specific and was not a true question of jurisdiction or a question of central importance to the legal system, and therefore the presumption of reasonableness was not displaced. In addition, the Court found that the Law Society's decision had to be assessed...