TWU’s Successful Judicial Review


Nova Scotia has been on the front lines of the debate about the proposed law school at Trinity Western University ("TWU") in British Columbia. Now, the Nova Scotia Supreme Court has become the first Canadian court to release a decision on the contentious issues involved.

In Trinity Western University v Nova Scotia Barristers' Society, 2015 NSSC 25, Justice Jamie Campbell found in favour of TWU, concluding that the Nova Scotia Barristers' Society ("NSBS") overstepped its authority by imposing conditions before future TWU law graduates could practice law in this province.

In doing so, he concluded that the NSBS improperly interfered with religious freedom. (See e.g. paras 3 and 18.)

As is well known, TWU requires all students to sign its "Community Covenant." Justice Campbell paraphrased the contentious provision of the Community Covenant, which relates to sexual activity:

[34] The Community Covenant bans all sexual intimacy outside the traditional marriage between a woman and a man. In other words, TWU does not recognize same-sex marriage. TWU does not ban LGBT students. It does not limit the sexual activity of unmarried LGB students any more than it purports to regulate the sexual activity of unmarried non-LBG students. But, significantly, it does not recognize that LGB people can be sexually intimate even if they are legally married.

The following excerpt encapsulates Justice Campbell's ultimate conclusion: The Nova Scotia Barristers' Society could not refuse to recognize TWU law degrees on the basis that the Community Covenant was discriminatory against LGBTQ students. This was despite the NSBS's argument that it was acting in the public interest:

[176] Recognizing a degree from a law school that "unlawfully discriminates" is argued to be not in the public interest. The public interest in the practice of law does not extend to how law schools function. Neither the degree of moral outrage directed toward the policy, nor the extent to which it is deemed to be in the public interest to attack it, change that. It does not expand the NSBS authority into areas where it would otherwise not have jurisdiction. It does not act as a self-standing grant of jurisdiction.

[Emphasis added.]

What was under judicial review

TWU's application for judicial review challenged two actions of the NSBS: A resolution it passed in April 2014, and a regulation that it amended as a consequence of that resolution, in July 2014 (together, "the NSBS decision"; see para 61).

Both the resolution and regulation were adopted after the Federation of Law Societies approved TWU's proposed law program (see paras 48-49).

First, the resolution. NSBS Council resolved that it would not approve TWU's law school unless law students were exempted from the Covenant, or the Covenant was amended (para 57):

Council accepts the Report of the Federation Approval Committee that, subject to the concerns and comments as noted, the TWU program will meet the national requirement; Council resolves that the Community Covenant is discriminatory and therefore Council does not approve the proposed law school at Trinity Western unless TWU either;

exempts law students from signing the Community Covenant; or

amends the Community Covenant for law students in a way that ceases to discriminate.

Council directs the Executive Director to consider any regulatory amendments that may be required to give effect to this resolution and to bring them to Council for consideration at a future meeting.

Second, the regulation. The subsequent regulatory amendments changed the definition of "law degree" to permit NSBS Council to...

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