There has been much discussion about Trinity Western University (“TWU”) law school and whether or not, students who go to there should be able to practice law in Canada. I have no intention of wading into this very polarizing debate. What is more interesting, is the impact of three very different decisions about TWU, made by three different law societies.
No matter how one feels about TWU, one must consider the impact of any decision.
Decisions cannot, and should not, be made in a vacuum.
So, let’s recap.
The Federation of Law Societies claims to be the national co-ordinating body for all Canadian law societies.
There are representatives from all Canadian law societies in the Federation.
Among other things, the Federation manages the national mobility agreement which allows lawyers to practice for up to 100 days per year in a province other than the one in which she is called.
The Federation’s website states:
… within the last 10 years, Canada’s law societies have broken down interprovincial barriers so that members of the profession are able to easily transfer from one jurisdiction to another…..
The recent TWU decisions however, have now thrown that into question.
The Federation has also created national admissibility standards that stipulate what core courses are required in order for a law school to be accredited; in addition, the Federation sets out what must be covered as part of provincial bar admission courses/exams.
The Federation reviewed the TWU law school course offering and approved it.
Earlier this month, the Law Society of British Columbia voted 20 – 6 in favour of allowing persons who graduate from TWU law school to be admitted to the bar in British Columbia. Many lawyers in British Columbia were upset with this decision and gathered enough signatures to force that law society to re-vote on this matter in the coming weeks. Given the original disparity between “yeas” and “nays” in the original vote, it is unclear if this decision will change with a re-vote.
Last week, the Law Society of Upper Canada voted 28 – 21 against allowing persons who graduate from TWU law school to be admitted to the bar in Ontario.
Also last week, the Law Society of Nova Scotia voted 10 – 9 against allowing persons who graduate from TWU law school to be admitted to the bar in Nova Scotia for so long as TWU requires students to sign a covenant that, among other things, bans all pre-marital sexual activity, as well as banning sexual activity between married same-sex partners.
Three different law societies have come up with three different decisions on TWU law school, while the national co-ordinating body of all law societies in Canada approved its curriculum.
As other law societies vote throughout the year, some will accredit TWU law school and others will not.
So it’s important to examine what this means to the Canadian legal profession by 2025, when there will be hundreds of TWU law grads.
These grads will be able to practice law in those provinces in which they are admitted.
These grads will also, under the national mobility agreement, be able to practice for up to 100 days in any other Canadian province – even if these provinces do not recognize their TWU law degree. The growth in legal technology will blur this even further.
The province of admission will be even less important for TWU grads who join the growing number of Canadian in-house counsel – or for those who join innovative law firms like Conduit, Avvoka or Cognition.
What happens if TWU removes the covenant in 2022?
Could TWU then be accredited for Ontario’s purposes?
And what would Ontario do with prior graduates?
Would Ontario ban graduates who signed the covenant as prima facie evidence of bad character?
And if they are of good character, were they still not tainted by the school’s teaching which makes them ineligible forever?
But let’s go farther into the future.
Let’s look at the Canadian legal profession in 2035, when a well-respected TWU grad at a national Canadian firm moves from Vancouver to Toronto. She graduated from TWU in 2020, and in 2035 she applies for admission to Ontario.
The Law Society of Upper Canada’s current admission procedure is set out below:
Lawyers from reciprocating jurisdictions who are in good standing and entitled to practise in their home jurisdiction may apply to be licensed in Ontario under subsection 9(2) of By-Law 4, based on the National Mobility Agreement or the Territorial Mobility Agreement. Applicants must remain entitled to practice in their home jurisdiction until they are called in Ontario.
- Completed and original Application for Licence under the National Mobility Agreement or the Territorial Mobility Agreement and subsection 9(2) of By-Law 4
- Non-refundable fee for administration, reading material, and licensing
- Original Certificates(s) of Standing (dated within the last 30 days) from each Law Society of which you are or have been a member, inside and outside of Canada. NOTE: Your Certificate(s) of Standing must be replaced if it becomes more than 60 days old at the time your application is ready to be approved by Administrative Compliance
- A notarized copy of your Canadian Birth Certificate as proof of age and full legal name,
A notarized copy (front and back) of your Canadian Citizenship Card
- Two colour passport photos taken within the past 12 months
- Original required Reading Declaration
- Additional documents as required
- Information regarding your complete work history for the last 5 years
- All applications and related information and documentation must be correct, complete and received by the Administrative Compliance department no later than 15 business days prior to the applicant’s anticipated licensing date
Currently, there is no requirement for the applicant to tell the Law Society of Upper Canada what law school she attended 15 years prior. In fact, all requirements relate to the applicant’s practical experience in British Columbia. In other words, if British Columbia is happy with her qualifications, then Ontario will be happy as well.
More importantly, would it make any sense for this well-respected lawyer of good character to be barred from moving to Ontario and practising, simply because she graduated from TWU 15 years earlier?
How is Ontario intending to enforce its decision in such a case or in other similar cases?
And what of the Nova Scotia decision?
If TWU deletes its covenant in 2025, thereby making graduates eligible for admission to Nova Scotia, would students who graduated prior to 2025 still be banned from admission? If the covenant is prima facie evidence of bad character, how could they not be banned forever?
What about students who signed the covenant in 2024, but graduated in 2026, after it was no longer required?
Would Nova Scotia ban graduates who signed the covenant as prima facie evidence of bad character?
And if they are of good character, were they still not tainted by the school’s teaching which makes them ineligible for admission?
Are they now of good character? Are they tainted, or not tainted?
How is Nova Scotia intending enforce its decision?
As provinces continue to adopt different positions around TWU law school, will this more firmly entrench the “us versus them” mentality that bubbles just below the surface of the legal profession?
Nova Scotia Bencher, Gavin Giles, referred to the Law Society of Upper Canada discussion around TWU as a “nauseating bluster of inefficiency,” [author's note: I like this guy!], barely masking his displeasure with the Nova Scotia and Ontario decision.
Will British Columbia Benchers feel slighted that Ontario and Nova Scotia both refused to accredit a British Columbia law school that they approved?
How could they not?
Just as important, however, is another burning question:
What is the purpose of a national “co-ordinating” body that is unable to co-ordinate its members?
Is the Federation, the United Nations of law societies?
A neat idea in the abstract, but in reality, an expensive and toothless tiger?
To many lawyers, myself included, the TWU law school question was the first real test of the relevance of the Federation and whether it can play an important role in shaping the legal profession in Canada.