With TWU Decisions – Whither the Federation of Law Societies?

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.

Application Requirements

  • 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,
    OR
    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.

It failed.

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Comments

  1. “the exact province of call will be even less important for TWU grads who join the growing number of in-house counsel – or innovative law firms like Conduit, Avvoka or Cognition.”

    Can someone explain why this is? Do these firms take the position that their employees are not practising law? That would seem odd.

    As to your main point, Mitch, the Federation clearly has not yet “failed” this test. It’s early days.

    Finally, a point regarding the “good character” requirement. There is zero chance that having signed the TWU Community Covenant Agreement would be taken as “a sign of bad character”. Other than one (extremely ill-judged) remark by an Ontario bencher, that hasn’t even been raised as a possibility in this debate. The debate is about the pedagogy of TWU’s program (to which the Community Covenant Agreement is a very severe, I think fatal, demerit) but it is solely pedagogical. I do not think, and I strongly suspect almost no one thinks, that the students and staff of TWU’s proposed law school would be of bad character. I don’t like TWU as an institution and I think its proposed law school can’t adequately teach lawyers, but I’d welcome those graduates with open arms once they complete an adequate program of law school.

  2. A few of the points that Mr. Kowalski has brought up–namely the good character issue and the role of the Federation of Law Societies, I have already commented about it in my own blog post. http://smbparalegal.com/2014/04/11/trinity-western-university-the-law-society-of-upper-canada-the-question-not-asked/

    At the end of the day, we are left with a political, not an administrative decision of Convocation. A decision that will leave teeth marks in their collective posteriors.

  3. Mitch, I think that’s an unsubstantiated criticism of the FL’s recent history given the really remarkable success in creating a national model code of conduct, something that had previously eluded the profession, despite the CBA’s model code. And something which I truly did not anticipate to succeed in the way it has. In addition, the national mobility agreements are also remarkable and a real success achieved in significant part under the auspices of the FLS. I don’t disagree with your remarks about the problems of TWU, but I don’t think it’s at all fair to say that the FLS has in the last ten years been an expensive and toothless tiger.

    As another matter of regulatory inconsistency, though, I would note that currently a graduate of BYU or one of the other US religious schools, and who will have signed a substantively identical requirement, can complete the NCA process and practice in Ontario. People note that the ABA requires that law schools don’t discriminate, which is true, but the position of the religious US law schools is that conduct rules are non-discriminatory (see, e.g., here: http://www.law2.byu.edu/policiesandprocedures/). Yet at the same time, the LSUC’s Treasurer has stated that TWU graduates will not be able to access the NCA. This seems like a hard distinction in practice to justify.

  4. I suspect many of these questions will be answered by the Supreme Court of Canada, but it’s good to contemplate the significance of this past week’s actions.

    The other possibility not considered by Mitch here is that LSUC and other jurisdictions will simply amend their mobility and transfer requirements. This just happened. Given them time to react formally.

    My bigger concern, which Mitch does touch on, is that the FLSC has been steadily allowing greater integration of provinces across Canada, which I believe is a good thing. In a globalized economy I’d like to see enhanced mobility of Canadian lawyers within our country, let alone the world. TWU throws a wrench into this trend, largely because FLSC did not properly anticipate these types of challenges.

  5. I think that there is less to this issue, as it relates to the Federation, than meets the eye.

    For decades, there were no new law schools in Canada teaching common law. In the last few years, there have been four law schools seeking common law accreditation. One of the four, namely TWU, raised a difficult issue not previously considered by the Federation or by the law societies.

    There are approximately 100,000 lawyers in Canada who now enjoy temporary and permanent mobility by virtue of the Federation’s good work. None of this changes.

    Lawyers licensed in other provinces and territories, including future TWU grads, enjoy temporary mobility.

    Permanent mobility in Ontario will be an issue for TWU grads licensed by other Canadian law societies as section 9(2) of LSUC By-Law 4 does not eliminate the section 9(1)(1) requirement of having attended an accredited law school or having an NCA certificate.

    TWU proposes to admit approximately 60 law sctudents annually. How many will graduate and will want to be licensed to practice law in Ontario is yet to be known. For each of those graduates, the issue of accreditation and permanent mobility is very real.

    But the practical truth is that for the remaining 100,000 lawyers, mobility will continue perfectly well as before.

    Despite the TWU accreditation issue being difficult and important and its effect in Ontario on some TWU graduates, the sky is not falling for the Federation. The exception proves the rule.

    All that need be done to understand the success of the Federation and lawyer mobility in Canada is to looks south of the border. It is wrong to fail to recognize broad succcess harmonizing regulation of lawyers across Canada because of one challenge.

  6. I agree with Malcolm that the mobility agreement will continue to work. In federalism, sometimes you may complete a puzzle and wonder why you’re still holding a piece.

    What Mitch has addressed is that fact that the Federation, conceived as a grand front door into the legal profession, like many hallowed halls, has back doors, too. I am not certain TWU has given rise to a need to brick up the back doors.

    Alice raises a good point regarding the BYU Honor Code. The BYU doctrine that it hates the sin but not the sinner would not pass muster in Canada post-Whatcott. The easy legal answer is that we recognize foreign status without recognizing the foreign process or values. Solemnization of marriage is an example where Canadian institutions recognize status acquired abroad, even though most marriage laws around the world are discriminatory if seen through 21st-century Canadian eyes. So we might give some credit to a foreign law degree even though it wouldn’t be recognized at all if granted by a Canadian school.

    The difficult answer is that leadership involves venturing forth without certainty of outcome. Maybe that means continuing to keep a back door open for BYU grads and refusing its analogue to set up a law school our own front yard. Good leadership, however, recognizes that if you try to fix everything at once, you end up with even more of a mess for Mitch to write about; so easy does it, one issue at a time.

  7. Good comments all – they help round out the issues around the fall-out of these decisions.

    Craig – I was trying to make the point that the General Counsel of a corporation does not have to be admitted to practice in every province in Canada. So a BC call may be sufficient for many companies.

    As for the new types of firms I mentioned, their clients will likely be corporations and those in-house counsel can choose to use a lawyer in another province to assist with in-house duties – a bit of a grey area.

  8. What happened with TWU illustrates the need for a larger discussion about the Federation decision-making and consultation process. We also need to ask questions about how our law societies delegate statutory powers and what responsibility they have to ensure any delegate acts appropriately. We elect our Council members/ Benchers to make decisions. We have an expectation of transparency and accountability. As the law societies delegate more to the Federation, we need to better define the Federation process and roles, and examine its relationship with the law societies.

  9. Anonymous Lawyer

    In granting TWU accreditation, the B.C. Law Society is seen to be giving public endorsement to TWU’s practice of discriminating against members of the LGTBQ community and, further, granting legitimacy, in the public sphere, to TWU’s Christian view that homosexuality is wrong. This appearance of public endorsement is not in the public interest. Worse yet, this is a detriment to our society’s gruelling, long-fought battle to recognize the human rights of all members of the LGTBQ community and their right to be treated equally. The decision to accredit TWU was wrong: http://wp.me/p4A1wz-4

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