The much anticipated decision by the Court of Appeal in Trinity Western University v. The Law Society of Upper Canada was released this week.
Although the court upheld the Divisional Court decision last year, which itself upheld the law society’s decision not to accredit Trinity Western’s law school, this week’s decision was neither a condemnation by the courts of the school or a vindication of its opponents. Instead, it was a commentary on the role of a self-regulated profession, and the importance of maintaining our own autonomy.
The court touched on, briefly, the applicability of Trinity Western’s previous trip to the Supreme Court of Canada in 2001, involving teachers. The court adopted the Divisional Court’s statement about that case dealing with “different facts, a different statutory regime, and a fundamentally different question.” They also noted that administrative law, as the Supreme Court knew it in 2001, is drastically different today.
One of the most significant changes in the area of administrative law has been in Dunsmuir v. New Brunswick. I often say that the majority of this area of the law can be learned from this single case. The most pertinent statement from that case for Trinity Western was as follows,
 Deference in the context of the reasonableness standard therefore implies that courts will give due consideration to the determinations of decision makers. As Mullan explains, a policy of deference “recognizes the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime”: D. J. Mullan, “Establishing the Standard of Review: The Struggle for Complexity?” (2004), 17 C.J.A.L.P. 59, at p. 93. In short, deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system.
The reasonableness standard imposed by Dunsmuir was then applied in law society discipline cases like Doré v. Barreau du Québec, which confirmed that the particular expertise and experiences of law societies in particular are worthy of considerable deference.
The Court of Appeal did not find any qualitative difference here in the expertise of the law society between discipline or accreditation of law schools. The reason for this deference is that the specialized expertise exhibited by administrative bodies are particularly useful where there are conflicting interests and competing Charter values.
The factor that provides the law society the greatest amount of deference is its role in decision-making in the public interest. The promotion of a diverse profession is one the law society is entitled to achieve, including in the setting and maintaining standards of learning, professional competence and professional conduct. The law society is notably governed by Ontario’s Human Rights Code, while TWU is not as it is based outside of the province. These values must inform how the law society achieves these stated objectives.
The Court of Appeal cited its own recent decision in Groia v. The Law Society of Upper Canada to support this,
 …the Law Society’s undisputed statutory obligation [is] to govern the legal profession in the public interest. No limiting language, express or implied, qualifies the Law Society’s duties under ss. 4.1(a) and 4.2.3 of the Act, described above, to ensure that practising lawyers in Ontario meet the professional conduct standards appropriate for the legal services they provide and to protect the public interest.
In balancing TWU’s religious rights, which the court acknowledged were engaged, they were dealing with a Community Covenant that the court found hurtful and “deeply discriminatory to the LGBTQ community.” In this context, the appropriate balance was clearly evident to the court,
 TWU… is seeking access to a public benefit – the accreditation of its law school. The LSUC, in determining whether to confer that public benefit, must consider whether doing so would meet its statutory mandate to act in the public interest.
…the LSUC’s decision not to accredit TWU does not prevent the practice of a religious belief itself; rather it denies a public benefit because of the impact of that religious belief on others – members of the LGBTQ community.
Yet all of this was a backdrop to what the real exercise of the Court of Appeal’s decision was about – the reasonableness of the law society’s decision. In this respect the court had this to say,
 …I want to say a contextual word about the process that led to the decision on April 24, 2014. In my view, the process adopted by the LSUC to consider TWU’s application was excellent. The record consisted of TWU’s application and supporting material, the relevant reports of the Federation of Law Societies of Canada, three legal opinions designed to provide guidance to the benchers in their deliberative process, and approximately 210 submissions from members of the profession and the public.
We often complain about our law society dues, and wonder where all the money goes. We complain about the function of the law society, and their ability to efficiently make decisions to changing market forces in law.
But after reviewing the very detailed process employed by the law society, the experts solicited, the stakeholders properly engaged, and the vigorous debate that ensued, the highest court in Ontario had nothing but praise.
Today we have a lot to be proud about, but in light of the TWU decision we should be even more proud about being members of this honourable law society.