TWU Decision Really About Deference and Autonomy
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,
[49] 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.
[emphasis added]
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,
[89] …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,
[138] 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.
[emphasis added]
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,
[122] …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.
[emphasis added]
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.
Isn’t the problem with relying on Dore and Groia is that those involve a very different type of decision in very different contexts. Those are disciplinary decisions reached by an disciplinary panel with, presumably, some expertise and experience in that area. Moreover, in those cases, the panels are interpreting and applying a well-defined set of rules, e.g., the rules of professional conduct, which they are presumed to have expertise in.
But that isn’t true in this case. First, the LSUC isn’t interpreting and applying a well defined set of rules. It’s trying to interpret and apply its own governing statute, the OHRC, and the Charter. I don’t think we can presume that the LSUC has, as an organization, expertise in those areas (certainly not in the same way that we’d expect a disciplinary panel to have expertise in applying the rules of professional conduct).
Moreover, the court’s reasoning in Dore (and countless other cases) in terms of Charter standard of review arguably don’t apply in this case. In Dore (and its predecessors) the Courts have dispensed with the usual Oakes test standard of justification (because, recall, once the court finds that the LSUC is violating the section 2 rights of TWU -as it it – that violation has to be justified under section 1 of the Charter), in part, because they thought it wasn’t reasonable to ask the parties to the dispute to explain the substantial and pressing objectives of the decision maker In an adjudicative context, that position may be fair, after all the decision maker isn’t a party to the dispute. In this case, though, the LSUC isn’t an adjudicator, its a party to the dispute – surely it’s not unreasonable to expect it to explain why its (acknowledged) violations of TWU (and its students) section 2 rights can be justified under section 1.
As well, in those cases, arguably the restrictions were “prescribed by law” in the form of law society rules – here that isn’t the case, there is no clear law society rule prohibiting schools from having covenants a la TWU. Indeed, I think Alice Wooley made this point some years ago here, that the better process would have been for the Law societies to establish clear guidelines for law schools, then apply them. I don’t know how an ad hoc limitation on TWU can get over the “prescribed by law” test.
Bob,
As mentioned, the court explicitly stated that the function and expertise of the law society applied in discipline, licensing , and accreditation of law schools.
While there are differences between them as you mention here, the Divisional Court found that the public interest function is the overriding principles in all.
I’d agree that the ideal or better approach would be the one Wooley proposes. But then the standard isn’t correctness, it’s reasonableness.
If as the Court states accreditation would allow access to a public benefit and therefore the law society’s right to refuse to provide accreditation in the public interest, is the law society not therefore responsible to apply this principle across the board? That is, would it not be reasonable therefore for the law society, in the public interest, to ensure that every candidate to the bar should not hold racist, sexist and/or homophobic beliefs?
Omar,
I think the problem is that we’re treating this solely as an administrative law question. It is that, but it’s also a charter question. We need to think about the two tests differently (and both Ontario courts have done a poor job of that).
The basic problem is that once the court finds that the LSUC’s actions constituted a violation of section 2 of the Charter, the actions are illegal unless they’re justified under section 1. But no violation can be justified under section 1 unless it is prescribed by law. In the absence of clear rules prescribing the accreditation of law schools, how can the violation be “prescribed by law”? Embedded in the section 1 analysis is a reasonableness test, but you also have to satisfy the statutory requirement that requires that restrictions be prescribed by law. No matter how reasonable a charter violation is, if it isn’t prescribed by law it’s illegal. Either that test is satisfied or it isn’t.
Ditto, with the “pressing and substantial objective” requirement. Section 1 doesn’t simply require that a violation be reasonable, but that it be demonstrably justifiable. Although the Courts seem to have dispensed with this latter requirement in the Dore-type cases (aside: Isn’t that a problem? We can’t just ignore parts of the Charter that are inconvenient), the rationale for doing so is harder to justify here than in cases where the decision-maker is a genuine adjudicator.
Part of where the thinking of the court bothers me in this area is that ultimately administrative bodies like the law society are exercising a delegated statutory authority of the legislature. Why should they be held to a lower Charter standard than the legislature?
Bob,
The reason for my approach is that the Court of Appeal has treated it as a largely administrative law problem.
This is consistent with Doré, which states at para 24 that administrative tribunals must already use the Charter in their decision-making, and consequently a s. 1 analysis is not the appropriate analysis when a Charter right is engaged.
Instead, this is what the Court said,
The Court hasn’t dispensed with the requirements found in s. 1, they have subsumed them into the entirety of their decision-making.
In the same way that Oakes is a common law framework to apply s. 1, subsequent cases have found that s. 1 is imported into the decisions in administrative law. They have not been removed, or held to a lower standard. It’s simply a different analytical framework.
Verna,
The good conduct requirements would certainly subsume some of those, and openly racists/hateful licensees have and will be subject to scrutiny, in the public interest. I touched on this briefly here, but there are many more decisions in that respect.
Re that last point: The entire TWU law school saga indicates that hatred for christians or christianity is endemic to the legal profession across Canada. And I’m not a christian, BTW; not even remotely religious. I’ve heard some pretty nasty things said by lawyers on this subject, and far from scrutinizing the speakers, the law societies are litigating for those positions.
Related, it might be worth noting that the BC College of Teachers no longer exists, the function of teacher regulation having been absorbed into government. This occurred in part because the BC College of Teachers could not free itself from control by a special interest group which promotes, among other things, a belief system that at best could be described as strongly opposing christianity.
Karin,
To suggest that there is hatred for Christians in the legal system is to completely misunderstand the legal system. Ours is a secular society, where religious beliefs are vigorously protected, but subject to constraints and limits as necessary in a pluralistic and diverse democracy.
Christianity enjoys a dominant status in Canada, and is not by any means at risk of being eliminated. Much of our institutions, practices, and values are still influenced by Christianity, including the common law itself.
The inception of tort law in our legal system can be attributed to values that originate in the Bible itself, specifically, Mark 12:31; 1 John 3:18, 4:11, 20-21; and especially, Luke 25-28 (note the lawyer in the exchange). Lord Atkin stated in Donoghue (or McAlister) v Stevenson, [1932] All ER Rep 1; [1932] AC 562,
I would argue that TWU fails in this respect in applying even this very rudimentary principle, one for which there is “no commandment greater,” through its Community Covenant. Not from a legal liability perspective, but a moral one.
More importantly, the TWU decision would not have been decided differently if it was any other religion operating an educational institution on the same grounds, or even if it was a non-religious institution.
In a democracy we all have to make compromises for each other. The end result though is that we have here in Canada one of the most inclusive and vibrant societies in the world.
Certainly that is something to be cherished, not lamented.
Omar,
I understand that the OCA followed Dore, but that’s precisely the problem. The circumstances are material different than those in Dore, such that the reasons in Dore clearly don’t apply, and indeed lead to inappropriate results.
For example, in Dore, in justifying a departure from the traditional Oakes test, the court observed that:
“the requirement under s. 1 that a limit be “prescribed by law” has been held by this Court to apply to norms where “their adoption is authorized by statute, they are binding rules of general application, and they are sufficiently accessible and precise to those to whom they apply”
In Dore, of course, that was true – the case involved the application of the Barreau’s rules of professional conduct and their impact on freedom of expression. Unfortunately, in this case, it’s hard to see which “binding rules of general application” that are “sufficiently accessible and precise to those to whom they apply” were applied by the law society – certainly, the LSUC didn’t point to any in makings its decisions. It’s precisely the absence of rules that make the decision so difficult and controversial. Surely it can’t just be sufficient that to point to general “public interest” language in the LSUC’s authorizing statute – if that were true, every administrative decision (indeed, any state action) would, by definition, be “prescribed by law”.
Similarly, in the next paragraph, in Dore, the Court commented that:
“Moreover, when exercising discretion under a provision or statutory scheme whose constitutionality is not impugned, it is conceptually difficult to see what the “pressing and substantial” objective of a decision is, or who would have the burden of defining and defending it.”
Again, in the fact pattern of Dore, maybe that conclusion can be justified in that the decision maker is not a party to the dispute. But how does that apply in this case? Here the decision maker is a party to the dispute – it shouldn’t be conceptually difficult for the LSUC to explain the “pressing and substantial” objective of its decision, nor to expect it to bear the burden of defining and defending it.
Part of the problem is that in Dore (and, indeed, earlier cases), the Court incorporates the concept of “weighing charter values” from cases like Hill v. Scientology or R.W.D.S.U., Local 558. But those were private law cases where the Charter is not engaged. Where the parties are not bound by the Charter, they don’t have to (and can’t be expected to) justify violations under section 1. Charter values inform the proper interpretation and development of the common law, so need to be taken into account by judges and decision makers, but are not binding on the competing parties.
But, of course, that isn’t the case here. The LSUC isn’t an adjudicator mediating between competing private parties, its a state body performing a public regulatory function. It is not simply sufficient, as in Dore, for the LSUC to “take sufficient account of Charter values”, it is bound by the Charter and must comply with it’s text, including the textual requirements of section 1.
To believe otherwise, would lead to perverse results and undermine Charter protections. What if the LSUC introduced an “accreditation code” – a rule of general application on the accreditation of law schools – which engaged Charter rights? Would it be sufficient to uphold the constitutionality of that rule that the LSUC merely weighted competing charter values in enacting it? I doubt it (certainly, if such a code were enacted by the legislature or promulgated under regulations it would have to satisfy the Oakes test to survive constitutional scrutiny). Why then do we accept a lower threshold of simply weighing charter values when the LSUC makes discretionary decisions to the same effect on a case by case basis? The dangers of such an approach, in an era where administrative law decisions makers have increasing power, is to allow legislators to do an end run around Charter protections by delegating discretionary authority to administrative rule makers, rather than imposing clear rules, subject to robust Charter challenge.
Bob,
I’ve already stated I agree with you that having a clear set of rules that an administrative body is implementing is a far better way to base deference. On my reading, the overriding public interest mandate is indeed what the Court of Appeal pointed to in justifying their decision.
It’s worth noting that some other provinces have decided to accredit TWU, but these decisions were specifically made due to the lack of statutory authority to act in the public interest in this manner. Although it may seem trivial, this broad mandate exerts considerable power to the law society in Ontario, more so than law societies elsewhere in Canada.
The other clear distinction, both with the TWU teachers case and the dangers you cite with other administrative tribunals, is that this is an administrative law decision made by the legal community itself. There is no greater expert on the subject, including perhaps the judiciary, which is why a standard of reasonableness in this context is justifiable despite the concerns you raise.
That’s why the court reviewed the process employed by the law society, including numerous expert opinions, significant consultation, and extensive debate. The benchers voting on the decision have been selected by the Ontario bar for a multitude of reasons, but in part, based on their expertise and qualifications. There probably isn’t a more specialized and qualified administrative body anywhere in our society at all.
For those reasons it’s probably misleading to conclude that this decision provides similar deference to all administrative bodies in the same way, but the points you raise are interesting ones indeed.
I highly recommend two books that I’ve recently read by Atul Gawande: The Checklist Manifesto, and Better. I am reminded of them by many features of the foregoing discussion, and their relevance to law is further clarified in light of this post from yesterday on NSRLP: https://representingyourselfcanada.com/2016/07/07/the-client-most-lawyers-fear-and-wont-represent-at-any-price/