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TWU or Not TWU – That Was the Question

While it is still early days, it is probably safe to say that if the Trinity Western 2018 decision[1] becomes a long-standing case of note, it will be because of its significance regarding Charter principles and not because of the role it played in the furtherance of administrative law.[2] Most of the ink (or electrons) spilled in the months and years leading up to the recent Supreme Court of Canada decision was not because Canadians – lawyers and lay-people alike – were anticipating the latest pronouncement on standard of review or procedural fairness or jurisdiction. The primary interest was how the court would resolve what most people saw as a clash between competing rights. Nevertheless, at its heart Trinity Western is primarily an administrative law decision, so let us take a look at what can be gleaned from that aspect of the case.[3]

Trinity Western University (“TWU”) is a Christian university in Langley, British Columbia. It requires its students to sign a “Community Covenant”, by which they agree to refrain from prohibited activities, including sexual relationships outside of marriage “between one man and one woman”. TWU and its Community Covenant was already well-known in administrative law, being the subject of a previous SCC decision, Trinity Western University v British Columbia College of Teachers, 2001 SCC 31 (“TWU 2001”). In that case, TWU applied to the BC College of Teachers for certification of its teaching program, which was denied. The SCC determined that the College acted unfairly in “considering the religious precepts of TWU instead of the actual impact of these beliefs on the public school environment, the BCCT acted on the basis of irrelevant considerations” (at para. 43).

A little more than ten years later, a similar fact pattern arose. In 2012, TWU undertook steps to create a law school. After obtaining approvals from the Ministry of Advanced Education and the Federation of Law Societies of Canada, it applied for accreditation of its candidates from all the provincial law societies. All but Ontario and Nova Scotia approved the application. The Law Society of British Columbia initially approved the request. Without minimizing the amount of consideration it gave to the matter, there was a belief by some that the result in TWU 2001 would likely apply to accreditation of the law school was one of the leading factors in the LSBC’s decision. At its annual general meeting in 2014, LSBC members voted to reverse the benchers’ decision. This was followed by a referendum by which a majority of members voted to revoke accreditation for TWU. The LSBC agreed to be bound by the referendum, so it adopted the results of the vote and decided not to grant TWU accreditation for a law school.

TWU and a prospective student of its law school brought judicial review proceedings on the basis that the LSBC failed to properly account for the freedom of religion under s. 2(a) of the Charter. The BC Supreme Court found that the LSBC had fettered its discretion by adopting the referendum results without further consideration, including the balancing of s. 2(a) charter rights with the equality rights of others, particularly the LGBTQ community. As a result, the court quashed the LSBC’s decision, which in effect restored its original decision to accredit the TWU law school. The BC Court of Appeal confirmed that decision.

The case out of Ontario differed in that the Law Society of Upper Canada (now the Law Society of Ontario) initially denied TWU’s request for accreditation. TWU and its student launched unsuccessful judicial review proceedings that were confirmed by the Court of Appeal for Ontario.

The SCC granted leave to appeal for both cases, which were heard and decided together in concurrent judgments. A majority of the court, with Côté and Brown JJ. dissenting, issued decisions that confirmed the law societies’ decisions not to grant TWU accreditation for a law school. Within the majority, McLachlin C.J. and Rowe J. each issued their own separate concurring reasons.

At its most basic, in relation to administrative law principles, the first take-away from Trinity Western 2018 is that the Doré/Loyola framework[4] remains the test for administrative decisions that engage the Charter. This means that administrative decision makers should be given significant deference when balancing Charter rights when deciding matters that are within their jurisdiction and expertise. The first step of the Doré/Loyola is for the administrator to consider the balance between Charter values and the statutory objective of the administrative scheme. The second step involves determining whether the decision maker proportionally balanced the relevant Charter protections. The majority rejected the notion that the Doré/Loyola method of analysis was “weak or watered down” in comparison to the Oakes test; on the contrary, they described it as “robust”.

The other four justices agreed that Doré/Loyola remained the leading and applicable case on the matter, but disagreed with the rigour of the analysis under that test. McLachlin C.J. and Rowe J. in their concurring reasons and Côté and Brown JJ. all identified flaws in the Doré/Loyola that they believed needed to be resolved. For example, these four justices all noted that one problem with Doré/Loyola was that it involved a reliance on Charter “values” as opposed to Charter “rights”, noting that “values” do not receive independent protection. Going further, Côté and Brown JJ. openly questioned why judicial review proceedings require an analysis that is separate from that provided under Oakes.

Despite the flaws these justices identified, and the fact that several intervenors asked the court to reconsider the framework of the analysis set out in Doré/Loyola, none of the justices saw fit to reconsider those decisions. Unfortunately, many of the outstanding questions regarding Doré/Loyola – both in these two cases and others – have not been resolved by Trinity Western 2018. Given the majority’s focus on a contextual reasonableness standard

One thing I found interesting was how little all four decisions addressed the precedent of TWU 2001. While all four decisions cited the case, they largely were passing references to passages that each of the justices believed supported their analysis in this case. To me, the majority did not provide a compelling analysis or explanation as to why it was not bound by TWU 2001.

At most, McLachlin C.J. in her separate set of reasons attempted to distinguish the present cases from TWU 2001 by saying the former case was about a concern that teachers trained at TWU would bring discrimination into the classroom while in the latter case the LSBC had not impugned the competence of potential law school graduates. Rather, she wrote that the present cases were about the law societies upholding their own mandate to avoid condoning or appearing to condone discrimination. She also noted that each case involved different state regulators weighing different arguments and considerations and that the LSBC operated under a unique statutory requirement.

I am certain that this is particularly compelling reasoning and doubt some of the underlying premises about the nature of both cases. There was certainly concern prior to this decision as to whether or not TWU graduates would bring discrimination into the courtroom. If the case is distinguishable, I would expect it to be on the latter reason suggested by McLachlin C.J. However, I do not believe that there was as thorough an explanation or analysis distinguishing the statutory and regulatory schemes that would more fully support distinguishing TWU 2001.

That said, of the majority, overall I found McLachlin C.J.’s reasons to be much more compelling, as to me it was more accurate description of the overall circumstances. Unlike the majority, McLachlin C.J. fully acknowledged the importance of the rights issues to all of the parties with an interest in the outcome of this decision. She recognized that either way, one community was going to suffer a serious infringement of their Charter rights, and took pains to explain why the infringement of the rights of the unsuccessful party (i.e. the religious rights of TWU and its supporters) was justifiable in a free and democratic society.

Returning focus to more strictly administrative law principles, I note that the key difference between the majority and the dissent did not so much relate to the balancing of interests between different rights (although that was still a consideration) as it related to the law societies’ statutory mandate. Côté and Brown JJ. found that provisions of the law societies’ governing legislation.

In particular, they concluded that the legislation and regulatory scheme limited the law societies to governing its members, as well as law students and applicants, and did not permit them to regulate the law schools themselves. More specifically, the purpose of its authority to approve a law school is to ensure that individual applicants for membership in the societies were fit for licencing. As there were no concerns regarding the fitness of prospective TWU graduates to practice law, the only reasonable decision would have been to approve TWU’s proposed school.

The other justices did not read the governing legislation so narrowly and concluded that the law societies’ public interest mandate gave it the authority to take the Community Covenant into consideration when deciding whether to exercise its discretion to approve TWU’s application.

I did find Trinity Western 2018 to be an interesting contrast to the case I last wrote about in my previous article for Slaw, Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26 (“Highwood”). In Highwood, the SCC confirmed that religious organizations could set rules governing their own members within the confines of their own organization. Trinity Western 2018 does nothing to change that proposition. However, in Trinity Western 2018 the SCC let it be known that a religious organization’s ability to do so can be constrained once it crosses over into the public sphere and engages a much broader public interest.

On a closing note, on August 14, 2018 CTV News reported that the TWU Board of Governors had passed a motion earlier in the week declaring that the Community Covenant was “no longer mandatory” as of the coming academic year.[5] The story did not indicate whether TWU would resume its plans to open a law school.

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[1] Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 and Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33. While there are differences between the two decisions, overall the split of the court was the same in both cases and the reasoning and analysis is largely similar, so this article will primarily focus on the wording set out in the appeal from British Columbia.

[2] It might also be significant for being one of the last SCC cases to name the “Law Society of Upper Canada” as a party, or at the very least a Trivial Pursuit question. It is also significant for being McLachlin C.J.’s last decision as a SCC judge.

[3] For a Slaw perspective with greater focus on the rights issue, see the August 9, 2018 article, Let’s Be Clear: The Case for Explicitly Banning Discriminatory Law Schools.

[4] Doré v. Barreau du Québec, 2012 SCC 12 and Loyola High School v. Quebec (Attorney General), 2015 SCC 12

[5] https://www.ctvnews.ca/canada/b-c-christian-university-drops-sex-covenant-criticized-as-discriminatory-1.4052654

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