Finding Harmony: Law Society of British Columbia v Trinity Western University
Check out my case comment in the Dalhousie Journal of Legal Studies! Here, I want to give some acknowledgements and also set out some background for non-law readers.
Acknowledgements
I’d like to thank Professor Margot Young for encouraging me to develop these ideas into an article after a discussion during office hours, and James Barth, a friend from 1L who read through an early draft. Much of the content has changed since those early stages; any errors are my own. I’d also like to thank the editors and reviewers from the Dalhousie Journal of Legal studies. They made this a better paper.
Background
This case is about a discretionary decision made by the Benchers of the Law Society of British Columbia. They decided to not approve a law school that was proposed by Trinity Western University (TWU). This was because of a covenant (a promise) that TWU required students to sign which, among other things, “calls on students to abstain from sexual intimacy outside of opposite sex marriage.”
The decision to not approve the law school was contentious. The British Columbia Civil Liberties Association described the tension: “Board members and staff have struggled with the question of whether TWU, a private religious university, should have an accredited law school in light of TWU’s mandatory community covenant that places burdens and limitations on LGBTQI+ persons that are not placed on heterosexual persons.”
Because the Law Society of British Columbia is created by statute (the Legal Profession Act) and is acting with delegated authority, its decisions are treated as government action and they must comply with the Canadian Charter of Rights and Freedoms (the Charter).
My case comment focuses on how courts review discretionary decisions of the Law Society (or discretionary decisions of any administrative agency) for compliance with the Charter. This is an important question: when a government agency infringes a person’s Charter right, justified by having to balance that right against the agency’s statutorily-mandated interests, how should a court decide whether the government got that decision, that balance, correct? How strictly should our courts review our government’s decision-making?
To be clear about who the actors are here:
- Trinity Western University is a non-governmental entity that proposed a law school while requiring all students to sign the community covenant.
- The Law Society of British Columbia is an administrative body, created by statute, comprising Benchers and Members, which regulates many aspects of the legal profession in British Columbia and that is considered to be part of government for Charter purposes. It was the Law Society who denied TWU the approval for their law school.
- The courts (the BC Supreme Court, the BC Court of Appeal, and the Supreme Court of Canada) had to determine whether the decision of the LSBC Benchers to not approve a law school was an impermissible infringement of a Charter right.
Again, this case comment focuses on what the Supreme Court’s decision in LSBC v TWU tells us about how courts should review the discretionary decisions of administrative decision-makers for compliance with the Charter. There is a recent line of cases from the Supreme Court of Canada that presumably had answered this question already. The Court generally will follow the rules and methods they’ve set out in previous cases unless they prove to be unworkable or if new evidence arises that shows the existing precedent was based on flawed or no-longer-valid premises.
I argue that this dispute between the Law Society and Trinity Western University shows that the framework from Doré and Loyola is not workable, or at least, that it is not doing what the Court says it is doing. I argue that the Court should be reluctant to use the framework of deference and reasonableness set out in Doré and Loyola when the decision-maker (the Law Society of British Columbia) fails to produce explicit written reasons for their decision. I also argue, though, that the Court isn’t actually deferring in situations like this (despite the language that they use) and that the Court obscures the level of scrutiny that it applies to discretionary decisions of agencies like the Law Society of British Columbia.
Also, a bit of background about the Supreme Court of Canada decision itself. This is a nine-member court. In this case, all nine justices participated. The majority (the decision that is considered controlling for future cases) was made up of five justices. Two more justices concurred, each writing individually (they agreed in the result—that the Law Society was right to not approve the law school—but gave different reasoning). Two justices dissented, writing together (they disagreed with the result—they thought the Law Society was wrong in their decision to not approve the law school).
I hope this background puts more of a concrete story in your head for when you read through the case comment.
Notes
1. ↑ Sancho McCann, “Finding Harmony: Law Society of British Columbia v Trinity Western University”, Case Comment, (2019) 28 Dal J Leg Stud 95, commenting on Law Society of British Columbia v Trinity Western University, 2018 SCC 32.
2. ↑ See Doré v Barreau du Québec, 2012 SCC 12; Loyola High School v Quebec (Attorney General), 2015 SCC 12.
3. ↑ See Canada (Attorney General) v Bedford, 2013 SCC 72 (“the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate” at para 42).