For the last three years, the accreditation of the proposed law school at Trinity Western University (“TWU”) has been the focus of proceedings involving the Nova Scotia Barristers’ Society (“NSBS”), the Law Society of Upper Canada (“LSUC”) the Law Society of British Columbia (LSBC), before both the superior and appellate courts of those provinces.
TWU is a private evangelical Christian university. Students at TWU must sign a Community Covenant, based on their faith, which requires them to adhere to certain behavior, including abstaining from “sexual intimacy outside of marriage between a man and a woman.” On December 16, 2013, the Federation of Law Societies of Canada accredited the TWU Law School. On December 17, 2013, the B.C. Government approved the granting of degrees to graduates of the proposed TWU law school. In December 2014 the B.C. Government revoked its approval of the law school following the decisions of the NSBS, LSUC and LSBC not to accredit the TWU proposed law school on the basis that the Community Covenant was discriminatory.
The decisions of all three Law Societies were appealed and the decisions of the superior courts of the three provinces were given in 2015. The Nova Scotia Supreme Court released its decision first on January 28, 2015 overturning the NSBS decision. The Ontario Superior Court of Justice (Divisional Court) followed on July 2, 2015 with a decision that upheld the LSUC decision to deny accreditation and the British Columbia Supreme Court rounded out the year on December 12, 2015 quashing the decision of the LSBC to reject TWU’s proposed school as an approved faculty of law. All of these decisions were appealed.
The appeal courts of Ontario and Nova Scotia recently released their decisions, with the Ontario Court of Appeal upholding the LSUC decision not to approve the TWU proposed Law School on June 29, 2016 in Trinity Western University v The Law Society of Upper Canada and the Nova Scotia Court of Appeal affirming the lower court’s decision that the NSBS did not have the jurisdiction to refuse accreditation on July 26, 2016 in The Nova Scotia Barristers’ Society v Trinity Western University. The British Columbia Court of Appeal heard arguments on June 3, 2016 but has not yet released its decision.
With conflicting decisions in two courts of appeal and another court decision expected soon, this matter is likely headed to the Supreme Court of Canada (“SCC”). Important issues will no doubt be addressed, including freedom of religion of individuals as well as institutions, balancing of equality rights, administrative law issues and whether the Charter even applies to a private university. As well, attention will be paid to how the SCC will deal with its previous decision in 2001 Trinity Western University v British Columbia College of Teachers, which approved TWU’s Faculty of Education, notwithstanding the Community Covenant.