On December 12, 2015, in the matter of Trinity Western University v The Law Society of British Columbia, Chief Justice Hinkson of the British Columbia Supreme Court quashed the decision of the Law Society of British Colombia (“LSBC”) to reject Trinity Western University’s (“TWU”) proposed law school as an approved faculty of law for the purpose of LSBC’s admissions program. The Court overturned the decision of LSBC because the Benchers, the governing body of LSBC, fettered their discretion by agreeing to be bound by a referendum of the LSBC members.
On December 16, 2013, the Federation of Law Societies of Canada accredited the TWU law school, subject to any future resolution by the LSBC Benchers to the contrary. The B.C. Minister of Advanced Education (the “Minister”) approved the granting of degrees to graduates of TWU’s proposed law school on December 17, 2013. Subsequently, the LSBC Benchers held a meeting on April 11, 2014, to vote on a motion declaring that TWU was not an approved faculty of law. This motion was defeated and the President of LSBC announced that LSBC had approved the TWU faculty of law.
Some members of the LSBC objected to the Benchers’ approval of the faculty of law because TWU, a private evangelical Christian university, requires its students and faculty to sign a faith-based Community Covenant to refrain from certain behavior, including “sexual intimacy outside of marriage between a man and a woman.” At a special meeting of members of the LSBC, called by some members of the LSBC, a resolution was passed directing the Benchers to declare that TWU is not an approved faculty of law. In response to that resolution, the Benchers put the question of approval of the TWU faculty of law to a referendum of its members and agreed to be bound by the results. As a result of the referendum, the Benchers reversed their previous decision to approve TWU, thereby prohibiting its graduates from practicing law in B.C. The Minister’s previous decision was also reversed.
Chief Justice Hinkson held that it was procedurally unfair for the LSBC to refuse to “allow TWU to present its case to the members of the LSBC on the same footing as the case against it was presented.” It was also an improper delegation of the Benchers’ authority to the members and an unjust fettering of their discretion to adopt the results of the referendum without considering the competing Charter rights of equality and freedom of religion. The results of the referendum were quashed and the April 11, 2014 decision of the Benchers approving the TWU law school was restored.
The LSBC has applied for leave to appeal the decision of Chief Justice Hinkson to the B.C. Court of Appeal. With appeals also pending in the Nova Scotia Court of Appeal (April 16, 2016) and the Ontario Court of Appeal, and in light of the conflicting decisions in the lower courts, the issue of the accreditation of the TWU law school is likely to reach the Supreme Court of Canada (SCC).
The different approaches of the three lower courts to the 2001 SCC case, Trinity Western University v British Columbia College of Teachers, (TWU v BCCT.), approving TWU’s faculty of education will only likely be settled once the TWU law school cases reach the SCC. The Divisional Court in Ontario distinguished the TWU v BCCT decision finding that it involved “different facts, a different statutory regime and a fundamentally different question” (Trinity Western University v The Law Society of Upper Canada). Justice Campbell of the Nova Scotia Supreme Court found that the TWU v BCCT decision was still relevant because “equality rights have not jumped the queue to now trump religious freedom” (Trinity Western University v Nova Scotia Barristers’ Society). And Chief Justice Hinkson, taking a similar approach as Justice Campbell, was not “persuaded that the circumstances or the jurisprudence respecting human rights have so fundamentally shifted the parameters of the debate as to render the decision in TWU v BCCT other than dispositive of many of the issues in this case.”