Authors: Khurrum Awan, Nathanial Day
The British Columbia Court of Appeal recently released the latest chapter in the continuing saga of the Trinity Western University (“Trinity Western”) Law School with its judgment in Trinity Western University v Law Society of British Columbia. The Court overturned the Law Society of British Columbia’s (the “LSBC”) resolution denying approval to Trinity Western: a decision which appears to vary in some respects from a judgment of the Ontario Court of Appeal.
The Trinity Western University
Trinity Western is a private University and an educational arm of the Evangelical Christian Church. All students are expected to abide by the terms of the University’s Community Covenant Agreement (the “Community Covenant”), which requires, in part, community members to abstain from “sexual intimacy that violates the sacredness of marriage between a man and woman.”
This aspect of the Community Covenant, and particularly its impact on gay and lesbian students, became the source of controversy when Trinity Western expressed a desire to offer a 3-year law degree program. Law societies in British Columbia, Ontario, and Nova Scotia declined to accredit the law school, leading to administrative and constitutional challenges in all three jurisdictions. In BC, the Law Society of British Columbia initially voted against a motion which would deny accreditation to Trinity Western. After facing some backlash within the legal community, the LSBC passed a motion to hold a referendum within its general membership on the issue of accreditation. After 74% of the membership voted against accreditation, the LSBC reversed its earlier approval of Trinity Western’s law school.
The Judgment of the British Columbia Court of Appeal
On the administrative issue, the British Columbia Court of Appeal noted that the LSBC’s broad statutory objectives included “preserving and protecting the rights and freedoms of all persons.” Therefore, the law society could consider a law school’s admission policy in refusing accreditation. However, pursuant to the Supreme Court of Canada’s judgment in Doré c Québec (Tribunal des professions), administrative decision makers were obligated to balance statutory objectives against any Charter values which were implicated by a particular administrative decision.  By simply deferring to the results of the referendum, the LSBC had impermissibly fettered its discretion and failed to reach a decision based on a weighing of its statutory objectives against Charter values.
On the constitutional issue, the Court of Appeal found that the refusal to accredit Trinity Western’s law school was not a reasonable balancing of the LSBC’s statutory objectives and the Charter rights which were engaged. The detrimental impact of the refusal on Trinity Western’s freedom of religion was severe. Graduates of the law school could not apply to practice law in BC. The refusal had also resulted in a complete bar to the University operating a law school due to the Minister consequently revoking his consent to the operation of the school.
On the other hand, the decision had minimal impact on improving access to law schools and the legal profession for the LGBTQ community. The law school would have offered only 60 out of approximately 2500 seats available in law schools across Canada. Further, the evangelical character of Trinity Western, which by its nature was not particularly accepting of LGBTQ expressions of sexuality, meant that very few LGBTQ students would apply to attend Trinity Western’s law school in any event.
The Court rejected the argument that accrediting the law school would endorse discrimination against LGBTQ individuals. In a diverse and pluralistic society, disparate beliefs were not easily reconcilable. While Trinity Western’s Community Covenant may be deeply offensive and hurtful to the LGBTQ community, there was no Charter right to be free from views that offended an individual’s strongly held beliefs.
The Judgment of the Ontario Court of Appeal
The judgment of the British Columbia Court of Appeal differs from a judgment of the Ontario Court of Appeal that was issued earlier in 2016. In that decision, the Court of Appeal found that the Law Society of Upper Canada’s (“LSUC”) refusal to accredit Trinity Western was reasonable. The LSUC had adequately balanced Trinity Western’s and its students’ freedom of religion against its statutory objective of promoting a legal profession to which entry was based on merit and not on discriminatory classifications. That balancing necessarily involved “the collision of [Trinity Western’s] religious freedom and respect for LGBTQ equality rights.”
The LSUC was found to have reasonably resolved the conflicting rights. Law societies were the gatekeepers to the legal profession, and could scrutinize the admission policies of law schools in serving their role of ensuring equality of admission to the legal profession. Further, the LSUC was subject to the Charter and the Ontario Human Rights Code, and thus obligated to apply the values reflected in those instruments in the exercise of its statutory objectives. Trinity Western’s Community Covenant was “deeply discriminatory” to the LGBTQ community. However, although the refusal of accreditation infringed Trinity’s Western’s freedom of religion and hindered its ability to attract students, it did not prevent Trinity Western from operating a law school.
Looking Ahead: Consideration by the Supreme Court of Canada
An application for leave to appeal the Ontario Court of Appeal’s judgment was filed with the Supreme Court of Canada in September, 2016. Given the evident conflict in the judgments from British Columbia and Ontario, as well as the important rights issues at play, the Supreme Court may well decide to provide its guidance on the issues.
If permission to appeal is granted, an important issue before the Supreme Court is likely to be whether that Court’s prior judgment in Trinity Western University v British Columbia College of Teachers is determinative of some of the issues on appeal. In that case, which also involved a type of Community Covenant that impacted LGBTQ students, the Court found that the BC Teachers’ College had failed to properly balance the Charter rights involved in refusing to certify graduates of Trinity Western’s teacher’s college. Both the BC and Ontario Courts of Appeal relied on general principles from that case, but found that it was ultimately not determinative of the issues before them.
 2016 BCCA 423, 2016 CarswellBC 3008 (WL).
 Ibid at para 13.
 Ibid at para 30.
 Ibid at para 54.
 2012 SCC 12,  1 SCR 395.
 2016 ONCA 518, 398 DLR (4th) 489.
 Ibid at para 113.
 Ibid at para 119.
 2001 SCC 31,  1 SCR 772.