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Legal Profession  - Regulation of profession - Law societies and governing bodies - Authority to regulate practice

Thursday, August 18, 2016 @ 8:00 PM  

Appeal by the Nova Scotia Barristers’ Society (Society) from a decision concluding that it overstepped its statutory authority in taking steps to restrict the ability of graduates of Trinity Western University’s (TWU) law school from articling in Nova Scotia. TWU was a private university operating in British Columbia under the aegis of the Evangelical Free Church of Canada. Its founding statute stated that students of TWU would be educated with an underlying philosophy and viewpoint that was Christian. All students and staff were required to adhere to a Community Covenant (Covenant) that, among other things, prohibited sexual intimacy outside the marriage of a man and a woman. TWU’s student body included LGBTQ students and the Covenant prohibited harassment based on sexual orientation. TWU sought to add a law school to its campus, developed a plan, and proposed curriculum that it submitted to the Federation of Canadian Law Societies (Federation) for approval. A Special Advisory Committee established by the Federation concluded in December 2013 that there was no public interest reason for preventing graduates of TWU’s law school from practicing law. The Approval Committee approved the law degree from TWU’s proposed law school. The Society nonetheless chose to conditionally approve the law school’s graduates for enrollment in the Nova Scotia articling program. In April 2014, the Society’s Council resolved that the Covenant was discriminatory and stated that it would not approve the proposed law school at TWU unless TWU either exempted law students from signing the Covenant or amended the Covenant for law students in a way that ceased to discriminate. The Society’s resolution was based on the negative impact the Covenant’s definition of marriage had on LGBTQ individuals, historically subject to discrimination in the Nova Scotia justice system. TWU and Volkenant, a graduate of TWU’s undergraduate program, applied for judicial review of the Society’s decision. Volkenant believed in the Covenant and wanted to be a lawyer. The Society responded with an amendment to its regulatory definition of a law degree to deny the designation to universities engaged in discriminatory admissions or enrolment policies. The judge held that the Society’s resolution and amended regulation were unauthorized by the Legal Professions Act, as it was the Society’s mandate to uphold and protect the public interest in the practice of law, not to oversee the public interest generally. The judge found that the Society’s objective was to regulate the conduct of TWU, not to regulate the practice of law in Nova Scotia. Regulating law schools themselves, whether in B.C. or Nova Scotia, was not within the authority of the Society.

HELD: Appeal dismissed. The amended regulation was ultra vires the enabling legislation of the Society and the resolution, complementary and indivisible from the amended regulation, was unauthorized. The Canadian Charter of Rights and Freedoms and the Nova Scotia Human Rights Act had no application to TWU, a private institution operating outside the province. The resolution unreasonably sought to apply the Charter and Human Rights Act in determining the validity of a law degree. Nothing in the Legal Professions Act made the Society arbiter of constitutional or human rights within the province.