Focus On

Legal Profession - Regulation of profession - Law societies and governing bodies - Authority to regulate practice - Practice of law - Admission to practice - Constitutional issues

Thursday, November 24, 2016 @ 7:00 PM  

Appeal by the Law Society of British Columbia from a judicial review judgment in favour of Trinity Western University (TWU) and its representative student. TWU was a private religious educational institution with an evangelical Christian mission. It required attendees to sign a community covenant that, among other things, stated that community members must abstain from sexual intimacy violating the sacredness of marriage between a man and a woman. In 2014, the Law Society held a binding referendum on the issue of whether TWU’s law school should be approved as a recognized faculty of law for the purpose of admission of graduates to the bar. Based on the referendum outcome, the Law Society refused recognition. TWU and a student sought judicial review. The reviewing court found that refusal of approval of a proposed faculty of law on the basis of its admissions policy was directly related to the Law Society’s statutory mandate. The Law Society correctly found that it had jurisdiction to use its discretion to disapprove the academic qualifications of a common law faculty of law in a Canadian university, so long as it followed the appropriate procedures and employed the correct analytical framework. However, the Benchers’ delegation of the issue to members, and consequent acceptance of the outcome of the membership referendum, constituted an impermissible delegation and fettering of their discretion, as it ignored their obligation to consider and apply the proportionate balancing of the competing Charter rights at issue related to same-sex marriage and religious freedoms. The refusal decision was accordingly quashed. The Law Society appealed.

HELD: Appeal dismissed. The reviewing court did not err in concluding that the Law Society’s decision to approve or deny approval to a law faculty could be based on factors beyond the academic education that its graduates would receive, and that the Law Society correctly and reasonably interpreted its jurisdiction. Although the referendum did not constitute an improper sub-delegation of authority, the Law Society’s Benchers were required to balance the objectives of the Legal Profession Act against Charter values, and satisfy themselves that adopting the referendum results was consistent with that balancing duty. As the chambers judge found, in the course of accepting the referendum result, the Benchers failed to undertake the required balancing exercise and thus fettered their discretion in a manner inconsistent with their statutory duties. Although the Benchers’ decision was not entitled to deference, it was capable of being upheld if it represented a reasonable balancing of statutory objectives with Charter values. Having regard to the principle of state neutrality in a diverse and pluralistic society, and recognizing the offensiveness of the covenant’s refusal to accept LGBTQ expressions of sexuality, the adoption of a resolution not to approve TWU’s faculty of law would limit the engaged rights to freedom of religion in a disproportionate way, significantly more than was reasonably necessary to meet the Law Society’s public interest objectives. In light of the severe impact of non-approval on the religious freedoms at stake, and the minimal impact of approval on the access of LGBTQ persons to legal education and the profession, a decision refusing to declare TWU an approved law faculty would be unreasonable.