The Supreme Court of Canada has handed down judgments in Law Society of British Columbia v Trinity Western University 2018 SCC 32 and Trinity Western University v Law Society of Upper Canada 2018 SCC 33.
Readers will recall that the two Law Societies had declared that they would not license graduates from Trinity Western Law School to practise because the University requires all students to agree when they register to abide by a so-called “community covenant” that, inter alia, prohibits sexual activity outside heterosexual marriage. The two societies concluded that the covenant amounted to discrimination.
The Court of Appeal for Ontario upheld the position of the Law Society of Upper Canada, while the British Columbia Court of Appeal found in favour of Trinity Western, on the grounds that the Law Society of BC had acted unreasonably by infringing the Law School’s right to freedom of religion and that it had imposed its views on a minority “in a manner that is in itself intolerant and illiberal.”
By seven votes to two, the Supreme Court ruled against Trinity Western in both judgments, holding that the decisions of the two societies not to approve TWU’s proposed law school represented a proportionate balance between the limitation on the religious protections under s.2(a) of the Charter of Rights and Freedoms and their statutory objectives. .
As to the Law Society of British Columbia [‘LSBC’], it was entitled under its enabling statute to consider Trinity Western’s admissions policies, apart from the academic qualifications and competence of individual graduates, in determining whether to approve TWU’s proposed law school under Rule 2‑27 of the Law Society Rules. Its enabling statute required the Benchers to consider the overarching objective of upholding and protecting the public interest in the administration of justice in determining the requirements for admission to the profession, including whether or not to approve a particular law school. As the governing body of a self‑regulating profession, its interpretation of how to further its broad public interest mandate was entitled to deference. “The public interest” was a broad concept and what it required would depend on the particular context.
“The LSBC in this case interpreted its duty to uphold and protect the public interest as precluding the approval of TWU’s proposed law school because the requirement that students sign the Covenant as a condition of admission effectively imposes inequitable barriers on entry to the school and ultimately, inequitable barriers on entry to the profession. It was reasonable for the LSBC to conclude that promoting equality by ensuring equal access to the legal profession, supporting diversity within the bar, and preventing harm to LGBTQ law students were valid means to pursue the public interest. The LSBC has an overarching interest in protecting the values of equality and human rights in carrying out its functions. Approving or facilitating inequitable barriers to the profession could undermine public confidence in the LSBC’s ability to regulate in the public interest.”
Similar considerations applied to the decision of the Law Society of Upper Canada.
The university discriminated against those unable to enter into the community covenant. Students not thus discriminated against were admitted and completed their degree courses in good faith, hoping to become lawyers. The quality of the education they received is not impugned.
The Law Societies have discriminated against law graduates of the university, preventing its former students from becoming lawyers unless they take law degrees all over again at a different university.
The graduates probably now wish to be compensated for their wasted years, effort and money, in obtaining degrees that are academically sound enough, but useless, because of the Supreme Court’s upholding of the tit-for-tat reprisals imposed by the Law Societies against the political incorrectness of the university’s admissions policy, the brunt of which tit-for-tat reprisals has fallen upon the graduates, not the university that missold the useless degrees courses to aspiring lawyers.
In the light of the university’s failure in the Supreme Court, advise the disappointed students with useless law degrees. Can they sue the Law Societies or the university?
Should law graduates be vicariously liable for errors in the admissions policies of the universities at which they obtained their degrees?
I think the question falls away because, so far as I’m aware, the Law School hasn’t admitted any students yet because Trinity Western was awaiting the outcome of the litigation before doing so.
Seriously? This was a contrived test case from start to finish? No graduates were discriminated against, on the grounds of their willingness to opt out an aspect of student life that is in other contexts condemned as “campus rape culture”, leading to consent compulsory “consent” lessons?
That is what I deduced from reading the various judgments. It appears to be confirmed by TWU’s own statement on its website:
“Trinity Western finalized its proposal for a School of Law in 2012, after more than 20 years of planning, extensive consultation, and detailed preparation. The B.C. Minister of Advanced Education fully approved our proposal in December 2013, as did both The Law Society of British Columbia and the Federation of Law Societies of Canada, and plans to open the School of Law moved forward.
However, unanticipated and unprecedented opposition arose. The objection concerned not the quality of Trinity Western’s education, but the way in which the TWU Christian community chooses to live, work and study together, sharing traditional Christian values.
In 2014, The B.C. Minister of Advanced Education revoked his approval when the Law Society of B.C. reversed its original decision to accept TWU’s law graduates.” [emphasis added]
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