The Power of Perspectives

The Canadian Bar Association

Justin Ling

TWU: Where does the legal battle go next?

July 28 2016 28 July 2016

Another week, another court decision regarding Trinity Western University. The next stop, in all likelihood, is the Supreme Court.

The Christian university, which has fought in recent years to have its law students accredited by the country’s law societies, won a case in the Nova Scotia Court of Appeal. But the decision was not quite so clear-cut.

The Nova Scotia Barristers’ Society had tried to block graduates from the university — which maintains a mandatory abstinence pledge for its gay students, which many call outright homophobia — but the appeal court ruled that, to do so, the society would need a justifiable legal basis. And while one may exist, it does not apply to Nova Scotia.

“Trinity Western’s activity occurred in British Columbia, and was outside the reach of Nova Scotia’s Human Rights Act. As a private university, Trinity Western was not subject to the Charter of Rights,” the justices ruled, according to a summary provided by the Court of Appeal. “Trinity Western did not act ‘unlawfully’ under either enactment.”

As such, the court concluded, the law society overstepped its authority by blocking Trinity Western’s graduates from being accredited.

Ultimately, this case is just the most recent in a string of similar rulings nation-wide.

In Ontario, the Law Society of Upper Canada won its right to deny the graduates professional accreditation both at trial and on appeal, while in British Columbia, the provincial Supreme Court’s decision, siding with Trinity Western, is currently under appeal by the Law Society of British Columbia.

Paul Daly, an assistant professor at the Faculty of Law at the Université de Montréal, specializing in administrative law, says the most recent chapter in the Trinity Western saga will probably be one of the shorter ones.

“The Society might not seek to appeal the decision at all,” he told National.

Ultimately, the Nova Scotia case came down to what is — and what isn’t — in Nova Scotia law.

“The decision turned on a consideration solely of Nova Scotia legislation, which is much narrower than the equivalent provisions in Ontario,” Daly says.

Daly says the court didn’t expressly forbid the law society from barring Trinity Western graduates — they merely said it wasn’t possible under the current set of laws and regulations.

“The court indicated that a redrafted set of regulatory provisions might give the Society jurisdiction to refuse to recognize TWU degrees,” Daly says. And if they choose not to? “The Society may prefer to bide its time rather than pursue matters further at this time.”

Ultimately, this likely won’t be the one case that makes it to the Supreme Court, he concludes. “The narrowness of the Court's decision means there is no guarantee that leave would be granted.”

But that doesn’t mean that the case will stop short of the top court. The Nova Scotia court largely ignored the Charter issues at play, preferring to see the case in a narrower lens.

“The [Nova Scotia] court did not turn its mind at all to the important issue of balancing competing interests,” Daly notes. “By contrast, the BC litigation raises interesting issues of procedural fairness and institutional decision-making whereas the Ontario litigation squarely addressed numerous important issues, including the consideration of Charter values by a regulator.”

Trinity Western, for its part, is convinced that the case will end up before the Supreme Court and seems keen to hang the case on Charter issues. In a press release, they trumpeted one line in particular from Justice Jamie Campbell, who had delivered the university a positive ruling at the first instance of the case.

“Allowing the NSBS’s decision to stand would have a chilling effect on the liberty of conscience and freedom of religion,” Justice Campbell wrote.

The three fundamentally different rulings from across the country certainly indicates that the case is destined for a higher court.

“The Ontario case will, I assume, almost certainly go to the Supreme Court, and I think it is quite likely that the BC case will end up there too,” concludes Daly. “The [Nova Scotia] Society would no doubt be able to intervene in those proceedings, which may be the best use of its time and resources at this point.”

 

 

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