LSBC's Rejection of TWU Overturned by BC Supreme Court

Yesterday (December 10, 2015), TWU succeeded in its case against the Law Society of British Columbia (LSBC). Justice Hinkson of the B.C. Supreme Court found that the LSBC decision to reject TWU’s proposed law school was both procedurally unfair and substantively incorrect.

Christian Legal Fellowship (CLF) intervened in the proceedings. CLF submitted that it is not contrary to the public interest for a prospective lawyer to study at a law school that adheres to lawful, if unfashionable, ethical beliefs. By characterizing TWU’s admissions policy as discriminatory and making that the basis for not approving its law school, CLF submitted, the LSBC overlooked TWU’s right as a religious educational institution to promote ethics consistent with its underlying beliefs and teachings in order to maintain its religious identity and ethos. CLF also defended the right of religious students to not be deprived of the opportunity to obtain a professional licence because of their religious beliefs or their association with those who hold and manifest such beliefs.

Justice Hinkson found that the LSBC’s statutory authority to consider the “public interest” is broader than the authority to set standards for competence, meaning the LSBC could take TWU’s Community Covenant into consideration in making its decision. The Divisional Court in Ontario held likewise, whereas Justice Campbell in Nova Scotia did not. While this conclusion would seem to open the door to substantive consideration of Charter issues, the case was ultimately decided on administrative law grounds.

This question of the LSBC’s jurisdiction was decided on a correctness standard, in keeping with TWU v BCCT (2001), but in contrast to the recent Divisional Court ruling in Ontario. The standard of review for determining whether the LSBC complied with its duty of procedural fairness was also correctness, and here the LSBC failed.

The LSBC “fettered its discretion”, thus violating procedural fairness, by allowing itself to be bound by a popular vote of LSBC members against approving TWU, rather than having the LSBC Benchers make that decision independently after due consideration of the relevant legal issues in play. The LSBC also violated TWU’s right to procedural fairness by depriving it of a meaningful opportunity to present its case fully and fairly to those who had the jurisdiction to determine whether the JD degrees of the proposed law school‘s graduates would be recognized by the LSBC.

With respect to the constitutional freedoms implicated by the LSBC’s decision, Justice Hinkson commented, “I am not persuaded that the circumstances or the jurisprudence respecting human rights have so fundamentally shifted the parameters of the debate as to render the decision in TWU v. BCCT other than dispositive of many of the issues in this case.” This contrasts with the Divisional Court of Ontario’s finding that TWU v. BCCT was not binding. Justice Hinkson also disagreed with the Divisional Court of Ontario that TWU v. BCCT could be distinguished based on the facts.

Otherwise, however, the decision gave little attention to the substantive Charter rights and freedoms in issue. Justice Hinkson did at least assert that the LSBC is obligated to exercise its statutory discretion in accordance with the Charter, meaning it must conduct a proper balancing of statutory objectives andCharter implications must be conducted. While the outcome is favourable, there was not a declaration that such a balancing must necessarily result in a decision in TWU’s favour.

CLF expects the substantive Charter issues to be addressed in detail in the appeals in Ontario, Nova Scotia, and possibly B.C. if the LSBC appeals.