On July 26, 2016, the Nova Scotia Court of Appeal issued its decision in the matter of Trinity Western University (TWU) and the Nova Scotia Barristers Society (NSBS). The Court of Appeal’s ruling upheld the decision of Justice Campbell in the Court below, in favour of TWU.
Justice Campbell ruled last year that the NSBS’ decision to not recognize law degrees from TWU’s proposed law school - despite that school satisfying the standards of the Federation of Canadian Law Societies - was made without legal authority and was an unjustified infringement of freedom of religion.
The Court of Appeal affirmed Justice Campbell’s conclusion on the former issue – that the NSBS had no legal authority to do what it did. However, the Court of Appeal did not address the issue of whether or not the NSBS unjustifiably infringed TWU’s or its students’ Charter rights or freedoms.
CLF intervened in this matter out of a concern for its implications for the freedom of lawyers and law students to associate on the basis of shared religious beliefs and ethical commitments. In its factum, CLF explained how the NSBS decision violates religious freedom and undermines the public interest in the process. CLF also argued that the NSBS improperly invoked the Charter as justifying its decision, effectively demanding conformity with its interpretation of the Charter from a religious institution which is not subject to the Charter.
Background: NSBS’ resolution and regulation
By way of brief factual background, in 2014 the NSBS passed a Resolution saying that it would not approve TWU’s law school unless TWU excluded law students from its Community Covenant. After that Resolution passed, the NSBS amended its regulation governing what constitutes an approved law degree to say that if the NSBS Council “determines that the university granting the degree unlawfully discriminates in its law school admissions or enrollment policies or requirements on grounds prohibited by either or both the Charter of Rights and Freedoms and the Nova Scotia Human Rights Act”, then the University’s degree would not be a “law degree” in Nova Scotia.
TWU successfully challenged both the Resolution and amended Regulation in the Nova Scotia Supreme Court. The NSBS appealed to the Court of Appeal.
The limits of NSBS’ jurisdiction
The Court of Appeal found that the NSBS did not have authority to pass a Regulation purporting to (retroactively) give itself the authority of a human rights tribunal to determine whether TWU had violated human rights law.
The NSBS determined, as if it were a court or tribunal - but without the procedures of either - that TWU “unlawfully discriminates” based on laws that do not even apply to TWU. The Court found that not only did the NSBS lack the authority to make "freestanding determinations" of whether provincial human rights law had been violated, the process by which it did so “circumvents every step of [the Human Rights Act's] process.”
Even if the NSBS did act within its authority, however, the Court also unanimously concluded that TWU does not unlawfully discriminate, and that it was unreasonable for the NSBS to determine otherwise.
Individual students are "vital stakeholders"
The NSBS acknowledged TWU's graduates would be adequately prepared to article in Nova Scotia and no more likely than anyone else to discriminate in practice. The NSBS' stated concern was with TWU, not its graduates. The Court of Appeal confirmed Justice Campbell's finding that the NSBS' aim was to pressure TWU to change its policy. However, the NSBS' decision affects the would-be TWU graduate who is, as the Court says, "not Trinity Western's alter ego" but a "vital stakeholder in his or her own right."
Derek Ross, CLF's Executive Director and co-counsel in this intervention, comments:
"In its haste to condemn what it characterized as a discriminatory admissions policy at TWU, the NSBS itself circumvented important human rights protections to which TWU and its students are entitled. The Court of Appeal's decision recognizes this, and serves as a reminder that the NSBS must be careful not to penalize individual graduates based on its views about TWU. Doing so would be difficult to justify under its statutory mandate to protect the public interest ‘in the practice of law’ because the TWU graduate, as the Court of Appeal notes, would have the same ability to practice law as the graduate of another school."
Deina Warren, who served as CLF's legal counsel in this intervention, adds:
"While the Court gives room to the NSBS to craft new regulations that would bring some or all aspects of the process for approving law degrees in-house, the scope of any new regulation must be limited to the public interest in the specific context of the practice of law. This makes the NSBS’ stated public interest concerns about diversity too broad. It is also a merely theoretical concern when compared to the real, tangible concerns of the TWU law graduate who is a ‘vital stakeholder’, and should be considered part of the diverse profession the NSBS aspires to support."
TWU lost its appeal in the Ontario Court of Appeal last month and has announced that it will appeal to the Supreme Court of Canada. A decision of the British Columbia Court of Appeal is still pending. CLF intervened in both of those hearings also, and remains committed to defending the fundamental freedoms of religious lawyers and law students as matters progress.
To read the Nova Scotia Court of Appeal’s decision, click here.
To read CLF’s written submissions to the Nova Scotia Court of Appeal, click here.