Trinity Western University v. Law Society of Upper Canada

Trinity Western University v. Law Society of Upper Canada
Collection
Supreme Court Judgments
Date
2018-06-15
Neutral citation
2018 SCC 33
Report
[2018] 2 SCR 453
Case number
37209
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm
On appeal from
Ontario
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33, [2018] 2 S.C.R. 453
Appeal Heard: November 30, December 1, 2017 Judgment Rendered: June 15, 2018 Docket: 37209
Between:
Trinity Western University and Brayden Volkenant
Appellants
and
Law Society of Upper Canada
Respondent
- and -
Attorney General of Ontario, Association for Reformed Political Action (ARPA) Canada, Canadian Civil Liberties Association, Advocates’ Society, International Coalition of Professors of Law, National Coalition of Catholic School Trustees’ Associations, Lawyer’s Rights Watch Canada, Canadian Bar Association, Criminal Lawyers’ Association (Ontario), Christian Legal Fellowship, Canadian Association of University Teachers, Start Proud, OUTlaws, Canadian Council of Christian Charities, United Church of Canada, Law Students’ Society of Ontario, Canadian Conference of Catholic Bishops, Seventh-day Adventist Church in Canada, Evangelical Fellowship of Canada, Christian Higher Education Canada, Lesbians, Gays, Bisexuals and Trans People of the University of Toronto (LGBTOUT), British Columbia Humanist Association, Canadian Secular Alliance, Egale Canada Human Rights Trust, Faith, Fealty & Creed Society, Roman Catholic Archdiocese of Vancouver, Catholic Civil Rights League, Faith and Freedom Alliance and World Sikh Organization of Canada
Interveners
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
Joint Reasons for Judgment: (paras. 1 to 43)
Abella, Moldaver, Karakatsanis, Wagner and Gascon JJ.
Concurring Reasons: (paras. 44 to 47)
McLachlin C.J.
Reasons Concurring in the Result: (paras. 48 to 55)
Rowe J.
Joint Dissenting Reasons: (paras. 56 to 82)
Côté and Brown JJ.
Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33, [2018] 2 S.C.R. 453
Trinity Western University and
Brayden Volkenant Appellants
v.
Law Society of Upper Canada Respondent
and
Attorney General of Ontario,
Association for Reformed Political Action (ARPA) Canada,
Canadian Civil Liberties Association,
Advocates’ Society,
International Coalition of Professors of Law,
National Coalition of Catholic School Trustees’ Associations,
Lawyers’ Rights Watch Canada,
Canadian Bar Association,
Criminal Lawyers’ Association (Ontario),
Christian Legal Fellowship,
Canadian Association of University Teachers,
Start Proud,
OUTlaws,
Canadian Council of Christian Charities,
United Church of Canada,
Law Students’ Society of Ontario,
Canadian Conference of Catholic Bishops,
Seventh‑day Adventist Church in Canada,
Evangelical Fellowship of Canada,
Christian Higher Education Canada,
Lesbians, Gays, Bisexuals and Trans People
of the University of Toronto (LGBTOUT),
British Columbia Humanist Association,
Canadian Secular Alliance,
Egale Canada Human Rights Trust,
Faith, Fealty & Creed Society,
Roman Catholic Archdiocese of Vancouver,
Catholic Civil Rights League,
Faith and Freedom Alliance and
World Sikh Organization of Canada Interveners
Indexed as: Trinity Western University v. Law Society of Upper Canada
2018 SCC 33
File No.: 37209.
2017: November 30, December 1; 2018: June 15.
Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
on appeal from the court of appeal for ontario
Law of professions — Barristers and solicitors — Law society — Approval of law school — Law society denying accreditation to proposed law school with mandatory covenant prohibiting sexual intimacy except between married heterosexual couples — Whether law society entitled under its enabling statute to consider admissions policy in deciding whether to approve proposed law school.
Administrative law — Judicial review — Standard of review — Law society — Administrative decision engaging Charter protections — Law society denying accreditation to proposed law school with mandatory religiously‑based covenant — Application for judicial review challenging decision on basis that it violated religious rights — Whether law society’s decision engages Charter by limiting freedom of religion — If so, whether decision proportionately balanced limitation on freedom of religion with law society’s statutory objectives — Whether law society’s decision reasonable — Application of Doré/Loyola framework — Canadian Charter of Rights and Freedoms, ss. 1 , 2 (a) — Law Society Act, R.S.O. 1990, c. L.8, ss. 4.1, 4.2.
Trinity Western University (“TWU”) is an evangelical Christian postsecondary institution that seeks to open a law school that requires its students and faculty to adhere to a religiously‑based code of conduct, the Community Covenant Agreement (“Covenant”), which prohibits “sexual intimacy that violates the sacredness of marriage between a man and a woman”. The Covenant would prohibit the conduct throughout the three years of law school, even when students are off‑campus in the privacy of their own homes. The Law Society of Upper Canada (“LSUC”) is the regulator of the legal profession in Ontario. The LSUC decided, by resolution of its Benchers, to deny accreditation to TWU’s proposed law school because of its mandatory Covenant. TWU and V, a graduate of TWU’s undergraduate program who would have chosen to attend TWU’s proposed law school, sought judicial review of the LSUC’s decision on the basis that it violated religious rights protected by s. 2 (a) of the Charter . They were unsuccessful in their application for judicial review in the Ontario Divisional Court and in their subsequent appeal to the Court of Appeal.
Held (Côté and Brown JJ. dissenting): The appeal should be dismissed.
Per Abella, Moldaver, Karakatsanis, Wagner and Gascon JJ.: The LSUC’s decision not to accredit TWU’s proposed law school represents a proportionate balance between the limitation on freedom of religion guaranteed by s. 2 (a) of the Charter and the statutory objectives that the LSUC sought to pursue. The LSUC’s decision was therefore reasonable.
It is clear that the LSUC was entitled to consider TWU’s admissions policy to determine whether to accredit the proposed law school. The LSUC’s enabling statute requires the Benchers to consider the overarching objective of protecting the public interest in determining whether a particular law school should be accredited. The LSUC was entitled to conclude that equal access to the legal profession, diversity within the bar, and preventing harm to LGBTQ law students were all within the scope of its duty to uphold the public interest. The LSUC has an overarching interest in protecting the values of equality and human rights in carrying out its functions.
Administrative decisions that engage the Charter are reviewed based on the framework set out in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, and Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613. For the reasons set out in the companion appeal of Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293 (“Law Society of B.C.”), the LSUC’s decision not to accredit TWU’s proposed law school engaged the religious freedom of members of the TWU community. Evangelical members of TWU’s community have a sincere belief that studying in a community defined by religious beliefs contributes to their spiritual development. This belief is supported through the universal adoption of the Covenant, which helps to create an environment in which TWU students can grow spiritually. By interpreting the public interest in a way that precludes the accreditation of TWU’s law school governed by the mandatory Covenant, the LSUC has interfered with these beliefs and practices in a way that is more than trivial or insubstantial. The result is that the religious rights of TWU’s community members were limited, and therefore engaged, by the LSUC’s decision.
Under the Doré/Loyola framework, an administrative decision which engages a Charter right will be reasonable if it reflects a proportionate balancing of the Charter protection with the statutory mandate. The reviewing court must consider whether there were other reasonable possibilities that would give effect to Charter protections more fully in light of the objectives. The reviewing court must also consider how substantial the limitation on the Charter protection was compared to the benefits to the furtherance of the statutory objectives in this context.
In this case, the LSUC only had two options — to accredit, or not accredit, TWU’s proposed law school. Given the LSUC’s mandate, accrediting TWU’s proposed law school would not have advanced the relevant statutory objectives, and therefore was not a reasonable possibility that would give effect to Charter protections more fully in light of the statutory objectives.
The LSUC’s decision also reasonably balanced the severity of the interference with the benefits to the statutory objectives. The LSUC’s decision only interferes with TWU’s ability to operate a law school governed by the mandatory Covenant. This limitation is of minor significance because a mandatory covenant is not absolutely required to study law in a Christian environment in which people follow certain religious rules of conduct, and studying law in an environment infused with the community’s religious beliefs is preferred, not necessary, for prospective TWU law students.
On the other side of the scale, the decision significantly advanced the statutory objectives by ensuring equal access to and diversity in the legal profession and preventing the risk of significant harm to LGBTQ people. The LSUC’s decision means that TWU’s community members cannot impose those religious beliefs on fellow law students, since they have an inequitable impact and can cause significant harm. The LSUC chose an interpretation of the public interest which mandates access to law schools based on merit and diversity, rather than exclusionary religious practices.
Given the significant benefits to the statutory objectives and the minor significance of the limitation on the Charter rights at issue, and given the absence of any reasonable alternative that would reduce the impact on Charter protections while sufficiently furthering those objectives, the decision made by the LSUC represented a proportionate balance. Therefore, the decision was reasonable.
Per McLachlin C.J.: There is agreement with the majority that under its enabling statute the LSUC had jurisdiction to deny accreditation to TWU’s proposed law school. However, there is disagreement with the majority on the framework for reviewing Charter ‑infringing administrative decisions, the severity of the infringement in this case, and the reasons for which the LSUC’s decision is justified, for the reasons set out in the companion appeal of Law Society of B.C.
Per Rowe J.: There is agreement with the majority that the LSUC had the jurisdiction to consider the effect of the mandatory Covenant in deciding not to accredit the proposed law school at TWU. For the reasons set out in the companion appeal of Law Society of B.C., however, this decision did not infringe any of the Charter rights raised by TWU. The decision must consequently be reviewed under the usual principles of judicial review. In this case, the standard of review is reasonableness, as the decision under review falls within the category of cases where deference is presumptively owed to decision‑makers who interpret and apply their home statutes. The decision of the LSUC will command deference if it meets the criteria set out in Dunsmuir. Reasonableness does not always require the decision‑maker to give formal reasons. In this case, the Court must look to the record to assess the reasonableness of the decision.
With regard to process, the record of the Benchers’ deliberations provides an account of the manner in which the decision was reached and the reasons why the Benchers voted to refuse to accredit the proposed law school. With regard to substance, the LSUC only had two options — to accredit, or not accredit, TWU’s proposed law school. In choosing not to accredit, the LSUC’s decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. Therefore, the LSUC’s decision to deny accreditation was reasonable.
Per Côté and Brown JJ. (dissenting): A careful reading of the Law Society Act (“LSA”) and the LSUC’s relevant by‑laws leads to the unavoidable conclusion that the only proper purpose of an LSUC accreditation decision is to ensure that individual applicants are fit for licensing. Because there are no concerns relating to competence or conduct of prospective TWU graduates, the only defensible exercise of the LSUC’s statutory discretion in this case would have been for it to approve TWU’s proposed law school. It follows that the exercise of the LSUC’s statutory discretion to deny accreditation to TWU was taken for an improper purpose, and is therefore invalid.
The LSA limits the scope of the LSUC’s mandate to the regulation of legal practice starting at (but not before) the licensing process. The functions, duties and powers set out by the LSA relate only to the governance of the LSUC itself, to the provision of legal services by lawyers, law firms and lawyers of other jurisdictions, and to the regulation of articled students and licensing applicants. By‑Law 4 made pursuant to s. 62(0.1)4.1 of the LSA, which provides for the making of by‑laws “governing the licensing of persons to practise law in Ontario”, sets requirements for individual licensing, one being that applicants obtain a degree from an accredited law school. The By‑law’s scope cannot be extended beyond the limits of the LSUC’s mandate. The crux of By‑Law 4 is individual licensing; the accreditation of law schools is only incidental to this purpose. Law school accreditation only acts as a proxy for ascertaining whether graduates from that school are presumptively fit for licensing. Also, while s. 62(0.1)23 of the LSA empowers the LSUC to make by‑laws “respecting legal education, including programs of pre‑licensing education or training”, it does not grant the LSUC the power to regulate law schools, including their admission policies. Ensuring equal access to and diversity in the legal profession does not fall within the LSUC’s mandate to ensure competence in the legal profession. The LSUC is mandated to set minimum standards; this statutory objective relates to competence rather than merit.
Moreover, the decision not to accredit TWU’s proposed law school is a profound interference with the TWU community’s freedom of religion. It interferes with that community’s expression of religious belief through the practice of creating and adhering to a biblically grounded covenant. Even were the public interest to be understood broadly, accreditation of TWU’s proposed law school would not be inconsistent with the LSUC’s statutory mandate. In a liberal and pluralist society, the public interest is served, and not undermined, by the accommodation of difference. The unequal access resulting from the Covenant is a function not of condonation of discrimination, but of accommodating religious freedom. Only a decision to accredit TWU’s proposed law school would reflect a proportionate balancing of Charter rights and the statutory objectives which the LSUC sought to pursue.
Cases Cited
By Abella, Moldaver, Karakatsanis, Wagner and Gascon JJ.
Applied: Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293; Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395; Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613; referred to: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551; Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, [2017] 2 S.C.R. 386; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Multani v. Commission scolaire Marguerite‑Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256.
By McLachlin C.J.
Applied: Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293.
By Rowe J.
Applied: Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; referred to: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869; Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3.
By Côté and Brown JJ. (dissenting)
Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293; Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; McKinney v. University of Guelph, [1990] 3 S.C.R. 229.
Statutes and Regulations Cited
By‑Law 4 — Licensing, made under the Law Society Act, R.S.O. 1990, c. L.8, ss. 7, 9(1).
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (a), 15 , 32(1) .
Degree Authorization Act, S.B.C. 2002, c. 24.
Human Rights Code, R.S.O. 1990, c. H.19.
Law Society Act, R.S.O. 1990, c. L.8, ss. 4.1, 4.2, 13(1), 26, 26.1(1), 27(1), 35(1)6, 44(1)6, 60(1), (2), 62.
Trinity Western University Act, S.B.C. 1969, c. 44, s. 3(2).
Authors Cited
Smith, Charles C. “Tuition fee increases and the history of racial exclusion in Canadian legal education”, Ontario Human Rights Commission, 2004 (online: http://www.ohrc.on.ca/en/book/export/html/8976; archived version: https://www.scc-csc.ca/cso-dce/2018SCC-CSC33_1_eng.pdf).
APPEAL from a judgment of the Ontario Court of Appeal (MacPherson, Cronk and Pardu JJ.A.), 2016 ONCA 518, 131 O.R. (3d) 113, 349 O.A.C. 163, 398 D.L.R. (4th) 489, 359 C.R.R. (2d) 41, 4 Admin. L.R. (6th) 73, 35 C.C.E.L. (4th) 26, [2016] O.J. No. 3472 (QL), 2016 CarswellOnt 10465 (WL Can.), affirming a decision of the Divisional Court (Marrocco A.C.J. and Then and Nordheimer JJ.), 2015 ONSC 4250, 126 O.R. (3d) 1, 336 O.A.C. 265, 387 D.L.R. (4th) 149, 337 C.R.R. (2d) 295, 89 Admin. L.R. (5th) 101, [2015] O.J. No. 3492 (QL), 2015 CarswellOnt 10273 (WL Can.). Appeal dismissed, Côté and Brown JJ. dissenting.
Robert W. Staley, Kevin L. Boonstra, Jonathan B. Maryniuk, Kevin G. Sawatsky, Ranjan K. Agarwal and Jessica M. Starck, for the appellants.
Guy J. Pratte, Nadia Effendi and Duncan A. W. Ault, for the respondent.
S. Zachary Green and Josh Hunter, for the intervener the Attorney General of Ontario.
André Schutten and John Sikkema, for the intervener the Association for Reformed Political Action (ARPA) Canada.
Alan D’Silva and Alexandra Urbanski, for the intervener the Canadian Civil Liberties Association.
Chris Paliare, Joanna Radbord and Monique Pongracic‑Speier, for the intervener the Advocates’ Society.
Eugene Meehan, Q.C., and Marie‑France Major, for the intervener the International Coalition of Professors of Law.
Eugene Meehan, Q.C., and Daniel C. Santoro, for the intervener the National Coalition of Catholic School Trustees’ Associations.
Julius H. Grey, Gail Davidson and Audrey Boissonneault, for the intervener Lawyers’ Rights Watch Canada.
Susan Ursel, David Grossman and Olga Redko, for the intervener the Canadian Bar Association.
John Norris and Breese Davies, for the intervener the Criminal Lawyers’ Association (Ontario).
Derek Ross and Deina Warren, for the intervener the Christian Legal Fellowship.
Peter J. Barnacle and Immanuel Lanzaderas, for the intervener the Canadian Association of University Teachers.
Frances Mahon, Marlys Edwardh and Paul Jonathan Saguil, for the interveners Start Proud and OUTlaws.
Barry W. Bussey and Philip A. S. Milley, for the intervener the Canadian Council of Christian Charities.
Tim Gleason and Sean Dewart, for the intervener the United Church of Canada.
Kristine Spence, for the intervener the Law Students’ Society of Ontario.
William J. Sammon and Amanda M. Estabrooks, for the intervener the Canadian Conference of Catholic Bishops.
Gerald Chipeur, Q.C., Jonathan Martin and Grace Mackintosh, for the intervener the Seventh‑day Adventist Church in Canada.
Albertos Polizogopoulos and Kristin Debs, for the interveners the Evangelical Fellowship of Canada and Christian Higher Education Canada.
Angela Chaisson and Marcus McCann, for the intervener Lesbians, Gays, Bisexuals and Trans People of the University of Toronto (LGBTOUT).
Wesley J. McMillan and Kaitlyn Meyer, for the intervener British Columbia Humanist Association.
Tim Dickson and Catherine George, for the intervener the Canadian Secular Alliance.
Adriel Weaver, for the intervener Egale Canada Human Rights Trust.
Michael Sobkin and E. Blake Bromley, for the intervener Faith, Fealty & Creed Society.
Gwendoline Allison and Philip Horgan, for the interveners the Roman Catholic Archdiocese of Vancouver, the Catholic Civil Rights League and the Faith and Freedom Alliance.
Avnish Nanda and Balpreet Singh Boparai, for the intervener the World Sikh Organization of Canada.
The following is the judgment delivered by
Abella, Moldaver, Karakatsanis, Wagner and Gascon JJ. —
I. Overview
[1] Trinity Western University (TWU), an evangelical Christian postsecondary institution, seeks to open a law school that requires its students and faculty to adhere to a religiously based code of conduct prohibiting “sexual intimacy that violates the sacredness of marriage between a man and a woman”.
[2] This appeal concerns the decision of the Law Society of Upper Canada (LSUC), made through a resolution of its Benchers, to deny accreditation to TWU’s proposed law school. TWU and Brayden Volkenant, a graduate of TWU’s undergraduate program who would have chosen to attend TWU’s proposed law school, sought judicial review of the LSUC’s decision on the basis that it violated religious rights protected by s. 2 (a) of the Canadian Charter of Rights and Freedoms . TWU and Mr. Volkenant were unsuccessful in their application for judicial review in the Ontario Divisional Court and in their subsequent appeal to the Court of Appeal for Ontario. They now appeal to this Court.
[3] We would dismiss the appeal. In our respectful view, the LSUC’s decision not to accredit TWU’s proposed law school represents a proportionate balance between the limitation on the Charter right at issue and the statutory objectives the LSUC sought to pursue. The LSUC’s decision was therefore reasonable.
II. Background
[4] This appeal and the companion appeal, Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293 (Law Society of B.C.), arise in part from a common set of facts. The factual background common to both appeals — concerning TWU, its proposed law school, its Community Covenant Agreement, and Mr. Volkenant — is set out in the companion decision of Law Society of B.C., at paras. 4-9 and 11-12.
[5] The LSUC[1] is the regulator of the legal profession in Ontario. The LSUC has the statutory authority under the Law Society Act, R.S.O. 1990, c. L.8 (LSA), to determine who can be licensed to practise law in Ontario, and to set the conditions of such licences (ss. 26.1(1) and 27(1)). In accordance with this statute, the law society has established certain education requirements which must be met before a person can be licensed to practise law in Ontario. One of these requirements is a bachelor of laws or J.D. degree from a Canadian law school accredited by the LSUC, or in the alternative, a certificate of qualification from the National Committee on Accreditation (LSUC By-Law 4 — Licensing, ss. 7 and 9(1)).
[6] In January 2014, TWU asked the LSUC to accredit its proposed faculty of law. This issue proved to be contentious in the legal community due to the mandatory requirement in the Covenant to abstain from sexual intimacy outside marriage, or, even in marriage, in same-sex relationships.
[7] The LSUC received and considered written submissions on the issue from TWU, the profession, and the public, in addition to reports from the Federation of Law Societies of Canada and several legal opinions concerning the LSA, the Charter , and the Human Rights Code, R.S.O. 1990, c. H.19. The accreditation matter was discussed and debated at length at the Benchers’ Convocation on April 10, 2014, where TWU representatives attended as observers, and at Convocation on April 24, 2014, where a TWU representative made oral submissions. At the end of this second meeting, the Benchers voted not to accredit TWU’s law school, by a vote of 28 to 21, with one abstention.
III. Prior Decisions
A. Judicial Review — 2015 ONSC 4250, 126 O.R. (3d) 1 (Marrocco A.C.J. and Then and Nordheimer JJ.)
[8] TWU and Mr. Volkenant sought judicial review of the LSUC’s decision in the Ontario Divisional Court. The court dismissed TWU’s application, finding that the LSUC’s decision demonstrated a proportionate balance of the Charter rights engaged and did not warrant intervention.
[9] The Divisional Court first noted that the LSUC had reasonably interpreted the notion of equal access as a fundamental part of its public interest mandate. Based on the framework set out in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, the Divisional Court concluded that the LSUC’s decision demonstrated a proportionate balance between freedom of religion and the competing equality interests, and was therefore reasonable.
B. Court of Appeal — 2016 ONCA 518, 131 O.R. (3d) 113 (MacPherson J.A., Cronk and Pardu JJ.A. concurring)
[10] The Court of Appeal for Ontario dismissed TWU and Mr. Volkenant’s appeal. Writing for a unanimous panel, MacPherson J.A. accepted that the religious rights of both Mr. Volkenant and TWU were engaged. However, in light of the LSUC’s obligation to govern the legal profession in accordance with the public interest, and its statutory mandate to promote a diverse profession without inequitable barriers, he concluded that the LSUC’s decision represented a proportionate balance between its statutory objectives and the limit on religious freedom in accordance with the Doré framework. MacPherson J.A. noted that TWU’s admissions policy was “deeply discriminatory” (para. 119) to the LGBTQ community, and that the Benchers were entitled to consider whether these inequitable impacts precluded accreditation. He concluded that the Benchers demonstrated a fair engagement with the conflicting rights and that the LSUC’s decision not to accredit TWU’s proposed law school was reasonable.
IV. Analysis
A. Questions on Appeal
[11] At the outset, it is important to identify what the LSUC actually decided when denying accreditation to TWU’s proposed law school. The LSUC did not deny graduates from TWU’s proposed law school admission to the LSUC; rather, the LSUC denied accreditation to TWU’s proposed law school with a mandatory covenant.
[12] In reviewing this decision, we must consider the following issues: whether the LSUC was entitled under its enabling statute to consider TWU’s admissions policies; whether the LSUC’s decision limited a Charter protection; and if so, whether that decision reflected a proportionate balance of the Charter protection and the statutory objectives.
B. The Scope of the LSUC’s Statutory Mandate
[13] The LSUC has the statutory authority to establish requirements for the issuance of a licence to practise law in Ontario. In this context, it has set out a procedure whereby it accredits law schools for the purpose of recognizing degrees that will satisfy one of the requirements for a licence. This appeal requires us to address the scope of the LSUC’s statutory mandate. At issue in this case is the LSUC’s decision not to accredit TWU’s proposed law school as a route of entry to the legal profession in Ontario — a decision falling within the core of the LSUC’s role as the gatekeeper to the profession. A question that arises is whether the LSUC was entitled to consider factors apart from the academic qualifications and competence of individual graduates in making this decision to deny accreditation to TWU’s proposed law school.
[14] In our view, the LSA requires the Benchers to consider the overarching objective of protecting the public interest in determining the requirements for admission to the profession, including whether a particular law school should be accredited.
[15] The LSUC’s functions, and the principles it must apply in carrying out its functions, are partially set out in ss. 4.1 and 4.2 of the LSA:
Function of the Society
4.1 It is a function of the Society to ensure that,
(a) all persons who practise law in Ontario or provide legal services in Ontario meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide; and
(b) the standards of learning, professional competence and professional conduct for the provision of a particular legal service in a particular area of law apply equally to persons who practise law in Ontario and persons who provide legal services in Ontario.
Principles to be applied by the Society
4.2 In carrying out its functions, duties and powers under this Act, the Society shall have regard to the following principles:
1. The Society has a duty to maintain and advance the cause of justice and the rule of law.
2. The Society has a duty to act so as to facilitate access to justice for the people of Ontario.
3. The Society has a duty to protect the public interest.
4. The Society has a duty to act in a timely, open and efficient manner.
5. Standards of learning, professional competence and professional conduct for licensees and restrictions on who may provide particular legal services should be proportionate to the significance of the regulatory objectives sought to be realized.
[16] The LSUC is therefore tasked with, among other things, regulating the legal profession in Ontario, ensuring standards of professionalism and competence among lawyers, and fulfilling its various functions in accordance with its duty to protect the public interest.
[17] Section 4.1 of the LSA establishes that ensuring standards of professional competence and their application to lawyers and paralegals is a function of the LSUC. However, the very language of that provision indicates this to be “a function”, not “the function” or “the only function” of the LSUC. That the LSUC’s mandate is not confined to the function set out in s. 4.1 is confirmed by the language of s. 4.2, which refers to the “functions, duties and powers” of the LSUC. The breadth of the LSUC’s mandate is further confirmed by the nature of the principles in s. 4.2, which task the LSUC with advancing the cause of justice, the rule of law, access to justice, and protection of the public interest.
[18] By the clear terms of s. 4.2 of the LSA, the LSUC must have regard to the principles set out in that section — including its duty to protect the public interest — in carrying out all of its “functions, duties and powers” under the LSA. The LSUC, as a regulator of the self-governing legal profession, is owed deference in its determination as to how these principles can best be furthered in the context of a particular discretionary decision (see Law Society of B.C., at paras. 32 and 34-38).
[19] In this case, the LSUC interpreted its duty to uphold and protect the public interest as precluding the approval of TWU’s proposed law school because the mandatory Covenant effectively imposes inequitable barriers on entry to the school. The LSUC was entitled to be concerned that inequitable barriers on entry to law schools would effectively impose inequitable barriers on entry to the profession and risk decreasing diversity within the bar. Ultimately, the LSUC determined that the approval of TWU’s law school, as proposed, would negatively affect equitable access to and diversity within the legal profession and would harm LGBTQ individuals, which would be inconsistent with the public interest.
[20] In our view, the LSUC was entitled to conclude that equal access to the legal profession, diversity within the bar, and preventing harm to LGBTQ law students were all within the scope of its duty to uphold the public interest in the accreditation context, which necessarily includes upholding a positive public perception of the legal profession.
[21] To begin, it is inimical to the integrity of the legal profession to limit access on the basis of personal characteristics. This is especially so in light of the societal trust enjoyed by the legal profession. As a public actor, the LSUC has an overarching interest in protecting the values of equality and human rights in carrying out its functions (see Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613, at para. 47).
[22] As well, eliminating inequitable barriers to legal training and the profession generally promotes the competence of the bar as a whole. The LSUC is not limited to enforcing minimum standards with respect to the individual competence of the lawyers it licenses; it is also entitled to consider whether accrediting law schools with inequitable admissions policies promotes the competence of the bar as a whole.
[23] The LSUC was also entitled to interpret the public interest as being furthered by promoting a diverse bar. Access to justice is facilitated where clients seeking legal services are able to access a legal profession that is reflective of a diverse population and responsive to its diverse needs. Accordingly, ensuring a diverse legal profession, which is facilitated when there are no inequitable barriers to those seeking to access legal education, furthers access to justice and promotes the public interest.
[24] The LSUC’s determination that it was entitled to promote equal access to and diversity within the bar is supported by the fact that it has consistently done so throughout its history. Since its formation in 1797, the LSUC has had exclusive control over who could join the legal profession in Ontario. The Divisional Court considered the LSUC’s long history and was satisfied that, in carrying out its mandate, the LSUC has “acted to remove obstacles based on considerations, other than ones based on merit, such as religious affiliation, race, and gender” (Div. Ct. reasons, at para. 96). That the LSUC has historically sought to uphold principles of diversity and equal access to the legal profession supports the LSUC’s pursuit of similar objectives in its decision to deny accreditation to TWU’s proposed law school.
[25] The LSUC is also entitled to consider preventing potential harm to the LGBTQ community in making a decision it is otherwise entitled to make, including a decision whether to accredit a new law school for the purposes of lawyer licensing. In the context of its decision whether to accredit TWU’s proposed law school, the LSA’s direction that the LSUC should be concerned with maintaining and advancing the cause of justice in our view permitted the LSUC to consider potential harms to the LGBTQ community as a factor in its decision making.
[26] The LSUC’s consideration of TWU’s admissions policy in deciding whether to accredit its proposed law school does not amount to the LSUC regulating law schools. The LSUC considered that policy in the context of its decision to accredit the law school for the purpose of lawyer licensing in Ontario in exercising its authority as the gatekeeper to the legal profession in that province. The LSUC did not purport to make any other decision governing TWU’s proposed law school or how it should operate.
[27] In our view, it is clear that the LSUC was entitled to consider TWU’s admissions policy to determine whether to accredit the proposed law school. In promoting the public interest and public confidence in the legal profession, the LSUC was required to consider an admissions policy that potentially imposes inequitable barriers to entry and a harmful learning environment. Approving or facilitating these requirements could undermine public confidence in the LSUC’s ability to self-regulate in the public interest. It was therefore within the scope of its mandate under the LSA.
C. Reasonableness Review in the Absence of Formal Reasons
[28] For the same reasons given in Law Society of B.C., there was no requirement on the part of the LSUC to give reasons which provided formal explanation for why the decision to refuse to accredit TWU’s proposed law school amounted to a proportionate balancing of freedom of religion with the statutory objectives of the Law Society Act (paras. 52-54). The speeches the LSUC Benchers made during the Convocations of April 10 and 24, 2014, demonstrate that the Benchers were alive to the question of the balance to be struck between freedom of religion and their statutory duties.
[29] Reasonableness review requires “a respectful attention to the reasons offered or which could be offered in support of a decision” (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 48 (emphasis added); see also Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 11). Reviewing courts “may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome” (Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at para. 52, quoting Newfoundland Nurses, at para. 15). In our view, the Benchers came to a decision that reflected a proportionate balance.
D. Review of the LSUC’s Decision Under the Doré/Loyola Framework
[30] Administrative decisions that engage the Charter are reviewed based on the framework set out in Doré and Loyola. The Doré/Loyola framework is concerned with ensuring that Charter protections are upheld to the fullest extent possible given the statutory objectives within a particular administrative context. In this way, Charter rights are no less robustly protected under an administrative law framework.
[31] Under the precedent established by this Court in Doré and Loyola, the preliminary question is whether the administrative decision engages the Charter by limiting Charter protections — both rights and values (Loyola, at para. 39). If Charter protections are engaged, the question becomes “whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play” (Doré, at para. 57; Loyola, at para. 39).
(1) Whether Freedom of Religion Is Engaged
[32] The first issue is whether, in applying its public interest mandate to the accreditation of TWU’s proposed law school, the LSUC engaged the religious freedom of the TWU community. To demonstrate a limitation of 2(a) of the Charter , a claimant must show first that he or she has a sincere belief or practice that has a nexus with religion and second, that the impugned stat