Trinity Western University v. British Columbia College of Teachers

Trinity Western University v. British Columbia College of Teachers
Collection
Supreme Court Judgments
Date
2001-05-17
Neutral citation
2001 SCC 31
Report
[2001] 1 SCR 772
Case number
27168
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
British Columbia
Subjects
Administrative law
Notes
SCC Case Information: 27168
Decision Content
Trinity Western University v. College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31
British Columbia College of Teachers Appellant
v.
Trinity Western University and
Donna Gail Lindquist Respondents
and
The Evangelical Fellowship of Canada,
the Ontario Secondary School Teachers’ Federation,
the Canadian Conference of Catholic Bishops,
the British Columbia Civil Liberties Association,
EGALE Canada Inc.,
the Christian Legal Fellowship,
the Seventh-Day Adventist Church in Canada and
the Canadian Civil Liberties Association Interveners
Indexed as: Trinity Western University v. British Columbia College of Teachers
Neutral citation: 2001 SCC 31.
File No.: 27168.
2000: November 9; 2001: May 17.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for british columbia
Administrative law -- Judicial review -- Jurisdiction -- British Columbia College of Teachers -- Private institution with religious affiliations applying to College for permission to assume full responsibility for teacher education program – College denying application – Whether College had jurisdiction to consider discriminatory practices of private institution in dealing with its application – Teaching Profession Act, R.S.B.C. 1996, c. 449, s. 4.
Administrative law -- Judicial review -- Standard of review – British Columbia College of Teachers – Private institution with religious affiliations applying to College for permission to assume full responsibility for teacher education program – College denying application – Whether College’s decision justified – Standard of review applicable to College’s decision -- Manner of resolving potential conflict between religious freedoms and equality rights.
Trinity Western University (“TWU”) is a private institution in B.C., associated with the Evangelical Free Church of Canada. TWU established a teacher training program offering baccalaureate degrees in education upon completion of a five-year course, four years of which were spent at TWU, the fifth year being under the aegis of Simon Fraser University (“SFU”). TWU applied to the B.C. College of Teachers (“BCCT”) for permission to assume full responsibility for the teacher education program. One of the reasons for assuming complete responsibility for the program was TWU’s desire to have the full program reflect its Christian world view. The BCCT refused to approve the application because it was contrary to the public interest for the BCCT to approve a teacher education program offered by a private institution which appears to follow discriminatory practices. The BCCT was concerned that the TWU Community Standards, applicable to all students, faculty and staff, embodied discrimination against homosexuals. Specifically, the concern stemmed from the list of “practices that are biblically condemned”, which encompassed “sexual sins including . . . homosexual behaviour”. TWU community members were asked to sign a document in which they agreed to refrain from such activities. On application for judicial review, the B.C. Supreme Court found that it was not within the BCCT’s jurisdiction to consider whether the program follows discriminatory practices under the public interest component of the Teaching Profession Act and that there was no reasonable foundation to support the BCCT’s decision with regard to discrimination. The court granted an order in the nature of mandamus, allowing approval of the TWU proposed teacher education program for a five-year period subject to a number of conditions. The Court of Appeal found that the BCCT had acted within its jurisdiction, but affirmed the trial judge’s decision on the basis that there was no reasonable foundation for the BCCT’s finding of discrimination.
Held (L’Heureux-Dubé J. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.: The BCCT had jurisdiction to consider discriminatory practices in dealing with the TWU application. The suitability for entrance into the profession of teaching must take into account all features of the education program at TWU and the power to establish standards provided for in s. 4 of the Teaching Profession Act must be interpreted in light of the general purpose of the statute. Public schools are meant to develop civic virtue and responsible citizenship and to educate in an environment free of bias, prejudice and intolerance. It would not be correct, in this context, to limit the scope of s. 4 to a determination of skills and knowledge. The standard of correctness must be applied to the BCCT’s decision to consider discriminatory practices because it was determinative of jurisdiction and beyond the expertise of the members of the BCCT.
The absence of a privative clause, the expertise of the BCCT, the nature of the decision and the statutory context all favour a correctness standard of review on the issue of whether the BCCT’s decision is justified. While this case deals with the discretion of an administrative body to determine the public interest, the BCCT is not the only government actor entrusted with policy development. Furthermore, its expertise does not qualify it to interpret the scope of human rights nor to reconcile competing rights. The Court of Appeal was wrong in applying a lower standard to the findings of the BCCT with regard to the existence of discriminatory practices and whether any such practices create a perception that the BCCT condones this discrimination or create a risk that graduates of TWU will not provide a discrimination-free environment for all public school students. The existence of discriminatory practices is based on the interpretation of the TWU documents and human rights values and principles. This is a question of law that is concerned with human rights and not essentially educational matters.
At the heart of the appeal is how to reconcile the religious freedoms of individuals wishing to attend TWU with the equality concerns of students in B.C.’s public school system, concerns that may be shared by society generally. While TWU is a private institution that is exempted, in part, from the B.C. human rights legislation and to which the Canadian Charter of Rights and Freedoms does not apply, the BCCT was entitled to look to these instruments to determine whether it would be in the public interest to allow public school teachers to be trained at TWU. Any potential conflict between religious freedoms and equality rights should be resolved through the proper delineation of the rights and values involved. Properly defining the scope of the rights avoids a conflict in this case. Neither freedom of religion nor the guarantee against discrimination based on sexual orientation is absolute. The proper place to draw the line is generally between belief and conduct. The freedom to hold beliefs is broader than the freedom to act on them. Absent concrete evidence that training teachers at TWU fosters discrimination in the public schools of B.C., the freedom of individuals to adhere to certain religious beliefs while at TWU should be respected. Acting on those beliefs, however, is a different matter. If a teacher in the public school system engages in discriminatory conduct, that teacher can be subject to disciplinary proceedings before the BCCT. In this way, the scope of the freedom of religion and equality rights that have come into conflict can be circumscribed and thereby reconciled.
Here, by not taking into account the impact of its decision on the right to freedom of religion of the members of TWU, the BCCT did not weigh the various rights involved in its assessment of the alleged discriminatory practices of TWU. Consideration of human rights values in the present circumstances encompasses consideration of the place of private institutions in our society and the reconciling of competing rights and values. Freedom of religion, conscience and association coexist with the right to be free of discrimination based on sexual orientation. Even though the requirement that students and faculty adopt the Community Standards creates differential treatment since it would probably prevent homosexual students and faculty from applying, one must consider the true nature of the undertaking and the context in which this occurs. Many Canadian universities have traditions of religious affiliations. Religious public education rights are enshrined in s. 93 of the Constitution Act, 1867 . Moreover, a religious institution is not considered to breach B.C. human rights legislation where it prefers adherents of its religious constituency. It cannot be reasonably concluded that private institutions are protected but that their graduates are de facto considered unworthy of fully participating in public activities. While homosexuals may be discouraged from attending TWU, a private institution based on particular religious beliefs, they will not be prevented from becoming teachers. Clearly, the restriction on freedom of religion must be justified by evidence that the exercise of this freedom of religion will, in the circumstances of this case, have a detrimental impact on the public school system. There is nothing in the TWU Community Standards, which are limited to prescribing conduct of members while at TWU, that indicates that graduates of TWU will not treat homosexuals fairly and respectfully. The evidence to date is that graduates from the joint TWU-SFU teacher education program have become competent public school teachers, and there is no evidence before this Court of discriminatory conduct. In addition, there is no basis for the inference that the fifth year of the TWU program conducted under the aegis of SFU corrected any attitudes which were the subject of the BCCT’s concerns. On the evidence, the participation of SFU had nothing to do with the apprehended intolerance from its inception to the present. Rather, the cooperation was intended to support a small faculty in its start-up stage.
The order of mandamus was justified because the exercise of discretion by the BCCT was fettered by s. 4 of the Act and because the only actual reason for denial of certification was the consideration of discriminatory practices. In considering the religious precepts of TWU instead of the actual impact of these beliefs on the public school environment, the BCCT acted on the basis of irrelevant considerations. It therefore acted unfairly.
Per L’Heureux-Dubé J. (dissenting): This case is about providing the best possible educational environment for public school students in British Columbia. The Teaching Profession Act confers jurisdiction on the BCCT to consider discriminatory practices in evaluating TWU’s application. The BCCT’s statutory mandate gives it a broad discretion to set standards for the approval of teacher education programs, as well as for their graduates. The presence of discrimination is relevant and within the BCCT’s jurisdiction.
The standard of patent unreasonableness is the appropriate standard of review for the BCCT’s decision. While Pushpanathan’s privative clauses factor does not apply to this case, the other relevant factors all weigh in favour of patent unreasonableness. First, the BCCT has relative expertise in the area of setting standards for admission into the teaching profession. Deference should be accorded to self-governing professional bodies like the BCCT. Second, on the question of the purpose of the Act as a whole and of the particular provision at issue, the BCCT’s decision concerning TWU’s teacher education program goes to the heart of the Teaching Profession Act’s raison d’être and should only be disturbed by judges, who lack the specialized expertise of teachers, if it is patently unreasonable. The BCCT is entrusted with policy development. This policy-making mandate is reflected in the words of s. 4 of the Act. Moreover, the BCCT has wide discretion to review teacher training programs under the Act. Its polycentric decision in this case was made pursuant to s. 21(i) of the Act, which involves the application of vague, open-textured principles, requiring curial deference. Finally, the BCCT’s decision is fact-based, concerning an issue the nature of which implicates the tribunal’s expertise. Determining how TWU’s program may affect its graduates’ preparedness to teach in the public schools is a factual rather than a legal inquiry and requires the specialized expertise of the BCCT’s members, the majority of whom have classroom experience.
The BCCT fulfills the role of gatekeeper to the profession of public school teaching. Statutory interpretation of the BCCT’s “public interest” responsibilities should be purposive and contextual, not nebulous. It is a misconception to characterize the BCCT’s decision as being a balancing or interpretation of human rights values, an exercise that is beyond the tribunal’s expertise. Equality is a central component of the public interest that the BCCT is charged with protecting in the classrooms of the province. The BCCT was required to consider the value of equality in its assessment of the impact TWU’s program will have on the classroom environment. The BCCT was not acting as a human rights tribunal and was not required to consider other Charter or human rights values such as freedom of religion which are not germane to the public interest in ensuring that teachers have the requisites to foster supportive classroom environments in public schools. The BCCT’s inquiry was reasonably limited to its area of educational expertise.
The BCCT’s decision not to accredit a free-standing TWU teacher-training program should be upheld. The BCCT’s conclusion that TWU’s Community Standards embodies a discriminatory practice is not patently unreasonable. Signing the contract makes the student or employee complicit in an overt, but not illegal, act of discrimination against homosexuals and bisexuals. It is not patently unreasonable for the BCCT to treat TWU students’ public expressions of discrimination as potentially affecting the public school communities in which they wish to teach. Although tolerance is also a fundamental value in the Community Standards, the public interest in the public school system requires something more than mere tolerance.
The BCCT was not patently unreasonable in concluding that, without spending a year under the auspices of SFU, TWU graduates, due to their signature of the Community Standards contract, could have a negative impact on the supportive environment required in classrooms. The BCCT could reasonably find that without a fifth year of training outside the supervision of TWU there would be an unacceptable pedagogical cost in terms of reduced exposure of TWU students to diversity and its values. It is reasonable to insist that graduates of accredited teacher training programs be equipped to provide a welcoming classroom environment, one that is as sensitive as possible to the needs of a diverse student body.
The modern role of the teacher has developed into a multi-faceted one, including counselling as well as educative functions. Evidence shows that there is an acute need for improvement in the experiences of homosexual and bisexual students in Canadian classrooms. Without the existence of supportive classroom environments, homosexual and bisexual students will be forced to remain invisible and reluctant to approach their teachers. They will be victims of identity erasure. The students’ perspective must be the paramount concern and, even if there are no overt acts of discrimination by TWU graduates, this vantage point provides ample justification for the BCCT’s decision. The BCCT’s decision is a reasonable proactive measure designed to prevent any potential problems of student, parent, colleague, or staff perception of teachers who have not completed a year of training under the supervision of SFU, but have signed the Community Standards contract. The courts, by trespassing into the field of pedagogy, deal a setback to the BCCT’s efforts to ensure the sensitivity and empathy of its members to all students’ backgrounds and characteristics.
The respondents’ Charter claims should be dismissed. The effect of the BCCT’s decision is to restrict TWU students’ expression. Assuming that TWU’s expression is also fettered, these violations are saved under s. 1 . First, the objective behind the BCCT’s decision to protect the classroom environment in public schools is pressing and substantial. Second, the BCCT’s decision satisfies the proportionality test. The burden placed on expression is rationally connected to the BCCT’s goal of ensuring a welcoming and supportive atmosphere in classrooms. By falling within an acceptable range of solutions, the BCCT’s decision also minimally impairs s. 2 (b). The extent of the violation’s deleterious effects on TWU and its students is more than offset by the salutary gains that will plausibly accrue in classrooms. With respect to s. 2 (d), since no unjustified individual rights violations were found in this case, and since TWU students are not unconstitutionally restrained from exercising their individual rights collectively, the respondent student’s s. 2 (d) claim must also fail.
Assuming without deciding that TWU can advance a s. 2(a) claim, the impugned state action does not offend religious freedom but accommodates it. The BCCT’s decision permits the existence of schools such as TWU which have a religious orientation. There is also no impairment of the respondent student’s s. 2(a) rights. Her assertion of religious freedom should be appraised under s. 15. Based on the guidelines assembled and applied in Law, no violation of the student’s s. 15 equality rights has been established. The distinction and differential treatment resulting from the BCCT’s decision are not based on the student’s religion. There is every indication that the BCCT would be as concerned if a private secular institution were to require a discriminatory practice. Furthermore, a subjective-objective examination of Law’s four contextual factors reveals that the student’s human dignity is not demeaned by the BCCT’s decision to attach consequences to TWU students’ signature of the Community Standards contract.
Cases Cited
By Iacobucci and Bastarache JJ.
Applied: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; referred to: Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; Saumur v. City of Quebec, [1953] 2 S.C.R. 299; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Vriend v. Alberta, [1998] 1 S.C.R. 493; Egan v. Canada, [1995] 2 S.C.R. 513; M. v. H., [1999] 2 S.C.R. 3; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, 2000 SCC 69; P. (D.) v. S. (C.), [1993] 4 S.C.R. 141; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536; Khalil v. Canada (Secretary of State), [1999] 4 F.C. 661; Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742, aff’d [1994] 3 S.C.R. 1100.
By L’Heureux-Dubé J. (dissenting)
Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; R. v. Jones, [1986] 2 S.C.R. 284; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Casson v. British Columbia College of Teachers, [2000] B.C.J. No. 1038 (QL); Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Lindsay v. Manitoba (Motor Transport) (1989), 62 D.L.R. (4th) 615; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; P. (D.) v. S. (C.), [1993] 4 S.C.R. 141; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Bob Jones University v. United States, 461 U.S. 574 (1983); Egan v. Canada, [1995] 2 S.C.R. 513; M. v. H., [1999] 2 S.C.R. 3; Brillinger v. Brockie (2000), 37 C.H.R.R. D/15; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519, 2000 SCC 48; R. v. Oakes, [1986] 1 S.C.R. 103; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Adler v. Ontario, [1996] 3 S.C.R. 609; Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), [1990] 2 S.C.R. 367; Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Corbiere v. Canada (Minister of Indian and Nothern Affairs), [1999] 2 S.C.R. 203; Lovelace v. Ontario, [2000] 1 S.C.R. 950, 2000 SCC 37; Harrison v. University of British Columbia, [1990] 3 S.C.R. 451.
Statutes and Regulations Cited
Alberta Act, R.S.C. 1985, App. II, No. 20, s. 17.
Bylaws of the British Columbia College of Teachers, Bylaw 5 -- Teacher Education Programs Committee.
Canadian Charter of Rights and Freedoms, ss. 1 , 2 , 15 .
Constitution Act, 1867, s. 93 .
Human Rights Act, S.B.C. 1984, c. 22, s. 19.
Human Rights Code, R.S.B.C. 1996, c. 210, s. 41.
Manitoba Act, 1870, R.S.C. 1985, App. II, No. 8, s. 22.
Newfoundland Act, R.S.C. 1985, App. II, No. 32, Terms of Union of Newfoundland with Canada, Term 17.
Saskatchewan Act, R.S.C. 1985, App. II, No. 21, s. 17.
School Act, R.S.B.C. 1996, c. 412, ss. 171(1), 174(1).
School Regulation, B.C. Reg. 265/89, s. 11.
Teaching Profession Act, R.S.B.C. 1996, c. 449, ss. 4, 21(b), (c), (i), 23(1)(d), (e), (f), (l), 24(1) [am. 1997, c. 29, s. 39], (2), 40.
Authors Cited
Canada. Health Canada. The Experiences of Young Gay Men in the Age of HIV: A Review of the Literature. Ottawa: Minister of Supply and Services Canada, 1996.
Eskridge, William N. Jr. Gaylaw: Challenging the Apartheid of the Closet. Cambridge, Mass.: Harvard University Press, 1999.
Fontaine, Janet H. “The Sound of Silence: Public School Response to the Needs of Gay and Lesbian Youth”. In Mary B. Harris, ed., School Experiences of Gay and Lesbian Youth: The Invisible Minority. New York: The Haworth Press, 1997, 101.
Kroll, Ian T., and Lorne B. Warneke. “The Dynamics of Sexual Orientation & Adolescent Suicide: A Comprehensive Review and Developmental Perspective” (May 1995).
Lahey, Kathleen A. Are We “Persons” Yet? Law and Sexuality in Canada. Toronto: University of Toronto Press, 1999.
MacDougall, Bruce. “Silence in the Classroom: Limits on Homosexual Expression and Visibility in Education and the Privileging of Homophobic Religious Ideology” (1998), 61 Sask. L. Rev. 41.
Mathison, Carla. “The Invisible Minority: Preparing Teachers to Meet the Needs of Gay and Lesbian Youth” (1998), 49 Journal of Teacher Education 151.
Nichols, Sharon L. “Gay, Lesbian, and Bisexual Youth: Understanding Diversity and Promoting Tolerance in Schools” (1999), 99 Elementary School Journal 505.
APPEAL from a judgment of the British Columbia Court of Appeal (1998), 59 B.C.L.R. (3d) 241, 116 B.C.A.C. 1, 190 W.A.C. 1, 169 D.L.R. (4th) 234, 58 C.R.R. (2d) 189, [1999] 7 W.W.R. 71, [1998] B.C.J. No. 3029 (QL), dismissing the appellant’s appeal from a judgment of the British Columbia Supreme Court (1997), 41 B.C.L.R. (3d) 158, 2 Admin. L.R. (3d) 12, 47 C.R.R. (2d) 155, [1998] 4 W.W.R. 550, [1997] B.C.J. No. 2076 (QL), granting the respondents’ application for judicial review. Appeal dismissed, L’Heureux‑Dubé J. dissenting.
Thomas R. Berger, Q.C., Gary A. Nelson and Erin F. Berger, for the appellant.
Robert G. Kuhn, Kevin G. Sawatsky and Kevin L. Boonstra, for the respondents.
David M. Brown and Adrian C. Lang, for the intervener the Evangelical Fellowship of Canada.
Susan Ursel and Maurice A. Green, for the intervener the Ontario Secondary School Teachers’ Federation.
William J. Sammon, for the intervener the Canadian Conference of Catholic Bishops.
Timothy J. Delaney and James Gopaulsingh, for the intervener the British Columbia Civil Liberties Association.
Kenneth W. Smith and Pam MacEachern, for the intervener EGALE Canada Inc.
Dallas K. Miller, Q.C., and Corina Dario, for the intervener the Christian Legal Fellowship.
Gerald D. Chipeur and Barbara B. Johnston, for the intervener the Seventh-Day Adventist Church in Canada.
Andrew K. Lokan and Heather E. Bowie, for the intervener the Canadian Civil Liberties Association.
The judgment of McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ. was delivered by
1 Iacobucci and Bastarache JJ. — Trinity Western University (“TWU”) is a private institution located in Langley, British Columbia and incorporated under the laws of British Columbia. It succeeded Trinity Western College in 1985; that junior college was itself the successor of a private society founded in 1962. TWU is associated with the Evangelical Free Church of Canada. It is an accredited member of the Association of Universities and Colleges of Canada and the Council for Christian Colleges and Universities. TWU confers six baccalaureate degrees and offers four masters programs. Donna Lindquist was a third year student at TWU who had planned to attend the Teacher Education Program at TWU in January of 1998.
2 In 1985, TWU established a teacher training program offering baccalaureate degrees in education upon completion of a five-year course, four years of which were spent at TWU, the fifth year being under the aegis of Simon Fraser University. In 1987, TWU applied to B.C.’s Minister of Education for permission to assume full responsibility for the teacher education program. Although there appears to have been approval in principle in Cabinet, the Minister did not act on the request because of the creation in that year of the British Columbia College of Teachers (“BCCT”) which would become the appropriate body to consider the application. TWU applied to the BCCT in January of 1988, but the College was not ready to consider the application. The application was therefore withdrawn and presented again in January of 1995. One of the reasons for assuming complete responsibility for the program was the desire of TWU to have the full program reflect the Christian world view of TWU.
3 The philosophy of TWU is specifically described in a document entitled “Responsibilities of Membership in the Community of Trinity Western University”. It is implemented through the adoption of “Community Standards” which are intended to reflect the preferred lifestyle of persons belonging to the TWU community; they apply both off and on campus and are the object of a statement of acceptance by students, faculty and staff. An extract of the application made in 1995 is instructive:
Trinity Western is a relatively unique Canadian university in that it offers academically responsible education within a distinctive Christian context. Its mission is to equip Christians to serve God and people throughout society. TWU’s educational program, like those in public universities, is based on a particular worldview perspective. At TWU, that worldview is a Christian one. It includes (but is not limited to) a deep respect for integrity and authenticity, responsible stewardship of resources, the sanctity of human life, compassion for the disadvantaged, and justice for all. This provides a framework for the leadership development that is emphasized throughout TWU’s program. Although its program is oriented towards those who profess the Christian faith, the university welcomes anyone who wishes to pursue a liberal arts education and is willing to be part of the Trinity Western community. While maintaining structural ties with its founding denomination, the Evangelical Free Church, the university serves the needs of the whole Christian community. Both the faculty and the student body represent a wide range of denominational backgrounds.
4 The “Community Standards” document that students attending TWU must sign contains the following paragraph, which is at the root of the present controversy:
Refrain from practices that are biblically condemned. These include but are not limited to drunkenness (Eph. 5:18), swearing or use of profane language (Eph. 4:29, 5:4; Jas 3:1-12), harassment (Jn 13:34-35; Rom. 12:9-21; Eph. 4:31), all forms of dishonesty including cheating and stealing (Prov. 12:22; Col. 3:9; Eph. 4:28), abortion (Ex. 20:13; Ps. 139:13-16), involvement in the occult (Acts 19:19; Gal. 5:19), and sexual sins including premarital sex, adultery, homosexual behaviour, and viewing of pornography (I Cor. 6:12-20; Eph. 4:17-24; I Thess. 4:3-8; Rom. 2:26-27; I Tim. 1:9-10). Furthermore married members of the community agree to maintain the sanctity of marriage and to take every positive step possible to avoid divorce. [Emphasis added.]
Faculty and staff are required to sign a “Community Standards” document that contains a similar paragraph, including the prohibition of homosexual behaviour.
5 Following established policies, the BCCT appointed a program approval team (“PAT”) to assess the TWU application. The PAT recommended the approval of the application for accreditation with conditions on March 21, 1996. On April 19, 1996, the Teacher Education Programs Committee (“TEPC”) approved the PAT report but modified some of the conditions. On May 17, 1996, the Council of the BCCT rejected the report and recommendations. The motion was passed on two grounds: TWU did not meet the criteria stated in the BCCT bylaws and policies; and approval would not be in the public interest because of discriminatory practices of the institution. TWU applied for a reconsideration. After obtaining a legal opinion on the issue, the Council confirmed its denial of the application on June 29, 1996. The motion adopted on June 29 gives the following reason for the denial:
That Trinity Western University’s appeal in regard to the College’s denial of its application for approval of a Teacher Education Program be denied because Council still believes the proposed program follows discriminatory practices which are contrary to the public interest and public policy which the College must consider under its mandate as expressed in the Teaching Profession Act.
6 The BCCT gave no written reasons explaining its initial denial of the application or rejection on reconsideration. The May 22, 1996 letter of the Registrar of the BCCT to TWU however refers to discriminatory practices and “specifically the requirement for students to sign a contract of ‘Responsibilities of Membership in the Trinity Western University Community’”. The only other written explanation for denial of the application comes from the Fall 1996 quarterly newsletter of the BCCT, where the whole matter becomes abundantly clear. The BCCT writes:
Both the Canadian Human Rights Act and the B.C. Human Rights Act prohibit discrimination on the ground of sexual orientation. The Charter of Rights and the Human Rights Acts express the values which represent the public interest. Labelling homosexual behaviour as sinful has the effect of excluding persons whose sexual orientation is gay or lesbian. The Council believes and is supported by law in the belief that sexual orientation is no more separable from a person than colour. Persons of homosexual orientation, like persons of colour, are entitled to protection and freedom from discrimination under the law.
7 On application for judicial review of the BCCT decision, Davies J. of the Supreme Court of British Columbia ((1997), 41 B.C.L.R. (3d) 158) found that it was not within the BCCT’s jurisdiction to consider whether the program follows discriminatory practices under the public interest component of the Teaching Profession Act, R.S.B.C. 1996, c. 449. He was of the view that matters of public interest in the Act relate to teaching standards and could not be extended to cover religious beliefs. Davies J. also found that there was no reasonable foundation to support the decision of the BCCT with regard to discrimination. The decision of the Supreme Court of British Columbia was affirmed by a majority of the Court of Appeal ((1998), 59 B.C.L.R. (3d) 241), Rowles J.A. dissenting.
8 The appellant before this Court describes the nature of the appeal in these terms:
This case is really an administrative law case. Did the Council exceed its jurisdiction, when it denied approval to TWU’s five-year B.Ed. program, by taking into account TWU’s discriminatory practices? Was this an extraneous consideration? This is a question of law, and the standard of correctness applies.
If the Council was entitled to consider “discriminatory practices”, was there evidence of such practices and of discriminatory ramifications . . . ? Here the test is whether the decision of the Council was patently unreasonable.
We believe this approach is convenient and will adopt it, except for the determinations of the applicable standards of review.
I. Relevant Constitutional, Statutory and Non-Statutory Provisions
9 Canadian Charter of Rights and Freedoms
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
. . .
(d) freedom of association.
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Teaching Profession Act, R.S.B.C. 1996, c. 449
4 It is the object of the college to establish, having regard to the public interest, standards for the education, professional responsibility and competence of its members, persons who hold certificates of qualification and applicants for membership and, consistent with that object, to encourage the professional interest of its members in those matters.
21 Subject to this Act, the council must govern and administer the affairs of the college and, without limiting that duty, the council may do the following:
. . .
(b) appoint an employee of the college as an evaluator with authority to evaluate and decide whether persons applying for a certificate of qualification or for membership in the college have complied with this Act and the bylaws of the college;
(c) delegate to a committee of the college the authority set out in paragraph (b), either in addition to or in substitution for one or more evaluators appointed under that paragraph;
. . .
(i) approve, for certification purposes, the program of any established faculty of teacher education or school of teacher education.
23 (1) The council may make bylaws consistent with this Act and the School Act as follows:
. . .
(d) respecting the training and qualifications of teachers and establishing standards, policies and procedures with respect to the training and qualifications including, but not limited to, professional, academic and specialist standards, policies and procedures;
(e) respecting the issue of certificates of qualification . . .
(f) respecting the standards of fitness for the admission of persons as members of the college;
. . .
(l) giving effect to and implementing the powers of the council set out in this Act;
24 (1) The registrar of the college must file with the minister a copy of each bylaw made by the council, certified under the seal of the college, within 10 days after it is made.
(2) The Lieutenant Governor in Council may disallow a bylaw respecting the training, qualification or certification of teachers within 60 days after the filing of it under subsection (1).
40 A member may appeal to the Supreme Court any decision, determination or order of the qualifications committee, discipline committee or council that affects the member and, from a decision, determination or order of the Supreme Court, may appeal to the Court of Appeal with leave of a justice of that court.
School Act, R.S.B.C. 1996, c. 412
171(1) The minister must appoint an education advisory council to advise the minister on policy matters respecting education.
. . .
174(1) The Lieutenant Governor in Council may appoint one or more boards of examiners consisting of 2 or more members, and a board of examiners so appointed must include at least one representative of the Ministry of Education, Skills and Training and one person appointed to represent the universities named in the University Act and the Trinity Western University Act.
School Regulation, B.C. Reg. 265/89
11 The Education Advisory Council may advise the minister on overall policies of the education system including, without limitation, the following areas:
(a) curriculum and assessment;
(b) the teaching profession;
(c) system governance;
(d) finance.
Bylaws of the British Columbia College of Teachers, Bylaw 5 – Teacher Education Program Committee
5.C. Approval of Teacher Education Programs
5.C.01 Pursuant to the Teaching Profession Act, the Council of the College may approve for certification purposes the teacher education programs or revision to the programs of the Faculties of Education at universities recognized by statute in British Columbia as degree granting institutions.
5.C.02 The Council shall establish criteria for the approval for certification purposes of teacher education programs.
5.C.03 For existing teacher education programs that meet or are working towards meeting the criteria for approval established under Bylaw 5.C.02, approval may be granted on a continuing basis on the recommendation of the Teacher Education Programs Committee.
5.C.04 The Council may from time to time review the teacher education programs of Faculties of Education approved under Bylaw 5.C.03.
5.C.05 For new teacher education programs offered by institutions recognized by statute in British Columbia as degree granting institutions, approval may be granted on an interim basis for a maximum of five years and will be based on:
(a) the criteria for approval established under Bylaw 5.C.02;
(b) the recommendation of the Teacher Education Programs Committee following a review process.
Policies of the British Columbia College of Teachers
P5.C Approval of Teacher Education Programs
P5.C.01 Criteria for the Approval for Certification Purposes of Teacher Education Programs
. . .
(b) Programs must meet the following criteria:
1.0 Context
1.1 Have an appropriate institutional setting in terms of depth and breadth of personnel, research and other scholarly activity and commitment to teacher educati