On 29 June 2016, the OCA handed down its decision in Trinity Western University v Law Society of Upper Canada (2016 ONCA 518). Justice MacPherson, with both other judges agreeing, rejected TWU’s appeal, finding the original decision of the LSUC to have been made reasonably. Gavin Magrath presented oral arguments as amicus on behalf of LRWC based on the Factum drafted by Lois Leslie and Gail Davidson. The Court rejected TWU’s submission that the 2001 decision by the Supreme Court of Canada in British Columbia Teachers’ Federation was determinative. The Ontario Court of Appeal found (at 57) that the TWU case involved “different facts, different statutory regime, and a fundamentally different question.” The Court ruled, “I agree with the intervener Lawyers’ Rights Watch Canada that international human rights law, and especially international treaties and other documents that bind Canada, is relevant in assessing the reasonableness of the LSUC’s decision.” (para. 139).
Moving on to the standard of review, the Court cited the decision of the SCC in Dunsmuir as establishing two standards – reasonableness and correctness – and that the reasonableness standard presumptively applies to professional regulatory bodies. The reasonableness standard has been the standard applied to the law societies in respect of disciplinary decisions, and the decision to accredit is also “within the wheelhouse of the expertise of the law society” (at 67). The Court therefore agreed with the Divisional Court that the appropriate standard was reasonableness.
The Court determined that the LSUC’s decision was an infringement on the appellants’ freedom of religion that was non-trivial (at 101). The Court also had “no hesitation saying that TWU’s admission policy… discriminates against the LGBTQ community… contrary to s.15 of the Charter and s.6 of the HRC” (at 115).
While TWU attempted to paint the LSUC’s decision as having been unreasonable in failing to balance those rights in accordance with the Doré principles, the Court disagreed. On the contrary, the Court noted that the Benchers had three legal opinions, 210 public submissions, and extensive submissions with reply by TWU itself, and several of the Benchers’ speeches did explicitly mention a balancing of the rights in question.
Having rejected TWU’s chief argument, the Court concluded that the LSUCs decision was reasonable having regard to four points:
- The LSUC’s role as gatekeeper in the public interest clearly transcends mere competence;
- The LSUC is bound by the Human Rights Code even if TWU is not;
- The LSUC, in determining whether to confer the benefit of accreditation to TWU, must consider whether doing so would meet its statutory mandate to act in the public interest, and the LSUC was entitled to consider whether TWU’s discriminatory policies embodied in the Community Covenant precluded accreditation on this basis; and
- In light of the submissions of LRWC, which were cited with approval by the Court, “international human rights law, and especially international treaties and other documents that bind Canada, is relevant in assessing the reasonableness of the LSUC’s decision.”
In the result the appeal was dismissed with costs to the respondent, if sought.
