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TWU decision unreasonable, federal government argues

Written by Glenn Kauth Monday, 04 May 2015

 

http://www.canadianlawyermag.com/legalfeeds/2675/twu-decision-unreasonable-federal-government-argues.html?utm_content=bufferbc040&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer

 

While the question of alternative business structures dominated the recent Law Society of Upper Canada bencher elections, there’s another major issue about to take centre stage: the decision to accredit or not Trinity Western University’s planned law school.

Education and regulation of the legal profession are provincial jurisdiction, says Paul Saguil, calling the federal government’s intervention ‘perplexing.’

Ontario’s Divisional Court will hold four days of hearings on TWU’s challenge of the LSUC’s decision not to accredit its law students starting June 1, according to Paul Jonathan Saguil, one of the counsel representing interveners Out on Bay Street and OUTlaws along with Marlys Edwardh, Vanessa Payne, and Frances Mahon of Sack Goldblatt Mitchell LLP.

Their clients are among the interveners that filed factums in the case last week, including the federal attorney general, which is arguing the law society’s decision not to accredit the school was unreasonable.

“The appropriate standard of review of that decision is reasonableness. The Attorney General of Canada (AGC) submits that the decision of the Law Society of Upper Canada (LSUC) was not reasonable. . . . The public interest does not require banning all students from Trinity Western University from becoming members of the Law Society of Upper Canada (the end result of the failure to accredit Trinity’s Law School). This is a disproportionate approach as the LSUC can deal with discriminatory conduct of a member on an individual basis,” writes Christopher Rupar for the federal attorney general, in arguments filed April 30.

A key issue in the debate, of course, has been the Supreme Court of Canada’s 2001 decision in favour of the university in Trinity Western University v. British Columbia College of Teachers. In the federal government’s factum, Rupar suggests the 2001 decision had already dealt with the issue of reconciling competing rights under the Charter of Rights and Freedoms in the context of TWU’s community covenant that’s at the heart of the current case.

“The AGC agrees that the LSUC cannot engage in discriminatory practices. However, it should be noted that in BCCT 2001, there was no suggestion that the British Columbia College of Teachers would have been acting in a discriminatory manner had they initially approved TWU’s school,” writes Rupar.

“Banning all students from Trinity Western University from becoming members of the Law Society of Upper Canada (the ultimate result of the failure to accredit Trinity’s Law School) is a disproportionate answer to the issue of possible future conduct of a member of the Law Society of Upper Canada that may not be in accordance with the professional conduct standards of a member of the Law Society,” he adds.

The factum points out, as the SCC noted in the BCCT case, a regulator can discipline any individual who “who acts in a discriminatory manner. Individual assessments of discriminatory behaviour is a better approach than making assumptions against an entire class of students.”

Arguing in support of the LSUC’s decision against accreditation are OUTlaws and Out on Bay Street.

“The LSUC was not obliged to accredit a law school that effectively blocks access to the legal profession for lesbian, gay, bisexual, transgendered/transsexual and queer (‘LGBTQ’) people,” wrote the lawyers for the two organizations in their factum. “TWU’s Community Covenant creates real and meaningful barriers to the legal profession for LGBTQ persons, who cannot attend TWU without experiencing discrimination through the Covenant’s mandatory character, the fact that signatories to the Covenant are required to report infractions, and the harsh discipline that may be imposed (including suspension and expulsion).”

The lawyers for the two organizations also challenged the notion that the 2001 Supreme Court decision is determinative of the current case.

“The judicial condemnation of discrimination against LGBTQ people across many areas of life is a major evolution on the contemporary understanding of LGBTQ personhood since BCCT,” they wrote.

“The Supreme Court of Canada unanimously held in [Canada (Attorney General)] v. Bedford that its precedents may be re-visited when ‘new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.’ The LSUC was entitled to distinguish BCCT and conduct its balancing exercise in light of both the contemporary understanding and jurisprudential principles that have since been developed regarding the Charter values in play, and the different factual record from that presented to the Supreme Court of Canada in BCCT.”

While the two groups are asking the court to dismiss TWU’s application for judicial review, the federal government said as an intervener, it takes no position on the ultimate outcome.

The case has attracted a number of other interveners, including the Christian Legal Fellowship, the Evangelical Fellowship of Canada, Christian Higher Education Canada, the Justice Centre for Constitutional Freedoms, the Criminal Lawyers’ Association, and The Advocates’ Society.

Noting that education and regulation of the legal profession are matters of provincial jurisdiction, Saguil calls the federal government’s intervention in the case “perplexing.”

“And it’s even more surprising that the federal [attorney general] chose to weigh in directly on the central question here regarding the regulator’s public interest jurisdiction and exercise of discretion, instead of limiting itself to making submissions on the broad applicable principles,” he says.

“Then again, we know that certain members and a number of supporters of the ruling party in Ottawa have taken a keen interest in this case. Maybe that also helps to explain why counsel from the national capital region has taken carriage of the file, when the intervention was first brought by the local [Department of Justice] office.”