Refusal to Accredit Trinity Western Law School Upheld by Supreme Court

In January of 2014, the president of Trinity Western University (“TWU”) released a celebratory letter advising that all major hurdles for accreditation of a proposed law school had been met, despite objections to the university's community covenant, which provided for the discipline or dismissal of students, staff or faculty who engaged in any intimate activity, except between a man and a woman, who were married.

As the recent decision of the Supreme Court of Canada reveals, TWU's confidence was premature, but it stemmed in large part from the earlier 2001 Supreme Court of Canada decision which overturned a refusal by the British Columbia College of Teachers to accredit a proposed teacher training program at the university as a result of the discriminatory effects of the community covenant.

The 2001 SCC decision [Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31, 39 C.H.R.R. D/357] rested largely on an interpretation of the Teaching Profession Act and the authority it delegated to the British Columbia College of Teachers. The SCC concluded that this act only permitted considerations relating to the effect of accrediting TWU on the conduct of future graduates from the program. On this narrow analysis, not surprisingly, the Court found there was no evidence that graduates from a university with discriminatory policies would, themselves, act in a discriminatory fashion when they became teachers.

The British Columbia College of Teachers was not permitted to consider the public interest implications of granting approval to an institution with discriminatory policies.

In obiter, the SCC suggested that TWU was not subject to the then Human Rights Act, on the basis of s. 19 (now s. 41 of the Human Rights Code). This section exempts religious, and other organizations, which have, as their primary purpose, the promotion of the interests and welfare of an identifiable group or class of persons characterized by, amongst other things, “a common religion”.

These comments have resulted in repeated claims by TWU that the covenant did not breach the Human Rights Code.

Trinity Western University was created by provincial statute: The Trinity Western University Act, S.B.C. 1969, c. 44. Section 3(2) of this act sets out the purpose of the university, in this way: “The objects of the University shall be to provide for young people of any race, colour, or creed university education in the arts and sciences with an underlying philosophy and viewpoint that is Christian”.

As the legislatively defined purpose of the university is not to promote the interests of people with a common religion, but rather to provide a university education for young people of any race, colour or creed, with an education with a particular philosophy and viewpoint, a more careful analysis of s. 41 of the Human Rights Code may not actually afford TWU any exemption.

The recent Supreme Court of Canada decision, upholding the British Columbia [Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, CHRR Doc. 18-3036] and Ontario Law Society [Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33, CHRR Doc. 18-3037] decisions to deny accreditation for TWU's proposed law school was premised on a more expansive interpretation of the Law Societies' legislative authority. Unlike the British Columbia College of Teachers, the Law Societies were not restricted to considerations with respect to the conduct of theoretical future graduates.

In British Columbia, the object and duties of the Law Society are set out in s. 3 of the Legal Profession Act. It is the object and duty of the Law Society to uphold and protect the public interest in the administration of justice by, amongst other things, preserving and protecting the rights and freedoms of all persons.

While, through the course of the litigation, and public debate, TWU attempted to characterize the Law Society decision to refuse approval for the proposed law school in terms of the anticipated conduct, or religious beliefs, of theoretical future graduates, this mischaracterization was rejected by the Supreme Court of Canada.

On the basis that the Law Societies have a duty to consider matters other than the conduct of future graduates, the decision to deny approval to a university with discriminatory policies was found to be reasonable and in accordance with the Law Societies mandate.

In August 2018, just two months following the SCC decision, TWU announced that it was going to make the discriminatory covenant optional for future students. TWU confirmed, however, that it would remain mandatory for faculty and staff, who will still be subject to discipline or dismissal for engaging in any intimate activity, outside of a heterosexual marriage.

If, as seems likely, TWU tries again to open a law school, they will still face challenges, as long as they maintain their discriminatory policy with respect to faculty and staff.

In order to grant degrees in British Columbia, approval must be obtained from the Minister of Advanced Education. When TWU originally applied to open a law school, the then Minister of Advanced Education commissioned a report on the proposal by a panel of academic experts. The report identified a number of concerns, including the capacity of TWU to attract and retain high caliber faculty in light of the discriminatory covenant. When the Law Society revoked approval for TWU, the then Minister of Advanced Education revoked the provisional approval, which had been granted. As a result, the faculty recruitment and retention issue was not resolved. In the event of any future application for approval to grant degrees, this issue would need to be resolved, to the satisfaction of the Minister of Advanced Education.

Law Societies would then need to determine if granting approval to a university with a discriminatory policy that applies to faculty and staff, would be in the public interest.

One of the cases referenced, in the course of the most recent litigation, by the Ontario Court of Appeal, was Bob Jones University v. United States, 461 U.S. 574 (1983). That United States Supreme Court decision, considered the tax status of Bob Jones University. Bob Jones University had a policy that prohibited interracial dating, on religious grounds. The decision revoked Bob Jones Universities ability to issue tax receipt for donations. Despite the decision, Bob Jones University maintained the ban on interracial dating until the year 2000. TWU's prohibition on same sex intimate activity is the moral equivalent to the Bob Jones University prohibition on interracial dating.

It is difficult to imagine that a university which prohibited faculty and staff from engaging in any intimate activity with anyone of a different race would receive discretionary approval from the Law Society that is obliged to make decisions that are in the public interest. The same analysis ought to apply in the event of a reapplication by TWU to the Law Society.

Michael Mulligan

Michael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria, B.C. He played a leading role in ensuring that the B.C. Law Society refused to accredit a law school whose students, faculty and staff were required to adhere to a discriminatory covenant.


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