lsbc-v-twu.html.pm

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◊define-meta[page-title]{◊@{Finding Harmony: ◊em{Law Society of British Columbia v Trinity Western University}}}
◊define-meta[short-title]{◊@{Case comment: ◊em{LSBC v TWU}}}
◊define-meta[snippet]{Some background for non-law readers of my case comment on LSBC v TWU.}
◊define-meta[original-date]{2019-06-20}
◊define-meta[edited-date]{2019-11-23}

◊declare-work[#:type "article" #:author-given "Sancho" #:author-family
"McCann" #:title "Finding Harmony: *Law Society of British Columbia v
Trinity Western University*" #:comment-info "Case Comment" #:journal
"Dal J Leg Stud" #:volume "28" #:first-page "95" #:year "2019" #:url
"https://commentary.canlii.org/w/canlii/2019CanLIIDocs2940"
#:id "McCann" #:short-form "McCann"]

◊declare-work[#:type "legal-case" #:title "Law Society of British
Columbia v Trinity Western University" #:citation "2018 SCC 32"
#:short-form "*LSBC v TWU*" #:id "LSBC" #:url
"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17140/index.do"]

Check out my [case
comment](https://commentary.canlii.org/w/canlii/2019CanLIIDocs2940)◊note{◊cite["McCann"
#:terminal ","] commenting on ◊cite["LSBC"]} in the ◊em{Dalhousie
Journal of Legal Studies}! Here, I want to give some acknowledgements
and also set out some background for non-law readers.

◊heading{Acknowledgements}

I'd like to thank Professor Margot Young for encouraging me to develop
these ideas into an article after a discussion during office hours,
and James Barth, a friend from 1L who read through an early
draft. Much of the content has changed since those early stages; any
errors are my own. I'd also like to thank the editors and reviewers
from the Dalhousie Journal of Legal studies. They made this a better
paper.

◊heading{Background}

This case is about a discretionary decision made by the Benchers of
the Law Society of British Columbia. They decided to not approve a law
school that was proposed by Trinity Western University (TWU). This was
because of a covenant (a promise) that TWU required students to sign
which, among other things, "calls on students to abstain from
sexual intimacy outside of opposite sex marriage."

The decision to not approve the law school was contentious. The
[British Columbia Civil Liberties
Association](https://bccla.org/2018/02/twu_message_2018/) described
the tension: "Board members and staff have struggled with the question
of whether TWU, a private religious university, should have an
accredited law school in light of TWU’s mandatory community covenant
that places burdens and limitations on LGBTQI+ persons that are not
placed on heterosexual persons."

Because the Law Society of British Columbia is created by statute (the
◊em{Legal Profession Act}) and is acting with delegated authority, its
decisions are treated as government action and they must comply with
the ◊em{Canadian Charter of Rights and Freedoms} (the ◊em{Charter}).

My case comment focuses on how courts review discretionary decisions
of the Law Society (or discretionary decisions of any administrative
agency) for compliance with the ◊em{Charter}. This is an important
question: when a government agency infringes a person's ◊em{Charter}
right, justified by having to balance that right against the agency's
statutorily-mandated interests, how should a court decide whether the
government got that decision, that balance, correct? How strictly
should our courts review our government's decision-making?

To be clear about who the actors are here:

◊itemize{

◊b{Trinity Western University} is a non-governmental entity that
proposed a law school while requiring all students to sign the
community covenant.

The ◊b{Law Society of British Columbia} is an administrative body,
created by statute, comprising Benchers and Members, which regulates
many aspects of the legal profession in British Columbia and that is
considered to be part of government for ◊em{Charter} purposes. It was
the Law Society who denied TWU the approval for their law school.

◊b{The courts} (the BC Supreme Court, the BC Court of Appeal, and the
Supreme Court of Canada) had to determine whether the decision of the
LSBC Benchers to not approve a law school was an impermissible
infringement of a ◊em{Charter} right.

}

◊declare-work[#:id "dore" #:type "legal-case" #:title "Doré v Barreau
du Québec" #:citation "2012 SCC 12" #:short-form "Doré" #:url
"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7998/index.do"]

◊declare-work[#:id "loyola" #:type "legal-case" #:title "Loyola High
School v Quebec (Attorney General)" #:citation "2015 SCC 12"
#:short-form "Loyola" #:url
"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14703/index.do"]

◊declare-work[#:id "bedford" #:type "legal-case" #:title "Canada
(Attorney General) v Bedford" #:citation "2013 SCC 72" #:short-form
"Bedford" #:url
"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13389/index.do"]

Again, this case comment focuses on what the Supreme Court's decision
in ◊em{LSBC v TWU} tells us about how courts should review the
discretionary decisions of administrative decision-makers for
compliance with the ◊em{Charter}. There is a recent line of cases from
the Supreme Court of Canada that presumably had answered this question
already.◊note{◊see["dore" #:terminal ";"] ◊cite["loyola"]} The Court
generally will follow the rules and methods they've set out in
previous cases unless they prove to be unworkable or if new evidence
arises that shows the existing precedent was based on flawed or
no-longer-valid premises.◊note{◊see["bedford" #:pinpoint "para 42"
#:parenthetical "\"the matter may be revisited if 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\""]}

I argue that this dispute between the Law Society and Trinity Western
University shows that the framework from ◊em{Doré} and ◊em{Loyola} is
not workable, or at least, that it is not doing what the Court says it
is doing. I argue that the Court should be reluctant to use the
framework of deference and reasonableness set out in ◊em{Doré} and
◊em{Loyola} when the decision-maker (the Law Society of British
Columbia) fails to produce explicit written reasons for their
decision. I also argue, though, that the Court ◊em{isn't} actually
deferring in situations like this (despite the language that they use)
and that the Court obscures the level of scrutiny that it applies to
discretionary decisions of agencies like the Law Society of British
Columbia.

Also, a bit of background about the Supreme Court of Canada decision
itself. This is a nine-member court. In this case, all nine justices
participated. The majority (the decision that is considered
controlling for future cases) was made up of five justices. Two more
justices concurred, each writing individually (they agreed in the
result---that the Law Society was right to not approve the law
school---but gave different reasoning). Two justices dissented,
writing together (they disagreed with the result---they thought the
Law Society was wrong in their decision to not approve the law
school).

I hope this background puts more of a concrete story in your head for
when you read through the case comment.