Reviewing Regulations: Trinity Western University v. Nova Scotia Barristers’ Society, 2015 NSSC 25

Trinity Western University v. Nova Scotia Barristers’ Society, 2015 NSSC 25 is the first in what is likely to be a long line of cases on TWU’s battle to get a law school up, running and accredited nationwide (see my earlier post here). Campbell J. found for TWU: the Society’s decision to refuse accreditation was ultra vires on conventional administrative law grounds and a violation of the Charter-protected freedom of religion of TWU and its students.

With respect, I doubt that Campbell J.’s ultra vires conclusion is soundly based. In general, Canadian law societies provide by regulation for the recognition of law degrees issued by accredited institutions. With a degree from an accredited institution in hand, a graduate can join the bar of a province, usually after passing a set of exams.

Here, after a debate and the adoption of a resolution condemning TWU’s “community convenant” as discriminatory, the Society adopted a new regulation which refuses to recognize a law degree where “the university granting the degree unlawfully discriminates in its law student admissions or enrollment policies or requirements on grounds prohibited by either or both the Charter of Rights and freedoms or the Nova Scotia Human Rights Act“.

Was this within the Society’s regulatory authority? Campbell J. felt not. It is worth quoting his conclusions at length:

[178]   The Community Covenant, a non-academic policy at a university that is subject to the regulatory regime in British Columbia, is unrelated to, irrelevant to and extraneous to the practice of law in Nova Scotia. The fact that people in Nova Scotia are troubled by it does not make directing a regulation to it any less the regulation of university policy.  If the public interest in the practice of law in Nova Scotia can be interpreted to include issues at universities that grant law degrees but do not affect the quality of their graduates it would justify expansively broad NSBS regulatory involvement. In argument, counsel for the NSBS said that the NSBS just would not use that public interest jurisdiction to intervene in matters that were “incidents”, such as invitations to politically or morally offensive guest speakers or, presumably, to things like the resolution of individual human rights complaints, the hiring and dismissal of teaching staff or the granting of tenure. But it could potentially intervene in dealing with “systemic” issues. Presumably that would mean that a university policy on harassment that was considered weak or ineffective could come under NSBS scrutiny, as could personnel or human resources policies, insufficiently robust affirmative action admission or hiring policies and even policies on who may or may not be invited to speak at the law school. It would permit the NSBS to require universities in other Canadian jurisdictions to comply with Nova Scotia law, even if that law conflicted with the law of their own province…

[180] The outrage, sense of emotional pain, minority stress or hurt feelings that some Nova Scotians experience from knowing that a person trained at a university in British Columbia that does not recognize same sex marriage can still  potentially become a lawyer in Nova Scotia, does not change the fact that what the NSBS is purporting to regulate is a university policy.

This is unconvincing. That the Society’s regulation has an effect on a university policy does not make it ultra vires. In Arcade Amusements v. Montreal, [1985] 1 SCR 368, the Supreme Court mostly dismissed a challenge to municipal by-laws that restricted amusement arcades: the municipality’s goal was to protect children and reduce crime; the incidental effects on the business of the arcades did not justify striking down the by-laws as a colourable attempt to drive the owners out of business.

Here, the Society has a broad power to regulate the legal profession in the public interest. If it believes that the public interest will be harmed by its perceived endorsement of TWU and its primary goal is to maintain public confidence in the Nova Scotian legal profession, it is entitled to adopt a regulation. The incidental effects on TWU do not make the regulation illegitimate. The Society was not “purporting to regulate” TWU; it was regulating the practice of law in Nova Scotia.

Similarly, contra Campbell J. at para. 179, there is no problem with the Society adopting a regulation that refuses to recognize degrees granted by law schools that charge more than a certain annual amount for tuition. The Society could take the view that the public interest in Nova Scotia requires that law students have lower debt loads to enable them to serve the many impecunious litigants unable to afford legal services. That such a regulation would have an effect on university policies does not mean it would be ultra vires: it would remain a legitimate exercise of the Society’s public-interest authority.

Reasonable minds could certainly differ about the balance the Society struck. I think the TWU issue is difficult because it requires regulators to strike a balance between religious and equality rights. But where reasonable minds can differ, a reviewing court cannot intervene to strike a rule or decision down as unreasonable. All that Campbell J.’s parade of horribles indicates is that some exercises of regulatory authority might be unreasonable. More justification is needed, however, to justify striking down an individual regulation as unreasonable.

P.S. I cannot argue, mind you, with the following passage:

[135]   However, it seems that human nature and legal ingenuity create a process of ebb and flow by which rules are simplified, the simplified rules are applied to individual cases justifying an array of exceptions, and in the process interpreted to become complicated again. The Supreme Court of Canada decision in  Dunsmuir v. New Brunswick[52] was intended to be a re-examining of the “foundations of judicial review and the standards of review applicable in various situations” [53] and the beginning of a “simpler test”[54] based on a more principled approach. That simpler test has been explained into becoming a bit more complicated.

This content has been updated on February 5, 2015 at 10:38.