A New Angle on the TWU Saga: Trinity Western University v. The Law Society of British Columbia, 2015 BCSC 2326

The latest decision in Trinity Western University’s battle to have its law school accredited by Canadian law societies comes from British Columbia: Trinity Western University v. The Law Society of British Columbia, 2015 BCSC 2326. While the cases in other jurisdictions (Nova Scotia and Ontario) have considered grand constitutional questions, this one focused on traditional administrative law grounds, in particular procedural fairness and the no-delegation rule.

The decision whether or not to accredit a law school in B.C. is ultimately a matter for the Law Society’s Benchers, a group elected by the Society’s general membership. The Benchers’ discretionary power is essentially negative in character. Once a law school is approved by the Federation of Law Societies of Canada (as TWU’s was), it is treated as approved in B.C. “unless the Benchers adopt a resolution declaring that it was not or had ceased to be approved” (at para. 32).

Initially, the Benchers refused to disapprove TWU’s proposed law school: when asked to adopt a resolution disapproving TWU, they voted against doing so. Pressure mounted within the profession. First, some members of the Law Society requisitioned a Special General Meeting. At the Meeting, those eligible voted overwhelmingly to direct the Benchers to disapprove TWU’s proposed law school.

Subsequently, however, the Benchers refused to give effect to this direction. Instead, they organized a referendum of all the members of the Law Society on the TWU disapproval issue. It is important to underline that the referendum was held pursuant to the Law Society’s rules: that is, the rules expressly provide for the holding of a referendum. The Benchers also adopted a resolution to the effect that the result of the referendum would be approved if two conditions were met: that 1/3 of the members voted; and that 2/3 of the members voted in favour of disapproving TWU’s proposed law school.

74% of the Law Society’s members voted for disapproval, and the Benchers gave effect to this vote 25-1, with 4 abstentions. Hinkson C.J. held that the Benchers had “permitted a non-binding vote of the LSBC membership to supplant their judgment” (at para. 120): “The evidence is clear, both from the wording of the September Motion and from the nearly unanimous vote on the Decision (which was reached without substantive discussion despite the fact that it was a complete reversal of the Benchers’ vote just six months prior), that the Benchers allowed the members to dictate the outcome of the matter”. In Hinkson C.J.’s view, sub-delegation was “an issue of process that subsumes the fettering of discretion and is reviewable on the standard of correctness” (at para. 101).

This conclusion is questionable on the merits and in principle. On the merits, the abstentions and vote against the implementation of the referendum results are evidence that the Benchers did not necessarily consider themselves bound by the plebiscite. I am not so sure the evidence is “clear” that the Benchers acted under dictation.

More broadly, however, it is important to place the referendum procedure in its full context. The Society’s own rules, the validity of which were uncontested, provide for a poll of its members. This has two implications: first, the appropriate standard of review is not correctness but reasonableness, because the holding of a referendum and the implementation of its results involve an interpretation by the Society of its own regulations, a matter on which deference is presumptively appropriate. The question is not whether there was, in Hinkson C.J.’s view, an impermissible sub-delegation, but whether the Benchers acted reasonably in setting the terms of and implementing the referendum. Second, and critically, Hinkson C.J.’s conclusion puts the Benchers in an impossible position: it would be strange in the extreme to hold a referendum pursuant to the Society’s own Rules and then disregard the outcome, especially when the referendum is in direct response to a position the Society has already taken. It seems to me that it is eminently reasonable that a professional association would provide for the consultation of its members and further provide that the results of the consultation would carry great, if not dispositive, weight in the decision-making process. Otherwise, what purpose does the referendum serve?

Hinkson C.J. also held that the Society had violated its duty of fairness to TWU: a standard of correctness applied and “no deference” was to be afforded to the Society (at para. 96). Rejecting the argument that the decision was “quasi-legislative” (at para. 94), he held that TWU had been “deprived of, a meaningful opportunity to present their case fully and fairly…” (at para. 125): “By refusing to allow TWU to present its case to the members of the LSBC on the same footing as the case against it was presented, the LSBC deprived TWU of the procedural fairness to which it was entitled” (at para. 148). In particular, Charter rights were not adequately safeguarded by the decision-making process:

While TWU’s submissions were reviewed and considered by the Benchers prior to their April 11, 2014 decision, posted online, and available to the LSBC membership, I find that the material, while available on its website, was unlikely to have been read by many of the LSBC’s members. I find that it is less likely that as many members of the LSBC read TWU’s submissions as read the letter from the proponent of the SGM Resolution, which was included within the Notice to the Profession inviting members to vote on the Referendum Question, and advocated strongly for the adoption of the SGM Resolution without any mention of freedom of religion…As the respondent had bound itself to accept the referendum results of its members, I am unable to find that the vote of the LSBC’s members or the impugned decision considered, let alone balanced, the two implicated Charter rights (at paras. 150-151).

In these circumstances, it is difficult to accept that “no deference” is owed to the Society. Hinkson C.J. cited Mission Institution v. Khela, 2014 SCC 24 for the proposition that no deference is owed, but in Khela LeBel J. actually noted that a “margin of deference” is appropriate when courts review the application of procedural rights by expert officials. Whatever one’s views on the scope of deference on questions of procedural fairness, it is clear that procedural choices — such as those involved in the complex process followed by the Society — should be given significant weight by reviewing courts. As the point was put in Baker (at para. 27), “important weight must be given to the choice of procedures made by the agency itself and its institutional constraints” (my emphasis).

Otherwise, a body like the Society finds itself in a difficult position, unable to map out in advance a procedure that will take account of all possible twists and turns, and at the mercy of a reviewing judge who takes a different view of the “fairness” of the process. It is not as if the Society could trace every IP address from which its website was consulted back to individual members and satisfy itself that everyone who voted had read all the relevant material. Whether the Society could realistically ensure perfect even-handedness throughout a process in which its members had constitutionally protected rights to express their views seems doubtful to me. At the very least, the starting point here should have been the good faith of the participating lawyers, who were capable of understanding the issues at stake and informing themselves as to the arguments on both sides.

In my view, this is the most interesting TWU decision to date. No doubt the Society will appeal, so I look forward to the Court of Appeal’s treatment of these important issues of substantive and procedural review.