The other shoe has dropped.
On December 10, the B.C. Supreme Court released its decision on whether or not Trinity Western University law students could be admitted to the B.C. bar to practice law.
You will recall that in April 2014 the Law Society of B.C. (LSBC) initially approved the TWU law school. Then not long after the members of LSBC (i.e. lawyers in B.C.) forced a referendum and overturned the decision of our benchers (elected officials in LSBC). The controversy was over the nature of the covenant that all TWU students have to sign, specifically the clause that limits sexual relations to those between a married man and woman. For many of B.C. lawyers, it was a proud day when we felt we righted wrongs.
Not long after, TWU sued LSBC. Yesterday, a judge determined that TWU law students had a right to practice law in B.C. As important as knowing the result is knowing the reason the result was reached, so I will attempt to distil 45 pages of reasons for judgment into 500 words. Be forewarned, it will be a simplistic analysis of the case.
Critical information to know about the reasons for Mr. Justice Hinkson’s judgment is the actions that took place just before the two referendums in 2014. Just prior to the first referendum, LSBC sent out a Notice to the Profession. This Notice was sent to all lawyers in B.C. The Notice was a letter penned by Michael Mulligan, Q.C. It advocated for lawyers to direct LSBC to reverse their decision approving TWU law school.
TWU also asked to send out a letter to all lawyers in B.C. LSBC, for some reason, declined to agree to this request, but posted the letter on its website.
Prior to the first referendum, there was a half-day of speeches by members of the bar. Lawyers were not required to attend these speeches prior to voting. Lawyers voted 3,210 to 968 to direct the Law Society to declare that TWU was not an approved faculty of law.
When the Law Society benchers met following this referendum, they rejected the direction of the first referendum, but agreed that they would be bound by the results of a second referendum, provided that at least one-third of all lawyers in B.C. voted and the motion passed by at least two-third's of that vote.
The vote took place by mail in ballot throughout October 2014 and the direction to declare TWU not an approved faculty of law won; 5,951 lawyers voted in favour of the motion, 2088 lawyers voted against the motion.
Ultimately, LSBC adopted the motion without further discussion or debate.
Mr. Justice Hinkson’s reasons for judgment are entirely based in administrative law. This is the law of fairness in reaching decisions. In Canada, we live in a wonderful web of regulatory regimes. In almost every aspect of your public life, you have likely touched up against these regimes.
For example, if you’ve bought a condo, you will deal with a strata council. They are bound by the Strata Property Act and are bound to make decisions in accordance with this legislation. Alternatively, if you rent, your relationship with your landlord is governed by the Residential Tenancy Act. If something goes wrong in that relationship, you deal with the Residential Tenancy Board.
There are a myriad of other laws and boards that you deal with for your employment, your human rights, your bank and your health care to name a few.
Each of these boards and bodies have decision makers and processes for resolving disputes. What these decision makers can make decisions about is set out in their legislation—these are called jurisdictional questions. In order to have their decisions stand, the decision makers cannot get their jurisdiction wrong.
Another issue in administrative law is the manner in which a decision gets made. Sometimes it will be fair to have written submissions, sometimes an oral hearing will be required; sometimes it is necessary for the decision maker to issue written reasons for the decision. The more important the decision at stake, the more serious the process must be to allow for both sides to be heard (an oral hearing with cross-examination and written reasons is generally considered the height of fairness).
In this case, TWU argued LSBC did not have the jurisdiction to make the decision that they were not an approved faculty of law on the basis of their covenant. Essentially, the argument was that whether or not TWU has a covenant is none of the LSBC’s business because it does not affect the academic integrity of the institution. Mr. Justice Hinkson did not agree with this argument and found that LSBC had the power to make the decision taking into consideration the covenant.
The issue that Mr. Justice Hinkson had with LSBC was the manner in which the ultimate decision came about. He determined that because the decision affects potential graduates rights to practice their profession and their religion, the question of whether or not to approve TWU was a serious decision and required a lot of fairness.
Mr. Justice Hinkson found that TWU did not get a fair chance to present its case. One thing that he pointed out was that while Mulligan’s letter went out to everyone, TWU’s letter was only posted on the website making it less likely that TWUs case was reviewed by B.C. lawyers.
The other major issue that Mr. Justice Hinkson found with the manner in which the ultimate decision was made was that there was no clear balancing of the Charter issues at stake. LSBC had the opportunity to balance and consider all issues at stake when they made their first decision to approve the law school. After that, LSBC delegated their authority to the lawyers of the province.
Mr. Justice Hinkson found that there was no evidence to show that B.C. lawyers carefully considered, weighed, and balanced the competing Charter interests at stake. Once their votes were in, in October, LSBC without further discussion enacted the will of the majority. Mr. Justice Hinkson could not reconcile LSBC’s ultimate about-face in October with having carefully considered all interests at stake again and reaching a new conclusion. He determined that the about-face was not a result of carefully considering the interests at stake again, but simply letting the unelected masses dictate the outcome.
Mr. Justice Hinkson explains that it is the job of governing authorities to take the considerations of minorities into account and protect and balance their rights against the rights of the majority. If we didn’t have this concept in our law and government, the Donald Trumps of the world would rule. So, in allowing the B.C. lawyers to make the decision on behalf of LSBC was not a proper delegation of LSBC discretionary decision-making powers.
As a result Mr. Justice Hinkson quashed the decision of October 2014 and re-enacted the decision of April 2014 made by LSBC benchers. The proper procedure for fairness had been taken when they made this decision. He did not weigh in on the competing Charter interests at stake.
For many lawyers in B.C., this is a very frustrating result. There was a lot of informal discussion about the referendum in October; however, because TWU was not in a position to present its case and there is no record of all the Facebook posts, emails, and discussions that occurred between lawyers, which show that many B.C. lawyers gave a lot of thought to the competing Charter interests, it cannot count.
Mostly, however, in April there was a deep frustration amongst lawyers with the benchers’ decision; the benchers had the opportunity to come to a different conclusion as the benchers in Ontario did. Had they done so, the fiasco of the double referendum would never have occurred.
Though TWU was successful in its lawsuit, at the end of the day, Mr. Justice Hinkson’s judgment—rather than being a comment on whether TWU should be an approved faculty of law—is instead a comment on how our Law Society governed itself when it made a decision that the majority of its members could not get behind.
Laurel Dietz practices family law and criminal defence with Dogwood Law Corporation in Victoria, B.C. Reasonable Doubt appears on Straight.com on Fridays. She can be followed on Twitter at twitter.com/UnbundledLawyer. You can send your questions for the column to its writers at email@example.com.