Prediction: Ontario @LawSocietyLSUC rejection of Trinity Western will be headed to the courts

Leaving aside other issues, the long run significance of Trinity Western law school is that it is a private law school that is seeking accreditation in each of the provinces. As a private law school, it needs consumers for its legal education. To attract consumers it must show that it’s law degree has economic value. To show that it has economic value it must show that its graduates can enter the “lawyer licensing programs” in the various provinces. Generally entry is conditional on having graduated from an “accredited law school”. Hence, Trinity Western is in the process of seeking accreditation in each of the provinces. The results of the accreditation applications so far include:

To its credit, The Law Society of Upper Canada (Ontario) has gone about this process in a public way.

See for example:

and

Decisions from other Law Societies are coming.

The Accreditation Decision – Can the Law Society of Upper Canada use the school’s attitude toward sexual orientation as a basis for denying the Trinity Western Accreditation?

The Toronto Star reported Benchers Barbara Murchie and Harvey Strosberg as saying:

Even some of the 21 benchers who supported accreditation, took advantage of deliberations to say they did so against their own personal beliefs.

“I’ve been forced to conclude that I must vote for accreditation,” said Barbara Murchie. “We’re bound to do so by law.”

“Maybe the covenant is good or bad or ugly, but the covenant is clothed by freedom of religion,” said Harvey Strosberg, who established a gay, lesbian and transgender reception at Osgoode Hall in 1998. “The covenant is not my cup of tea, but it is irrelevant to (our) decision.”

Benchers Murchie and Strosberg emphasize that their decisions are NOT guided by their personal beliefs but are guided by the law.

They are correct in:

1. Making their decision according to the law; and

2. Recognizing that according to the law, they are NOT permitted to consider the attitudes of the law school toward sexual orientation in making their decision.

What is the law?

The Law Society of Upper Canada is an administrative tribunal that is governed by the Law Society Act. Pursuant the Law Society Act that Law Society is entitled to make by-laws that further the objectives of the Act.

The function of the Law Society – S. 4 of the Law Society Act says:

4.1  It is a function of the Society to ensure that,

(a) all persons who practise law in Ontario or provide legal services in Ontario meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide; and

(b) the standards of learning, professional competence and professional conduct for the provision of a particular legal service in a particular area of law apply equally to persons who practise law in Ontario and persons who provide legal services in Ontario. 2006, c. 21, Sched. C, s. 7.

Note the focus is on the competence of the law school graduate (person) and NOT on the law school itself. Therefore, in approving a law school, the Law Society must focus on whether the graduates “meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide”.

Law Society accreditation is a sufficient but not a necessary condition for entry into Ontario’s lawyer licensing process.  According to By-law 4:

In order to enter Ontario’s lawyer licensing process one must graduate from either a law  school “accredited” by the Law Society (which Trinity Western is not)  or have a certificate of qualification from the National Committee on Accreditation (NCA). It is obvious that Trinity Western graduates wishing to be admitted to begin their careers as Ontario lawyers will have to apply to the NCA to get their “Certificate of Qualification”. It will be fascinating to see how the NCA treats Trinity Western graduates. What additional courses might they be required to undertake? Should they be required to pass the four basic challenge exams? Should they be required to take special “anti-discrimination” classes? That remains to be seen but …

The Law Society’s failure to accredit Trinity Western will likely be subject to a judicial review application

As Benchers Murchie and Strosberg (and presumably others) imply:

1. The Law Society’s accreditation decision must be based on how the law school education bears on the competence of the graduate to practise law; and

2. The Law Society’s accreditation decision cannot be based on how the Benchers view the values and cultures of the law school.

In basing it’s accreditation decision on “the Bencher’s view of the values and culture of Trinity Western”, the Law Society is guilty of the very kind of discrimination that it purports to reject. Furthermore, by focusing on the “values of Trinity Western”, the Law Society has simply “asked itself the wrong question”.

Accreditation decisions must be based on whether the school prepares the applicant to enter the lawyer licensing process and NO other consideration.

The Law Society needs to be reminded that the price we pay fora free society is that there will always be people and institutions that have values and views that we don’t personally like. Too bad!