The Nova Scotia Barristers’ Society will not seek leave to appeal the provincial top court’s finding that its council’s resolution not to accredit Trinity Western University is invalid.
NSBS had made changes to its regulation to allow it to decline accreditation to the Evangelical Christian university’s law school. Like law societies in Ontario and B.C., NSBS took issue with TWU’s community covenant, which requires that members refrain from “sexual intimacy that violates the sacredness of marriage between a man and a woman.”
But the Nova Scotia Court of Appeal found the wording of NSBS’s amended regulation went beyond the regulator’s authority under the Legal Profession Act. On Monday, NSBS announced it has accepted the court’s findings.
“The Nova Scotia Court of Appeal has confirmed that the change that we’ve made is ultra vires, so we’re going to put the regulation back to the way it was,” says Darrel Pink, executive director of NSBS.
Putting the regulation back to its former wording means that if TWU’s law school starts operating, its graduates can article and become licensed in Nova Scotia, Pink also says.
“We’re accepting the finding of the court that we went a little bit too far,” Pink says. “That having been said, we certainly recognize that there are court proceedings in two other jurisdiction — one in B.C, where they’re waiting for a decision from the court of appeal, and of course the likely Supreme Court of Canada appeal out of the Ontario Court of Appeal.
“I think a prudent course of action may be to see what comes out of the other proceedings and that would give us something further to consider,” Pink adds.
The original prerequisite for a law practice licence in Nova Scotia asked for, among other things, a bachelor of laws degree or a juris doctor degree from a faculty of common law at a Canadian university approved by the Federation of Law Societies of Canada.
But NSBS amended its regulation to add a qualifier that says a person meeting this criterion could be licensed, “unless council, acting in the public interest, determines that the university granting the degree unlawfully discriminates in its law student admissions or enrolment policies or requirements on grounds prohibited by either or both the Charter of Rights and Freedoms and the Nova Scotia Human Rights Act.”
However, a lower court found, and the Nova Scotia Court of Appeal agreed, that the barristers’ society has no power to unilaterally determine that TWU unlawfully discriminates in its admission and enrolment process.
“Nothing in the Legal Profession Act authorizes the Society to issue an independent ruling that someone has violated Nova Scotia’s Human Rights Act. Nor does the Human Rights Act, R.S.N.S. 1989, c. 214, as amended, contemplate the society’s intervention,” the Nova Scotia Court of Appeal said, adding also that the Charter doesn’t apply to TWU, a private institution.
“The amended regulation does not merely authorize the council to weigh human rights or Charter values in the exercise of an administrative discretion to promote diversity in the practice of law. Nor does it just say the council may consider a ruling, issued by a tribunal constituted under the Human Rights Act or a court of competent jurisdiction under the Charter, that the university has violated the Human Rights Act or Charter,” the court of appeal also said. “Rather, the amended regulation directs the council to make a free-standing determination whether the university ‘unlawfully’ contravened the Human Rights Act and Charter.”
The court of appeal said the Ontario equivalent of this regulation is “instructive,” and suggested NSBS is free to amend its rules to mirror that of the Law Society of Upper Canada’s. In Ontario, the regulation broadly says only law degree holders from a law school accredited by the Law Society of Upper Canada can be licensed to practice law in that province.
Pink admits NSBS’ council can go back to the drawing board and amend its regulation to look like its Ontario equivalent, but he says it’s “prudent” to first wait and see how the proceedings in Ontario and B.C. conclude.
“At that time, we will see whether council wishes to make another regulation or not,” Pink says.
The Ontario Court of Appeal has upheld LSUC’s decision not to accredit TWU’s law school, and the university has said it will seek leave to appeal that decision at the Supreme Court of Canada.