Nova Scotia Court of Appeal
Citation: Nova Scotia Barristers’ Society v. Trinity Western University, 2016 NSCA 59
Date: 20160726
Docket: CA 438894
Registry: Halifax
Between:
The Nova Scotia Barristers’ Society
Appellant
v.
Trinity Western University and Brayden Volkenant
Respondents
-and-
Association for Reformed Political Action (ARPA) Canada; Canadian Council of Christian Charities; The Catholic Civil Rights League and Faith and Freedom Alliance; The Attorney General of Canada; The Evangelical Fellowship of Canada and Christian Higher Education Canada; Justice Centre for Constitutional Freedoms; Schulich School of Law OUTlaw Society; The Advocates’ Society; Canadian Bar Association; Christian Legal Fellowship; The Canadian Secular Alliance
Intervenors
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Judges: |
Fichaud, Beveridge, Farrar, Bryson, and Bourgeois, JJ.A.
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Appeal Heard: |
April 6, 7 and 8, 2016, in Halifax, Nova Scotia
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Subject: |
Vires of regulations – administrative law
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Summary: |
Trinity Western University is a private Christian university in British Columbia. Trinity Western’s students must adhere to a “Community Covenant” that prohibits sexual intimacy outside the marriage of man and woman. Trinity Western seeks to establish a law degree. The Federation of Canadian Law Societies approved the proposed law degree.
Under the Legal Profession Act, S.N.S. 2004, c. 28 and its regulations, the Nova Scotia Barristers’ Society regulates admission to law practice in Nova Scotia. The Society amended its regulations and passed a resolution that restricted the ability of Trinity Western’s law graduates to article in Nova Scotia. The amended regulation said that, if the Council “determines that the university granting the degree unlawfully discriminates in its law school admissions or enrollment policies or requirements on grounds prohibited by either or both the Charter of Rights and Freedoms and the Nova Scotia Human Rights Act”, then the University’s degree would not be a “law degree” in Nova Scotia. The Society’s resolution said that Trinity Western’s law school would not be approved unless Trinity Western excluded law students from the Covenant.
Trinity Western challenged the Council’s amended regulation and resolution as ultra vires the Legal Profession Act and, alternatively, as an infringement of Trinity Western’s freedom of religion under the Charter of Rights and Freedoms. A judge of the Supreme Court of Nova Scotia agreed with both grounds, and held that the amended regulation and resolution were invalid. The Society appealed to the Court of Appeal.
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Issues: |
First, is the amended regulation ultra vires the Legal Profession Act and is the resolution unauthorized by the Legal Profession Act and its regulations? Alternatively, do the amended regulation and resolution unjustifiably infringe Trinity Western’s freedom of religion under the Charter of Rights and Freedoms?
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Result: |
The Court of Appeal dismissed the Society’s appeal. The Legal Profession Act did not authorize Council to enact a regulation that the Council could issue rulings whether someone in British Columbia “unlawfully” violated the Human Rights Act or the Charter.
Trinity Western’s activity occurred in British Columbia, and was outside the reach of Nova Scotia’s Human Rights Act. As a private university, Trinity Western was not subject to the Charter of Rights. Trinity Western did not act “unlawfully” under either enactment.
The amended regulation was ultra vires the Legal Profession Act, and the resolution was unauthorized by that Act and its valid regulations.
The Court of Appeal did not comment on the alternative issue – whether the amended regulation and resolution would unjustifiably infringe Trinity Western’s freedom of religion under the Charter.
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This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 29 pages.