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Trinity Western University Update TWU's factum [Aug. 4th, 2017|06:46 pm]

Trinity Western University Factum http://www.scc-csc.ca/WebDocuments-DocumentsWeb/37209/FM010_Appellants_Trinity-Western-University-et-al.pdf

I finally read the document. Here are my thoughts.

Lie number one in the very first paragraph:

The respondent Law Society of Upper Canada (LSUC) decided that it would not accept TWU law school graduates as licencees.

That is not the case. The society refuses to accredit TWU’s law school. Law graduates would be able to approach the society on an individual basis and be accepted on their personal merits.

Once again claiming that a Supreme Court decision made in 2001 is still binding despite the huge changes in law – like the legalization of same-sex marriages – drastic changes in how other laws and issues are interpreted by the courts, and significant changes in the attitudes of the Canadian population as a whole. Any one of these situations, by themselves, allow a court to revisit a former decision.

Once again claiming that since it’s a private institution, it’s not subject to Charter rights while the society is. (Which is true, they just don’t seem to get the fact that because the society is bound by both Charter and human rights codes, it can’t support an institution that discriminates against anyone.)

Lie number two, in the fourth paragraph, on the same subject as above.

LSUC has singled out religious beliefs enshrined in the Covenant as the justification for rejecting all TWU graduates, irrespective of their individual qualifications.

Claim that if TWU doesn’t win, the society will be discriminating against people based on their religion and interfering with their freedom of religion, expression, and association.

Again, this isn’t true, going back to the fact that individual students can be accepted. They’re saying no to the school because it engages in discrimination against members of the LGBTQ community, not no to the individual students, who are free to attend the school if they want without losing the ability to be a lawyer, so no violation of any of their individual rights.

Lie, or at least misleading statement, number three in paragraph 18:

Like every other Canadian law society, LSUC adopted a uniform "national requirement" for student competency in 20 1 0. 32 It delegated the authority to review and approve new Canadian law school programs to the Federation of Law Societies of Canada (the Federation)

I have to admit that the Federation really screwed the rest of us by deciding that a law school that spat in the faces of LGBTQ people was a-ok. However, there was no delegation on the Ontario society’s part. (That’s a new argument from TWU.) Here is a section from the Law Society Act that talks about the duties of the law society:

Function of the Society
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.

Principles to be applied by the Society
4.2 In carrying out its functions, duties and powers under this Act, the Society shall have regard to the following principles:
1. The Society has a duty to maintain and advance the cause of justice and the rule of law.
2. The Society has a duty to act so as to facilitate access to justice for the people of Ontario.
3. The Society has a duty to protect the public interest.
4. The Society has a duty to act in a timely, open and efficient manner.
5. Standards of learning, professional competence and professional conduct for licensees and restrictions on who may provide particular legal services should be proportionate to the significance of the regulatory objectives sought to be realized. 2006, c. 21, Sched. C, s. 7.

Neither the statute or any of it’s regulations mention the Federation. Here’s a link: https://www.ontario.ca/laws/statute/90l08

More from para. 18:

The Federation's Approval Committee is responsible for determining if a new law degree program complies with the national requirement. All law societies have agreed to rely on the Federation's determinations.

To support this argument, TWU took quotes from the Nova Scotia case. They’re paragraphs 45/46:

The Federation adopted a uniform national requirement for Canadian common law programs in 2010.The Approval Committee is the body responsible for making the determination as to whether a degree complied with those national standards.

[46] Canadian law societies had agreed to rely on the recommendations of the Approval Committee. That approval would be required for graduates of the school of law to be able to practise in Canada.

Here’s the problem. The above case is from early 2015. Later that year, we get this from the Federation:

In September, 2015, the National Admission Standards Project Steering Committee released a proposal for the development of a national qualifying assessment system for admission to the legal profession in Canada (“assessment proposal”). Most law societies have provided their feedback on the assessment proposal. Following extensive consultation with law societies and consideration of the needs of the law societies, the Steering Committee has concluded that there is not a critical mass of law societies ready to move forward with the development of a national assessment tool. It was a precondition of the assessment phase of the project that commitment from a critical mass of law societies would be required to move forward.

The Steering Committee has recommended to the Council of the Federation that all work on developing a national assessment tool cease. Federation Council will consider the Steering Committee’s recommendation on June 14, 2016. Should Council accept the Steering Committee’s recommendation, law societies will retain the ability to determine the appropriate mechanisms to assess the competencies of entry level lawyers. It is expected that each law society will continue to rely on the National Competency Profile as it sees fit.


And then, from the website of a Yukon report in fall of 2016:

The Federation Council has accepted a recommendation from the National Admission Standards Project Steering Committee that all work stop on developing a national tool for assessing the competencies in the National Competence Profile. The recommendation was made after extensive consultations with law societies that followed circulation in September 2015 of the Committee’s proposal for the development of a national qualifying assessment system for admission to the legal profession in Canada. http://www.lawsocietyyukon.com/pdf/Fall2016.pdf

So, no delegation. Some societies may choose to accept the recommendations of the Federation, but they don’t have to.

TWU accurately quotes By-Law 4 of the society’s by-laws, here:

9. (1) The following are the requirements for the issuance of a Class L1 licence: 1. The applicant must have one of the following:
i. A bachelor of laws or juris doctor degree from a law school in Canada that was, at the time the applicant graduated from the law school, an accredited law school.
ii. A certificate of qualification issued by the National Committee on Accreditation appointed by the Federation of Law Societies of Canada and the Council of Law Deans.

But here’s the thing; Certificates of Qualification are given to students who got their legal training outside of Canada and students within Canada who were trained only in civil (as opposed to common) law. (Link: http://flsc.ca/national-committee-on-accreditation-nca/about-the-nca/ ) Neither of these situations are relevant to students who would be attending TWU. They wouldn’t be entitled to apply. To misuse this section in this way denotes either dishonesty or incompetence.

If I come across any dim-witted media writers misusing that section, I will comment. I don't care how futile it would be.

My god, I can’t believe I’m only on page 6.

Bunch of stuff about what tests should be used to determine whether an infringement of rights has occurred and whether it’s justified. Blah blah blah.

Bigotry is a core part of our religion, so we shouldn’t face any consequences for engaging in it.

I like this bit:

83. LSUC improperly took a position on TWU's religious beliefs. LSUC defended the Decision by disparaging those religious beliefs as "harmful," "highly problematic," "offensive," and by stating that the Covenant "perpetuates prejudice" and "offends ... human dignity."

What the society described by those terms was discrimination. Discrimination doesn’t suddenly become ok just because you can point at a passage in a book that says treating a certain group of people as if they weren’t human is wonderful.

Says there is no conflict between freedom of religion and right to equality because … reasons.

1 1 8. Access to the bar and access to legal education are different. The Ontario Court of Appeal conflates them. TWU can only limit admission to TWU, not the legal profession. Contrary to the finding of the Court of Appeal, it is the law societies, not law schools, who determine admission to the bar.181 Joining TWU is a voluntary decision to be educated within a religious community. Joining LSUC is required to practice law. There are many law schools, but only LSUC controls access to the Ontario bar.

The argument can be made that limiting access to legal education does, in fact, limit access to the legal profession, as you can’t have the latter without the former. (Some exceptions apply.) What I really like is the sudden reversal about whether law societies can determine who can join the bar because that suits their argument.

TWU says by admitting their students to the bar, the society isn’t discriminating against LGBTQ people. Soooo not the point.

As they have in the past, TWU argues that the duties the society must perform only includes determining technical ability. All that stuff about advancing the course of justice is just meaningless words to fill space.

The Decision also negatively affects the mobility of lawyers in Canada. All Canadian law societies have signed agreements to accept lawyers admitted to each of them, and federal and provincial laws require professional associations to accept qualifications from other provinces.240 Contrary to LSUC's legal obligations, a TWU graduate called to the bar in another province would be excluded from the Ontario bar.

(Have I mentioned how dreadful TWU’s footnoting always is? Always? It’s almost like they don’t want anyone to check their sources.)

Anyway, I can’t imagine there are many cases where a person would go to school in one province, get called to the bar in another, and then work in a third, but let’s say that’s a thing. There is nothing suggesting that the Ontario society wouldn’t take any person who had been called to a bar in another province. There is no support for that argument.

And done. I skipped a lot, but it was a lot of the same ground covered before.

I’ll probably be editing this a lot, as I always miss everything the first time around.