Jump to content
almostnot

TWU - The Big Show

Recommended Posts

almostnot    3948

Leave applications for both LSBC and LSUC are submitted to the panel: Abella, Karakatsanis, and Brown. Things be movin'

  • Like 3

Share this post


Link to post
Share on other sites
Pyke    3354

With three different decisions, it's got to be granted, no?

  • Like 1

Share this post


Link to post
Share on other sites
Jaggers    6118

I can imagine both Abella and Brown can't wait to get their hands on this, for opposite reasons...

  • Like 1

Share this post


Link to post
Share on other sites
maximumbob    5952

With three different decisions, it's got to be granted, no?

I think the NS case was ultimately decided on administrative law grounds, and hasn't been appealed (in what was something of a cop-out by the NSCA) - but you're right the lower court decision is still floating around out there (and was probably the best of the bunch - I'd love to see the SCC just adopt its Charter analysis in its entirety).  The facts are different in the Ontario and BC case, so the court could just let them stand.  But, as a practical matter, you're right the court has to hear these cases, not only are there clear conflicts in the charter analysis between the OCA and the BCCA, but if the OCA decision is right, that significantly pares back a number of recent SCC cases on religious freedom 

Share this post


Link to post
Share on other sites
maximumbob    5952

I can imagine both Abella and Brown can't wait to get their hands on this, for opposite reasons...

I can guess where Brown will end up, but are you sure about Abella?  After all, she wrote the majority in Layola high school, and there's a lot in there that, when transposed into the TWU context, would tend to favour TWU.  I don't doubt that she's sympathetic to the concerns of gays and lesbians, but from her writing, she's also quite alert to the importance of protecting religious freedom (which, given her personal history - a Jew born in Germany in 1946 - is rather understandable).  I could see her being a swing judge. 

  • Like 1

Share this post


Link to post
Share on other sites
pccl    30

as a 0L who wants to know what's going on.... can someone ELI5?

Share this post


Link to post
Share on other sites
almostnot    3948

as a 0L who wants to know what's going on.... can someone ELI5?

Some people are religious. Some people are 'mos. We protect both. It's sometimes hard to protect both at the same time. SCC will tell us how to do this.

  • Like 5

Share this post


Link to post
Share on other sites
pccl    30

so uh.....

 

TWU wanted law school, got denied, wants to appeal decision?

Just sent out application for leave to make said appeal to Abella, Karakatsanis, and Brown, judges of the supreme court?

The decision is to be made thursday, if they grant it, TWU can appeal, if they don't TWU can't?

 

Am I getting the gist of it?

 

sry, you guys' ELI5's are more like ELI12's, and I'm clearly not at that level yet

Share this post


Link to post
Share on other sites
artsydork    2680

Some people are religious. Some people are 'mos. We protect both. It's sometimes hard to protect both at the same time. SCC will tell us how to do this.

 

Can we please have a thread summarizing all major cases this way?

  • Like 2

Share this post


Link to post
Share on other sites
Pyke    3354

so uh.....

 

TWU wanted law school, got denied, wants to appeal decision?

Just sent out application for leave to make said appeal to Abella, Karakatsanis, and Brown, judges of the supreme court?

The decision is to be made thursday, if they grant it, TWU can appeal, if they don't TWU can't?

 

Am I getting the gist of it?

 

sry, you guys' ELI5's are more like ELI12's, and I'm clearly not at that level yet

 

Not really. My recollection is that the facts are more or less as follows.

 

Trinity Western University ("TWU") wanted to open a law school in British Columbia. This necessitated a couple things. First, getting the approval of the British Columbia Law Society ("BCLS"), and second (through various means), getting the approval of the remaining Law Societies in Canada. This second step was seen as more of a formality, since the National Mobility Agreement kind of requires this outcome.

 

The BCLS approved TWU. They did so because they believed a previous Supreme Court of Canada decision from 2001 was binding upon them.

 

After this happened, most law societies in most jurisdictions also approved TWU. Notable exceptions were the Law Society of Upper Canada (Ontario) ("LSUC") and the Nova Scotia Law Society ("NSLS"), both of which rejected approval.

 

In the meantime, the BCLS membership (i.e.: lawyers in British Columbia) had a petition, which under the rules in the province would trigger a vote of all the members if a certain level of support was achieved (it was). The vote was held, and it was overwhelmingly opposed to TWU being approved. The BCLS then held a subsequent vote, saying they felt bound by their membership.

 

When an administrative decision maker, such as the BCLS, LSUC, or the NSLS, makes a decision in accordance with a statute, an interested party can apply to the court for "judicial review" of the decision. This is not quite an appeal, in that there are standards of review (i.e.: reasonableness or correctness) and the decision maker is entitled to deference on some subjects. TWU did exactly that, but it had a slightly different case in each province.

 

In British Columbia, the case was all about whether BCLS acted properly in reversing its decision (as well as whether the 2001 decision was binding). I can't recall the lower level decision, but the BCLS lost before the British Columbia Court of Appeal.

 

In Ontario, the case was different, for a lot of reasons. First, there was no switching of decisions -- the LSUC voted against from the start. Second, the LSUC is the oldest law society in Canada (from 1797), and has a public interest mandate. This favoured them doing things that the BCLS could not do (i.e.: looking at the impact of opening TWU). Third, the fundamental question was different. The LSUC wasn't deciding on whether TWU could operate a law school in British Columbia, but only whether those law school graduates had to be accredited in Ontario. To the extent that the British Columbia human rights legislation had exceptions for TWU, they were inapplicable in Ontario. Ontario human rights legislation also has similar protections, but that wouldn't apply to the question being determined. The LSUC won at the Divisional Court and again at the Ontario Court of Appeal, who also distinguished the 2001 decision. TWU is appealing to the Supreme Court.

 

In Nova Scotia, the court turned on legislative technicalities. Basically, the NSLS didn't act within their own mandate. The NSLS lost at the Nova Scotia Court of Appeal as a result. It was open to the NSLS to go back and redraft their own provisions before denying TWU again, but they did not do so. They also didn't appeal the decision.

 

The problem now is you have three different appellate courts, namely British Columbia (TWU won), Ontario (TWU lost), and Nova Scotia (TWU won), reaching three arguably different results (yes TWU won in two of them, but for different reasons). This is the type of conflict of law that the Supreme Court of Canada is designed to weigh on in. The appeal is before them both through the BCLS appeal in British Columbia and the TWU appeal in Ontario. 

 

The consensus on our site seems to be TWU will ultimately be successful in BC, and possibly in Ontario. I don't share that view myself (especially vis-a-vis Ontario), but we'll see. Perhaps the most interesting part of the case will be what the Supreme Court of Canada does with their sixteen year old precedent and how they balance the competing human rights interests at play.

Edited by whereverjustice
corrected NS outcome at poster's request
  • Like 4

Share this post


Link to post
Share on other sites
whereverjustice    3758

The one tidbit missing from Pyke's summary - likely because we've all discussed this so much it's hard to pull all the way back - is that TWU students are required to sign a "community covenant" that prohibits sexual activity except in the context of heterosexual marriage. That's what's got the various law societies' backs up.

  • Like 3

Share this post


Link to post
Share on other sites
pccl    30

ah thanks pyke, that's much clearer.

 

@whereverjustice: right, I heard about that, thanks for pointing that out too/

 

 

The problem now is you have three different appellate courts, namely British Columbia (TWU won), Ontario (TWU lost), and Nova Scotia (TWU lost), reaching three arguably different results (yes TWU won in two of them, but for different reasons). This is the type of conflict of law that the Supreme Court of Canada is designed to weigh on in. The appeal is before them both through the BCLS appeal in British Columbia and the TWU appeal in Ontario. 

 

 

Am I reading something wrong here? 

Share this post


Link to post
Share on other sites
catchthetraiin    119

ah thanks pyke, that's much clearer.

 

@whereverjustice: right, I heard about that, thanks for pointing that out too/

 

 

Am I reading something wrong here?

Also 0L, but I think he means TWU won in brackets next to NS.

 

The one tidbit missing from Pyke's summary - likely because we've all discussed this so much it's hard to pull all the way back - is that TWU students are required to sign a "community covenant" that prohibits sexual activity except in the context of heterosexual marriage. That's what's got the various law societies' backs up.

So the problem is basically that lawyers don't like the idea of students being committed, at least on paper, to marital sex? Edited by catchthetraiin

Share this post


Link to post
Share on other sites
kiamia    1170

The one tidbit missing from Pyke's summary - likely because we've all discussed this so much it's hard to pull all the way back - is that TWU students are required to sign a "community covenant" that prohibits sexual activity except in the context of heterosexual marriage. That's what's got the various law societies' backs up.

 

Refresh my memory. Is TWU okay with gay students as long as they don't have gay sex? And what happens if you break the covenant? Are you kicked out? 

Share this post


Link to post
Share on other sites
catchthetraiin    119

Refresh my memory. Is TWU okay with gay students as long as they don't have gay sex? And what happens if you break the covenant? Are you kicked out?

Well, given that god is omniscient, I imagine you just spontaneously combust. So yes, you are by order of logic, "kicked out".

 

And the idea with "being okay with gay students as long as they don't have sex" is hilarious, but I get your question, and understand that it makes sense.

Share this post


Link to post
Share on other sites
maximumbob    5952

Well, given that god is omniscient, I imagine you just spontaneously combust. So yes, you are by order of logic, "kicked out".And the idea with "being okay with gay students as long as they don't have sex" is hilarious, but I get your question, and understand that it makes sense.

Is the idea of being OK with single heterosexual students as long as they don't have sex hilarious?

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now

  • Recently Browsing   0 members

    No registered users viewing this page.

×