TA KE FIVE BRITISH COLUMBIA EDITION
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INSIDE THIS ISSUE: Featured Cases: P2
Summary Trial; Remedies; Unjust Enrichment; Quantum meruit
P7
Chambers Practice; Leave to Appeal; Mareva Injunctions
P13
Personal Injury; Motor Vehicle Accidents; Contributory Negligence
P16
Motor Vehicle Accidents; Quantum; Loss of Future Earning Capacity; Non-Pecuniary Damages ~ With Counsel Comments Self-Governing Professions; Judicial Review; Law Society; Charter of Rights and Freedoms ~ With
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Counsel Comments
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Cory v. Cory, 2016 BCCA 409 Areas of Law: Summary Trial; Remedies; Unjust Enrichment; Quantum meruit ~A summary trial judge should not simply prefer the affidavit evidence of one party over the other’s, without documentary, independent or undisputed evidence that undermines the other affidavit~
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he Appellant, James Cory, is the brother of the Respondent John Cory. The Respondent Clifford Cory is their father. The Appellant brought a claim in unjust enrichment against the Respondents, based on his allegation that his parents told him he would receive a share in the family farm if he lived and worked on it. He indicated that he lived on the farm from 1978 to 1992, and worked there while he lived there. A 70% interest in the farm is currently owned by the Respondent brother, while the other 30% was transferred to a third brother. The father deposed that he had no recollection of making the promises the Appellant alleged. He said that once the Appellant reached adulthood he did not do any significant amount of work on the farm and that he was paid for what work he did. The Respondent brother deposed that the Appellant only lived on the farm for three separate and short periods of time over the period he claimed to have lived there. The brother stated that he, not the Appellant, worked on the farm for his entire adulthood. The father made an application to dismiss the Appellant’s claim under Rules 9-5 (no reasonable claim), 9-6 (summary judgment), and 9-7 (summary trial) of the Supreme Court Civil Rules.
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Cory v. Cory, (cont.)
The Appellant made an application for orders that the father attend an examination for discovery and provide an amended list of documents. The chambers judge did not deal with the Appellant’s application. He found that there were some conflicts in the evidence about whether the Appellant did any substantial work on the farm, and about whether the father had promised to give him an interest in the farm, but he found that there
was no basis in law to award a 1/3 interest in the farm to the Appellant based on a bare promise. He went on to find that the only basis on which the Appellant could succeed would be in quantum meruit, and a gift of property worth $340,000 that the father had made was more than enough compensation for any claim of unjust enrichment. Accordingly, the chambers judge dismissed the claim.
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Cory v. Cory, (cont.)
APPELLATE DECISION
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not simply choose between one affidavit and another. The judge erred in assuming the gift of the property was intended to compensate the Appellant for his work on the farm. There was no evidence to that effect, and in fact it was the evidence of the father that the Appellant was paid for any work he did on the farm. The judge also erred in assuming quantum meruit was the only available form of compensation. Remedies for unjust enrichment include proprietary remedies as well as monetary ones. Additionally, the monetary remedy for unjust enrichment is not restricted to an award based on a fee-for-services approach, but can be based on the value of the property proportionate to the claimant’s contributions.
he appeal was allowed. The Respondents argued on appeal that the matter was suitable for determination under Rule 9-7 on the basis that the judge was able to make the necessary findings of fact. However, the Court of Appeal concluded that the judge made no findings on the disputed evidence. The Court questioned how the judge could have properly resolved the conflicts on a summary trial application when there was no documentary evidence, evidence of independent witnesses or undisputed evidence that undermined the affidavit evidence of one of the parties on critical issues, or some other basis for preferring one affidavit over the other. A summary trial judge should
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MacLachlan v. Nadeau, 2016 BCCA 410 Areas of Law: Chambers Practice; Leave to Appeal; Mareva Injunctions ~Leave to appeal an order for temporary injunctive relief will only be granted where there is an arguable case that the chambers judge erred in principle or made an order that was not supported by the evidence, or that the order sought to be appealed will result in an injustice~ CLICK HERE TO ACCESS THE JUDGMENT
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$439,833.55 were deposited into a CIBC account which Mr. Nadeau had opened in the company’s name. By June 27, 2016, only $169,833.55 remained in the account. The rest had been paid out to Mr. Nadeau and to Mr. O’Neill. $30,000 of the money paid to Mr. O’Neill was in respect of a personal debt owed to him by Mr. Nadeau. The Respondent then
he Respondent, Brent MacLachlan, and one of the Applicants, Lance Nadeau, are shareholders in the Applicant 0806686 BC Ltd. along with another individual, Paul O’Neill. Mr. Nadeau is the sole director of the company. The company owned property in Squamish. In June 2016, the property was sold and net sale proceeds of
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MacLachlan v. Nadeau, (cont.) sought and obtained an ex parte Mareva injunction restraining $439,833.55 of the company’s assets. The injunction had a return date of July 5, 2016. On July 6, the parties appeared before a Supreme Court judge who ordered the Mareva injunction to be continued until July 18, 2016. Then in chambers on July 29, 2016, there was a de novo hearing on both the facts and the law. At this hearing, Adair J. granted a new Mareva injunction against the company but not against Mr. Nadeau personally. The freezing order applied to $275,000 of the company’s net assets, but did not prevent the company from spending reasonable amounts on business or legal expenses. Nor did the order prevent the company from dealing with or disposing of any of its assets in the ordinary course of business. The Adair injunction continued until varied or discharged by another court order. Madam Justice Adair was aware of the previous court orders, and she exercised her discretion to hear the parties’ arguments with respect to misconduct by the Respondent on the prior injunction applications. She determined the balance of convenience favoured granting the injunction against the company. Corporate Commerical Litigator Junior to Intermediate Litigator | 2-5 Years | Downtown Vancouver
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MacLachlan v. Nadeau, (cont.) Madam Justice Adair awarded costs to Mr. Nadeau in any event of the cause, and she granted costs relating to the Respondent’s notice of application in the cause to the company even though the Respondent was successful in obtaining the injunction.
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MacLachlan v. Nadeau, (cont.) APPELLATE DECISION
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he application was dismissed. The Applicants sought leave to appeal so that the Adair order might be set aside with respect to the Mareva injunction against the company, and that it be varied to provide that the Respondent pay certain special costs to Mr. Nadeau. The proposed grounds of appeal were that Adair J. erred by giving inadequate weight to the Respondent’s having given materially false evidence, misstated evidence to the court, and failed to make full and frank disclosure at the ex parte application. They also alleged that the chambers judge gave insufficient weight to the fact that the Respondent used the Mareva injunction for litigious blackmail, and that these errors led the judge into error both in her decision not to award special costs and in her decision “whether to set aside the Mareva injunction”. They argued that the proposed appeal dealt with a novel point of law significant to the practice, being whether a chambers judge has the discretion to continue an injunction granted in the face of deliberate misrepresentation by the original applicant. The Respondent opposed
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MacLachlan v. Nadeau, (cont.)
the granting of leave to appeal on the basis that the proposed appeal was an abuse of process. He focused on the fact that all parties agreed the hearing before Adair J. was de novo, and she was entitled to rely on her inherent jurisdiction to consider the alleged misrepresentations in the previous hearings. The Respondent argued that the proposed appeal was a re-litigation of issues identical to those argued in chambers, and that there was no factual or legal basis for the proposed
grounds of appeal. The Court of Appeal application judge found that the hearing before Adair J. was de novo, and was not the continuation of a prior injunctive order, as the Applicants framed it. He found that the proposed appeal had little prospect of success, given that the Applicants had not shown any error in principle, lack of support in the evidence for the order, or injustice arising from the order.
Insurance Defence Lawyer Junior to Intermediate Litigator | 2-5 Years | Calgary Our client, a well-established mid-sized firm that focuses exclusively on speciality lines of insurance defence, is looking for outstanding litigators (2-5 year call) to join its team in its Calgary office. The firm defends insureds under a variety of liability policies: commercial host liability, professional errors and omissions, construction, cyber liability, directors and officers, and employment practice liability, to name only a few. In addition, they act in the defence of large property claims, the prosecution of subrogated claims, and provide coverage advice. The firm acts for premier insurance companies based in Canada, the United States, and London. As highly respected insurance defence counsel, the firm handles primarily complex proceedings. The firm offers an excellent opportunity for associates to work directly with their own clients and run their own files in a smaller firm with a “national platform� with offices in Toronto, Kelowna, and Vancouver. The firm has an entrepreneurial approach to practice and encourages its associates to develop their own client relationships and practices. The ideal candidates will have insurance litigation experience, however, for the appropriate candidates, this is not a prerequisite. This opportunity is for the Calgary office.
For more information or to apply for this position, contact Sarah Picciotto at spicciotto@lucentrecruitment.com November 2016
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Wormald v. Chiarot, 2016 BCCA 415 Areas of Law: Personal Injury; Motor Vehicle Accidents; Contributory Negligence ~To make a finding of contributory negligence, the plaintiff’s carelessness must relate to the risk that made the actual harm which occurred foreseeable~
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he Appellant, Kyla Wormald, was seated in the hatch area of a vehicle driven by the Respondent, Jessalynn Chiarot, when the vehicle overturned at a high speed. Both parties were minors at the time of the accident. The Respondent held a novice driver’s licence and had consumed a small amount alcohol prior to the accident. There were more passengers in the vehicle than were allowed by the novice license. The part of the vehicle in which the Appellant was seated had no seat belts, but this was not found to have caused or exacerbated the Appellant’s injuries. At trial, the judge noted that the Appellant had knowledge of these factors, and that over the course of the evening prior to the accident the Appellant had several opportunities to remove herself from the situation, but that she did not. The trial judge assessed damages at $8,500 in compensation for a laceration and scarring to the Appellant’s leg, along with bruises, scrapes and cuts. He found the Appellant contributorily negligent and reduced the compensation to an award of $5,100. The Appellant also sought recovery for headaches, neck and back pain, and anxiety. In denying damages for these alleged injuries, the trial judge noted that the Appellant made no complaint of these ailments to the ICBC adjuster or to her family doctor until three years after the accident, and after she engaged a lawyer for her claim. The Appellant visited numerous physicians over the course of those three years, on fifteen separate occasions, without mentioning these injuries. Although the Appellant led expert evidence to support her claim that the injuries were caused by the collision, the judge did not find the expert opinions reliable. It was also significant that there was no expert evidence to explain why the Appellant would not complain of or seek treatment for these injuries sooner.
November 2016
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Wormald v. Chiarot, (cont.) APPELLATE DECISION
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he appeal was allowed in part. The Appellant argued that the trial judge erred in failing to give sufficient reasons for finding the Appellant was not a reliable witness, in rejecting the evidence of the Appellant’s lay and expert witnesses, and in misapprehending the evidence regarding whether the Appellant asked the Respondent to slow down prior to the accident. Much of the argument with respect to the adequacy of reasons amounted to a review of the evidence as an attempt to have the Court of Appeal make different findings. The Court rejected this ground, as well as the argument that the trial judge misapprehended the evidence. The trial judge’s decision not to allow the
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Appellant’s doctor to give an expert opinion that had not been previously disclosed to the Respondent was an evidentiary ruling made in the course of the trial. As such, it was entitled to the greatest deference. The Court allowed the appeal in part, however, on the question of contributory negligence. To make a finding of contributory negligence, the plaintiff’s carelessness must relate to the risk that made the actual harm which occurred foreseeable. In this case, the Appellant’s injuries were not caused by the driver’s minor consumption of alcohol, the fact that the driver had a novice licence, the number of people in the vehicle, or the Appellant’s lack of a seat belt. Although the Appellant
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Wormald v. Chiarot, (cont.)
had several opportunities to leave the vehicle over the course of the evening, there was no evidence of bad driving until shortly before the accident. None of the factors the judge considered, individually or cumulatively, caused the Appellant’s injuries. The Court of Appeal rejected the Respondent’s argument that the Appellant’s negligence lay in being in the car at all, or staying in it for so long. The Court noted that society accepts some of life’s risks by granting driver’s licences to teenagers, and said that “accepting a ride with friends in high spirits out on a lark is not an inherently and unacceptably dangerous activity.” The Appellant’s injuries were caused by the Respondent speeding and losing control of the vehicle, to which the Appellant did not contribute. Accordingly, the Court substituted an award of $8,500.
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Villing v. Husseni, 2016 BCCA 422 Areas of Law: Motor Vehicle Accidents; Quantum; Loss of Future Earning Capacity; Non-Pecuniary Damages ~Only where the trial judge’s non-pecuniary damages assessment is so inordinately high as to be wholly erroneous will it be appropriate for the appellate court to substitute its own opinion for that of the trial judge~ CLICK HERE TO ACCESS THE JUDGMENT
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he Respondent, Jasmine Villing, was injured in a motor vehicle accident at the age of seventeen. The Appellant, Jennifer Husseni, admitted liability, and the parties went to trial over the quantum of damages. By the time the matter was heard, some five years had passed since the accident. The Respondent’s main and continuing injury was lower back pain. The trial judge found that the Respondent was bothered daily by this pain, which interrupted the Respondent’s sleep, and came on during periods of prolonged sitting or standing. The Respondent was in high school and had a part-time job at the time of the accident, but she left that job due to her injuries. She also gave up competitive dancing as the result of her injuries, and gained approximately
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Villing v. Husseni, (cont.)
50 pounds. After she finished high school, the Respondent worked a variety of part-time jobs, and pursued post-secondary education in the legal field. At trial, both parties led expert evidence. The experts diagnosed lumbar facet syndrome. The Appellant’s expert
November 2016
recommended that the Respondent try two treatments that can be performed on an outpatient basis, and that carry a high expectation of success in treating the Respondent’s condition. The judge noted that the recommended treatment might be required several times throughout
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Villing v. Husseni, (cont.)
her life. Rather than being a permanent cure, the treatments would provide the Respondent with “windows of opportunity” in which she could undergo rehabilitation, which might itself obviate the need for further treatments. With each treatment, however, would come an initial period in which the pain would worsen before it improved. The trial judge found that the temporary worsening could limit the Respondent from working for 4-6 weeks each time the procedure was performed. The judge also accepted the Respondent’s expert evidence that, should she have children, the Respondent could require extended maternity leave. Based on these findings, and considering the Respondent’s current employment and career plans, the trial judge awarded $100,000 for loss of future earning capacity. The judge also awarded $85,000 in non-pecuniary damages.
APPELLATE DECISION
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he appeal was dismissed. The Appellant challenged the quantum of damages for loss of future earning capacity. She argued that the trial judge erred in fact when he concluded that there was a real and substantial possibility that the Respondent would not have the capacity to assume some employment positions or responsibilities due to chronic back pain. The Appellant submitted that the award for loss of future earning capacity should have been $5,000 or less. The Court of Appeal was not persuaded. It held that in the context of this case, such a low award would be inappropriate because the threshold for awarding damages for loss of future earning capacity requires a plaintiff to prove a real and substantial possibility that earning capacity has been impaired. That threshold is significant and inconsistent with granting such a trifling award. In addition, such a small award would be inconsistent with the trial judge’s findings with respect to the treatments proposed, the time off work they would require, the impermanence of pain relief associated with the treatments, and the potential need for increased maternity leave. The $100,000 award was not
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Villing v. Husseni, (cont.)
outside the appropriate range. The Appellant also challenged the award for non-pecuniary damages, and submitted to the Court of Appeal a number of cases supporting the position that the award should be reduced to $50,000 $60,000. The Respondent referred the Court to cases where young patients suffered chronic back pain, in which non-pecuniary damage awards ranged from $80,000 to $120,000. The Court of Appeal noted that an award of damages is a fact-finding exercise and attracts a deferential standard. Only where the trial judge’s assessment is so inordinately high as to be wholly erroneous will it be appropriate for the appellate court to substitute its own opinion for that of the trial judge.
November 2016
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COUNSEL COMMENTS Villing v. Husseni, 2016 BCCA 422
Counsel Comments provided by Tim Delaney, Counsel for the Respondent
“I
“capital asset approach”. The earnings n Villing v. Husseni the trial approach is most appropriate judge, to use the where the plaintiff has an oft-quoted words established career, and there is of Dickson J. in Andrews v. no prospect they will change Grand & Toy [1978] 2 S.C.R. their occupation, making the 229, had to “gaze deeply into loss more easily quantifiable. the crystal ball”, in order to The capital asset approach is assess damages. Villing v. the appropriate method of Husseni offers some guidance assessing damages when the on how “crystal ball gazing” loss is not easily quantifiable. ought to be performed by a Tim Delaney trial judge. An obvious example of a The plaintiff in Villing was only 17 years old and still in high school when she was injured in a motor vehicle accident. She developed chronic back pain. Since she did not have an established career the assessment of her loss of future earning capacity was difficult. The Court of Appeal noted there are two ways to assess damages for the loss of future earning capacity. There is the “earnings approach” and there is the
situation where the capital asset approach will be used is when the plaintiff is a young person who has not yet established a career. Once the court has chosen to apply the capital asset approach the assessment is then described as being at large. In Villing the Court of Appeal noted, however, that even when an assessment is at large the trial judge must still explain the factual basis for the award.
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COUNSEL COMMENTS This means the trial judge should at a minimum address the four questions set out in the leading case of Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353. Specifically the judge should consider whether: (1) The plaintiff has been rendered less capable overall from earning income from all types of employment; (2) The plaintiff is less marketable or attractive as an employee to potential employers; (3) The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and (4) The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.
This list is not exhaustive. The appellant in Villing argued the trial judge erred because, on the evidence, Ms. Villing would likely only miss a modest amount of work in the future when she underwent some treatments for her injuries. The appellant pointed to expert evidence which suggested the plaintiff would still be able to do her job in the future. The trial judge, however, noted that even though the plaintiff may be able to do her job that did not mean there was no loss of capacity. He found there was a real and substantial possibility the plaintiff would not have the capacity to assume some employment positions or some employment responsibilities due to her chronic back pain. For example, she may not be able to work at a job where long overtime hours were expected. The Court of Appeal accepted these were relevant considerations. Finally the Court of Appeal measured the award of $100,000 made by the trial judge against the average earnings in the plaintiff’s new occupation, which were about $60,000 per annum. This further reinforced the view the award was appropriate. Establishing the quantum of an award for loss of future earning capacity based on the capital asset approach remains an elusive and difficult exercise. Nevertheless, the Court of Appeal in Villing has affirmed that when gazing into the crystal ball, a trial judge ought to at least address and consider one or more of the questions in Brown v. Golaiy.�
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Trinity Western University v. The Law Society of British Columbia, 2016 BCCA 423 Areas of Law: Self-Governing Professions; Judicial Review; Law Society; Charter of Rights and Freedoms ~The Benchers of the BC Law Society failed to meet their statutory duty to reasonably balance the conflicting Charter rights engaged by their decision not to approve Trinity Western University’s law faculty, when they decided to be bound by whatever decision a majority of the Law Society’s members made on the matter~
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he Respondent, Trinity Western University (“TWU”), does not recognize same-sex marriage. In June 2012, it submitted a proposal to establish a law school to the Federation of Law Societies of Canada and the British Columbia Ministry of Advanced Education. TWU requires students to enter a “community covenant” regulating their conduct as a condition of admission. The student must voluntarily agree to “abstain from sexual intimacy that violates the sacredness of marriage between a man and a woman”. The Federation granted preliminary approval of TWU’s law faculty in December 2013, and the Minister did the same shortly thereafter. The Benchers of the Appellant Law Society of British Columbia initially voted to approve the TWU law faculty, but then held a special general meeting of the Law Society in which a majority of the voting members voted against approval. The Benchers then met
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in September 2014 and resolved that, should at least 1/3 of the Law Society members vote in a referendum regarding the resolution and 2/3 of those voting vote in favour of the resolution, the resolution declaring TWU’s faculty of law unapproved would be binding and implemented by the Benchers. The Benchers resolved that to do this did not constitute a breach of their statutory duties. More than half the eligible members of the Law Society voted, and of those more than 2/3 voted for the resolution. The resolution was adopted on October 31, 2014, following which the Minister revoked consent. The Respondent sought judicial review of the Law Society’s decision. The Chief Justice of the BC Supreme Court found that the procedures the Law Society followed in reaching its decision were improper. He found that the Benchers had unlawfully delegated their decision-making powers to the members, and had fettered their discretion by agreeing to be bound by OnPoint Legal Research | Take Five
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Trinity Western University v. The Law Society of British Columbia, (cont.) the results of the referendum. He went on to find that it was incumbent upon the Benchers to engage in a process of balancing the statutory objectives of the Legal Profession Act against Charter values, and that they had failed to do so. APPELLATE DECISION
T
he appeal was dismissed. The Court of Appeal sat a panel of five judges, who decided the appeal unanimously. They found that the Benchers did not sub-delegate their authority to the Law Society’s members. Furthermore, the Legal Profession Act does allow the members of the Law Society to make resolutions that are binding on the Benchers in limited circumstances. There was also no breach of procedural fairness owed to TWU. However, the Court of Appeal did not accept that the Benchers acted properly in passing a resolution to the effect that, regardless of the results of the referendum, being bound by those results would be consistent with their statutory duties. The resolution adopted at the special general meeting was motivated by a concern that a law school “premised on principles of discrimination and intolerance” would not promote and improve the standard of practice by lawyers. It did not engage in required balancing between the competing Charter rights of sexual orientation equality and religious freedom. In binding themselves as they did, the Benchers abdicated their duty as administrative decision-makers to properly balance the objectives of the Legal Profession Act with the Charter rights at stake. The detrimental impact of the Law Society’s decision on TWU’s right to religious freedom was severe, as TWU graduates would not be recognized by the Law Society and could not apply to practice in British Columbia. Although approval of TWU’s law school had a detrimental impact on LGBTQ equality rights in principle, the impact would be insignificant in real terms. TWU’s law school would add 60 seats to a total of about 2,500 across Canada, and would likely divert some students from other faculties of law, thus opening spaces in those faculties for LGBTQ students. Government regulatory approval of entities with differing beliefs is a sign of state neutrality, not an endorsement of the entities’ beliefs.
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Trinity Western University v. The Law Society of British Columbia, (cont.)
Given the severe impact of non-approval on the religious freedoms at stake, and the minimal impact of approval on the access of LGBTQ persons to law school and the legal profession, the Court of Appeal found a decision not to approve would be unreasonable. The decision limited the right to religious freedom in an unreasonably disproportionate way.
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COUNSEL COMMENTS Trinity Western University v. The Law Society of British Columbia, 2016 BCCA 423 Counsel Comments provided by Karey Brooks, Counsel for the Intervenors, Outlaws UBC, Outlaws UVic, Outlaws TRU, and QMUNITY (the “LGBTQ Coalition”) and Tim Dickson, Counsel for the Intervenors, Canadian Secular Alliance and British Columbia Humanist Association
“T
he British Columbia Court of Appeal has significantly
set back LGTBQ equality rights in Canada, and substantially extended the reach of religious freedom in its recent decision Karey Brooks in Trinity Western University v. The Law Society of British Columbia. The case dealt with a number of important administrative law issues relating to the process used by the Law Society to reach its decision not to accredit law degrees from TWU, but the heart of the decision is the Court’s holding that the Law Society’s decision was unreasonable because it limited the right to freedom of religion in a disproportionate way. That conclusion is
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directly at odds with the Ontario Court of Appeal’s holding that the Law Society of Upper Canada reasonably denied accreditation to TWU. TWU requires all its students to sign a Covenant that contains a term under which they Tim Dickson promise not to engage in “sexual intimacy that violates the sacredness of marriage between a man and a woman.” Like the Ontario Court of Appeal, the BC Court of Appeal accepted that TWU’s admission policy effectively precludes LGBTQ students from applying for admission to the law school. In deciding whether to accredit a law school with such an admission policy, the
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COUNSEL COMMENTS Law Society had to identify what Charter rights would be implicated by its decision and then engage in a “proportionality exercise” by considering its statutory objectives and asking how the delineated Charter guarantees would be best protected in the pursuit of those objectives. This required the Law Society to balance the severity of the interference with Charter values with the fulfillment of its statutory objectives. The Court found that the Benchers did not properly consider the implicated Charter values when it passed a resolution agreeing to be bound by the vote of the majority of Law Society members. The Court held the Law Society’s decision not to accredit the TWU law school was therefore not entitled to deference. The Court then went on to consider whether the decision could be upheld because it represented the only reasonable balancing of the pursuit of its statutory objectives with Charter values. With respect to the Charter rights at stake, the Court easily accepted that both religious freedom and LTBGQ equality rights were implicated. Turning to the balancing of those rights, the Court found that the impact of the Law Society’s decision on religious freedom was severe, as it would likely represent a bar to TWU operating a law school or training lawyers for admission to the bar. The Court found on the other hand there would be minimal impact on LGBTQ students’ equality rights given there are other law schools to which they may apply. The Court rejected arguments that accrediting the law school would amount to the Law Society endorsing discrimination and it stated that, although the LGBTQ community might be hurt by the Covenant, there is no legal right to be free from views that offend. The Canadian Secular Alliance and the BC Humanist Association, as one group, and the LGBTQ Coalition, as another, intervened in support of the Law Society’s appeal. These intervenors share the view that, if allowed to stand, the Court’s decision will severely diminish the value of sexual orientation equality rights while overextending the constitutional protection accorded to religious conduct. While the Court had little doubt that the Law Society’s decision infringes TWU’s religious freedom, the Canadian Secular Alliance and the BC Humanist Association argued that s. 2(a) does not protect the imposition of evangelical Christian conduct on all students given that some students will not share evangelical Christian beliefs. TWU models itself as a liberal arts university open to students of all faiths, or none, where students are free to hold ethical views that diverge from those of evangelical Christianity. The Covenant TWU requires every student to sign, however, mandates
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COUNSEL COMMENTS that they comport to a particular set of evangelical Christian ethics. That is, even those TWU students who do not hold the evangelical Christian beliefs must obey a code of conduct derived from those beliefs. The Canadian Secular Alliance and the BC Humanist Association argued that this represents a clear case of religious coercion, and that the Covenant therefore falls outside of the protection of s. 2(a). The Court of Appeal, however, did not grapple with this limitation to TWU’s freedom of religion defence. It remains to be seen whether the Supreme Court of Canada will. The Court of Appeal’s judgment also has troubling implications for the equality rights of potential LGBTQ law students. Depriving a historical and ongoing disadvantaged group access to a law school on the basis that there are other non-discriminating law schools is a dangerous application of the discredited separate-but-equal doctrine, even if, as the Court of Appeal rationalized, such segregation is perpetuated by a minority group (evangelical Christians) that sincerely holds discriminatory views about another group (same sex couples). Further, the LGBTQ Coalition argued that for a public regulatory body to accredit a law school that excludes sexual minorities diminishes the social standing of that group, stigmatizes their identities and perpetuates harm to their dignity and equality interests. The Court of Appeal, however, dismissed this argument on the basis that such discrimination amounts only to “hurt feelings”, which (astonishingly) the Court held are not protected by s. 15. Not only does the Court’s characterization of the issue ignore that LGTBQ students are being denied the full rights of citizenship, but “hurt feelings” in fact lie at the core of s. 15: they can erode the target group’s sense of self-worth and foster the perpetuation of prejudice and stereotyping, which are among the harms s. 15 is most clearly designed to prevent. The Law Society has stated that it will seek leave to appeal to the Supreme Court of Canada and, given the direct inconsistency between the BC and Ontario judgments, it would seem that leave is all but guaranteed. The appeal will offer the Court an opportunity to re-examine the limits of freedom of religion and to weigh the impact to equality rights by state licensing of discriminatory conduct.” Karey Brooks is a principal at JFK Law Corp. She represented the LGBTQ Coalition in the appeal. Tim Dickson is a partner at Farris LLP. He was counsel for the Canadian Secular Alliance and the BC Humanist Association.
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