



COURT OF APPEAL FOR ONTARIO

CITATION: Trinity Western University v. The Law Society of
    Upper Canada, 2016 ONCA 518

DATE: 20160629

DOCKET: C61116

MacPherson, Cronk and Pardu JJ.A.

BETWEEN

Trinity Western University and Brayden Volkenant

Applicants (Appellants)

and

Law Society of Upper Canada

Respondent (Respondent)

Robert W. Staley, Derek J. Bell and Ranjan K. Agarwal,
    for the appellants

Guy J. Pratte, Nadia Effendi and Duncan Ault, for the
    respondent

Gerald D. Chipeur, Q.C. and Grace Mackintosh, for the
    intervener the Seventh- day Adventist Church in Canada

Daniel C. Santoro and Joshua Tong, for the intervener the
    Justice Centre for Constitutional Freedoms

Albertos Polizogopoulos, for the interveners the
    Evangelical Fellowship of Canada and Christian Higher Education Canada

André Marshall Schutten, for the intervener the Association
    for Reformed Political Action (ARPA) Canada

Derek B.M. Ross and John R. Sikkema, for the intervener the
    Christian Legal Fellowship

Marlys Edwardh, Frances Mahon and Paul Jonathan Saguil,
    for the interveners Out on Bay Street and OUTlaws

Arden Beddoes, for the intervener the Canadian Secular
    Alliance

Susan Ursel and David Grossman, for the intervener the
    Canadian Bar Association

Gavin Magrath, for the intervener Lawyers Rights Watch
    Canada

Alan L.W. DSilva and Alexandra Urbanski, for the
    intervener the Canadian Civil Liberties Association

Chris Paliare and Joanna Radbord, for the intervener the
    Advocates Society

John Norris, for the intervener the Criminal Lawyers
    Association (Ontario)

Heard: June 6 and 7, 2016

On appeal from the order of the Divisional Court (Associate
    Chief Justice
Frank N. Marrocco, Justice Edward F. Then and
    Justice Ian V. B. Nordheimer)
dated July 2, 2015, with reasons reported
    at 2015 ONSC 4250, 126 O.R. (3d) 1.

MacPherson J.A.:

A.

Introduction

[1]

The
Canadian Charter of Rights and Freedoms
, enacted by the
Canada
    Act 1982
(U.K.), c.11, has been a part of the Canadian Constitution since
    1982. In 22 succinct sections (2-23), the
Charter
protects the rights
    and freedoms of all Canadians in six domains  fundamental, democratic,
    mobility, legal, equality and linguistic.

[2]

In the early years of the
Charter
, the Supreme Court of Canada strove
    to interpret all these rights and freedoms in a broad fashion. One of the
    consequences of a broad definition of rights and freedoms is the possibility
    that they will collide with other important values in Canadian society.

[3]

One category of collision is well-known in the 34-year history of the
Charter
.
    The rights and freedoms in the
Charter
, broadly defined, may collide
    with important government objectives (security, health, the economy, etc.).
    This type of collision happens frequently and is resolved by meshing the
    interpretation of the right or freedom with the limitation in s. 1 of the
Charter
.

[4]

A second category of collision occurs more rarely. It is a collision
    between the broad interpretation of two rights or freedoms. This appeal,
    involving a clash between religious freedom and equality, is an example of this
    second category of collision.

[5]

Trinity Western University (TWU) is a longstanding, respected private
    university in British Columbia. Its mandate is anchored in an underlying
    evangelical Christian philosophy. Part of its religious philosophy includes a
    strong opposition to same-sex relationships and marriages, and common law relationships
    outside marriage.

[6]

TWU wants to establish a law school. Although members of the lesbian,
    gay, bisexual, transgender and queer (LGBTQ) community may apply to the proposed
    law school, they will not be admitted unless they are willing to sign and
    adhere to TWUs Community Covenant, described below, which forbids sexual
    intimacy except between married heterosexual couples. The consequence is that
    LGBTQ students are discriminated against in terms of admission to, and life at,
    TWU. TWU, on the other hand, says that its Community Covenant is protected by
    its right to freedom of religion.

[7]

This appeal arises from a decision by the Law Society of Upper Canada
    (LSUC) on the accreditation of TWUs proposed law school. TWU wants to be
    sure that its graduates will be eligible to be called to the bar throughout
    Canada, and so it has applied to the provincial law societies, including the
    LSUC, for accreditation of its proposed law school.

[8]

Six law societies have granted accreditation  Alberta, Saskatchewan,
    Manitoba, New Brunswick, Prince Edward Island, and Newfoundland and Labrador. To
    my knowledge, there have not been any court proceedings in the six provinces
    where accreditation has been granted.

[9]

Three law societies have refused accreditation  British Columbia, Nova
    Scotia, and Ontario. The law society decisions refusing accreditation in
    British Columbia and Nova Scotia were overturned by superior court decisions in
    both provinces: see
Trinity Western University v. Law Society of British
    Columbia
, 2015 BCSC 2326, 392 D.L.R. (4th) 722, and
Trinity Western
    University v. Nova Scotia Barristers Society
, 2015 NSSC 25, 381 D.L.R. (4th)
    296. These decisions have been appealed; the Nova Scotia appeal was heard in
    April 2016 and the British Columbia appeal was heard in June 2016.

[10]

In Ontario, by virtue of a 28-21 vote on April 24, 2014, the benchers of
    the LSUC denied accreditation to TWUs proposed law school.

[11]

TWU sought judicial review of this decision. In reasons released on July
    2, 2015, a three-judge panel of the Divisional Court dismissed the application
    for judicial review.

[12]

TWU appeals from the Divisional Court decision. As will be seen, the
    crux of the appeal involves a collision between freedom of religion and
    equality, both of which are protected in the
Charter
and both of which
    have been defined and interpreted in a generous fashion by the Supreme Court of
    Canada.

[13]

In
R. v. Big M Drug Mart Ltd.
, [1985] 1 S.C.R. 295, Dickson
    C.J. said, at p. 336:

A truly free society is one which can accommodate a wide
    variety of beliefs, diversity of tastes and pursuits, customs and codes of
    conduct. A free society is one which aims at equality with respect to the
    enjoyment of fundamental freedoms.

[14]

The challenge in this appeal is considering the balance between freedom
    of religion on the one hand and equality in the context of sexual orientation
    on the other hand. Who strikes the balance and what is it?

B.

Facts

(1)

The
    parties and events

(a)

TWU

[15]

TWU is a private Christian university in Langley, British Columbia. It
    is said to be an arm of the Evangelical Free Church of Canada, which is a
    Protestant Christian denomination.

[16]

TWU was established in 1962. In 1969, the
Trinity Junior College A
ct,
    S.B.C. 1969, c. 44, was enacted. It stated that TWUs education is to be
    provided with an underlying philosophy and viewpoint that is Christian.

[17]

TWU was recognized as a degree-granting institution in 1979. In 1985 its
    name was changed to its current name and it was authorized to offer graduate
    degrees.

[18]

TWU now offers more than 50 undergraduate and graduate programs,
    including professional programs in business, education, nursing, and
    counselling psychology, to its student body of approximately 4,000 students.

[19]

TWU adheres to the Association of Universities and Colleges of Canadas
    policy on Academic Freedom.

[20]

TWU has a Mission Statement that is central to its operations and
    programs:

The mission of Trinity Western University, as an arm of the
    Church, is to develop godly Christian leaders: positive, goal-oriented
    university graduates with thoroughly Christian minds; growing disciples of Jesus
    Christ who glorify God through fulfilling the Great Commission, serving God and
    people in the various marketplaces of life.

[21]

TWU, consistent with evangelical Christianity, affirms that the Bible is
    the authoritative and divinely-inspired word of God and that people reach their
    fullest potential by participating in a community committed to the observation
    of Biblical teachings. This belief is foundational to TWUs approach to
    education and community development and finds expression in a document titled Trinity
    Western University Community Covenant Agreement (the Community Covenant or
    Covenant).

[22]

All TWU students must read, understand and agree to abide by the terms
    of the Community Covenant. The document is a code of conduct that embodies
    TWUs evangelical Christian religious values. In agreeing to abide by the
    Covenant, members of the TWU community (administrators, faculty, students and
    staff) commit themselves to virtues such as love, joy, peace, patience,
    kindness, goodness, faithfulness, gentleness, self-control, compassion,
    humility, forgiveness, peacemaking, mercy and justice.

[23]

Under the heading  Life at TWU
[24]

Under the heading Healthy Sexuality, the Community Covenant states that according
    to the Bible, sexual intimacy is reserved for marriage between one man and one
    woman.
[25]

These provisions flow from the evangelical Christian tradition that
    defines marriage as an exclusive, lifelong, covenantal union of male and
    female. Parts of the Bible are interpreted as the foundation for this belief.
    Accordingly, same-sex intercourse and marriage are believed to be contrary to Biblical
    teaching and are, therefore, morally unacceptable.
[26]

While TWU teaches from a Christian perspective, it permits students to
    hold and express diverse opinions on moral, ethical and religious issues,
    including same-sex relationships, even if they conflict with TWUs religious
    beliefs and positions.
[27]

TWU does not ban admission to LGBTQ students and there are students from
    that community at TWU. The Community Covenant prohibits any form of harassment,
    including harassment on the basis of sexual orientation.
[28]

TWU does not actively seek out cases of non-compliance with the
    Community Covenant but complaints about non-compliance can be made. Discipline
    may include expulsion.
(b)

Brayden
    Volkenant
[29]

Brayden Volkenant is a graduate of TWUs Bachelor of Arts (Business
    Administration) program. He is an evangelical Christian and so he already
    believed in many of the values expressed in the Community Covenant when he went
    to TWU. As a TWU student, he acknowledged and accepted the terms of the
    Covenant. Mr. Volkenants preference would have been to attend TWUs proposed
    law school, but he has now enrolled at the University of Albertas Faculty of
    Law. He is interested in practising law in Ontario after graduating from law
    school.
(c)

The
    LSUCs Mandate
[30]

The LSUC was created by Imperial statute in 1797:
An Act for the
    better regulating the Practice of the Law
, S.U.C. 1797 (37 Geo. III), c. XIII.
[31]

In 1877, the LSUC was given the authority to improve legal education,
    including making rules with respect to the admission of students-at-law,
    conditions of study, and admission to the practice of law.
[32]

In 1912, the LSUC was given the authority to establish and maintain a
    law school.
[33]

In 1957, the LSUC agreed to allow Ontario universities to develop an
    LL.B. program. Until that point, the LSUC had maintained a monopoly on legal
    studies that led to admission to the Ontario bar.
[34]

Since 1957, the LSUC has retained authority over admission to the
    profession. No person can practise law in Ontario without a licence and the
    LSUC has the exclusive authority to establish the requisite classes of licence.
    As well, under the
Law Society Act
, R.S.O. 1990, c. L.8 (
LSA
),
    the LSUC has the exclusive authority to prescribe qualifications and
    requirements to obtain a licence to practise law in Ontario. These grants of
    authority are in keeping with the LSUCs obligation under s. 4.1 of the
LSA
to ensure that all lawyers practising in Ontario satisfy appropriate standards of
    learning, professional competence and professional conduct. As discussed below,
    in carrying out its functions, duties and powers, the LSUC must have regard to
    the public interest under s. 4.2 of the
LSA
.
[35]

Pursuant to its by-law making powers, the LSUC introduced accreditation
    of law schools as part of its licensing process. By-law 4 prescribes that one
    of the requirements for a class L1 licence to practise law is a degree from an
    accredited law school. An accredited law school is defined as a law school in
    Canada that is accredited by the Society.
(d)

Federation
    of Law Societies of Canada Process
[36]

In 2010, all the Canadian law societies agreed to give the Federation of
    Law Societies of Canadas Canadian Common Law Program Approval Committee (Federation
    Approval Committee) the power to review new common law degree programs to
    ensure that graduates are adequately prepared for admission to the bar.
[37]

In June 2012, TWU submitted its proposal to the Federation Approval
    Committee for a law school to open in September 2015 (later amended to
    September 2016). The Federation Approval Committee granted preliminary approval
    to TWU in December 2013.
[38]

In the meantime, the Federation established a Special Advisory Committee
    with a mandate to advise on this question:
What additional considerations, if any, should be taken into
    account in determining whether future graduates of TWUs proposed school of law
    should be eligible to enroll in the admissions program of any of Canadas law
    societies, given the requirement that all students and faculty of TWU must
    abide by TWUs Community Covenant Agreement as a condition of admission and
    employment, respectively?
[39]

The Special Advisory Committee concluded that there was no public
    interest reason to exclude future graduates of the program from law society bar
    admissions programs.
(e)

The
    LSUCs Process
[40]

In January 2014, TWU asked the LSUC to accredit its law school.
[41]

In early 2014, the Treasurer
[1]
of the LSUC delivered a statement outlining the process it would follow in
    order to arrive at a decision about TWUs request for accreditation.
[42]

TWU was invited to provide written submissions, which it did on April 2,
    2014.
[43]

The LSUC invited members of the profession and public to make
    submissions. The LSUC received approximately 210 submissions.
[44]

The record also included the relevant reports of the Federation of Law
    Societies of Canada and three legal opinions that the LSUC solicited: by Freya
    Kristjanson on the approach to ss. 4.1 and 4.2 of the
LSA
; by Mahmud
    Jamal on the implications of the
Charter
in the accreditation
    decision; and by Andrew Pinto on the relevance of the
Human Rights Code
,
    R.S.O. 1990, c. H.19 (
HRC
).
[45]

On April 10, 2014, the benchers of the LSUC, in Convocation, discussed accrediting
    the proposed law school. They also posed questions to the TWU representatives
    who were present at the meeting.
[46]

On April 22, 2014, TWU provided written reply submissions to some of the
    issues raised at the April 10 meeting.
[47]

On April 24, 2014, the LSUC held a final meeting. The Secretary posed
    this question:
Given that the Federation Approval Committee has provided preliminary
    approval to the Trinity Western University law program, in accordance with
    processes Convocation approved in 2010 respecting the national requirement and
    in 2011 respecting the approval of law school academic requirements, should the
    Law Society of Upper Canada now accredit Trinity Western University pursuant to
    section 7 of by-law 4?
[48]

The President of TWU, Bob Kuhn, then addressed Convocation. He spoke for
    about an hour and a half, concluding with:
I urge you to decide this matter in a manner consistent with
    the rule of law and every other authority that has considered the fate of
    Trinity Western Universitys law school, and I commend that decision to you in
    the good faith that you will see your task as upholding the rule of law and
    upholding the place of religious freedom in this country.
[49]

For the rest of the day, many benchers spoke and declared their
    positions. Late in the afternoon, the vote was called. The question set out
    above was answered: Yes - 21; No - 28; Abstention - 1. The LSUC decided not to
    accredit the proposed TWU law school.
[50]

TWU brought an application for judicial review of the LSUC decision.
(2)

The
    Divisional Court Decision
[51]

The Divisional Court dismissed TWUs application for judicial review.
    The key components of its reasons, which were By the Court, are:
(1)

the appropriate standard of
    review of the LSUC decision is reasonableness;
(2)

when deciding whether to
    accredit a law school, the LSUC is not restricted simply to considering standards
    of competence; a broader spectrum of considerations with respect to the public
    interest is engaged;
(3)

the decision of the Supreme
    Court of Canada in
Trinity Western University v. British Columbia College
    of Teachers
, 2001 SCC 31, [2001] 1 S.C.R. 772 (
TWU 2001
), is not
    determinative of the application for judicial review;
(4)

the LSUC decision not to
    accredit TWUs proposed law school infringes TWUs and Mr. Volkenants freedom
    of religion under s. 2(a) of the
Charter;
(5)

in assessing the public
    interest, the LSUC is entitled to consider that the impact of TWUs Community
    Covenant on members of the LGBTQ community is contrary to the equality rights
    protections in the
Charter
and the
HRC
; and
(6)

the LSUC engaged in a
    proportionate balancing of the rights at play  freedom of religion and
    equality  and its decision refusing to accredit TWUs proposed law school is,
    therefore, reasonable.
C.

Issues
[52]

The issues on this appeal are:
(1)

Is the decision of the Supreme
    Court of Canada in
TWU 2001
determinative of this appeal?
(2)

Was the Divisional Court correct
    in applying a reasonableness standard of review?
(3)

Applying the relevant standard
    of review, did the Divisional Court err in:
(a)

its interpretation of the LSUCs
    statutory mandate in ss. 4.1 and 4.2 of the
LSA
; and
(b)

its conclusion that the LSUC
    engaged in a proportionate balancing of freedom of religion and equality and
    made a reasonable decision by refusing to accredit TWUs proposed law school?
[53]

In their factum, the appellants also submit that the LSUCs decision
    infringes the appellants s. 2(b) right to freedom of expression and s. 2(d)
    associational rights. In oral argument, however, their focus was on freedom of
    religion. In light of my conclusion on freedom of religion, I need not address the
    appellants s. 2(b) and s. 2(d) arguments.
D.

Analysis
(1)

The
TWU 2001
decision
[54]

Before the Divisional Court, the appellants argued that the Supreme
    Court of Canadas decision in
TWU 2001
was binding and determinative
    of the judicial review application. The Divisional Court rejected this
    submission.
[55]

On the appeal, the appellants advanced this argument in their factum,
    albeit very briefly (three paragraphs). In response to a question in oral
    argument, counsel stated that the appellants did not explicitly abandon the
    argument but would rest on the submissions in their factum.
[56]

Given that the appellants failed to press this issue in oral argument, the
    respondent touched on it only very briefly in its oral argument and the
    interveners, some of whom discussed it thoroughly in their factums, moved on to
    other points in their oral submissions.
[57]

In short, TWU moved away from its earlier categorical position that
TWU
    2001
was determinative of the outcome of the appeal. In my view, this
    development was a welcome one. I agree with the Divisional Courts reasoning
    and conclusion on this issue, at paras. 59-72. As the Divisional Court stated,
    at para. 60, [t]he issue raised before the Supreme Court of Canada in [
TWU
    2001
] involved different facts, a different statutory regime, and a
    fundamentally different question.
[58]

There is an additional reason that
TWU 2001
does not dispose of
    this appeal. The British Columbia College of Teachers denied accreditation on
    the basis that the Community Covenant might affect TWU graduates ability to
    teach in public schools in a non-discriminatory manner. In contrast, the LSUC
    accepts that TWU graduates would not be at any more risk of discriminating
    because of the Community Covenant than graduates of other law schools. Rather,
    it argues that it is not in the public interest to accredit a law school that
    prevents access through a discriminatory policy. In other words, the
    regulators argument in this case is different than the argument addressed by
    the Supreme Court in
TWU 2001
.
[59]

I make a final comment on this issue. Although
TWU 2001
is not
    determinative of this appeal, I agree with the Divisional Courts observation,
    at para.72, that is not to say that the decision in [
TWU 2001
] is not
    an important consideration in the resolution of the issues that are presented
    to us. For example, in
TWU 2001
the Supreme Court expressed views
    about balancing freedom of religion and equality rights in a sexual orientation
    context that are directly relevant to this appeal.
(2)

Standard
    of review
[60]

Before the Divisional Court and in their appeal factum, the appellants
    took the position that the question whether a professional licensing body is
    justified in rejecting TWU based on its religious beliefs had already been
    decided on a standard of correctness in
TWU 2001
. In the alternative,
    they argued that if
TWU 2001
is not determinative, the correctness
    standard applies to at least parts of the LSUCs decision because it raises
    questions about the scope of the LSUCs jurisdiction and engages important
    questions of law that are outside of its expertise. Finally, the appellants
    argued that the lack of reasons militates in favour of a correctness standard.
[61]

While the appellants did not abandon their arguments on correctness in
    oral argument at the appeal hearing, they did not push them. Instead, they advanced
    a forceful submission that the LSUCs decision was unreasonable.
[62]

In my view, this change of tack was warranted.
TWU 2001
was
    decided at a time when, in the administrative law context, there were three
    standards of review  correctness, reasonableness
simpliciter
and patent
    unreasonableness.
[63]

After
TWU 2001
, in
Law Society of New Brunswick v. Ryan
,
    2003 SCC 20,
[2003] 1 S.C.R. 247
,
    at para. 62, Iacobucci J. adopted a reasonableness
simpliciter
standard
    in reviewing a sanction imposed for professional misconduct:
Although there is a statutory appeal from decisions of the
    Discipline Committee, the expertise of the Committee, the purpose of the enabling
    statute, and the nature of the question in dispute all suggest a more
    deferential standard of review than correctness. These factors suggest that the
    legislator intended that the Discipline Committee of the self-regulating Law
    Society should be a specialized body with the primary responsibility to promote
    the objectives of the Act by overseeing professional discipline and, where
    necessary, selecting appropriate sanctions. In looking at all the factors as
    discussed in the foregoing analysis, I conclude that the appropriate standard
    is reasonableness
simpliciter
. Thus, on the question of the
    appropriate sanction for professional misconduct, the Court of Appeal should
    not substitute its own view of the correct answer but may intervene only if
    the decision is shown to be unreasonable.
[64]

After
TWU 2001
and
Ryan,
there was a sea change in this
    area of law with the decision in
Dunsmuir v. New Brunswick
, 2008 SCC 9,
    [2008] 1 S.C.R. 190, that reduced the standard of review to two categories 
    correctness and reasonableness.
[65]

The reasonableness standard has since been adopted as the presumptive standard
    of review to be applied with respect to the decisions of professional
    regulatory bodies engaged in an interpretation of their enabling statutes,
    including those that regulate the legal profession.
[66]

Thus, in a case dealing with an appeal of a decision of a discipline
    tribunal in the legal profession,
Doré
v. Barreau du Quebec
,
    2012 SCC 12, [2012] 1 S.C.R. 395, the court affirmed that the deferential
    standard set out in
Ryan
was consistent with
Dunsmuir
principles,
    with Abella J. saying, at para. 30:
In
Dunsmuir
, the Court held that judicial review
    should be guided by a policy of deference, justified on the basis of legislative
    intent, respect for the specialized expertise of administrative
    decision-makers, and recognition that courts do not have a monopoly on
    adjudication in the administrative state (para. 49).
[67]

I do not see, and the appellants do not assert, any qualitative
    difference between decisions of law society discipline tribunals (
Ryan
and
Doré
) and a decision whether to accredit a law school. Both
    categories of decision are in the wheelhouse of the expertise of the law
    society.
[68]

Nor can the fact that the LSUCs decision in this case required a
    careful analysis and balancing of the appellants
Charter
rights with other
Charter
values
    remove the standard of review from the reasonableness category. Administrative
    tribunals are entitled, indeed required, to take account of, and try to act
    consistently with,
Charter
values as they make decisions within their
    mandate: see
Doré
, at para. 24, and
Loyola High School v. Quebec
    (Attorney General)
, 2015 SCC 12, [2015] 1 S.C.R. 613, at para. 37. The
    balancing of
Charter
rights and

values does not in and of itself
    take a decision outside of the expertise of an administrative tribunal. Here,
    the LSUCs accreditation decision, which took into account
Charter
rights
    and values, was within the LSUCs expertise
.
[69]

Contrary to the appellants assertions, there is no true question of
    jurisdiction here. For reasons I will elaborate below, the LSUCs decision not
    to accredit TWU fell squarely within its statutory mandate to act in the public
    interest.  For this reason as well, no general question of law of central
    importance and outside the LSUCs specialized area of expertise arises in this
    case.
[70]

Finally, the adequacy of an administrative tribunals reasons is not a
    stand-alone basis for quashing a decision:
Newfoundland and Labrador Nurses
    Union v. Newfoundland and Labrador (Treasury Board)
, 2011 SCC 62, [2011] 3
    S.C.R. 708, at para. 14. It also does not change the applicable standard of
    review. While the nature of the reasons certainly can have a bearing on whether
    a decision meets the requirement for justification, transparency and
    intelligibility, set out in
Dunsmuir,
at para. 47, it does not subject a
    decision that would otherwise be reviewed on the reasonableness standard to a
    review for correctness.
[71]

For these reasons, I conclude that the Divisional Court was correct to hold
    that the appropriate standard of review with respect to the LSUCs
    accreditation decision was reasonableness.
(3)

The
    LSUCs decision  reasonable?
[72]

The appellants contend that the LSUCs decision not to accredit TWUs
    proposed law school was unreasonable in two respects: (1) it flowed from an
    overly expansive interpretation of ss. 4.1 and 4.2 of the
LSA
, and (2)
    it was based on a flawed balancing of the competing
Charter
rights and
    values  freedom of religion and equality.
[73]

I will consider these submissions in turn. I do so mindful of the
    definition and implications of the reasonableness standard of review.
[74]

In my view,
Dunsmuir
remains the leading case on the definition
    of reasonableness. Bastarache and LeBel JJ. stated, at para. 47:
Reasonableness is a deferential standard animated by the
    principle that underlies the development of the two previous standards of
    reasonableness: certain questions that come before administrative tribunals do
    not lend themselves to one specific, particular result. Instead, they may give
    rise to a number of possible, reasonable conclusions. Tribunals have a margin
    of appreciation within the range of acceptable and rational solutions. A court
    conducting a review for reasonableness inquires into the qualities that make a
    decision reasonable, referring both to the process of articulating the reasons
    and to outcomes. In judicial review, reasonableness is concerned mostly with
    the existence of justification, transparency and intelligibility within the
    decision-making process. But it is also concerned with whether the decision
    falls within a range of possible, acceptable outcomes which are defensible in
    respect of the facts and law.
[75]

A second case that provides a clear description of the reasonableness
    standard and its implications is
Ryan
, wherein Iacobucci J. said, at
    paras. 51 and 55-56:
There is a further reason that courts testing for
    unreasonableness must avoid asking the question of whether the decision is
    correct. Unlike a review for correctness, there will often be no single right
    answer to the questions that are under review against the standard of
    reasonableness. For example, when a decision must be taken according to a set
    of objectives that exist in tension with each other, there may be no particular
    trade-off that is superior to all others. Even if there could be, notionally, a
    single best answer, it is not the courts role to seek this out when deciding
    if the decision was unreasonable.

A decision will be unreasonable only if there is no line of
    analysis within the given reasons that could reasonably lead the tribunal from
    the evidence before it to the conclusion at which it arrived. If any of the
    reasons that are sufficient to support the conclusion are tenable in the sense that
    they can stand up to a somewhat probing examination, then the decision will not
    be unreasonable and a reviewing court must not interfere. This means that a
    decision may satisfy the reasonableness standard if it is supported by a
    tenable explanation even if this explanation is not one that the reviewing
    court finds compelling.
This does not mean that every element of the reasoning given
    must independently pass a test for reasonableness. The question is rather
    whether the reasons, taken as a whole, are tenable as support for the decision.
    At all times, a court applying a standard of reasonableness must assess the
    basic adequacy of a reasoned decision remembering that the issue under review
    does not compel one specific result. Moreover, a reviewing court should not
    seize on one or more mistakes or elements of the decision which do not affect
    the decision as a whole. [Citations omitted.]
[76]

With these definitions and comments in mind, I turn to the
    LSUC decision and the Divisional Courts review of that decision.
[77]

The Divisional Court found that the LSUCs decision not to accredit
    TWUs proposed law school infringed the appellants freedom of religion.
    However, the decision was saved because the LSUC engaged in a proportionate
    balancing of the
Charter
rights and values in play (freedom of
    religion and equality) and reached a reasonable decision.
[78]

The appellants agree with the Divisional Courts conclusion about the
    infringement of their freedom of religion. They disagree with the conclusion
    about proportionate balancing.
[79]

In assessing the reasonableness of the LSUCs decision, this court must
    consider it in the context of (i) the appellants
Charter
rights at
    stake; (ii) the LSUCs statutory objectives; and (iii) whether the decision
    represents a reasonable balance between the two: see
Doré
, at paras.
    55-58.
(a)

The appellants
Charter
rights
[80]

The Divisional Court found, at para. 81, that the LSUCs decision
    infringed the appellants freedom of religion:
[W]e are nonetheless satisfied that the decision of the
    respondent does amount to an infringement of the applicants rights to freedom
    of religion. We reach that conclusion by applying a broad interpretation of
    those rights  one that is consistent with the jurisprudence on the subject.
[81]

In its factum the LSUC argued, briefly, that the appellants
Charter
s. 2(a) freedom of religion is not engaged.
[82]

However, in the course of oral argument, the LSUC moderated its
    position, and made it clear that its primary submission was that any limitation
    on the appellants freedom of religion was reasonable.
[83]

I agree with the Divisional Courts conclusion and the LSUCs position
    taken in oral argument on this issue. However, since the question of
    infringement is a key component of the
Doré
analysis, I offer my own
    reasoning on this issue.
[84]

The first step in analyzing the LSUCs decision requires this court to
    consider whether the decision engages the
Charter
by limiting its
    protections: see
Loyola
, at para. 39. The question to be asked in
    this context is whether the decision has the effect of interfering with the
    individuals freedom of conscience and religion, that is, impeding the
    individuals ability to act in accordance with his or her beliefs:
Mouvement
    laïque québécois v. Saguenay (City)
, 2015 SCC 16, [2015] 2 S.C.R. 3, at
    para. 85.
[85]

The purpose of the right protected under s. 2(a) was first explored by
    Dickson C.J. in
Big M
, at pp. 336-37:
The essence of the concept of freedom of religion is the right
    to entertain such religious beliefs as a person chooses, the right to declare
    religious beliefs openly and without fear of hindrance or reprisal, and the
    right to manifest religious belief by worship and practice or by teaching and dissemination.
    But the concept means more than that.
Freedom can primarily be characterized by the absence of
    coercion or constraint. If a person is compelled by the state or the will of
    another to a course of action or inaction which he would not otherwise have
    chosen, he is not acting of his own volition and he cannot be said to be truly
    free. One of the major purposes of the
Charter
is to protect within
    reason from compulsion or restraint. Coercion includes not only such blatant
    forms of compulsion as direct commands to act or refrain from acting on pain of
    sanction, coercion includes indirect forms of control which determine or limit
    alternative courses of conduct available to others. Freedom in a broad sense
    embraces both the absence of coercion and constraint, and the right to manifest
    beliefs and practices. Freedom means that, subject to such limitations as are
    necessary to protect public safety, order, health, or morals or the fundamental
    rights and freedoms of others, no one is to be forced to act in a way contrary
    to his beliefs or his conscience.
[86]

In
R. v. Edwards Books and Art Ltd.
, [1986] 2 S.C.R. 713, at p.
    759, Dickson C.J. added: The purpose of s. 2(a) is to ensure that society does
    not interfere with profoundly personal beliefs that govern ones perception of
    oneself, humankind, nature, and, in some cases, a higher or different order of
    being. These beliefs, in turn, govern ones conduct and practices.
[87]

Most recently, in
Saguenay
, at para. 69, Gascon J. summarized
    the principles originating in
Big M
and
Edwards Books
succinctly:
[F]reedom of conscience and religion protects the right to
    entertain beliefs, to declare them openly and to manifest them, while at the
    same time guaranteeing that no person can be compelled to adhere directly or
    indirectly to a particular religion or to act in a manner contrary to his or
    her beliefs. [Citations omitted.]
[88]

To determine whether the LSUCs decision interferes with the claimants
    freedom of religion, it is necessary to apply the test for establishing a
    breach of s. 2(a) first set out in
Syndicat Northcrest v. Amselem
,
    2004 SCC 47, [2004] 2 S.C.R. 551, at paras. 56-57, and recently restated in
Saguenay
,
    at para. 86, as follows:
To conclude that an infringement has occurred, the court or
    tribunal must (1) be satisfied that the complainants belief is sincere, and
    (2) find that the complainants ability to act in accordance with his or her
    beliefs has been interfered with in a manner that is more than trivial or
    insubstantial. [Citations omitted.]
[89]

In
Amselem
, at para. 56, Iacobucci J. described the inquiry at
    the first step of the test as follows:
Thus, at the first stage of a religious freedom analysis, an
    individual advancing an issue premised upon a freedom of religion claim must
    show the court that (1) he or she has a practice or belief, having a nexus with
    religion, which calls for a particular line of conduct, either by being
    objectively or subjectively obligatory or customary, or by, in general,
    subjectively engendering a personal connection with the divine or with the
    subject or object of an individuals spiritual faith, irrespective of whether a
    particular practice or belief is required by official religious dogma or is in
    conformity with the position of religious officials; and (2) he or she is sincere
    in his or her belief. Only then will freedom of religion be triggered.
[90]

I do not hesitate in concluding that both TWU and Mr. Volkenant are
    sincere in their beliefs about the benefits to the TWU community that are
    fostered by the existence, adherence to, and enforcement of the Community
    Covenant, and further, that Mr. Volkenant is sincere in his belief that his
    pursuit of higher education taught through the lens of an evangelical Christian
    worldview subjectively furthers the practice of his faith. The link between the
    values enshrined in not only the Covenant but also TWUs foundational documents,
    such as its Mission Statement, and the appellants evangelical Christian
    religious belief and practice is self-evident.
[91]

It is readily apparent that Mr. Volkenants s. 2(a) right is engaged
    here. As Dickson C.J. observed in
Big M
, at p. 336, freedom of religion
    encompasses not only the right to hold beliefs, but also the right to manifest
    religious belief by worship and practice or by teaching and dissemination. As
    was argued forcefully and eloquently by counsel for the Evangelical Fellowship
    of Canada and Christian Higher Education Canada, the decision to attend TWU is
    fundamentally a religious one that manifests the evangelical Christian
    religious beliefs held by the student.
[92]

For Mr. Volkenant, attending TWUs proposed law school would allow him
    to not only practise the Covenants values, which he would in any event be free
    to do without attending TWU, but also to participate in an educational
    community, consisting largely of like-minded individuals, that embraces values
    grounded in evangelical Christian beliefs about the conduct both prescribed and
    proscribed by the Covenant. To borrow a phrase from
Amselem
, at para.
    56, Mr. Volkenants participation in such a community subjectively engender[s]
    a personal connection with the divine over and above the connection achieved
    by his own personal adherence to the Covenants values.
[93]

Turning to TWU, while the degree to which religious organizations can
    independently claim the protection afforded by s. 2(a) has not been established
    conclusively in the jurisprudence, it is clear that freedom of religion under
    the
Charter
has a collective aspect: see
Alberta v. Hutterian
    Brethren of Wilson Colony
, 2009 SCC 27, [2009] 2 S.C.R. 567, at para. 31;
Loyola
,
    at para. 33,
per
Abella J., and, at para. 89,
per
McLachlin
    C.J. and Moldaver J., concurring. In
Loyola
, at para. 33, the majority
    recognized that individuals may sometimes require a legal entity in order to
    give effect to the constitutionally protected communal aspects of their
    religious beliefs and practice.
[94]

On the facts of this case, TWUs own s. 2(a) right is also engaged. The
    collective aspect of freedom of religion is particularly important in the
    context of the present case, where individuals such as Mr. Volkenant
    necessarily require an entity to both establish a community within which
    members can study law from an evangelical Christian perspective and to set and
    enforce the religious practices to be followed by the law school community. It
    is only through TWU that the claim to operate a degree-granting accredited law
    school from an evangelical Christian perspective can possibly be advanced. In
    this way, TWU acts as the vehicle through which the religious freedoms of its
    individual members, including teachers, students, and staff, can be manifested,
    pursued and achieved. Echoing the observations of McLachlin C.J. and Moldaver
    J. in
Loyola
, at para. 94, here [t]he individual and collective aspects
    of freedom of religion are indissolubly intertwined in that the freedom of
    religion of individuals cannot flourish without freedom of religion for the
    organizations through which those individuals express their religious practices
    and through which they transmit their faith.
[95]

For there to be an interference with TWUs and Mr. Volkenants sincere
    religious beliefs, the LSUCs decision to deny accreditation must have the
    effect of interfering with their ability to act in accordance with those
    beliefs in a manner that is more than trivial or insubstantial: see
Edwards
    Books
, at p. 759;
R. v. Jones
, [1986] 2 S.C.R. 284, at p. 313-14;
Amselem
, at para. 57; and
Saguenay
, at para. 86. Determining
    whether an alleged interference with freedom of religion is more than trivial
    or insubstantial is a context-specific exercise, and requires an objective
    analysis of the rules, events or acts that interfere with the exercise of the
    freedom: see
Amselem
, at para.
59;
S.L. v.
    Commission scolaire des Chenes
, 2012 SCC 7, [2012] 1 S.C.R. 235, at para.
24.
[96]

In my view, it is premature to attempt to assess on the facts now before
    us whether and to what extent there may be an interference with Mr. Volkenants
    s. 2(a)
Charter
rights or indeed an interference with the s. 2(a) rights
    of any other student who eventually graduates from TWUs law school, should
    they face some alternate process to be admitted to the Bar of Ontario. I
    understand that currently there is no process by which a law graduate from an
    unaccredited law school in Canada could be admitted to the Ontario Bar. That
    does not, however, end the inquiry.
[97]

It must be observed here, as the LSUC argues and the Divisional Court
    also observed below, that the LSUC cannot directly compel either TWU or Mr.
    Volkenant to do, or not do, anything. Even absent accreditation, TWU would be
    free to operate its law school in the manner it chooses and Mr. Volkenant would
    be free to attend in accordance with his personal beliefs.
[98]

As
Big M
makes clear, at p. 337, however, s. 2(a) is concerned
    not only with direct interferences with freedom of religion, but also indirect
    forms of control which determine or limit alternative courses of conduct
    available to others. I accept that  because the LSUCs decision would
    discourage individuals like Mr. Volkenant, who may wish to eventually practise
    law in Ontario, from attending TWUs proposed law school in favour of a law
    school accredited by the LSUC, it would also affect TWUs ability to attract
    students given that Ontario is the largest market in Canada for law graduates.
[99]

While TWU has suggested that it may not open its law school absent
    accreditation by the LSUC, there is no evidence before us that the LSUCs
    decision would have so dramatic an effect. The question remains, however,
    whether the LSUCs decision not to accredit TWU because of the existence of the
    Covenant would interfere with TWUs religious freedom in a manner that is more
    than trivial or insubstantial. I accept that it would. The failure to accredit means
    that TWU would face an increased burden in attracting students to its law
    school. In my view, this increased burden, while it may not go so far as to
    threaten the law schools existence, cannot be said to be insignificant.
[100]

The LSUC argued that
    the protection granted by s. 2(a) is limited in that freedom of religion does
    not extend to practices, like the Covenant, that interfere with the rights and
    freedoms of others, and so even if TWUs s. 2(a) right may be engaged, it is
    not infringed. I agree that the jurisprudence establishes that freedom of
    religion is not absolute and that in any
Charter
analysis the competing
    rights of other individuals must always be taken into account: see
Big M
,
    at p. 346;
TWU 2001
, at paras. 29-30;
Amselem
, at paras.
    61-62. However, in the context of the analysis mandated by
Doré
, in my
    view it is appropriate to adopt a broad definition of freedom of religion at
    this stage of the analysis and instead consider the impact of the exercise of
    that freedom on other
Charter
-protected interests at the second stage of
    the analysis.
[101]

Accordingly, I
    would find that the LSUCs decision infringes Mr. Volkenants and TWUs
    right to freedom of religion under s. 2(a) of the
Charter
.
(b)

The
    statutory objectives of the LSUC
[102]

Relying on s.
    4.1 of the
LSA
, the appellants submit that the LSUCs function is to
    ensure that Ontarios lawyers are appropriately educated, competent and ethical
    and that function, in and of itself, protects the public interest within the
    meaning of s. 4.2.3.
[103]

Sections 4.1 and
    4.2 provide as follows.
4.1     It is a function of the Society to ensure that,
(a) all persons who practise 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.
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. [Emphasis added.]
[104]

I am not
    persuaded by the appellants submission, which adopts a narrow reading of these
    provisions.
[105]

I begin by
    reiterating that the LSUCs decision, including the LSUCs interpretation of
    its home statute, is subject to review on a reasonableness standard. As the
    Divisional Court said, at para. 37:
The respondent was uniquely qualified to determine how the
    public interest, as it relates to the regulation of the legal profession in
    this Province, would be best advanced. Its conclusion, in that regard, should
    normally be evaluated on a standard of reasonableness, as the decision in
Saguenay
itself points out. At para. 46 of that decision, Gascon J. said, in part:
the Court noted that on judicial review of a decision of a
    specialized administrative tribunal interpreting and applying its enabling
    statute, it should be presumed that the standard of review is reasonableness [citations
    omitted].
[106]

After TWU
    applied to the LSUC for accreditation of its proposed law school, the LSUC
    commissioned a legal opinion from Ms. Kristjanson, a senior and respected constitutional
    and administrative lawyer, now a judge of the Superior Court. In a
    comprehensive letter dated April 4, 2014, Ms. Kristjanson discussed the
    relationship between ss. 4.1 and 4.2 of the
LSA
. Her advice included
    an analysis of the interpretation of the term public interest in the context
    of those provisions:
The next step in Convocations analysis is to determine what
    constitutes the public interest in the context of the accreditation decision.
    This can be done by looking at how the public interest has been interpreted
    in the context of the
LSA
and how courts have approached
    administrative decision-making in the public interest more broadly. With
    respect to the
LSA
, courts have determined that the Society must
    consider the members of the public who utilize legal services, as well as the
    public at large who may require legal services in the future. The public
    interest mandate of the Society has been relied on in the discipline
    jurisprudence as a means to ensure that the public has access to quality and
    reliable legal services, and that the public retains trust in the legal
    community.

[T]he requirement of governing lawyers in the public interest
    has been interpreted
inter

alia
through a number of reports
    to Convocation.
In the Societys own materials,
    regulating in the public interest has been understood as a mandate to integrate
    equity and diversity values and principles into the Societys model policies,
    services, programs and procedures
. [Emphasis added.]
[107]

The Divisional
    Court concluded on this issue as follows, at para. 58:
[T]he principles that are set out in s. 4.2, and that are to
    govern the respondents exercise of its functions, duties and powers under the
Law
    Society Act
, are not restricted simply to standards of competence. Rather,
    they engage the respondent in a much broader spectrum of considerations with
    respect to the public interest when they are exercising their functions, duties
    and powers, including whether or not to accredit a law school.
[108]

I agree with Ms.
    Kristjansons analysis and the Divisional Courts conclusion. There is no wall
    between ss. 4.1 and 4.2 of the
LSA
. The LSUC has an obligation to
    govern the legal profession in the public interest: see
Groia v. Law
    Society of Upper Canada
, 2016 ONCA 471, at para. 89. In setting and
    maintaining standards of learning, professional competence and professional
    conduct under s. 4.1 of the
LSA
, the LSUC is entitled to do so against
    the backdrop of the composition of the legal profession, including the
    desirable goal of promoting a diverse profession.
[109]

It follows that
    one of the LSUCs statutory objectives is to ensure the quality of those who
    practise law in Ontario. Quality is based on merit, and merit excludes
    discriminatory classifications. As explained by the Divisional Court, at paras.
    95-97, the LSUC over its long history has strived to remove discriminatory
    barriers to access to the legal profession:
As we attempted to set out in our recitation of the factual
    background of this case, the respondent has been engaged in determining the
    requirements of a legal education, necessary for the purposes of qualifying
    individuals for admission to the Bar, for more than 200 years.
[I]n carrying out its mandate under its enabling statute, the
    respondent throughout its long history, has acted to remove obstacles based on
    considerations, other than ones based on merit, such as religious affiliation,
    race, and gender, so as to provide previously excluded groups the opportunity
    to obtain a legal education and thus become members of the legal profession in
    Ontario.
In keeping with that tradition, throughout those many years,
    the respondent has acted to remove all barriers to entry to the legal
    profession save one  merit.
[110]

That the LSUC is
    also subject to the
Charter
and the
HRC
means that
Charter
and human rights values must inform how the LSUC pursues its stated
    objective of ensuring equal access to the profession.
[111]

In light of all
    the above, it was entirely appropriate for the LSUC to consider this statutory
    objective, informed by the values found in the
Charter
and
HRC
,
    when deciding whether to accredit TWU.
(c)

Balancing
[112]

In assessing
    whether accreditation is in the public interest, the LSUC was required to
    balance the statutory objectives of promoting a legal profession based on merit
    and excluding discriminatory classifications with the limit that denying
    accreditation would place on the appellants religious freedom.
[113]

The balancing of
    these two constructs necessarily involved the collision of TWUs religious
    freedom and respect for LGBTQ equality rights. As in
TWU 2001
, at
    para. 37, the scope of the freedom of religion and equality rights that have
    come into conflict in this appeal needs to be reconciled.
[114]

I have already
    concluded that the LSUCs decision not to accredit TWUs proposed law school
    infringed TWUs religious freedom.
[115]

I have no
    hesitation saying that TWUs admission policy, viewed in conjunction with the
    Community Covenant, discriminates against the LGBTQ community on the basis of
    sexual orientation contrary to s. 15 of the
Charter
and s. 6 of the
HRC
.
[116]

As expressed by
    Iacobucci and Bastarache JJ. in
TWU 2001
, at para. 25, the Community
    Covenant exacts a price on LGBTQ students:
Although the Community Standards are expressed in terms of a
    code of conduct rather than an article of faith, we conclude that a homosexual
    student would not be tempted to apply for admission, and could only sign the
    so-called student contract at considerable personal cost.
[117]

On the
    discrimination issue, the Divisional Court said, at paras. 112-14:
We accept that it is TWUs stated position that everyone
    attending its institution is treated with fairness and courtesy and
    open-mindedness. But it does not change the fact that, notwithstanding TWUs
    stated benevolent approach to the conduct of students and others at its
    institution, in order for persons, who do not hold the beliefs that TWU
    espouses, to attend TWU, they must openly, and contractually, renounce those
    beliefs or, at the very least, agree not to practise them. The only other
    apparent option for prospective students, who do not share TWUs religious
    beliefs, but who still desire to obtain one of its coveted law school spots, is
    to engage in an active deception, in terms of their true beliefs and their true
    identity, with dire consequences if their deception is discovered. TWUs
    technically correct statement that it does not ban or prohibit admission to
    LGBTQ students must be read and understood in this context.
This reality is of particular importance for LGBTQ persons
    because, in order to attend TWU, they must sign a document in which they agree
    to essentially bury a crucial component of their very identity, by forsaking
    any form of intimacy with those persons with whom they would wish to form a
    relationship. Contrary to the contention of the applicants, that requiring
    person[s] to refrain from such acts does not intrude on the rights of LGBTQ
    persons, it is accepted that sexual conduct is an integral part of a persons
    very identity. One cannot be divorced from the other. As Rothstein J. said in
Saskatchewan
    (Human Rights Commission) v. Whatcott
, [2013] 1 S.C.R. 467, at para. 124:
Courts have thus recognized that there is a strong
    connection between sexual orientation and sexual conduct. Where the conduct
    that is the target of speech is a crucial aspect of the identity of the
    vulnerable group, attacks on this conduct stand as a proxy for attacks on the
    group itself.
That is the reality with which the respondent was faced. It was
    essentially asked to approve and accept students from an institution that
    engaged in discrimination against persons who did not share the religious
    beliefs that were held by TWU, and the student body that it prefers to have at
    its institution.
[118]

In their factum,
    the interveners Out on Bay Street and OUTlaws say:
15.     The Covenant is not merely an expression of TWUs
    beliefs. The Covenant is a document that discriminates against LGBTQ persons by
    forcing them to renounce their dignity and self-respect in order to obtain an
    education.

17.     LGBTQ persons applying to TWU, or who come out while at
    TWU, will experience the stigma of not belonging and other destructive effects
    of regulating queer sexuality.
[119]

I agree with,
    and adopt, these statements by the Supreme Court of Canada, the Divisional
    Court, and the interveners Out on Bay Street and OUTlaws. My conclusion is a
    simple one: the part of TWUs Community Covenant in issue in this appeal is
    deeply discriminatory to the LGBTQ community, and it hurts.
[120]

Against this
    backdrop of a laudatory statutory objective of non-discrimination and its collision
    with freedom of religion, I turn to the appellants principal submission on the
    reasonableness of the LSUCs decision.
[121]

The appellants
    contend that a review of the opposed benchers speeches at Convocation, which
    presumably justified their vote against accrediting TWU, demonstrates that many
    of them ignored their legal obligation,
per

Doré
, to balance
    the appellants
Charter
rights with the laudatory statutory
    objectives.
[122]

I do not accept
    this submission. Before turning to the benchers speeches, I want to say a
    contextual word about the process that led to the decision on April 24, 2014.
    In my view, the process adopted by the LSUC to consider TWUs application was
    excellent. The record consisted of TWUs application and supporting material,
    the relevant reports of the Federation of Law Societies of Canada, three legal
    opinions designed to provide guidance to the benchers in their deliberative
    process, and approximately 210 submissions from members of the profession and the
    public.
[123]

Moreover, the
    actual decision-making process took place in two stages. On April 10, Ms.
    Kristjanson addressed Convocation on procedural fairness issues.
    Representatives of TWU were present and many benchers posed questions about
    TWUs application. Then TWU prepared and submitted a written reply to the
    questions.
[124]

On April 24, Mr.
    Kuhn, TWUs President, was permitted to address Convocation, which he did for
    almost an hour and a half. Then, over a four and a half hour period, 29
    benchers made speeches  of necessity, quite brief  on the resolution. Those
    speeches, as I read them, were thoughtful, respectful, and even eloquent. A
    full reading of the 29 speeches leaves a reader impressed. The benchers knew
    that they were making an historic decision  bencher Peter Wardle began his
    speech with the observation I found this a difficult decision, professionally,
    personally, morally, and as a practising Catholic  and their remarks befit
    the occasion.
[125]

I turn to the
    benchers speeches. The benchers had been given specific advice about the
Doré
analytical framework in one of the legal opinions. In my view, even without
    making allowances for the necessary brevity of the speeches, it is clear that
    the benchers, on both sides of the issue, engaged in a fair balancing of the
    conflicting rights. I cite but a few examples:
Bencher Mercer
The issue before Convocation today raises fundamental
    principles: freedom of religion, freedom of association, equality rights and
    the rule of law.

Justice LeBel for the court in
Doré
asked the
    question, how then does an administrative decision maker, which we are, apply
Charter
values in the exercise of statutory discretion? And to be clear, were
    exercising statutory discretion. Justice LeBel said the decision maker should
    first consider the statutory objectives, and I think that is fundamental to the
    exercise before us and I think we have to think long and hard about the
    statutory objectives pursuant to which we must decide.
Justice LeBel then went on to say that the decision maker
    should ask how the
Charter
values at issue will be best protected in
    view of the statutory objectives. This requires the decision maker to balance
    the severity of the interference with
Charter
protection with
    statutory objectives.

It seems to me to follow that freedom to control the conduct of
    others, including the sexual conduct of others, would be worthy of even lesser
    protection. I think this might properly be part of the
Doré
analysis.
Bencher Wardle
I accept that TWU as a religious institution has certain
    rights, the right of freedom of association, and the right to practice their
    beliefs sincerely held, and I dont think anybody here believes that those
    rights shouldnt be respected and I dont think anybody believes the TWU adherents
    do not sincerely believe theyre right.

[T]here are other fundamental rights at stake, and those rights
    are the right of gay, lesbian, bisexual and transgender persons to have access,
    unfettered access to an institution that can give them a law degree and
    ultimately access to this great profession.
Bencher Bredt
What does the law tell us about how we are to balance the right
    not to be discriminated against on the basis of sexual orientation with TWUs
    right to freedom of religion?
Bencher Minor
When the courts tell us  and, in fact, TWU reminded us that we
    need to balance here and they said they didnt hear much balancing. Well, when
    were balancing, what the court says is you first must look at the context in
    which youre balancing and the context here is the availability of professional
    spaces; that is to say, spaces in professional schools.

So, in my submission, there is no compelling reason to afford
    the claim for religious rights or religious freedom a higher acknowledgment than
    the rights of those who would enter into the law school process eventually to
    enter into our licensing program. And in my mind, that is balancing, that is
    how I would do it.
[126]

It is true that
    not all of the benchers engaged in precisely this style of reasoning that is explicitly
    faithful to the
Doré
analytical framework. However, all the benchers
    had received and reviewed a legal opinion on this topic and everyone heard all
    the speeches. I agree with the Divisional Courts comment, at para. 103:
The speeches are not
    read fairly by treating them as if they were reasons of a court where all
    competing arguments may be recited, or by reading an individual speech in
    isolation from the debate in which it took place. The Benchers were all well
    aware of the clash between religious rights and equality rights that the
    question before them presented.
[127]

Indeed, focusing
    on the benchers speeches in minute detail, as suggested by the appellants,
    misses the bigger picture. As the Divisional Court held, at para. 50, the vast
    majority of benchers are democratically elected (or, in the case of lay
    benchers, appointed to office by the provincial government) and they made their
    decision after undertaking a democratic process. The Supreme Court stated in
Catalyst
    Paper Corp. v. North Cowichan (District)
, 2012 SCC 2, [2012] 1 S.C.R. 5, at
    para. 29:
To demand that councillors who
    have just emerged from a heated debate on the merits of a bylaw get together to
    produce a coherent set of reasons is to misconceive the nature of the
    democratic process that prevails in the council chamber. The reasons for a
    municipal bylaw are traditionally deduced from the debate, deliberations and
    the statements of policy that give rise to the bylaw.
The same comments apply equally to benchers. The LSUCs decision must be
    assessed from the record as a whole, not from individual speeches.
[128]

Accordingly, I
    reject the appellants argument on this point.
[129]

Having rejected
    the appellants principal submission on the balancing issue, the ultimate
    question still remains: was the LSUCs decision or the outcome (
Dunsmuir
,
    at para. 47) reasonable within the parameters set by
Dunsmuir
,
Ryan
and
Doré
? In my view, the answer to this question is Yes, indeed
    Clearly yes. I say this for several reasons.
[130]

First, the LSUC
    is one of two sets of gatekeepers to entry into the legal profession. Law
    schools are the first set of gatekeepers; law societies are the second.
[131]

In a well-known
    speech in 1986  
Legal Education
,
    (1986) 64:2 Can. Bar Rev. 374, at p. 377  Dickson C.J. said this about the
    first set of gatekeepers:
I want to say a few words about the gatekeepers to legal
    education, namely those involved in the admissions process. Those who fulfill that
    role are, in a real sense, the gatekeepers of the legal profession. Ultimately,
    the ethos of the profession is determined by the selection process at law
    schools. In order to ensure that our legal system continues to fulfill its
    important role in Canadian society, it is necessary that the best candidates be
    chosen for admission to law schools.
Furthermore, it is incumbent upon those involved in the
    admission process to ensure equality of admissions.  Canada is a country which
    prides itself on adherence to the ideal of equality of opportunity. If that
    ideal is to be realized in our profession then law schools, and ultimately the
    legal profession, must be alert to the need to encourage people from minority
    groups and people from difficult economic circumstances to join our profession.
[132]

In my view,
    there is also an important role for the second set of gatekeepers, the law
    societies, in ensuring equality of admission to the legal profession. There is
    nothing wrong with a law society, acting within its jurisdiction, scrutinizing
    the admission process of a law school in deciding whether to accredit the law
    school. In doing so with respect to TWUs application, the LSUC could pay heed
    to what Iacobucci and Bastarache JJ. said in
TWU 2001
, at para. 25: a
    homosexual student would not be tempted to apply for admission, and could only
    sign the so-called student contract at considerable personal cost. As well,
    the LSUC could take account of the fact that all law schools currently
    accredited by it provide equal access to all applicants in their admissions
    processes. An accredited TWU would be an exception.
[133]

Second, as the
    Divisional Court noted, at para. 110, while TWU may not be subject to the
HRC
,
    the respondent is. Accordingly, in balancing the various rights at issue, the
    LSUC could attach weight to its obligations under s. 6 of the
HRC
, which
    provides:
Every person has a right to
equal
    treatment with respect to membership in any
trade union, trade or
    occupational association or
self-governing profession
    without discrimination because of
race, ancestry, place of origin,
    colour, ethnic origin, citizenship, creed, sex,
sexual
    orientation, gender identity, gender expression
, age,
marital status
, family status or disability. [Emphasis
    added.]
[134]

Third, there is
    an important distinction to be made when a religious institution and its
    members seek to exercise their religious beliefs in a manner that discriminates
    against others. In her article 
TWU Law: A
    Reply to Proponents of Approval
, (2014) 37:2 Dal. L. J. 621,
    Professor Elaine Craig said, at p. 646:
The deficiencies with TWUs proposed program do not flow from
    its Christian worldview or intention to teach from that perspective.  Many
    worthy and highly esteemed educational institutions such as St. Francis Xavier,
    Trinity College at the University of Toronto, and Notre Dame in the United
    States, have a faith-based tradition.
The distinction, and it is an
    important one, is that these institutions do not impose formal policies that
    discriminate on the basis of sexual orientation
. [Emphasis added.]
[135]

As I have explained,
    TWUs Community Covenant discriminates against members of the LGBTQ community,
    and the LSUC was entitled to consider whether the discriminatory policy
    precluded accreditation.
[136]

The American
    experience provides an apt example of the distinction between state action that
    interferes with religious belief itself and state action that denies a benefit
    because of the impact of that religious belief on others. In
Bob Jones
    University v. United States
, 461 U.S. 574 (1983), the Internal Revenue Service
    (IRS) took away Bob Jones Universitys tax-exempt status because of its
    discriminatory admissions policy. The school denied admission to any black
    students until 1971. After 1971, black students were admitted, but only if they
    were married. Bob Jones Universitys sponsors believed that the Bible forbids
    interracial dating and marriage.
[137]

Chief Justice
    Burger held that Bob Jones Universitys sincerely held religious beliefs did
    not immunize it from the application of the IRS policy of denying tax-exempt
    status to educational institutions with discriminatory admissions policies.
    Integral to the Chief Justices opinion was the compelling government interest
    in eradicating racial discrimination in education. He also held that the government,
    by granting exemptions, was in effect making taxpayers indirect or vicarious
    donors to Bob Jones University. Bob Jones Universitys admissions policy was at
    odds with the common community conscience and therefore the conferral of a
    public benefit could not be justified.
[138]

TWU, like Bob
    Jones University, is seeking access to a public benefit  the accreditation of
    its law school. The LSUC, in determining whether to confer that public benefit,
    must consider whether doing so would meet its statutory mandate to act in the
    public interest. And like in
Bob Jones University
, the LSUCs decision
    not to accredit TWU does not prevent the practice of a religious belief itself;
    rather it denies a public benefit because of the impact of that religious
    belief on others  members of the LGBTQ community.
[139]

Fourth, I agree
    with the intervener Lawyers Rights Watch Canada that international human
    rights law, and especially international treaties and other documents that bind
    Canada, is relevant in assessing the reasonableness of the LSUCs decision. In
    that vein, I note that Article 18(3) of the
International Covenant on Civil
    and Political Rights
, 19 December 1966, 999 U.N.Y.S. 171, Can. T.S. 1976, provides:
Freedom to manifest ones religion or beliefs may be subject
    only to such limitations as are prescribed by law and are necessary to protect
    public safety, order, health, or morals
or the
    fundamental rights and freedoms of others
. [Emphasis added.]
[140]

In my view, the
    LSUCs balancing in its accreditation decision was faithful to this article of
    an important international law document to which Canada is a signatory.
[141]

Fifth, I agree
    with Professor Bruce Ryder who wrote, in 
State
    Neutrality and Religious Freedom
(2005), 29 Sup. Ct. L. Rev. (2d)
    168 at 173:
Religious neutrality does not mean that the state must refuse
    to take positions on policy disputes that have a religious dimension. Many if
    not most legislative policies will accord with some religious beliefs and
    violate others.
[142]

Thus, the LSUC
    did not violate its duty of state neutrality by concluding that the public
    interest in ensuring equal access to the profession justified a degree of
    interference with the appellants religious freedoms. It was entitled to take a
    position. And, for the reasons given above, the position it took was a
    reasonable one.
[143]

Taking account
    of the extent of the impact on TWUs freedom of religion and the LSUCs mandate
    to act in the public interest, the decision to not accredit TWU represents a
    reasonable balance between TWUs 2(a) right under the
Charter
and the
    LSUCs statutory objectives. While TWU may find it more difficult to operate
    its law school absent accreditation by the LSUC, the LSUCs decision does not
    prevent it from doing so. Instead, the decision denies a public benefit, which
    the LSUC has been entrusted with bestowing, based on concerns that are entirely
    in line with the LSUCs pursuit of its statutory objectives.
E.

Disposition
[144]

The vote at
    Convocation was 28-21, with one abstention. In the context of a comprehensive
    and very fair decision-making process, the closeness of the vote brings to mind
    what the Supreme Court of Canada said in
Dunsmuir
, at para. 47:
[C]ertain questions that come before administrative tribunals
    do not lend themselves to one specific, particular result. Instead, they may
    give rise to a number of possible, reasonable conclusions.
[145]

I am satisfied
    that the LSUCs decision not to accredit TWU was indeed a reasonable conclusion.
    I would therefore uphold the Divisional Courts decision.
[146]

Accordingly, I
    would dismiss the appeal. The respondent is entitled to its costs of the appeal,
    if sought.
J.C.
    MacPherson J.A.
I
    agree E.A. Cronk J.A.
I
    agree G. Pardu J.A.
Released: June 29, 2016  JCM

[1]
In Ontario, the Treasurer is the head of the LSUC and is elected every year.
