Thursday, April 24, 2014

LSUC Rejects Trinity Western

Breaking news:  The Law Society of Upper Canada has refused to accredit Trinity Western University's proposed law faculty.

There's probably a burning question on some minds:  TWU is in British Columbia, and the Law Society of Upper Canada...well, Upper Canada = Ontario.  So why is Ontario evaluating a B.C. school?

To start with, many Provincial Law Societies are doing it.  (The Law Society of Nova Scotia is expected to release a decision in the morning, and the Law Society of New Brunswick next week.)  The Federation of Law Societies granted preliminary approval to the program last December, and the Law Society of British Columbia approved it earlier this month, but all Law Societies have their own standards for admission to the bar, and many technically require that law schools be approved by them.  If you want to practice law in Ontario, you need to either have a law degree from a school approved by convocation (i.e. by the LSUC), or foreign-trained lawyers can become licensed once they get accredited by the National Committee on Accreditation.

Up until now, that's never mattered.  All the law schools in Canada that offer common law degrees are accredited by the Federation of Law Societies and by all Law Societies.  And typically, the approval process is a boring bureaucratic thing.  But on this vote, the LSUC received scores of public submissions.

It's a pretty controversial topic, obviously.

The Consequences

LSUC rejecting TWU is a big deal.  It's a huge problem for the viability of TWU's program, because it has the impact that TWU Law grads will not be eligible to practice law in Ontario.

That's a big problem for the viability of the law school:  Consider the message it sends to the candidates.  If you go to TWU, you may be able to practice law in some jurisdictions, but Canada's largest law market will forever be closed to you.  TWU will have a zero percent placement rate on Bay Street.  If TWU persists in a law program that is not recognized by Ontario, it will be a second-class program, no question about it.

I've seen some commentary on the Twitterverse suggesting that the National Mobility Agreement between most Provinces would allow a TWU grad to join the bar of another Province then transfer to Ontario.  We're getting into uncharted territory here, but as far as I can tell this does not appear to be true.

The National Mobility Agreement is designed to facilitate better mobility of lawyers between Provinces.  It means that, if I for some reason wanted to move to another Province (except Quebec), I wouldn't have to write the bar admission exam or article there - I'd just apply to the Law Society of that Province for a transfer, pay some fees, and swear that I'd looked at the required readings.  Simple stuff.

The operative provisions of the NMA are in sections 32 and 33:  A signatory can't require further qualifications for a lawyer transferring from another Province other than:
  • entitlement to practice law in the lawyer's home jurisdiction;
  • good character and fitness to be a lawyer; and
  • "any other qualifications that ordinarily apply for lawyers to be entitled to practise law in its jurisdiction."
So what does that third one mean?  Well, that's not abundantly clear on the face of the document.  Other qualifications that 'ordinarily apply' would seem to include an exam (though this is expressly prohibited by s.33), articling, and the educational requirements.

However, the LSUC's interpretation is abundantly clear:  In its Bylaw 4, s.9(2) waives the requirement for transfer candidates to write the bar admission exam, and s.9(3) waives the requirement for transfer candidates to article.  There is no waiver of the requirement to hold a degree recognized by convocation or a certificate from the NCA.  Likewise, see the LSUC's FAQ on the topic.

So my view is that a rejection by LSUC undermines the very viability of TWU's proposed law faculty, and probably requires them to abandon the plan.  This is a win for equality rights.  (And despite what detractors may say, nobody's freedom of religion is hindered by the decision.)


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation.  If you need legal assistance, please contact him for information on available services and billing.

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