TWU had a similar fight fifteen years ago when it went to the Supreme Court of Canada to get its education degree accredited.  However, that was only one litigation track – now it faces three!  The Supreme Court ordered the BC College of Teachers to accredit TWU’s education degree.  That was in 2001.  A long time ago – for some.  So long, in fact, that they say that the 2001 SCC case has no bearing on the current struggle.  Times change.  The argument is — we are more progressive and the Court would not decide as it did in 2001.  That is to be seen.

At stake is whether religious autonomy remains part of the Canadian promise of diversity and multiculturalism, as noted in section 27 of the Canadian Charter of Rights.  Or, can the state come in to such communities and expunge from their beliefs and practises elements it disagrees with?  Or, make life so difficult for such communities that they either close shop or comply.  TWU’s “Community Covenant” requires students to abstain from, “sexual intimacy that violates the sacredness of marriage between a man and a woman.”[1]  This is similar to the 2001 iteration and is perfectly legal.  However, the law societies do not like it.

When marriage was redefined “for civil purposes” in 2005 a number of protections were given to religious communities that, when looked at as a whole, was meant to maintain diversity in Canada.  First, the Civil Marriage Act stated, “no person or organization shall be deprived of any benefit, or be subject to any obligation” under federal law for the exercise or expression of their religious freedom on their beliefs of marriage as “the union of a man and woman….”[2] Second, the Income Tax Act was amended to explicitly state that a registered charity that is involved in the advancement of religion “shall not have its registration revoked or be subject to any other penalty”[3] for exercising its beliefs on marriage.  Third, the Supreme Court held that compelling religious officials to perform marriage contrary to their religious beliefs would violate the Charter.[4]  Diversity in Canada was thus going to be real.  Institutions that held to traditional marriage were to be treated as equals.

Diversity will be diminished should the law societies be successful.  Not only will the only Christian law school be denied to Canada but it is not beyond the realm of possibility for such a result to permit law societies to cull from its ranks those lawyers in the profession who maintain the same views as TWU on marriage.  That sounds radical.  It is.  However, in 2001, when dealing with TWU’s education degree the Supreme Court of Canada declared such logic was plausible for the College of Teachers to deny accreditation to individual teachers with similar views as TWU when it stated:

“Indeed, if TWU’s Community Standards could be sufficient in themselves to justify denying accreditation, it is difficult to see how the same logic would not result in the denial of accreditation to members of a particular church.  The diversity of Canadian society is partly reflected in the multiple religious organizations that mark the societal landscape and this diversity of views should be respected. “[5]

“The very essence of our Canadian society,” said the Supreme Court in another case, “is determined by the diversity which is permitted to flourish.”[6]

The outcome of TWU will either enrich the fertile soil of the Canadian legal and democratic landscape, or impoverish it. It will either strengthen the Canadian ethos of creativity and unity in diversity, or impose a mindset of uniformity and compulsion. It will either stunt growth, or allow the abundant flora of Canadian society to flourish.

We need to let diversity flourish.

—-

[1] See paragraph 3 of “Community In Covenant” https://twu.ca/studenthandbook/university-policies/community-covenant-agreement.html

[2] Civil Marriage Act, S.C. 2005, c. 33, s. 3.1.

[3] Income Tax Act, R.S.C., 1985, c. 1 (5th Supp.), s.149.1 (6.21).

[4] Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698, 2004 SCC 79, at para. 58.

[5] Trinity Western University v. College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31, at para. 33.

[6] Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571, para. 76.

The post Trinity Western University and the Legal War of Attrition: Isn’t It Time To Let Diversity Flourish? appeared first on CCCC Blogs.

The law governing charities in British Columbia may change this year. Bill 24, the new Societies Act,[i] was introduced into the British Columbia legislature for its first reading on March 25, 2015.[ii] The new legislation would replace the current Society Act, which was enacted in 1977 and governs some 27,000 societies in British Columbia, ranging from small community-based organizations to large charitable organizations.[iii] The updated and modernized statute provides rules for the creation and governance of not-for-profit organizations in British Columbia. While the proposed legislation maintains the basic framework of the current act, the newer elements of the Societies Act are intended to improve and simplify the functioning of societies, while strengthening the accountability of charities to the public.

Publicly Funded Societies vs. Member-Funded Societies

The new Societies Act distinguishes between publicly funded societies and member-funded societies. Publicly funded societies include entities such as charities and other entities that receive significant public funding. Member funded societies, on the other hand, are societies funded mainly by its members to carry on activities for the benefit of its members. Member funded societies may take the form of sports clubs or professional organizations. The new Act provides different rules regarding corporate governance, financial disclosure, and distribution of money or other property on dissolution by societies that are not charities and do not receive a large amount of public funding.

While the member-funded societies will enjoy a reduced regulatory burden under the new Act, publicly funded societies will bear a greater regulatory burden through several new accountability measures.

Corporate and Governance Procedures

The new Societies Act also adopts specific corporate and governance procedures from British Columbia’s Business Corporations Act and other corporate legislation, yet generally provides societies with a greater flexibility in creating governance by-laws that can be tailored to suit the particular needs and preferences of the society and community it serves. Examples of adopted governance procedures include, but are not limited to, proxy voting[v] at members’ meetings,[vi] reducing the threshold to pass a special resolution from 75 percent to two thirds,[vii] and creating multiple classes of membership.

Mandatory Online Filing

The new Act will implement a mandatory online filing system whereby societies will be required to file documents, such as those pertaining to by-laws and incorporation, electronically with the corporate registry. Existing societies will be required to input their constitution and by-laws into an electronic, searchable database.

Other Noteworthy Amendments to the Act

Other areas affected by the new Act include:

• Record-keeping obligations, including what records must be maintained and who has access to those records
• Requirements to become a director and the election of directors
• Allowing societies to change unalterable by-law provisions by special resolution
• The requirement of by-law authorization if directors will receive compensation for their position as directors[viii]
• Disallowing societies from creating branch societies
• Introducing and defining a subsidiary of a society, which is a corporation (including a society) that is controlled by a society. If a member or security holder of a society that has a subsidiary requests a copy of the subsidiary’s most recent financial statements, and pays any corresponding fees, financial statements along with any reports prepared by the auditor must be provided.

Subject to the approval of the legislature, the Ministry of Finance has announced that the government expects the new Act will come into force when new regulations are finalized, approximately 18 months after royal assent. Once in force, apart from certain specific exceptions, the new governance rules would apply to all existing societies. However, they will have a two-year transition period to file a transition application and to adopt the changes to their constitution and by-laws as required by the new legislation. It should be noted that pre-existing societies may not alter their by-laws or amalgamate with other corporations until they have transitioned and are in compliance with the new Act.

[i] Bill 24 -2015: Societies Act, 4^th Session, 40^th Parliament, Legislative Assembly of British Columbia (retrieved April 13, 2015), online: <https://www.leg.bc.ca/40th4th/1st_read/gov24-1.htm#section78>.

[ii] Progress of Bills, 4^th Session, 40^th Parliament, Legislative Assembly of British Columbia: <https://www.leg.bc.ca/40th4th/votes/progress-of-bills.htm>.

[iii] “New Societies Act provides flexibility, accountability”, March 25, 2015, News Release, Ministry of Finance, British Columbia <http://www2.news.gov.bc.ca/news_releases_2013-2017/2015FIN0024-000396.htm>.

[iv] Note: this will not apply to pre-existing societies until two years after the new Societies Act comes into force.

[v] Proxy voting is a form of voting whereby some members of a decision-making body may delegate their voting power to other members of the same body to vote in their absence, and/or to select additional representatives.

[vi] However, proxy voting must be provided for in the by-laws.

[vii] Unless the by-laws provide for a higher threshold.

[viii] Again, pre-existing societies have two years after the new Act comes into force to comply with this provision.

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