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Supreme Court of Canada (On Appeal from the Court of Appeal for Ontario) SCC File No. 37209 SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO) BETWEEN: TRINITY WESTERN UNIVERSITY and BRAYDEN VOLKENANT Appellants -and- THE LAW SOCIETY OF UPPER CANADA Respondent -and- ATTORNEY GENERAL OF ONTARIO Intervener -and- START PROUD and OUTLAWS Proposed Intervener MOTION FOR LEAVE TO INTERVENE OF THE PROPOSED INTERVENER, START PROUD and OUTLAWS (Rules 47 and 55 of the Rules ofthe Supreme Court of Canada) GOLDBLATTPARTNERSLLP GOLDBLATTPARTNERSLLP 20 Dundas Street West, Suite 1039 30 Metcalfe Street, Suite 500 Toronto, ON M5G 2C2 Ottawa, ON K1P 5L4 Marlys Edwardh Colleen Bauman Vanessa Payne Email: [email protected] Email: [email protected] Tel: 416-979-4380 Tel: 613-482-2463 Fax: 416-979-4430 Fax: 613-235-3041 2 PAUL JONATHAN SAGUIL 66 Wellington St. West TD Tower, P.O. Box 1 Toronto ON MSK 1A2 Paul Jonathan Saguil Email: [email protected] Tel: 416-308-1719 MARTIN+ ASSOCIATES 863 Hamilton Street Vancouver, BC V6B 2R7 Frances Mahon Email: [email protected] Tel: 604-682-4200 Agent for the Proposed Intervener, Counsel for the Proposed Intervener, Start Proud and OUTlaws Start Proud and OUTlaws ORIGINAL TO: The Registrar Supreme Court of Canada 301 Wellington Street Ottawa, ON KIA OJl 3 COPIES TO: BENNETT JONES LLP BENNETT JONES LLP 3400 One First Canadian Place World Exchange Plaza P.O. Box 130 I900- 45 O'Connor Street Toronto, ON M5X IA4 Ottawa, ON KIP IA4 Robert W. Stanley Mark Jewett QC Email: [email protected] Email: [email protected] Ranjan Aganval Tel: 6I3-683-2328 Email: [email protected] Fax: 6I3-683-2323 Tel: 4I6-863-I200 Fax: 4I6-863-I2I6 KUHNLLP IOO- 32I60 S Fraser Way Abbotsford, BC V2T I W5 Kevin L. Boonstra Email: [email protected] Tel : 604-864-8877 Fax : 604-864-8867 Counsel for the Appellants, Agent for the Appellants, Trinity Western University and Trinity Western University and Brayden Volkenant Brayden Volkenant BORDEN LADNER GERVAIS BORDEN LADNER GERVAIS Bay Adelaide Centre, East Tower World Exchange Plaza 22 Adelaide Street West, Suite 3400 I 00 Queen Street, Suite 1300 Toronto, ON, Canada M5H 4E3 Ottawa, ON, Canada KIP 1J9 Guy Pratte Nadia Effendi Email: [email protected] Email: [email protected] Duncan Ault Tel: 613-237-5I60 Email: [email protected] Fax: 6I3-230-8842 Tel: 416-367-6000 Fax:416-367-6749 Counsel for the Respondent, Agent for the Respondent, The Law Society of Upper Canada The Law Society of Upper Canada 4 ATTORNEY GENERAL OF ONTARIO BURKE-ROBERTSON 720 Bay Street, 4th Floor 441 MacLaren Street, Suite 200 Toronto, ON M7 A 2S9 Ottawa, Ontario K2P 2H3 S. Zachary Green Robert E. Houston, Q.C. Email: [email protected] Email: [email protected] Josh Hunter Tel: 613-706-0020 Email: [email protected] Fax: 613-235-4430 Tel: 416-326-8517 Fax: 416-326-4015 Counsel for the Intervener, Agent for the Intervener, Attorney General of Ontario Attorney General of Ontario INDEX Tab Description Page 1. Notice of Motion for Leave to Intervene of Start Proud 1 and OUTlaws dated June 16,2017 2. Affidavit of Albert Lam sworn June 14, 2017 7 A. Exhibit A- true copy of Hoy ACJO's Order granting Out 19 On Bay Street and the OUTlaws intervener status in the appeal before the Ontario Court of Appeal B. Exhibit B- true copy ofNordheimer J's decision granting 25 Out On Bay Street and the OUTlaws intervener status in the judicial review before the Divisional Court C. Exhibit C - true copy of Out On Bay Street's letters 47 patent D. Exhibit D- true copy of the Form 4004 Articles of 52 Amendment amending Out On Bay Street's corporate name to Start Proud E. Exhibit E - true copy of Start Proud's 2017 Sponsorship 54 Package F. Exhibit F - true copies of program brochures for the 2014, 72 2015 and 2016 Annual Conference and Career Fairs G. Exhibit G - true copies of the constitutional documents of 129 the OUTlaws chapters from Osgoode Hall Law School and University of Ottawa Faculty of Law H. Exhibit H - true copy of TWU' s Community Covenant 144 I. Exhibit I- true copy ofTWU's Student Handbook 150 J. Exhibit J - true copies of the letters and submissions 156 made by various OUTlaws groups and their allies to the Federation of Law Societies of Canada K. Exhibit K- True copies of Start Proud's submissions to 201 Convocation opposing accreditation L. Exhibit L -True copies ofthe submissions made by the 207 various OUTlaws chapters to Convocation opposing accreditation 7 M. Exhibit M -true copy ofLSUC's guide for law firms on 214 "Sexual Orientation and Gender Identity: Creating an Inclusive Work Environment" N. Exhibit N -true copy of Statistical Snapshot of Lawyers 248 in Ontario 3. Memorandum of Argument of Start Proud and OUTlaws 263 dated June 16,2017 Part I - Overview 264 A. Nature of the Motion 264 B. Description and Expertise of the Proposed 264 Intervener C. Proposed Submissions of Start Proud and the 268 OUTlaws Part II - Questions in Issue 269 Part III - Argument 269 A. The Test for Leave to Intervene 269 B. Start Proud and the OUTlaws Have a Real Interest 270 in the Subject ofThis Appeal C. The Proposed Submissions of Start Proud and the 273 OUTlaws are Useful in Resolving the Issues Presented in the Appeal and Do Not Duplicate the Submissions of Other Parties Part IV - Submissions Respecting Costs 273 Part V - Order Requested 273 Part VI- Table of Authorities 274 Part VII - Legislation 275 1 sec File No. 37209 SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ONT ARlO) BETWEEN: TRINITY WESTERN UNIVERSITY and BRA YDEN VOLKENANT Appellants -and- THE LAW SOCIETY OF UPPER CANADA Respondent -and- ATTORNEY GENERAL FOR ONTARIO Intervener -and- START PROUD and OUTLAWS Proposed Intervener NOTICE OF MOTION FOR LEAVE TO INTERVENE OF THE PROPOSED INTERVENERS, START PROUD and OUTLAWS (Rules 47 and 55 of the Rules ofthe Supreme Court of Canada) TAKE NOTICE that Start Proud and the OUTlaws hereby apply to a Judge of this Honourable Court, pursuant to Rules 47 and 55-59 ofthe Rules ofthe Supreme Court of Canada for an Order granting Start Proud and the OUTlaws: 1. Leave to intervene in this appeal, on a without costs basis; 2. Permission to file a factum of 10 pages; 3. Permission to present oral argument at the hearing of the appeal of not more than 10 minutes; and 4. Such further or other Order that the circumstances require and that this Honourable Court may deem just. AND FURTHER TAKE NOTICE that the following documents will be referred to in support of such motion: 2 2 1. The Affidavit of Albert Lam, sworn June 14, 2017; and 2. The Memorandum of Argument filed herewith. AND FURTHER TAKE NOTICE that the said motion shall be made on the following grounds: 1. As evidenced by the Affidavit of Albert Lam , Start Proud and the OUTlaws are public interest organizations that have a genuine and substantial interest in this appeal; 2. Start Proud and the OUTlaws seek leave to intervene in order to assist this Court by providing an impartial and useful analysis on the legal issues raised in this appeal that transcend the specfic dispute between the parties; 3. If granted leave to intervene, Start Proud and the OUTlaws will advance the arguments outlined in the memorandum of argument filed with this motion, subject to further consideration by counsel, namely: a. In delineating the scope of the rights engaged in this case, this Honourable Court must take into account the advancements in lesbian, gay, bisexual, transsexual/transgender and queer ("LGBTQ") equality rights since this Honourable Court released its decision in Trinity Western University v. British Columbia College ofTeachers, 2001 SCC 31. The Law Society ofUpper Canada (the "LSUC") reasonably balanced the rights of Trinity Western University ("TWU") against the rights of the LGBTQ community in refusing to accredit TWU's proposed law school; b. TWU's Community Covenant (the "Covenant") has a discriminatory impact on the LGBTQ community, given the Covenant's prohibition on "sexual intimacy that violates the sacredness of marriage between a man and a woman", TWU's power to discipline and expel students, staff and faculty members for breaches of the Covenant, and the positive obligation on staff, students and faculty members 3 3 to both sign the Covenant and make formal complaints that may lead to disciplinary action when breaches of the Covenant are suspected; and c. The LSUC's decision to refuse to accredit TWU's proposed law school has significant value to the LGBTQ community, as it was a legitimate regulatory response to a more general problem of discrimination experienced by the LGBTQ community in the legal profession, previously recognized in earlier policy positions on equity and inclusion. The benefits of the decision must be measured against the reality that the LSUC's decision neither prevents TWU from opening a law school nor precludes graduates of the law school from applying to the LSUC for individual accreditation. 4. Start Proud and the OUTlaws have taken steps to ensure that their submissions are distinct from those to be made by the parties, and proposed interveners in this case; 5. Granting leave to intervene to Start Proud and the OUTlaws will not prejudice any of the parties; 6. Start Proud and the OUTlaws will take the record as they find it and will not seek to supplement the record; 7. Start Proud and the OUTlaws will abide by the schedule set by the Registrar for the filing of materials; 8.
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