Corporate and Trust Law Dimensions of the Trinity Western University Law School Debate

Abstract

The dispute over Trinity Western University’s exclusionary Community Covenant raises difficult issues about the scope of the institutional autonomy to which various religious entities may be entitled under the Canadian Charter of Rights and Freedoms, and the balance that should be struck between institutional religious freedom and equality rights in cases where the two collide. In this piece I argue that we cannot fully address these conflicts without engaging more deeply with the institutions at their heart. I begin by outlining several principles relevant to the ascertainment of the legal personality of a corporate charity, and making the case for the stronger application of these principles in proceedings involving TWU (Part II). I then identify three significant features of the institution at the heart of the dispute over the Community Covenant, noting that (1) TWU has a sole corporate object, (2) TWU has a very small membership, and (3) TWU must act for the public benefit. I analyze the legal incidents of these features of TWU’s corporate personality, and reflect on their possible relevance to its religious freedom claim (Part III). I conclude that if we want to engage seriously with the institutional dimensions of religious freedom claims, we must be attentive to the legal personality of the institutions that bring them, and the legal rights and obligations they enjoy.