Ontario Board of Inquiry

ONTARIO

CHRR Doc. 82-087

Mansoorali Rawala and Victor Souza Complainants

v.

DeVry Institute of Technology Respondent

Date: August 9, 1982

Place: Toronto, Ontario

Before: Ontario Board of Inquiry, John D. McCamus

Appearances by:

T.C. Marshall, L. Hunter, Counsel for the Ontario Human Rights Commission

R. Fraser, R. Armstrong, Counsel for DeVry Institute of Technology

RACE, COLOUR AND PLACE OF ORIGIN — PUBLIC SERVICES AND FACILITIES — discriminatory treatment by private college — EDUCATION — student discriminated against on the basis of race — PARTIES — misnomer of respondent — INTERPRETATION OF STATUTES — definition of "services or facilities"

Summary: The Board of Inquiry rules that Rawala and Souza were not discriminated against because of race when they were subjected to a harsher penalty for cheating on an examination than a white student who engaged in the same conduct. The Board finds that the difference in penalties was not the result of discrimination but rather the result of incompetence on the part of the Institute's disciplinary Committee.

In answer to preliminary objections presented by the respondent, the Board of Inquiry rules that the DeVry Institute does provide a public service in a place to which the public is customarily admitted, notwithstanding the fact that it is a "private" educational institution that is not supported by public funds.

The Board finds, therefore, that it does have jurisdiction over the Institute but dismisses the complaint on the facts.

I

1The incident giving rise to these two complaints involved three students of the respondent technical school, the DeVry Institute of Technology (DeVry), who improperly shared information during the final examination for one of the courses offered by the school. Of the three students involved, two were punished more severely than the third. The two students who were punished more severely are both of Asian ethnic origin, one being from Pakistan and the other from India. The third student who received a lesser punishment is a Canadian of white complexion. The gravamen of each complaint is that inasmuch as each of the three students participated in the cheating episode, each should have received the same penalty, and it is alleged that the respondent's failure to penalize all three students equally was motivated, at least in part, by bias based on race, colour, nationality, ancestry or place of origin in contravention of s. 2(a)(b) of the Ontario Human Rights Code.

2The first complainant, Mr. Souza, is one of the two more severely punished students. The other student who received a harsher penalty was Mr. Aftab Rawala. Mr. Aftab Rawala has returned to his home in Pakistan. A complaint concerning the punishment meted out to him by the respondent has been brought by his brother, the second complainant, Mr. Mansoorali Rawala.

3The respondent DeVry has raised a number of defences against these allegations. In the first place, DeVry denies that the differential treatment accorded by it to these students was motivated by improper bias. In essence, DeVry has argued that the differential treatment was warranted by or at least premised upon what it understood to be differential misconduct on the part of three students. Although the evidence led before this Board of Inquiry indicates that all three of the students were engaged in copying or exchanging information one from the other, that is to say that each obtained some information from another during the course of the examination, it is DeVry's position that it had understood that Mr. Souza and Mr. Rawala copied information from the third student, Mr. Roy, but that Mr. Roy had not himself obtained information from them. DeVry officials charged with the responsibility for dealing with this matter have indicated, for reasons to be considered at greater length in the course of this decision, that it was their view that copying another's answer or obtaining information warranted more serious punishment than did supplying information in these circumstances. Whether or not this is a sound policy, it is argued, this was the basis for the differential treatment accorded the three students. Mr. Souza and Mr. Rawala were suspended by DeVry for one trimester and required to repeat the course in question. The third student, Mr. Roy, was permitted to write a supplemental examination in this course within a few days of the cheating episode and, when he successfully completed the supplemental, he was allowed to graduate from the programme in the normal fashion.

4It was alleged on behalf of DeVry that suspension for a trimester together with a requirement to repeat the course in question was the normal sanction imposed for cheating, and further, that in a previous incident in which one student copied from another, the "normal" penalty was imposed on the copier and the supplier of the information, like Mr. Roy, was required only to write a supplemental examination. Evidence brought on behalf of DeVry indicated that this previous incident was the subject of discussion and a source of guidance with respect to the decision taken in the present case.

5Apart from this defence on the merits, the respondent has raised three further arguments, each of which takes the position that even if the facts were as alleged, both complaints should, in law, be dismissed. Two of these points rest on the proper interpretation of s. 2 of the Code. The third relates to an alleged defect in the Appointments establishing this Board of Inquiry.

6Section 2(1) provides as follows:

2(1) No person, directly or indirectly, alone or with another, by himself or by the interposition of another, shall,

(a) deny to any person or class of persons the accommodation, services or facilities available in any place to which the public is customarily admitted; or

(b) discriminate against any person or class of persons with respect to the accommodation, services or facilities available in any place to which the public is customarily admitted,

because of the race, creed, colour, sex, marital status, nationality, ancestry or place of origin of such person or class of persons or of any other person or class of persons.

The respondent first argues that the educational services and facilities offered by DeVry do not constitute "services or facilities" as those terms are used in s. 2 of the Code. The respondent's second point of interpretation is that even if DeVry does provide services or facilities in the requisite sense, it does not do so in a "place to which the public is customarily admitted".

7The defect alleged by DeVry to reside in the Appointment and indeed, in the Complaints herein, is that DeVry is not itself a legal entity. DeVry Institute of Technology is not a separate corporate body. It is, in fact, merely a division of Bell & Howell Ltd. As the Appointment names as the respondent something which is not a legal person, it is argued, the Appointment is null and void and cannot be cured by this Board of Inquiry.

8It may be noted that each of these three points could have been raised by the respondent by way of preliminary objection. With respect to the first two points, I am advised that counsel agreed to argue these matters at the conclusion of the submission of evidence. With respect to the third, it was the respondent's position that counsel for the Commission was aware of this concern and that their communications on this point were such as to remove any obligation there might otherwise be to raise this as a preliminary matter.

9After considering each of these three points in turn, the facts in dispute between the parties will be reviewed and an account of the findings of this Board of Inquiry will be given.

II

10Before considering the applicability of s. 2 to the activities of the respondent, it will be useful to briefly describe the general nature of its business. DeVry Institute of Technology is a technical school offering courses in electronics. Two programmes are offered, Electronics Technician and Electronics Engineering Technology. The latter programme is accredited by the Ontario Association of Certified Engineering Technicians and Technologists as fulfilling the educational requirements for certification as an Electronics Engineering Technologist.

11The admission requirements are the completion of an Ontario Grade 12 secondary school diploma or its equivalent. The School is operated on a profit-making basis. Although DeVry originally had a separate corporate identity, it has been amalgamated into Bell & Howell Ltd. and its financial statements are consolidated with those of Bell & Howell Ltd. DeVry is in functional terms a division of Bell & Howell Ltd. and, for legal purposes, DeVry Institute of Technology is merely a trade name under which Bell & Howell Ltd. carries on this aspect of its business. DeVry does advertise its services under its own name. Indeed, it should be noted that DeVry appears to advertise the availability of its educational programmes broadly. Mr. Souza testified that he became aware of them through radio and newspaper advertising. The evidence of DeVry witnesses would indicate that DeVry makes a substantial investment in sales and recruitment activities and employs some members of its staff in this way on a full-time basis. DeVry also uses its own name on all contractual documents submitted in evidence before this Board of Inquiry.

12In addition to the services DeVry provides through the offering of instruction, DeVry provides a broad range of related services. Thus, in its Academic Calendar (Exhibit 11) DeVry states:

We can help with student loans. Part-time job assistance is offered. Housing is arranged, for those who request it. Counselling is always available during the school day. And when you graduate, we will help you in your search for a position in a field of electronics that suits your background and interests. Although we cannot guarantee jobs, this employment assistance will be continuously available any time after your graduation.

The Calendar goes on at some length to describe many of these services, and offers detailed information with respect to the specific courses offered in each programme. Of particular interest in the present context, the Calendar indicates, at p. 33, the procedures which will be invoked in the event that a student commits what might be referred to as an academic offence. The passage is as follows:

Disciplinary Action

A student who commits a breach of school rules or normal standards of good conduct will be referred to the Office of the Dean of Students. An investigation of the facts surrounding the situation will be made. The student will be advised of the facts disclosed by the investigation and will be given an opportunity to question evidence and present witnesses and affidavits on his own behalf.

After hearing the case, the Dean of Students, or his designated representative, may take one of the following actions: dismiss the case; give the student an official warning; process a formal probation, suspension, or expulsion action. Disciplinary action varies with the severity of the violation. Any disciplinary action may be appealed to the President of the School.

Terms used in connection with disciplinary action:

Probation – a period during which the student must improve his scholastic achievement or behaviour to avoid being suspended from school. During this period the student may not hold positions of leadership in student organizations or student government groups.

Suspension – a period of exclusion from all classes and all extra-curricular activities for scholastic or behavioural reasons for a specific period of time. Suspension may include certain conditions for re-admission.

Expulsion – a forced withdrawal by the student for an indefinite period, due to unacceptable scholastic achievement and/or behaviour.

All records of disciplinary actions and proceedings are highly confidential and are maintained only in the Office of the Dean of Students. Permanent records will only be maintained upon a student's indefinite expulsion from school.

The apparent failure of the respondent to implement these rules in the instant case was the subject of much discussion in these proceedings and is a matter to which we shall return.

13It would not be unfair to characterize the Calendar as stressing the accessibility of the DeVry programme to potential students. Thus the Calendar states (at p. 8):

It begins with our basic policy that no deserving student should be deprived of a superior education because of lack of funds or certain deficiencies in prior education.

It was indicated in evidence that this objective is implemented in part through an upgrading programme arranged by DeVry which will enable students who do not have the required qualification of a Grade 12 diploma to upgrade their qualifications and perhaps gain entry into one of the DeVry programmes.

14It should also be noted that DeVry indicates in its Calendar (at p. 8) that it has adopted a policy of non-discrimination in the following terms:

Also, we are committed to a policy of non-discrimination in our admissions, housing, and placement with respect to race, colour, religion, sex and national origin.

It is the respondent's position that this policy has not been forced upon it by the Ontario Human Rights Code, but rather is one which it has adopted and implemented voluntarily.

15Although DeVry is a "private" technical school in the sense that it is operated for profit and is not owned or operated by a public body, it is nonetheless subject to extensive regulations under The Private Vocational Schools Act, 1974, S.O. 1974, c. 48, as amended. Private vocational schools such as DeVry are required to be registered under the statute and to subject themselves to the regulatory scheme which the Act establishes. Mr. L.R. Tremlett, the Supervisor of Private Vocational Schools, an official of the Ministry of Colleges and Universities of the Province of Ontario, testified before this Board of Inquiry and gave an account of the way in which this regulatory scheme operates. It would appear that virtually every aspect of the operation of a school of this kind is potentially subject to scrutiny. Thus, the advertising material prepared by such schools is approved by the Ministry, as are the rates charged to the students for courses and the contractual forms which they are required to sign. Regulations promulgated under the Act provide for the licensing of itinerate salesmen whose job it is to recruit students. The licences of a number of DeVry salesmen were introduced in evidence. Further, the Ministry attempts to ensure that the schools under its jurisdiction are financially sound and managed in an appropriate fashion. Extensive powers of inspection and surveillance are conferred upon the Ministry and inspections are indeed undertaken from time to time. With respect to the educational value of the programme, the Ministry requires that the teachers employed by the school have certain qualifications and approves the content of course offerings.

16A registered school is, of course, subject to losing its registration if it fails to comply with the obligations imposed on it through this regulatory framework. The scheme is, in Mr. Tremlett's words, essentially one of consumer protection, attempting to ensure that students are not induced into the programme by misleading advertising and, once there, are offered soundly designed courses which are properly taught and fairly priced in an institutional setting which is financially stable and well managed.

III

17The respondent's first argument – that the programmes offered by DeVry do not constitute "services or facilities" within the meaning of s. 2 of the Code – must rest on a somewhat artificial construction of these terms inasmuch as their ordinary meaning would appear to embrace educational services and facilities. It is not necessary to rehearse the dictionary definitions of these terms to establish this point. They are reproduced at length in Tarnopolsky, Discrimination and the Law (1982) pp. 334–347. It is of interest, however, that one of the illustrations used for the term "facilities" by Webster's New International Dictionary (3d ed. 1967) is the phrase "excellent facilities for graduate study." The standard definitions of the term "services" are cast in such general terms as to easily embrace services in the form of tuition and related services.

18Counsel for the respondent draws support for a narrow reading of the phrase "services or facilities" which would exclude educational services and facilities from certain passages of decisions of the Supreme Court of Canada and the Ontario Court of Appeal. In Gay Alliance Toward Equality v. Vancouver Sun (1979), 1979 CanLII 225 (SCC), 97 D.L.R. (3d) 577, the Supreme Court of Canada was required to consider whether the publication of advertisements in the respondent's newspaper was a "service or facility customarily available to the public" within the meaning of an equivalent provision of the human rights legislation of the Province of British Columbia. The newspaper had refused to accept an advertisement from the complainant association. Although the majority opinion of the Court written by Martland J., appears to accept that the sale of advertising space in a newspaper to the public does come within the statutory phrase quoted above, Martland J. made the following statements of a general nature concerning the interpretation of the provision (at p. 590):

In my opinion the general purpose of s. 3 was to prevent discrimination against individuals or groups of individuals in respect of the provision of certain things available generally to the public. The items dealt with are similar to those covered by legislation in the United States, both Federal and State. "Accommodation" refers to such matters as accommodation in hotels, inns, and motels. "Service" refers to such matters as restaurants, bars, taverns, service stations, public transportation and public utilities. "Facility" refers to such matters as public parks and recreational facilities. These are all items "customarily available to the public." It is matters such as these which have been dealt with in American caselaw on the subject of civil rights.

Although it is not at all clear that this passage of Martland J.'s opinion was intended to circumscribe the interpretation of this phrase, it appears to have been so interpreted by at least one member of the Ontario Court of Appeal.

19In Re Ontario Human Rights Commission et al. and Ontario Rural Softball Association (1979), 1979 CanLII 2094 (ON CA), 26 O.R. (2d) 134, the Court of Appeal considered the validity of a complaint brought against an association which organizes separate competitions for girls' and boys' softball teams. The complaint was brought by a coach, Mr. Bannerman, of one of the boys' teams who had been prevented by the Association from allowing one of his star performers, a nine-year-old girl, to play in the competition for boys' teams. The majority of a divided court held that the complaint should be dismissed, but the majority consisted of two separate opinions offering different reasons for coming to this conclusion. Houlden J.A., stated that "the activities carried on by O.R.S.A. are not "services or facilities" within the meaning of s. 2(1)(a) of the Code. O.R.S.A. has been providing a structured programme for softball in rural municipalities of Ontario since 1931. If it was intended to apply the Code to the activities of bodies such as O.R.S.A., I think that the legislation should do so in clear, unequivocal language. I am unable to find such language in s. 2(1)(a)" (at p. 153). And then further, after quoting in part the passage from the judgment of Martland J., in the Gay Alliance case quoted above, Houlden J.A. commented that "The examples given by Martland J., are, in my opinion, good illustrations of the situations that are intended to be covered by s. 2(1)(a) of the Ontario Code" (at p. 155). The other member of the majority, Weatherston J.A., would have dismissed the complaint on the basis that the Association's objective in operating two different competitions was one of "overall fairness" and was not motivated by improper bias. Weatherston J.A., appears to accept, sub silentio, that the services rendered by the O.R.S.A. are "services or facilities" within the meaning of s. 2(1)(a) of the Code.

20In a dissenting opinion, Wilson J.A., concluded that the Association's activities were indeed covered by s. 2(1)(a) of the Code and commented as follows on the significance of Martland J.'s comments in Gay Alliance (at p. 142):

Perhaps of paramount importance is the question whether the illustrations given by Martland J., as to the type of services and facilities covered by s. 3 of the British Columbia Code are the same type of services and facilities as are covered by s. 2 of the Ontario Code. Or are his illustrations premised on the fact that the services and facilities caught by s. 3 of the British Columbia Code are limited to those "customarily available to the public"? In other words, is the Gay Alliance case distinguishable as far as the generic content of Mr. Justice Martland's illustrations are concerned on the basis of the different wording in the sections?

It seems to me that, while the illustrations given by the learned Justice are the accommodation, services and facilities which the anti-discrimination legislation was initially designed to ensure would be available to all, the case itself illustrates a totally different kind of service, namely, classified advertising in a newspaper, which was found to be within the scope of s. 3 of the British Columbia Code as a service "customarily available to the public". I do not think therefore that it would be appropriate to refine too much on Mr. Justice Martland's illustrations. I think the learned Justice refers to them because of their historic significance in the development of the law in this area. I do not think he should be taken to have suggested that the categories of accommodation, services and facilities covered by the British Columbia section are closed.

This interpretation of the significance of Martland J.'s comments in Gay Alliance is, in my view, very persuasive.

21It is unnecessary for present purposes to grapple with the somewhat subtle question as to whether Houlden J.A.'s views on this point form part of the ratio decidendi of the Bannerman decision. Whether or not the running of softball competitions constitutes a service or facility in the requisite sense is a very different question from whether the services and facilities of DeVry come within the reach of s. 2 of the Code. Nothing in either the Bannerman or Gay Alliance cases directly suggests that educational services and facilities ought to be excluded from the operation of s. 2 and in the absence of clear authority to this effect I would be most reluctant to adopt so restrictive an interpretation of that provision.

22I draw support for this conclusion from the fact that other Boards of Inquiry and at least one Court share the view that educational services and facilities are covered by equivalent provisions of other provincial human rights codes. In Re Schmidt and Calgary Board of Education (1975), 1975 CanLII 254 (AB SCTD), 57 D.L.R. (3d) 746 (Alta. S.C.), rev'd on another point in (1976), 1976 ALTASCAD 157, 72 D.L.R. (3d) 330 (Alta. C.A.), Shannon J., held that the public school system operated by the respondent board of education came within the phrase contained in the Alberta legislation, "accommodation, services or facilities customarily available to the public." Similarly, in Bloedel v. Board of Governors of the University of Calgary (1980), 1980 CanLII 3916 (AB HRC), 1 C.H.R.R. D/25, an Alberta Board of Inquiry, relying on Schmidt, expressed the view that an extension course offered by the respondent University was also covered by this provision. In a British Columbia case, Wilson v. Vancouver Vocational Institute (1976), unreported, both parties before a Board of inquiry appeared to assume that the respondent technical school was covered by the equivalent provision of the B.C. legislation.

23American public accommodation legislation is not sufficiently similar to render it a fruitful source of authority on point. It is of some interest, however, that the famous decision of Brown v. Board of Education (1954), 347 U.S. 483, contains the statement (at p. 495) that "Separate educational facilities are inherently unequal" (emphasis added). Certainly, there does not appear to be anything in the American jurisprudence that would lead one to interpret the phrase "services and facilities" in such a way as to exclude educational establishments.

24Finally, I should note that the respondent has attempted to draw some support for its position on this point from the fact that the equivalent British legislation explicitly includes educational facilities within its definition of "goods, facilities or services." Section 20 of the Race Relations Act, 1976, provides as follows:

20(1) It is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against a person who seeks to obtain or use those goods, facilities or services

(a) by refusing or deliberately omitting to provide him with any of them; or

(b) by refusing or deliberately omitting to provide him with goods, facilities or services of the like quality, in the like manner and on the like terms as are normal in the first-mentioned person's case in relation to other members of the public or (where the person so seeking belongs to a section of the public) to other members of that section.

(2) The following are examples of the facilities and services mentioned in subsection (1)

(a) access to and use of any place which members of the public are permitted to enter;

(b) accommodation in a hotel, boarding house or other similar establishment;

(c) facilities by way of banking or insurance or for grants, loans, credit or finance;

(d) facilities for education;

(e) facilities for entertainment, recreation or refreshment;

(f) facilities for transport or travel;

(g) the services of any profession or trade, or any local or other public authority.

It is argued on behalf of the respondent that the existence of sub-paragraph (2)(d) manifests a need to mention educational facilities explicitly if they are to be included in the general definition. My own view, however, is that the illustrations mentioned in this sub-section are not illustrations of phenomena which could only be brought within the concept of "providing goods, facilities or services to the public" by specifically deeming them to be so. Indeed, the other illustrations put forward, access to public places, hotel accommodation, entertainment facilities, etc. appear to be all quite obvious illustrations of phenomena that would be embraced by the general concept. Sub-section (2) merely restates the obvious for purposes of clarity rather than stretching the definition beyond that which the ordinary meaning of the term in question would yield.

25I have no hesitation, therefore, in holding that the educational services and facilities offered by DeVry constitute "services and facilities" within the meaning of s. 2 of the Ontario Code.

IV

26The respondent's second submission is that even if DeVry does make available "services or facilities" in the requisite sense, it does not make them "available in any place to which the public is customarily admitted." The thrust of the respondent's submission is that the services or facilities made available by DeVry are made available only to students who have met the admissions criteria, been admitted to the Programme and have paid fees, and thus are not made available to the public at large. Further, it was suggested that DeVry was in some sense a "private" institution and therefore not accessible to the public. It appeared to be the respondent's view that it is of some significance, in applying s. 2, that DeVry is not a public institution in the sense that it is owned, operated or financed by a government body. Alternatively, the respondent suggested that the restriction of entry on the basis of admissions criteria rendered DeVry "private" in a sense which excluded it from the operation of s. 2 of the Code.

27It is necessary, therefore, to give some consideration to defining the outer reaches of the kind of public accessibility which must be present with respect to particular services or facilities in order to bring their provider within the scope of s. 2. Although the proper delineation of the boundary between public and private in this context has proven to be a difficult task, a review of the cases amply demonstrates that the critical question is whether the person providing the services or facilities exercises sufficient discretion or selectivity in restricting access to them that it cannot be said that the services or facilities have been made available to the public at large. There are, of course, obvious cases. The owners of restaurants or theatres make services and facilities available to the public at large, and the father who offers to take his son and his son's friend to a baseball game does not do so. The services of a typical restaurant are made available on a first come, first served basis, and may be widely advertised. The kindly neighbour exercises considerable discretion in deciding whom he will invite to the baseball game. This is not to say, however, that the familial setting may not be one in which services are made available to the public. In an interesting English decision, Applin v. Race Relations Board, [1974] 2 All E.R. 73 (H.L.), it was held that a married couple who accepted into their home foster children on a regular basis, indeed having accepted some 300 children in all over a number of years, were providing a service or facility to the public. The couple had welcomed into their home children of various ethnic backgrounds and the litigation concerned a publicity campaign conducted by a neighbour who wished to encourage them to accept no further coloured foster children. This conduct was held by the House of Lords to be an unlawful incitement to discriminate against coloured children in contravention of the Race Relations Act. It is unnecessary to consider whether these facts would come within s. 2 of the Ontario Code, but the Applin decision does usefully emphasize the importance of discretion or selectivity in determining whether services or facilities are made available to the public. The married couple in Applin had, in essence, opened their home to any child in need of care and thus brought themselves within the category of persons making services or facilities available to the public.

28The question which must be considered, then, is whether the "barriers to entry" present in the facts of this case are of such a nature as to bring the respondent outside the operation of s. 2. It is abundantly clear that the mere existence of barriers to entry, whether financial or otherwise, could not have this effect. Thus, there is no dispute but that restaurants, theatres and taverns would be covered by s. 2. Yet, to gain admission to a theatre, one normally has to pay a fee. Further, the services of a tavern are not available to all members of the public but only to individuals who have attained a certain age prescribed by law. The critical question in each case must be whether the particular barrier to entry involves the exercise of discretion or control of such a nature to warrant the holding that the services or facilities in question are not available to the public at large.

29A useful illustration of the type of barrier which would preclude a finding that services or facilities were made available to the public is to be found in an English decision, Charter v. Race Relations Board, [1973] A.C. 868. This decision also provides, in my view, a model of the type of analysis which is appropriate in attempting to determine whether a particular barrier to entry has this effect. In that case, the Board sought damages and other relief from the membership of a Conservative Club which had denied membership to an applicant who had been born in India. There was no question but that the applicant had been denied membership because of his ethnic origin, and the question which preoccupied discussion in the judgment of the Court was whether the Conservative Club was covered by the provision of the Race Relations Act which was the precursor of s. 20, quoted above. The earlier version of that provision was not materially different from s. 20.

30The critical point for the majority, which held in favour of the Club, was that the rules for selecting members indicated that a genuine system of personal selection of members was in place. Applicants for admission must be proposed and seconded by members of at least six months standing, who are able to vouch for the respectability and fitness of the individual for membership in the Club. The nomination is then posted on the Club notice board for a seven-day period prior to consideration of the nomination by the membership committee. Their Lordships were satisfied that the consideration of the particular applicant was not a mere formality, and it could therefore be said that the Club was making a genuine effort to screen applicants and that the process of becoming a member of the Conservative Club was neither an immediate nor an automatic one. Accordingly, the Conservative Club was properly considered to be a private club in the sense that it was not one which made its services and facilities available to the public.

31It is obvious, perhaps, that some criterion other than one of the prohibited grounds of discrimination must be the basis for selection in a situation of this kind. Thus, it would not be open to an owner of facilities to argue that they were not made available to the public in the sense required by s. 2 inasmuch as the owner denied access to facilities to members of a particular ethnic group. Such a defence would completely undermine the operation of s. 2 of the Ontario Code. Any suggestion to the contrary has been rejected on this basis in previous decisions. See Cummings v. Ontario Minor Hockey Association (1977, Eberts) p. 6; Bannerman v. Ontario Rural Softball Association (1977, Lederman) p. 711; Re Ontario Human Rights Commission et al. and Ontario Rural Softball Association(1979), 1979 CanLII 2094 (ON CA), 26 O.R. (2d) 134 at p. 151 per Weatherston J.A.

32In Charter, then, the Club is excluded from the Act because it has adopted a mechanism for selecting members which restricted access only to those applicants who were acceptable in personal terms to their nominators and any others who took an active role in the decision-making process.

33It would appear that no judgment of this kind is brought to bear by DeVry on the candidates which it accepts for its educational programme. Indeed, there was no evidence to indicate that any qualified candidate had been or would be turned away by DeVry. The fact that admission is normally restricted to individuals who possess Grade 12 education or its equivalent is not, in my view, of assistance to the respondent. This criterion is not employed by DeVry in order to establish an exclusive or private institution from which ordinary members of the public will generally be excluded. On the contrary, it is evident that DeVry is attempting to make its educational facilities broadly available to the public at large and insists only on such educational qualifications as are necessary to permit the individual to take successful advantage of the services offered. Further, it should be noted that DeVry did not have a free hand in establishing this criterion. As has been indicated earlier, this and other aspects of its programme are subject to regulation by the Ministry of Colleges and Universities of the Government of Ontario. In any event, as has been previously noted, the absence of the Grade 12 qualification is not necessarily fatal to an applicant. In implementing its "basic policy that no deserving student should be deprived of a superior education because of lack of funds or certain deficiencies in prior education" (Exhibit 11, p. 8) DeVry had developed a programme of upgrading the qualifications of applicants who lack this credential.

34The critical point is not, however, that the educational requirement in question is not a high one or that it is not strictly applied by the respondent. Rather, the nature of the services and facilities made available by the respondent is such that they can only be successfully taken advantage of by individuals possessing certain prior educational training. It is solely for the purpose of ensuring that individuals who seek access to the services and facilities are in a position to take advantage of them that both DeVry and the Ministry require them as a condition of admission.

35It may be noted that if barriers to entry consisting of prior educational qualifications or training were considered to lift a particular service or facility out of the coverage of s. 2, a number of anomalous results would follow. It would appear obvious that cooking courses, for example, offered for sale to the public would come within the scope of s. 2. It would be anomalous if advanced courses which required the candidate to have taken a previous course would be excluded from coverage on the ground that only a small percentage of the public at large would have taken such a course. Again, the rental of equipment to the public is an obvious case for the application of s. 2, nonetheless so because the nature of particular equipment may make it appropriate for the lessor to ensure that the lessee had appropriate training or licences, such as a driver's licence. Illustrations of this kind could be easily multiplied.

36In summary, then, it is my view that the use of admissions criteria by the respondent is not a basis for concluding that its provision of services and facilities is not covered by s. 2 of the Code. For obvious reasons, I come to the same conclusion with respect to the payment of tuition fees. The payment of fees in return for the provision of services or use of facilities is not uncommon, of course, and the requirement of such payment is not a basis for excluding the operation of s. 2.

37A further consideration which is, in my view, quite material in determining whether or not DeVry makes services or facilities available in a place to which the public is customarily admitted is to consider the nature and scope of representations made to the public. As has been indicated, DeVry advertises the availability of its programmes in the mass media, and employs a number of licensed salesmen who are engaged in the recruitment of candidates. The availability of its programmes is not advertised in such a way as to indicate that its services are not available broadly to the public at large. One cannot, in my view, both extend broad invitations of this kind to the public and, at the same time, successfully maintain that these are not services made available in a place to which the public is customarily admitted.

38Although there is no precisely equivalent provision of American legislation yielding precedents on this point, it is of some interest that in Runyan v. McCrary (1976), 427 U.S. 160, the U.S. Supreme Court held that a provision deriving from the Civil Rights Act of 1866 (see 42 U.S.C. 1981) prohibiting racial discrimination in the making and enforcing of private contracts, applied to a so-called "private" school and thus prohibited the school from refusing admission to black students. A critical factor relied on by the Court was that the school advertised Its programmes through the media to the public at large. See also, United States v. Trustees of Fraternal Order of Eagles, etc., (1979), 472 F. Supp. 1174 (ED. Wis.) in which the Court held that, in determining whether or not a club is a "private" club for purposes of human rights legislation, it was important in denying the respondent his status that it had advertised for members to the general public, and did not exhibit a high degree of selectivity in admitting members to the club.

39I do not believe that it is of any assistance to the respondent that during the day-to-day functioning of its programme, members of the public are not allowed to walk into its premises and sit in on courses. To constitute a "place to which the public is customarily admitted" it is not necessary to establish that any member of the public is entitled to access at any time. Thus, for example, although restaurants and hotels are obviously covered by the section, members of the public are turned away from facilities of this kind when they. are fully occupied. The important question is whether, when space is available, an invitation is made to the public to fill it. If this is so, and I find it to be the case here, the place must necessarily be one to which the public is customarily admitted.

40The respondent has further argued that whether or not decisions to admit students into their programmes are covered by s. 2 of the Code, decisions to discriminate in making available services or facilities to students already enrolled in the programme would not be so covered. The suggestion is that provided the admissions decision is made on the basis of criteria which do not offend the Code, those services and facilities which are made available exclusively to students are not made available to the public and hence discriminatory conduct is beyond the reach of s. 2.

41Although there is some support in the case law for a notion of this kind, it must be said that on the face of it this proposition seems manifestly unsound. It would be a bizarre reading of s. 2, in my view, which would permit a restaurant which admits into its premises and serves food to customers of any race, colour or creed to discriminate along racial lines with respect to the provision of washroom facilities. Could it be seriously maintained that a hotel which accepted guests on a non-discriminatory basis would nonetheless be permitted to exclude certain ethnic groups from the use of the pool, tennis courts or laundry facilities? Similarly, in the present case, it would not be open to DeVry to argue that whether or not its admissions policies might be covered by s. 2 of the Code, the provision of particular services or facilities which are made available to students properly enrolled in the programme remains outside its reach. If s. 2 were interpreted so as to permit respondents to draw a distinction between discrimination at the point of entry (whether the point of entry in question be the front door of a restaurant or theatre or the admissions decision of an educational institution) and discrimination with respect to the provision of services or facilities to the group of people who have been allowed entry, the effectiveness of s. 2 would be substantially undermined, and nonsensical results in particular cases would become possible. Accordingly, the fact that DeVry's services and facilities, including its handling of academic offences, are available only to students enrolled in its programme does not, in my view, establish a defence to the present complaints.

42The authority on which the respondent relies for at least indirect support for this proposition is Beattie v. Governors of Acadia University (1976), 1976 CanLII 1231 (NS CA), 72 D.L.R. (3d) 718, a decision of the Nova Scotia Court of Appeal. In that case, a number of Acadia students who were American citizens were barred from playing on the Acadia basketball team because of a rule which required that no more than three members of a university basketball team could have received their previous basketball training outside Canada. It was argued on behalf of the American students that this constituted a breach of the provision of the Nova Scotia Human Rights legislation similar to s. 2 of the Ontario Code inasmuch as the University was denying access to its facilities on the basis of a prohibited ground. The Court held, however, that the opportunity to play on the University basketball team is not a facility which is "customarily provided to members of the public" or "to which members of the public have access" in the terms of ss. 3 and 4 of the Nova Scotia Human Rights Act, S.N.S. 1969, c. 11. MacKeigan, C.J.N.S., explained this view in the following manner, at p. 723:

No matter how I strain to extend the meaning of the clear words used, I find it impossible to conclude that facilities provided by a private university for students that it has chosen to admit to the university can be considered to be facilities which are "customarily provided" to members of the public or facilities to which "members of the public have access". The facilities are not provided for the public at large but are provided only for the registered students in the university. A member of the public has no right of access, unless he is a student, to athletic or other facilities of a university or to be considered for participation in university athletics.

Similarly, accommodations in university residences or restaurant or other services in university buildings are not "customarily provided to members of the public" nor do members of the public "have access" to them.

Although the decision of a superior court of another province is not strictly binding on an administrative tribunal interpreting analagous legislation in another province, it is obvious that such a decision should be treated with great deference and as highly persuasive authority in dealing with a similar point of interpretation. It is not entirely clear, however, that the Beattie decision is dispositive of the point raised in the present context. It would appear that a central feature of the Court's decision is that it is premised on the assumption that the university in question is in some sense a private institution. Thus, MacKeigan, C.J.N.S., emphasizes that the university has "chosen" the students it admits and that it is a "private university" even though it is conceded elsewhere in the judgment that universities such as Acadia are "today close to being public institutions" (at p. 724). Thus, Beattie is not a case in which the Court is of the view that although the university may be precluded from making discriminatory determinations with respect to admissions decisions, it might nonetheless discriminate with respect to access to certain facilities once students are admitted to the university. Rather, it appears to be the view of the Court in Beattie that these provisions of the Nova Scotia legislation do not have any impact whatsoever on the services and facilities offered to the public by Acadia University.

43There is nonetheless much force in the respondent's submission that were the Nova Scotia Court confronted with the facts of this case, it seems very likely that it would come to the conclusion that s. 2 did not apply. It will be evident from the discussion concerning this point set forth above, however, that an interpretation of the Code which permits a finding of this kind would, in my view, do much to undermine the operation of s. 2, and I would therefore be very reluctant to follow the spirit of the Nova Scotia decision unless required by law so to do.

44It is of interest that in the previously-mentioned decision, Bloedel v. University of Calgary(1980), 1980 CanLII 3916 (AB HRC), 1 C.H.R.R. D/25, an Alberta Board of Inquiry narrowly confined the Beattie decision to its facts in holding that certain support services in the form of tutoring and counselling offered by the University came within the scope of the equivalent Alberta provision. The Alberta Board held that "programmes, services and facilities" offered by the University were covered by the Code, even though it might well be that as a result of the Beattie decision, the University might be able to deny access to certain facilities which it owns on a discriminatory basis. The support services in question were classified by the Board as part of the services and facilities offered by the University subject to the Code, rather than merely a facility to which it can as owner deny access in a discriminatory fashion. Although Bloedel is thus consistent with the view I have adopted, I must confess that the distinction drawn by the Board is one which I find most difficult to follow and apply. Nonetheless, I am entirely sympathetic to the Board's attempt to narrowly confine the Beattie decision to its facts.

45With reference to the Beattie decision, then, it is my view that that decision is not precisely dispositive of the point subject to discussion here inasmuch as it appears to be premised on an assumption that the University is a private institution and as such not subject in any fashion to the Nova Scotia legislation. It is not, in any event, a decision which binds a tribunal interpreting the somewhat differently worded Ontario provision, nor one which, for the reasons I have advanced above, should in my view be extended in any fashion.

46In summary, then, it is my view that the existence of certain "barriers to entry" in the form of fees and educational requirements, etc., do not lead to the conclusion that DeVry does not make its services or facilities available in a place to which the public is customarily admitted. DeVry offers its services and facilities to the public and does not exercise such discretion or selectivity in the choosing of candidates for admission into its programme as to enable it to successfully maintain that it does not make its services and facilities available to the public at large. Further, I am not persuaded that s. 2 of the Code can be sensibly read so as to prohibit DeVry from discriminating with respect to admissions, but to enable it to discriminate with respect to facilities available only to students. Just as a restaurant could not discriminate with respect to facilities available "to patrons only," DeVry cannot, in my view, discriminate with respect to facilities available only to students.

47Moreover, it is clearly the case that the DeVry decision-making processes concerning academic offences which are the source of the present dispute are part and parcel of the services and facilities offered by DeVry to the public. DeVry's offer to the public is an offer of services and facilities which must be considered to include all aspects of its programme. Presumably, any invitation to the public of this kind would be construed, for the purposes of s. 2, to include the normal services or facilities associated with the specifically-advertised service. Thus, a hotel would not have to advertise each of its facilities explicitly in order to preclude itself from discriminating amongst guests with respect to their use. In the present case, however, DeVry has explicitly advertised the facilities in question here inasmuch as the mechanisms for handling allegations of academic offences are explicitly described in the DeVry Calendar.

48Finally, mention must be made of the alternate suggestion, made by the respondent that s. 2 ought not to be interpreted so as to apply to institutions such as DeVry which is not a public agency and is not in any sense publicly financed. The source of this suggestion would appear to be certain passages in the Beattie decision suggesting, that Acadia University would be excluded from the Nova Scotia equivalent of s. 2 inasmuch as it is a private institution, albeit with a public dimension. A fortiori, it is argued, a completely private institution such as DeVry ought not be covered by this section of the Code, I do not profess to understand this aspect of the reasoning of the Court in Beattie as it seems abundantly clear to me that the fact that the institution in question is a private corporation operated for gain is quite immaterial in determining whether s. 2 might apply to its activities. Thus, many restaurants, theatres and hotels, again choosing only the most obvious applications of s. 2, are owned and operated by private corporations of this kind. If it were, however, necessary to find some "public" dimension to the educational facilities offered by DeVry, I am fully persuaded by the argument of counsel representing the Commission that this would be established by the substantial regulatory framework under which DeVry operates and which has been briefly described in Part II of this decision.

V

49As has been mentioned, it was further argued on behalf of DeVry that the initial Appointments establishing this Board of Inquiry and the Complaints which it was constituted to hear and decide suffer from a fundamental defect inasmuch as the named respondent, DeVry Institute of Technology, is not a separate corporate body. DeVry is, in fact, merely a division of Bell & Howell Ltd. and DeVry Institute of Technology is thus merely a trade name under which Bell & Howell Ltd. conducts this aspect of its business. The respondent's submission, therefore, is that DeVry Institute of Technology is not a legal person and therefore cannot be the subject of an inquiry under the Ontario Human Rights Code.

50Support for this proposition is drawn by the respondent from the decision of the Ontario Court of Appeal in Re Cummings and Ontario Minor Hockey Association (1979), 1979 CanLII 1984 (ON CA), 26 O.R. (2d) 7, in which it was held that the respondent Association, an unincorporated body, could not be the subject matter of a. proceeding under the Code. Section 2 of the Code prohibits certain types of conduct by a "person" and, in the opinion of the Courts neither the Interpretation Act, R.S.O. 1970, c. 225, s. 30, nor the extended definition of "person" set forth in s. 19(h) of the Code includes an organization of this kind. It is of some interest that counsel for the respondent organization in that case had indicated that the respondent would not wish the appeal to be disposed of on this technical ground, and therefore was prepared to agree that the respondent be considered to be a person within the meaning of s. 2 of the Code. It was the view of the Court of Appeal, however, that this concession was not of assistance to the claimant since the proceeding had been a nullity from its inception. It was thus not open to the Court (or, presumably, a Board of Inquiry) to add or substitute named officers or directors of the Association as parties to the proceeding in order to obviate this difficulty. As the proceedings were held to be a nullity, no life could be breathed into them in this fashion.

51In the present case, it is argued that the respondent DeVry is similarly not a legal person and thus the proceedings suffer from a fatal defect which cannot be cured by adding or substituting Bell & Howell Ltd. as a party to the proceedings.

52The factual background against which this objection arises is of some interest. At the time of the incident giving rise to the complaints herein, the business of DeVry was carried on by the DeVry Institute of Technology of Canada Ltd. Subsequently, in August of 1978, this corporate body amalgamated with Bell & Howell Ltd. and at about the same time DeVry Institute of Technology was registered as a trade name by Bell & Howell Ltd. Mr. Dykstra, the President of DeVry, is a Vice-President and Director of Bell & Howell Ltd. Mr. Dykstra has been present throughout these proceedings and it is thus the case that a senior officer and director of Bell & Howell Ltd. has been fully apprised of the nature of these proceedings since their inception. No suggestion has been made that the form of the Appointments or Complaints has in any way prejudiced Bell & Howell Ltd. or has in any way led to the presentation of anything other than a full and complete defence being made by those officers and employees of Bell & Howell Ltd. serving in the DeVry division and by counsel representing the respondent in these proceedings. Finally, it should be noted that the documents filed in evidence in these. proceedings indicate that DeVry represented itself as "DeVry Institute of Technology" in its advertising and promotional material and in contractual documents entered into with Mr. Rawala and Mr. Souza.

53There are two reasons which, in my view, are equally compelling for dismissing this objection. First, it is clearly established Canadian law that an incorporated entity which is amalgamated into another corporate entity does not cease to exist for all purposes and in particular, may be said to continue to exist for procedural purposes. Thus, a reference to a corporate entity by the name by which it was known prior to the amalgamation may be taken to refer to an entity which continues its existence as part of a larger entity now known by another name. In Witco Chemical Co. Canada Ltd. v. The Corporation of the Town of Oakville, et al., 1974 CanLII 7 (SCC), [1975] 1 S.C.R. 273, the plaintiff issued a writ in the name by which it was known prior to its amalgamation with another corporation. By the time the plaintiff became aware of the error, the period of limitations had expired and it was argued by the defendant that no amendment to the pleadings should be allowed. The Supreme Court of Canada held that an amendment was appropriate inasmuch as the error was bona fide and of a minor and technical nature. Moreover, it was the Court's view that the amalgamation did not extinguish the previously existing corporate entities but rather continued their existence as one person. While the metaphysics underlying this rule may be thought to be somewhat obscure, it is evident that a procedural objection based on the premise that reference to a party by the name which it held prior to a corporate amalgamation was a reference to a nonentity would be unavailing. On this basis, the present objection should be dismissed. DeVry Institute of Technology is not a non-existent person but rather a corporate person whose existence has continued under the name of Bell & Howell Ltd. Thus, these proceedings do not suffer from the fatal defect identified in the Cummings case. The named respondent is a corporate person continuing its existence as part of Bell & Howell Ltd.

54A second and distinct basis for dismissing this objection is that the naming of a respondent by its trade name constitutes, in my view, an adequate naming of the respondent for the purpose of instituting and conducting proceedings, provided that the use of the trade name is such as to clearly, indicate to the corporate entity carrying on business under the trade name that it is the intended respondent in the proceedings. Use of the trade name to identify the respondent constitutes the use of a misnomer rather than reference to a non-existent entity. Thus, in civil proceedings, a plaintiff may bring action against a person, identifying that person by the name under which it carries on business and indeed, any order granted in the action may be enforced by execution against the property of the person so sued which is used or employed by the person in or in connection with the business in question. In Ontario, this rule is stated as Rule 110 of the Ontario Rules of Practice, R.R.O. 1980, Reg. 540, as amended. In the absence of any guidance on this point in the Ontario Human Rights Code, it would seem appropriate for a Board of Inquiry to conduct its proceedings in accord with this principle. Accordingly, it is my view that reference to a respondent by a trade name under which it carries on business is an adequate reference to a respondent for the purpose of proceedings under the Ontario Human Rights Code and I would see this as merely one instance of the application of a more general principle that the erroneous use of a misnomer in an appointment or a complaint would not render proceedings initiated thereby a nullity.

55Regardless of which of these two rationales are adopted for dismissing the respondent's objection in the present case, there remains the question of whether an amendment of some kind should be made in order to properly subject the respondent to the proceedings of his Board of Inquiry. Counsel for the Commission have suggested that either the Appointments or the Complaints, or all of them should be amended by an order of this Board of Inquiry so as to name Bell & Howell Ltd. as the respondent and, alternatively, that it might be possible to make an order under s. 14b(1)(e), adding Bell & Howell Ltd. as a party to the proceeding. My own view is that these steps are unnecessary in that it is accepted that the proceedings have been properly instituted, it would follow that an order could be made against Bell & Howell Ltd., notwithstanding the fact that the initiating complaint and appointment refers to Bell & Howell Ltd. by a trade name under which it carries on business. Amendment of the Appointment itself, a ministerial order, would appear to be beyond the powers of a Board of Inquiry constituted thereby. Amendment of the Complaint would appear to be inappropriate inasmuch as a complaint under the Code does not appear to function as a pleading which might be amended from time to time by the party issuing it. It is consistent with this view, I would suggest, that the Code makes no provision for amending complaints and, further, that parties may be added to the proceeding (often, no doubt, pursuant to evidence which is introduced during the course of the proceedings) without the issuance of a further complaint. It is possible, of course, that I am in error with respect to these questions and, accordingly, inasmuch as there would be no other reason in the present circumstances to fail to grant the orders requested on behalf of the Commission, I hereby order that the Appointments and the Complaints be amended in the requested fashion.

56With respect to the suggested exercise of the powers conferred on a Board of Inquiry under s. 14b(1)(e), it is my view that the present situation does not involve adding a new party but merely altering a description of an existing party, and an order under that sub-section would not be appropriate. I should note, however, that there does appear to be some force in the argument made on behalf of the Commission that the greater power conferred under 14(1)(e) to add a party suggests that the Code should be interpreted to confer upon Boards of Inquiry the lesser power to correct a mis-description of the party contained either in the Appointment or Complaint initiating the proceedings in question.

VI

57In summary, then, I am satisfied that there is no legal impediment to the present proceedings which inhibits this Board of Inquiry from considering the complaints made by Mr. Souza and Mr. Rawala on their merits. Proper disposition of this matter must therefore involve a careful assessment of the conduct of those officers and servants of DeVry involved in the handling of the cheating episode in which Mr. Souza, Mr. Aftab Rawala and Mr. Joseph Roy participated.

58The cheating episode from which these complaints arise occurred on January 30, 1979, in the final examination in a course referred to as "AIE" the full name of which appears to be Analog Integrated Circuit and Industrial Electronics. As was indicated earlier in this decision, three students writing the AIE examination improperly shared information. The three students were Mr. Victor Souza, the first complainant, Mr. Aftab Rawala who is the brother of the complainant Mansoorali Rawala and finally, Mr. Joseph Roy. After a number of these exchanges had occurred, the invigilator of the examination, Mr. Aathos Lehtila, who also happened to be the instructor in the course, heard some noise and then observed Mr. Roy holding his examination paper in such a way as to enable Mr. Rawala and Mr. Souza to see it. It is important to note that this was the only evidence Mr. Lehtila had of cheating in his observation of the examination room. He was therefore not aware that Mr. Roy had earlier obtained information from one or both of the other students. Although there was some disagreement in the testimony before the Board of Inquiry of Mr. Souza and Mr. Roy with respect to the progress of these events, Mr. Roy did concede that he had obtained information from Mr. Rawala.

59Upon making the discovery, Mr. Lehtila picked up the examinations of the three students and directed them to go to the office of the Dean of Students, Mr. lan Greaves. The three students did this and after waiting for a short time spoke to Mr. Greaves and reported to him that they had been caught cheating on the AIE examination. The precise nature and order of events following thereafter is a matter of considerable disagreement among the participants who appeared before this Board of Inquiry as witnesses. Nonetheless, I am satisfied that the salient points are the following. Mr. Lehtila completed his invigilation of the examination and then joined Mr. Greaves with the three students. The three students were asked to wait outside while Greaves and Lehtila had a discussion in which the latter reported the nature of his observations in the examination room. Each of the students was then called in for an interview. In the course of his interview, Mr. Rawala confessed that he had indeed obtained information from Mr. Roy. Mr. Souza for his part, made a similar confession but as well, alleged that Mr. Roy had been copying information from the others. Mr. Roy indicated that he had indeed made information available to Souza and Rawala but he vehemently denied that he had obtained information from them. Either during this interview or shortly thereafter, Mr. Roy protested that the entire incident resulted from Mr. Souza's insistence and harassment and that in some sense the major blame for the incident lay with Mr. Souza.

60It is Mr. Greaves' evidence that during these interviews he indicated to each student that they would be suspended as a result of their misconduct until such time a committee could be formed to deal with the matter. According to his testimony, he further indicated that the normal penalty for misconduct of this kind would be suspension from the school for one trimester and a requirement to repeat the course in question. Mr. Roy confirmed that he had been so advised by Mr. Greaves but it was Mr. Souza's evidence that he had not been informed of the imminent committee meeting but rather had been told that this sanction was being imposed. In the view of counsel representing the Human Rights Commission, this point is an important one in so far as it facilitates accurate characterization of the action taken by Mr. Greaves on January 30 as being one of imposing the regular sanction rather than merely taking some interim step in anticipation of a committee meeting. Although it is my view that it is entirely possible that Mr. Greaves did not indicate to Mr. Souza that a committee would be convened, I am nonetheless satisfied that it was Mr. Greaves' understanding that such a committee would be convened and that it would be the effective decision-making body. Other evidence indicated that this was the past practice in such matters and I find that Mr. Greaves at the very least communicated this understanding to Mr. Roy and did not labour under the assumption that it was his role to impose the final disposition with respect to sanctions on these three students.

61Shortly after the interviews with the students, Mr. Greaves met with the then Dean of Faculty, Mr. Dean Charran, and reported these events to him, indicating the nature of Mr. Lehtila's examination room observations and the substance of the interviews with the three students. During this discussion, Mr. Roy appeared at Mr. Charran's office uninvited and again represented that he had not initiated the exchange of information and had not copied information from the others. Although there are some uncertainties on the question of whether Mr. Roy mentioned compassionate personal circumstances such as his impending marriage, there is no doubt that Mr. Roy, both in this interview and in his earlier meeting with Mr. Greaves, was visibly distressed and made a passionate plea of innocence in the sense that he had not copied from others. Mr. Charran then advised Mr. Roy that he was suspended from the school until such time as a Committee could be appointed to look into the matter.

62Mr. Charran thereupon organized a Committee meeting for the next day in the office of DeVry President Peter Dykstra. In addition to himself, Mr. Greaves and Mr. Dykstra, Mr. Charran arranged for two other instructors, Mr. Joe Kulathinal and Mr. Ron Mackie to sit on the Committee. Mr. Aathos Lehtila was invited to the meeting to report on his observations but was not a voting member of the Committee. As indicated above, I am satisfied that this ad hoc Committee saw itself as the decision-making body charged with the responsibility of determining the nature of the cheating episode that had occurred and imposing appropriate sanctions on the participants. Each of the members of the Committee testified before this Board of Inquiry and each was quite evidently of this opinion. It has been argued by counsel for the Commission, however, that the effective decision-maker with respect to the imposition of sanctions was Mr. lan Greaves and that the role of the Committee was essentially that of a rubber stamp of a decision taken by Mr. Greaves. Further, it was argued on behalf of the Commission that a basis has been established in the evidence for the conclusion that Mr. Greaves in his actions with respect to the three participants on January 30 was activated, at least in part, by bias of a kind prohibited by the Ontario Human Rights Code. Before turning to consider the nature of the decision-making process of the Committee, then, some consideration must be given to the allegation that the conduct of Mr. Greaves on January 30 amounted to a contravention of the Code.

63The principal basis for this allegation is that Mr. Greaves, in his testimony, conceded that after his interviews with the three students he had reached the conclusion that Messrs. Souza and Rawala had copied information from Mr. Roy but that Mr. Roy had not copied information from the others. In coming to this conclusion, it is evident that Mr. Greaves must have concluded that Mr. Roy was telling the truth and that Mr. Souza's allegation concerning Roy's participation was a lie. It must be asked, then, what possible basis there might be for concluding that Mr. Souza had been untruthful. Mr. Lehtila's observations, of course, related only to Mr. Roy's showing of his examination to the others and there was therefore independent evidence of the transfer of information in this direction. With respect to the transfer in the other direction, Mr. Greaves was confronted simply with Souza's allegation and Roy's denial. Considered from the perspective of assessing the incentives for deception in this context, it is evident that Mr. Roy would have very good reason to deceive and thus minimize his role in the affair. It is less obvious that Mr. Souza had reason to deceive (except, as one witness suggested, on a "strength in numbers" theory) and it therefore seems less likely that Mr. Souza's allegation would be false. When confronted with this evidence, surely a rational response would be to suspend judgment on the matter unless some other basis for assessing the creditability of the individuals was present. Thus, Mr. Charran indicated that he did not either believe or disbelieve Mr. Roy's statements but simply suspended judgment with respect to his role in the cheating episode. Mr. Greaves, on the other hand, chose to believe Mr. Roy and disbelieve Mr. Souza, without any apparent reason for so doing. Indeed, when confronted with this point in cross-examination (transcript pp. 98–101) Greaves denied that he had disbelieved Mr. Souza and then ultimately conceded that indeed he must have done so. Mr. Greaves did not attempt to explain his willingness to believe Mr. Roy as against Mr. Souza on some rational basis, such as that he found Mr. Souza's manner to be such as to lead him to believe that Souza might be insincere. Rather, he simply seems to have discounted Mr. Souza's allegation once it was denied by Mr. Roy. Although there is some difficulty in reaching a finding with respect to a matter of this kind, it would appear that Mr. Greaves never consciously articulated his reasons for believing Mr. Roy and disbelieving Mr. Souza. In the absence of any apparent rational basis for preferring the creditability of one over the other and in the absence of any explanation from Mr. Greaves as to why he formed this conclusion, I am driven to conclude on a balance of probabilities that, whether consciously or not, some bias related to colour, race, or national origin must have played a part in Mr. Greaves assessment of their respective creditability. Although Mr. Greaves has vehemently denied this allegation, and I believe that this protestation may well be sincere on his part, there simply is no other difference between Mr. Souza and Mr. Roy other than race, colour and national origin, which has been suggested to this Board of Inquiry as the basis for believing one to be truthful and the other not.

64It is my view, however, that this finding is not of any assistance to the complainants. Whatever Mr. Greaves' views or tentative conclusions concerning the respective roles of the three participants, his disposition in each case was the same. Each individual was at least advised of the normal penalty with respect to matters of this kind and was informed that they were, in some sense, suspended. Leaving aside the question of whether Mr. Souza was specifically advised of the necessity of a Committee meeting, I am satisfied that Mr. Greaves believed that a Committee meeting was necessary and that pending such meeting all three students were suspended. Further, I do not believe that Mr. Greaves' conclusions, tentative or otherwise, had any material impact on the decision-making process of the Committee. It was, in my view, the Committee that effectively decided the fate of the three individuals. In short, whatever Mr. Greaves' opinions may have been on January 30, his actions with respect to the three participants were even-handed and the ultimate decision to impose differential sanctions on the three was not materially effected by those opinions. It is these deliberations of the Committee, therefore, to which attention must be directed.

65At the Committee meeting on January 31, the order of proceeding was as follows. Mr. Greaves presented an account of the previous day's events, indicating the nature of the report given to him by Mr. Lehtila and the substance of his conversations with the three students. In particular, he reported to the Committee that Mr. Souza alleged that Mr. Roy had copied information and that Mr. Roy had denied this. There is some conflict in the testimony of various Committee members as to whether Mr. Greaves further indicated that it appeared to him that Roy had not copied from the others. Some participants flatly denied that any such suggestion was made; others suggested that he might have indicated a tentative conclusion of this kind. This is not, in my view, a material fact, however, in as much as the evidence clearly establishes that the Committee did not in any sense accept this conclusion at an early point in the meeting but rather went on to conduct its own independent investigation with a view to testing the hypothesis that Mr. Roy might have copied from the others.

66Mr. Lehtila was called into the meeting to give an account of his observations and it would appear that Mr. Lehtila then remained with the Committee for the duration of the meeting. The Committee then launched into an examination of the AIE answer papers of Rawala, Souza and Roy with a view to determining the direction of copying. It may be noted that there was really no need for further inquiry of this kind with respect to Rawala and Souza. They had both confessed to obtaining information from Roy. Thus, a major purpose of the inquiry must have been to determine whether Roy copied from Souza and Rawala and this indeed was confirmed in evidence by all members of the Committee. As a result of the comparison of papers the Committee concluded that Souza and Rawala had copied from Roy but that Roy had not obtained information from them in return.

67This comparative examination of the answer papers was a remarkably ill-conceived exercise. Each member of the Committee was cross-examined at length by Mr. Marshall with respect to the inferences drawn in the course of this comparison with the result that the deficiencies in this process were more than adequately revealed. Although members of the Committee were of the view that various signals of the direction of copying were to be found in the examination papers, Mr. Marshall's cross-examination of them demonstrated the frailty of those inferences. The underlying premise of Mr. Marshall's attack was simply that the fact that the same or similar notations might appear on two answer papers does not offer convincing evidence of either the existence or the direction of a copier. None of the explanations offered by members of the Committee undermine the obvious common sense of this proposition. Nonetheless, I accept the evidence of Committee members that they believed this to be a reasonable mode of inquiry and that it offered evidence of copying by Souza and Rawala but not by Roy.

68Having reached these conclusions concerning the facts of this episode, the Committee turned to consider the question of sanctions. Mr. Charran drew the Committee's attention to a previous case involving a similar situation. A few years before, two students named Freund and Zenilla had been caught cheating in an examination. Zenilla had obtained information from Freund. The Committee established to consider the matter, which included Mr. Charran in its number, determined that a lesser sanction should be imposed on an individual who supplied the information on the theory that this was in some sense a lesser offence. Accordingly, Mr. Freund was permitted to write a supplemental examination. As there is a maximum grade of 60% permitted on supplementals at DeVry, the effect of this was to deprive Mr. Freund of the honours standing he would otherwise have achieved in his course. Mr. Zenilla on the other hand, was required to sit out a term and to repeat the course in question. After recalling this previous case to the Committee, Mr. Charran then proposed that similar sanctions be imposed in the present case, i.e. that Roy be allowed to write a supplemental but that Souza and Rawala be suspended for one trimester and required to repeat the AIE course. After some discussion, the Committee agreed unanimously with this proposal and instructed Mr. Greaves to communicate this decision to the students. The Committee hesitated over the question of whether Roy should be allowed to write the supplemental in a few days so as to be able to graduate at the regular time and ultimately determined that this should be permitted. In order to facilitate this arrangement, Roy was notified immediately by telephone of the decision whereas the decision was communicated by letter only to Souza and Rawala.

69A few days later, Roy did in fact write a supplemental examination and passed with flying colours. Indeed, Roy did suspiciously well on the supplemental. Having demonstrated himself to be an average or below average student during his career at DeVry, he completed a supplemental exam scheduled for two hours in twenty minutes or so and appeared to do very well indeed. I am satisfied, however, that Mr. Lehtila did not purposely set an easy supplemental examination as part of an elaborate scheme to assist Mr. Roy. The explanation for Roy's sterling performance appears to be either that the dire straits in which he found himself conducted to a thorough preparation for the supplemental or, perhaps more probably, that the supplemental exam was similar in a number of respects to the final examination.

70In the event, then, three students who had engaged in essentially similar wrongdoing received different treatment. The penalty imposed on Mr. Roy was not very substantial. Mr. Roy, after an admittedly unpleasant few days, graduated in the normal course from his program. Mr. Souza and Mr. Rawala were required to sit out one trimester and to spend a further trimester repeating the AIE course. In the Committee's view, these significantly different penalties were warranted by the significantly different degree of guilt attributable to the participants. It has been argued on behalf of the complainants and the Commission, however, that the decision-making process of the Committee was merely a sham in the sense that it simply rubber-stamped an opinion reached by Mr. Greaves, an opinion reached in part on the basis of an improper bias. Support for this view was attempted to be drawn from the fact that the fact finding exercise of the Committee was so ill-conceived that one might fairly conclude that the Committee simply found evidence to confirm an opinion which it had already reached prior to looking at the examination papers. I am persuaded, however, that the Committee's deliberations, however inept they appear in retrospect, did amount to a genuine attempt on the part of members of the Committee to seek independent evidence of the existence and direction of copying in the AIE examination. Further, I am persuaded that the imposition of different actions was premised on an application of a policy determined on a previous occasion, the Freund-Zenilla episode, the underlying premise of which was that it is less heinous to give information than to receive it. Whether this is or is not a sound policy is not a material question if one accepts, as I do, that it was this policy that explains the decision rather than any preference given to Mr. Roy because of his race, colour or national origin.

71The role played in the Committee deliberations by the Freund-Zenilla precedent is only one of the reasons for concluding that the Committee was not motivated in any respect by a discriminatory bias. Perhaps the most compelling point is that most members of the Committee were unaware of the ethnic origin of the three students. Mr. Greaves had of course met all three students and Mr. Charran had met Mr. Roy. But Messrs. Dykstra, Mackie and Kulathinal had no direct knowledge of the students or their backgrounds. Mr. Kulathinal, himself of Indian origin, conceded that he thought that Rawala might be an Indian surname but he formed no opinion with respect to the ethnic origin of Souza and Roy. Thus, it would appear that the only member of the Committee who knew of the ethnic origin or the colour of all three participants was Mr. Greaves. Moreover, the ethnic composition of the Committee itself was such as to make discussion of racial questions most unlikely. Two members of the Committee are themselves non-white. Mr. Kulathinal's Indian origin has been mentioned. Mr. Charran who proposed, it will be recalled, the differential sanctions is a non-white of Guyanese origin.

72In summary, then, my findings are as follows. Although all three students engaged in copying from one another on the AIE examination, both Mr. Greaves and the Committee established to consider the matter reached the conclusion that Mr. Roy had supplied information but not obtained it from others. Although Mr. Greaves' willingness on January 30 to believe Mr. Roy and disbelieve Mr. Souza seems, on the balance of probabilities, to be explicable only on terms of bias, Mr. Greaves did not in any respect act on this view. Mr. Greaves imposed the same sanction on all students and gave a full and complete report to the Committee of the substance of his interviews of his students. The Committee, in turn, reached its own conclusion that Mr. Roy had not engaged in copying, albeit on the basis of a rather lame effort at investigating the matter. The Committee was not biased in favour of this conclusion, in my view, by the fact that Mr. Greaves had reached his own conclusion, perhaps tentatively, that Mr. Roy was telling the truth. I am satisfied that the Committee approached the matter with an open mind and attempted to determine, by its own lights, whether evidence of copying by Mr. Roy could be found in the examination papers. Finally, I find no evidence of bias being present in the deliberations of the Committee which resulted in the imposition of different sanctions on the three participants.

VII

73Although I have thus concluded that a factual basis for these two complaints was not established, there are a number of suspicious circumstances arising in the present case which should be addressed. Counsel for the respondent has suggested that not only are the complaints brought in the present case groundless but the investigation and handling of these matters by the Ontario Human Rights Commission and its staff have been, in some sense, irresponsible. In my view, the conduct of the officials and staff of DeVry in the present case is such that it is not at all surprising that the complainants reached the view that DeVry was motivated by bias and that the Commission, in the course of its inquiries, developed the view that there was some basis for this concern.

74The dealings between DeVry officials and Mr. Souza and Mr. Rawala could not have been better designed to provoke suspicion of this kind. Having meted out a lesser sanction to Mr. Roy, whom both Souza and Rawala knew to have engaged in similar conduct to their own, DeVry officials refused to give any explanation to Souza and Rawala of this differential treatment. Further, the explanations offered to Mr. Sackrule, the Commission's investigator, did not ring true. Although the nature of the discussions between DeVry officials and Mr. Sackrule were the subject of controversy before this Board of Inquiry, I am satisfied that Mr. Sackrule was given the impression that the relevance of the Freund-Zenilla case was that one student, Mr. Freund, was an honours student who had mastered the course in question and the other, Mr. Zenilla, was a student in obvious difficulty in the course in question needing information from Mr. Freund. The parallel in the present case, it was suggested to Mr. Sackrule, was that Mr. Roy had mastered the course. Although it was evident that there was some misunderstanding between Mr. Sackrule and the officials with whom he spoke, I am not at all convinced that responsibility for this lies with Mr. Sackrule. In his evidence before this Board of Inquiry, Mr. Dykstra indicated that he saw this as the important point in the Freund-Zenilla case and it would appear that Mr. Dykstra communicated a similar view to Mr. Sackrule during the course of his investigation. When Mr. Sackrule investigated the records of the three participants in the DeVry program, he quite properly concluded that Roy was a much less accomplished student than Souza and Rawala. As I have indicated above, it is my conclusion that the Committee did not draw this lesson from the Freund-Zenilla case but rather saw it as an instance of a principle that a lesser sanction is appropriate for one who gives information than from one who receives it. I accept the evidence of various members of the Committee who indicate that no attempt was made to assess the respective abilities of three students during the Committee meeting. But I also accept Mr. Sackrule's evidence that he received the impression that the DeVry officials with whom he had contact justified the differential treatment on the basis which had no grounding in fact. Mr. Dykstra's misconception of Roy's abilities may, of course, have resulted from knowledge of Roy's performance on the supplemental. But it is not [at] all surprising that Mr. Sackrule felt that so obviously inadequate an explanation for the differential sanctions was a suspicious circumstance.

75A second explanation offered to Mr. Sackrule was similarly groundless. It was suggested that the fact that Roy had been an unwilling participant in the cheating episode was a material consideration. Mr. Sackrule explored this question with Mr. Lehtila and the latter quite properly confirmed that he did not view Mr. Roy's participation as unwilling. Again, I accept the evidence of members of the Committee that the material consideration was the Freund-Zenilla precedent and that although Mr. Roy's allegation that he was in some sense harassed by the others was mentioned, the Committee did not premise its decision on a finding of "involuntariness." Again, however, it is not surprising that Mr. Sackrule concluded that the explanations offered by DeVry officials were unconvincing.

76Further suspicions were raised by the seemingly ad hoc nature of the decision-making processes established by DeVry to deal with this matter and an apparent failure to follow the procedures described in the DeVry Calendar (Exhibit 11). As has already been indicated, the Calendar contains the following (at p. 33):

Disciplinary Action

A student who commits a breach of school rules or normal standards of good conduct will be referred to the Office of the Dean of Students. An investigation of the facts surrounding the situation will be made. The student will be advised of the facts disclosed by the investigation and will be given an opportunity to question evidence and present witnesses and affidavits on his own behalf.

After hearing the case, the Dean of Students, or his designated representative, may take one of the following actions: dismiss the case; give the student an official warning; process a form of probation, suspension, or expulsion action. Disciplinary action varies with the severity of the violation. Any disciplinary action may be appealed to the President of the School.

The discussion in the Calendar then goes on to define the terms, probation, suspension and expulsion.

77It is obvious that in the present case these procedures were not implemented. As I have indicated, I accept the evidence of virtually every DeVry official involved in this incident to the effect that all concerned viewed the Committee decision-making process as dispositive and further, that Mr. Greaves' decision on January 30 was to suspend each of the three students pending a meeting of the Committee. Curiously, however, in the letters written to Mr. Souza (Exhibit 7) and Mr. Rawala (Exhibit 24) communicating the Committee decision of January 31, Mr. Greaves stated the following:

As per our conversation of Tuesday, January 30, 1979 I hereby confirm the decision made on that date and which has since been ratified by Committee, to expel you from all studies at DeVry Institute of Technology for a period of one trimester due to your indiscretionary [sic] conduct in the examination room during your AIE examination.

It is not surprising that Commission counsel have argued that this offers evidence of Mr. Greaves having been the locus of decision-making power with respect to this question and that the Committee's role was simply that of confirming a decision already made by him. When the evidence led before this Board of Inquiry is viewed in its totality, however, it is clearly established in my view that the Committee was in fact the decision-making body and that Mr. Greaves' letters create a false impression in this respect.

78Further, the manner in which the investigation was conducted by the Committee gave rise to some suspicion that no sincere attempt was made to authenticate Mr. Souza's allegation concerning Mr. Roy. If the respective records of the students were examined, it would have been revealed that both Mr. Rawala and Mr. Souza were significantly better students than Mr. Roy. Either of them could have passed the AIE course without writing the final examination at all because of their high standing in previous assignments. It would have been evident that Mr. Roy was more likely to be in need of assistance than they. No attempt was made to contact Mr. Souza with a view to identifying the question or questions on which Mr. Roy had obtained information from the others. As has been indicated, the mode of investigation by comparison of answer papers left much to be desired. Although it is perhaps all too easy for individuals trained in the drawing of inferences from circumstantial evidence to criticize the efforts of individuals without such training, the investigation conducted by the Committee was by any measure incompetent in the extreme. For the reasons advanced above, I am satisfied that this was an exercise in incompetence rather than improper bias. Again, however, it is not surprising that others took a different view of the matter.

79Finally, a suspicion was raised in the mind of the complainants by the fact that Mr. Greaves communicated the nature of the Committee's decision to the Department of Manpower & Immigration with specific reference to Mr. Rawala's status as a Pakistani national resident in Canada on the basis of a student visa. No doubt this appeared to Mr. Rawala and to Mr. Souza to be a vindictive act, itself suggesting bias. However understandable, this reaction is in fact unwarranted. The evidence of DeVry officials, which I accept, was that DeVry had adopted a policy of advising the Department with respect to withdrawals and terminations of students on visas in response to public concern that foreign nationals were entering Canada on the basis of such visas and then leaving the program in question but remaining in the country on an improper basis. Ultimately, when it was drawn to Mr. Dykstra's attention that Mr. Rawala's status had been revoked, Mr. Dykstra wrote to the Department and made a successful plea that Mr. Rawala's status be reinstated.

VIII

80Given the nature of the above findings, it is unnecessary to consider at length the submissions made by counsel with respect to remedies. There is, however, one difficulty worthy of mention in as much as it suggests that if liability were found, an award of compensatory damages would be inappropriate.

81On behalf of the Commission, it is argued that if a finding of bias is warranted, the appropriate remedy would include compensation calculated on the basis that Souza and Rawala should have been accorded the same treatment as Roy, i.e. that they should have been allowed to write supplemental examinations and to graduate in the normal fashion. In Mr. Souza's case, he would have graduated at the same time as Mr. Roy. In Mr. Rawala's case, he had a further trimester of the course to complete and would have graduated at the conclusion of that term. It is therefore argued that Mr. Souza should receive damages to replace income that would have been earned during the period from the point at which graduation would otherwise have occurred and the point of actual graduation, together with the tuition fee of $416 for the second taking of the AIE course. In Mansoorali Rawala's case, damages would be appropriate in the amount of the additional expense incurred by him in supporting his brother through an equivalent period of time.

82It is not my view, however, that this would be an appropriate method of calculating damages. I accept the evidence of DeVry officials to the effect that the standard sanction for an academic offence of this kind at DeVry is suspension for a term and a requirement to repeat the course in question. The theory advanced by the Commission's counsel is that a biased failure to investigate this incident properly led to preferential treatment for Mr. Roy. It is my finding that if Mr. Roy's full participation in the incident had been known, he would have been subjected to the same penalty. The sanction imposed on Souza and Rawala was, given the policies in place at DeVry, fair in all the circumstances and it would be inappropriate, in my view, to lessen the gravity of this sanction by way of compensation under the Human Rights Code. This is not a situation in which one person arguably obtained something to which others were entitled. None of the three candidates were entitled to write supplemental examinations. The requirement to repeat the course and sit out a trimester would not have resulted from the discriminatory conduct but rather from the academic misconduct of Mr. Souza and Mr. Rawala.

83Counsel for the Commission have argued that the fact that Mr. Souza was characterized as a liar may have had some impact on the gravity on the sanctions imposed. There are two reasons for rejecting this view. First, suspension for a trimester and the requirement to repeat a course does appear to be the normal sanction which would have been imposed in any event. In the second place, it may be noted that Mr. Rawala who was not so characterized was subjected to the same sanction.

IX

84For the foregoing reasons, the complaints of Mr. Victor Souza and Mr. Mansoorali Rawala against DeVry Institute of Technology are hereby dismissed.