Ruffolo v. York University, 2009 HRTO 1086

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Ruffolo

Applicant

-and-

York University

Respondent

DECISION

Adjudicator: Judith Hinchman

Date: July 21, 2009

Citation: 2009 HRTO 1086

Indexed as: Ruffolo v. York University

AppearanceS BY

John Ruffolo, Applicant ) Self represented

York University, Respondent ) Joanna S. Rainbow,

) Counsel

INTRODUCTION

1This is an Application filed September 11, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The underlying human rights complaint was filed with the Ontario Human Rights Commission (the "Commission") in October 2005 and abandoned upon filing this Application with the Tribunal. This Decision addresses the respondent's preliminary motion to dismiss the Application.

NATURE OF THE DISPUTE

2The applicant self identifies as a person with an acquired brain injury. In August 2005, the applicant contacted Osgoode Hall Law School, York University (the "Law School"), requesting assistance in applying as a person with a cognitive disability. The Admissions Office replied that the Admissions Committee receives applications under a discretionary category called the Access Applicant Category.

3A description of the Access Applicant Category as it appeared on the Law School's website in August 2005 states in part:

In recognition of concerns that the sole use of conventional measures of ability can have discriminatory effects, Osgoode Hall Law School has devised and implemented an Access admission category. Its aim is to recruit and admit individuals with good academic potential who have themselves confronted, or who are from groups which have confronted, identifiable social, educational and/or economic barriers to education in general or legal education in particular.

The description continued stating that applications through this category must include information corroborating a barrier or disability. At the time the applicant viewed this website, the final sentence stated: "Candidates with an LSAT score below the 26th percentile are ineligible for consideration."

4The LSAT is administered by the Law School Admission Council ("LSAC"), which is not affiliated with the respondent or any other law school. The LSAC provides accommodation to those persons who document a disability that would affect their ability to complete the LSAT under normal conditions.

5A Law School applicant can ask LSAC for accommodation in taking the test or take the test without accommodation and when applying to the Law School include in the personal statement a reference to the impact that the lack of accommodations had on the LSAT score.

6The applicant contacted LSAC to determine what accommodations would be available to him when taking the test. He was told that in order to qualify for accommodation from LSAC he would need to provide a neuropsychological report. The applicant asserts that the required report would cost about $5,000. He views this as prohibitive. Furthermore, he asserts it is discriminatory in that a person with a physical disability could obtain a physical report for about $50. Given the cost of the required physician's report, the applicant chose not to take the LSAT.

7The applicant then wrote to Osgoode Hall asking that they waive the LSAT requirement for him. The personal respondent Gina Alexandris, Assistant Dean of the Law School, communicated by email on August 26, 2005 that the LSAT requirement would not be waived.

8Applications are due to the Law School on November 1 of each year. The applicant did not apply.

9The applicant believes that the respondent's Access to Law requirement of an LSAT score at or above the 26th percentile is a barrier towards mentally disabled persons, and that its refusal to waive the score for mentally disabled persons is discriminatory.

10The respondent asks that the Application be dismissed as failing to state a prima facie case of discrimination.

SUBMISSIONS OF THE PARTIES

11The respondent argues that having failed to either write the LSAT or apply for accommodation in writing it, the applicant can not show that he would have scored below the 26th percentile thus being ineligible for consideration. But more importantly having failed to submit any application to the Law School, the applicant can not show that the Law School has discriminated against him. The respondent submits therefore that this Application is premature as the applicant's rights have not been infringed.

12The respondent submits that whether or not LSAC's requirement that a certain physician's report is provided in order to qualify for accommodation in taking the LSAT is not relevant to this Application as LSAC and the Law School are separate entities and there is no evidence that the Law School bears any responsibility for LSAC's actions.

13The respondent further requests that the Application against the personal respondent Gina Alexandris be dismissed because she communicated the Law School's admission process requirements in the normal discharge of her duties and the Application states no basis for her to be personally responsible for a Code breach. The applicant consents to the removal of the personal respondent explaining that he only listed her name on the original complaint because he understood that the Commission wanted a personal respondent listed. The personal respondent is removed as a party to this Application and the style of cause is amended accordingly.

14The applicant submits that the Law School's website description of its Access Applicant Category is an announced intention to discriminate against cognitively disabled persons and as such is a breach of Code section 13 (1), which states:

A right under Part I is infringed by a person who publishes or displays before the public or causes the publication or display before the public of any notice, sign, symbol, emblem, or other similar representation that indicates the intention of the person to infringe a right under Part I or that is intended by the person to incite the infringement of a right under Part I.

15The applicant relies on Bowater Canadian Forest Products Inc. v. Communications, Energy and Paperworkers Union of Canada (Posting Grievance) [2004] O.L.A.A. No. 18 for the proposition that an inference can be drawn that setting a lower limit on the LSAT score means that the Law School intended to discriminate against cognitively disabled persons.

ANALYSIS

Website description of Access to Applicant Category

16For section 13 to be breached, the website representation must indicate an intention to infringe a Code protected right. Imperial Oil Ltd. v. Entrop (2002) 2000 CanLII 16800 (ON CA), 37 C.H.R.R. D/481 (Ont. CA).

17In Bowater, it was determined that in job postings employers cannot use language that indicates that an applicant has to be in good physical condition to be successful, even if this is a requirement of the job as that may indicate an intention to discriminate; rather the employer should indicate a willingness to accommodate.

18I find that it would be a stretch to conclude that the LSAT minimum was intended to discriminate against cognitively disabled persons as there may be any number of reasons why an individual would score below the 26th percentile on that test. And more importantly, looking at the context of the entire website description, it makes more sense to conclude that the Law School was announcing its intention to evaluate applications with accommodation to persons with certain disabilities or barriers.

19I find that the web site admissions requirements as posted in August 2005 do not breach the Code.

Refusal to waive LSAT requirement

20The applicant has submitted that he wished to apply to the Law School without submitting an LSAT score. The applicant did not apply though and so this requirement was not imposed upon him. I agree that it is premature therefore to determine in this case if this requirement was discriminatory against this applicant because the requirement has not been applied to this applicant.

21The applicant submits, however, that being told that the LSAT would not be waived discouraged him from applying and therefore that email communication amounted to discrimination. First, the applicant has not adduced evidence to show that he as a cognitively impaired person was treated differently than any other group regarding the response to his inquiry about this requirement. Second, in the context of the Access Applicant category discussed earlier, I do not infer that the communication regarding this requirement was evidence of an intent to discriminate as the larger picture suggests that the Law School to the contrary intended to accommodate applicants with disabilities.

22In order for this motion to succeed it must be "plain and obvious" that the Application is certain to fail. Braithwaite v. Ontario (Chief Coroner), 2005 HRTO 31. I am satisfied the applicant has failed to adduce any evidence to show that the respondents have infringed his Code rights.

23It is plain and obvious that this Application is certain to fail.

24In the circumstances the respondent's Request to dismiss the Application is granted.

ORDER

25The Application is dismissed.