White v. University of Ottawa, 2009 HRTO 1491

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Svetlana White

Applicant

-and-

University of Ottawa, Faculty of Law

Respondent

interim deCISION

Adjudicator: David Muir

Date: September 16, 2009

Citation: 2009 HRTO 1491

Indexed as: White v. University of Ottawa

1This is an Application filed on January 9, 2009, under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that she has been subject to discrimination in goods and services on the basis of country of origin. She alleges that she was refused admission to the respondent University’s Faculty of Law because she was from Russia. The respondent University states she was not admitted because of a low LSAT score and a poor academic record.

2This Interim Decision deals with three Requests for Order During Proceeding (Requests) filed by the applicant. On July 23, 2009, the applicant filed a Request for production of documents. The substance of that Request is essentially repeated in a Request for Tribunal Ordered Inquiry filed on August 13, 2009. The Tribunal will not Order an Inquiry where a production order will suffice. The Requests for production will be dealt with together. Finally the applicant filed a Request on August 31, 2009, for an Order requiring the production of a statement from a named individual witness.

Requests for Production

3The Requests of the applicant and the responses of the respondent are set out here:

a. Production of all applications made to the Law School (Common Law Division) for the academic year 2003-2004.

The respondent states that it does not archive all applications and only keeps the files of successful candidates – that is individuals who are offered a place and accept it. The respondent also states that to produce the files of the students admitted for the academic year 2003-2004 would reveal personal information of several hundred individuals who are not parties to this Application. The respondent states that the files of successful candidates will not contain relevant evidence.

b. Production of Minutes of the Admissions Committee from January 2003 to January 2004.

c. Production of Minutes of Meetings between the chair and the Admissions Committee from January 2003 to January 2004 and his/her recommendations regarding applications for admission.

d. Production of any recommendations respecting applications for admission made by the admissions officer, the chair and members of the Admissions Committee.

The respondent states that many of the applications it receives are dealt with summarily based on a paper review of GPA and LSAT scores. That is, students with high GPA and LSAT scores or conversely low scores on those measures are dealt with summarily. It is only the middle band of candidates that is reviewed in any detail by two members of the Committee.

The respondent also states that the applications of mature students, the category into which Ms. White’s application fell, are treated quite differently and reviewed in much more detail. The respondents state that the production of these records would reveal the personal information of hundreds of individuals who are not parties to these proceedings. The respondents also state that some of what is sought does not exist. The respondents also state that these materials do not contain any evidence relevant to the issues in dispute.

e. All files of students transferring from Civil Law Division to Common Law Division without LSAT scores for the year 2003-2004.

The respondent states that transfers are not permitted from the Civil Law Division to the Common Law Division. Students who transfer from the Common Law Division (French) to the Common Law Division (English) are permitted to do so but must take the LSAT.

f. The number of foreign-trained lawyers admitted into LLB in academic year 2003-2004.

The respondent states that foreign-trained lawyers whose credentials are not recognized by the NCA are not granted advanced standing and therefore there is no separate tracking of such individuals. The respondents state that a manual review of the files of successful applicants indicate that at least one foreign-trained lawyer was admitted in the academic year in question. The respondent also states that it is possible that offers of admission were sent to other students in the year in question.

4In respect to the request set out in paragraph (a) above, I am not satisfied, based on the material filed, that the production of these files will assist in the just, fair and expeditious resolution of this Application. The respondent advises that all it has are the files of successful applicants who accepted a position in the school and graduated. As pointed out by the respondent, in the year in question the Law School received 2,733 applications for position in the Common Law Section. There are approximately 200 positions. Offers were made to more than 200 individuals. Without knowing who applied and whether any of them were from Russia, information about the place of origin of a subset of successful applicants will not cast much, if any, light on the issue at the heart of this Application. I have also considered the invasiveness of requiring the University to produce the files of 200 persons not before the Tribunal.

5On the other hand, the respondent states that the decision to not accept the applicant was based on a poor LSAT result and, secondarily, a weak academic record. It seems to me that the applicant’s ranking in terms of LSAT scores and academic standing may be arguably relevant to the issues in dispute and an Order will be made requiring the University produce a listing of the LSAT scores and Grade Point Averages or equivalent of those candidates who accepted positions in the academic year 2003-2004.

6With respect to the requests set out in paragraphs (b), (c) and (d) above it is not clear how the minutes of the admissions committee in respect of other candidates will assist in a fair, just and expeditious resolution of this dispute. The applicant merely asserts that these materials are arguably relevant to her claim that she was discriminated against on the basis of place of origin. It is not clear why that would be the case. What would be arguably relevant is whether there is any indication in these records from which an inference might be drawn that the applicant’s place of origin was a consideration when her application was before the Committee or the relevant officials identified in these requests.

7The respondent advises that the files of mature students are treated differently than other general admission applications. The respondent advises that a sampling of these files is reviewed and discussed in depth by the Committee. If the applicant’s application was discussed at this meeting, those notes should be produced. The respondent also advises that this meeting serves to provide general guidance to the chair and admissions officer who then review all of the files. It seems to me that these minutes may be arguably relevant to the issue in dispute and I find that they should be produced. The identity of the individuals whose files are being discussed is irrelevant and should not be revealed. Other personal information which would tend to reveal their identities may also be redacted. So for example, the names of these individuals; the names, but not the locations, of any prior educational institution attended; and the identity of prior employers is also irrelevant and may be redacted as well. Any other references to the applicant’s application for admission contained in any of the materials set out in paragraphs (b), (c) and (d) should to be produced, unless already provided.

8The remaining requests have either been complied with or the respondent states that there are no such records. There is no point in ordering the production of something that is said not to exist. These other issues can be dealt with at the hearing.

Request for Affidavit

9The applicant requests Dean Bruce Feldthusen produce “a witness statement which can be accepted as evidence in his absence”. The evidence sought to be adduced in this way relates to the use of LSAT scores as a basis for determining admission to the Faculty of Law.

10The Request is denied at this stage. Dean Feldthusen is not a party to this proceeding. The applicant may summons him to the hearing, as may the respondent. At this stage it is not known who the witnesses are and there may be other witnesses identified by the parties who have better evidence to give. The Tribunal’s Rules require that the parties disclose their witnesses and what they are expected to say at least 20 days prior to the hearing. In the event that the respondent does not elect to lead evidence with respect to the admission criteria and how they were applied to the applicant’s application, she will be entitled to summons witnesses with relevant evidence to give.

ORDER

11The respondent will produce all arguably relevant documents in its possession including:

a. A listing of LSAT scores and Grade Point Averages for the successful candidates to Common Law Division (English) who accepted a position in the academic year 2003-2004.

b. Minutes of the meeting of the Admissions Committee to discuss mature student applications as identified in the respondent’s response to this Request, redacted to remove any identifiers of the particular individuals whose files were reviewed, except for locations of prior educational institutions.

c. All other correspondence, notes of discussions, etc. referencing the applicant’s application by the Admissions Committee, its chair, the admissions officer or any other person participating in the review of her application for admission in academic year 2003-2004, except as already produced.

12I am not seized of this Application.