Cohen v. Law School Admission Council, 2010 HRTO 1833

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Cohen

Applicant

-and-

Law School Admission Council, York University, Dalhousie University, University of Windsor, Queen’s University at Kingston, University of Ottawa, Kristine Jackson and Sheenah Khan

Respondents

INTERIM decision

Adjudicator: Brian Eyolfson

Date: September 8, 2010

Citation: 2010 HRTO 1833

Indexed as: Cohen v. Law School Admission Council

1This is an Application filed on August 5, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”), accompanied by a Request for Interim Remedy (Form 16) (“Request”). The purpose of this Interim Decision is to determine the applicant’s Request. The style of cause has been amended to reflect the proper names of the organizational respondents provided in their Responses to the Request.

2The Application alleges discrimination on the basis of disability in the area of goods, services and facilities. The applicant alleges, among other things, that the respondent, Law School Admission Council (“LSAC”), denied accommodation of his disability, with respect to the writing of the Law School Admission Test (“LSAT”). He alleges that the individual respondent, Sheenah Khan, a test centre supervisor, distracted him during the writing of the LSAT on two occasions. He alleges that the law schools he applied to were apprised of the problems he was having and he asked them to disregard his LSAT score as it was based on non-accommodation and distractions. He alleges that the law schools discriminated against him by denying him entry based on his LSAT score, even though they knew of the discrimination that was taking place.

3Lastly, the applicant alleges in his Application that, during an academic hearing that stemmed from the discrimination, the personal respondent, Kristine Jackson, continued to support the LSAC’s regime of discrimination by finding against him. He states that, in a hearing, LSAC said that he caused misconduct. He states that the misconduct was caused when LSAC denied him his basic human rights. He attached to his Application and Request a copy of a letter dated July 23, 2010, signed by Ms. Jackson, Subcommittee Representative, LSAC Subcommittee on Misconduct and Irregularities in the Admission Process. In the letter, Ms. Jackson determines, in part, “that the preponderance of the evidence shows that misconduct or an irregularity occurred in that the candidate violated LSAT test center regulations at the February 8, 2010 administration at Queen’s Collegiate – Toronto Campus”.

4In his Request, the applicant asks that the Tribunal order that LSAC not communicate any information regarding a misconduct hearing decision to any of the law schools that he did apply to or any of the laws schools that exist in Ontario and Canada, until his Application is heard by the Tribunal. He submits that, should the information in regard to the misconduct hearing be transmitted to academic institutions located in Canada, he will surely not be able to recover from such a “Black mark”. Furthermore, should this transmission be made and it is found that the allegations of the misconduct hearing were based on the denial of his basic human rights, then these allegations will inevitably act as a potential “Death Sentence” for any future applications that he may make to any law schools. He submits that, should his Request not be granted, he will surely suffer irreparable and long-term harm. In support of his Request, the applicant filed declarations signed by himself and a psychologist.

5In their Response to the Request, LSAC and Ms. Jackson submit that the Application is wholly without merit. They submit that the allegations of misconduct have nothing to do with the applicant’s request for accommodation on the LSAT and relate solely to the applicant’s behaviour during the administration of the LSAT. They submit that the Request that LSAC be ordered not to communicate information regarding a misconduct hearing decision to law schools is moot because the applicant has already communicated this information to the respondent law schools by way of his Application and Request. They explain that there is no decision to communicate the information at this point in time because the applicant has filed a timely appeal of the decision which stays the issuance of a report of findings until the appeal is decided. They submit, however, that the balance of harm weights in favour of allowing LSAC to release the decision, assuming it is upheld on appeal, because to withhold the information from laws schools would work an injustice as they would not have an important piece of information about the applicant for consideration in the admission process.

6The respondent, York University (“York”), submits that the applicant’s application for admission to its Osgoode Hall Law School (“Osgoode”) in the fall of 2010 has yet to be reviewed. In a declaration signed by the Assistant Dean, Recruitment, Admissions and Career Development, it is explained that Osgoode received the applicant’s application for admission in or about November 2009. On February 17, 2010, the applicant advised Osgoode that he planned to take the LSAT again in June 2010 and, at his request, Osgoode awaited receipt of his June LSAT score before his file would be reviewed. The applicant later wrote advising that he had decided against writing the LSAT in June and instead requested an interview.

7York submits that the alleged harm is speculative and would not occur. The Assistant Dean explains in her declaration that Osgoode considers each application holistically, reviewing and weighing all the information provided about the candidate, including anything the candidate submits. She states that the applicant’s own account of the circumstances leading to the misconduct complaint would certainly be considered if he chose to provide it. It is also explained in the declaration that, as a result of receiving this Application and Request, with attachments, Osgoode is already in possession of a considerable amount of detailed information about the misconduct hearing decision in question, including the applicant’s own account that he provided in response to a proctor’s complaint, arising out of the February 2010 test sitting. The Assistant Dean sates that the requested interim remedy is unnecessary and would be an extraordinary and unwarranted interference into the admission process.

8York also submits that the decision of the LSAC Subcommittee is not unreasonable on the facts contained in the proctors’ complaint and the applicant’s response to it. It submits that the applicant is asking that the misconduct giving rise to the decision be forgiven because of his dispute with LSAC concerning accommodation of his disability, which has nothing to do with the proctor’s responsibilities during the test in February 2010. York submits that Osgoode is capable of assessing the merits of that difference of perspective and its Admissions Committee should not be deprived of the opportunity to do that as part of its evaluation of the applicant’s application.

9Lastly, York submits that the order requested is very likely moot because the Application and Request have already disclosed the information that the applicant would have LSAC prohibited form communicating with Osgoode.

10In a declaration signed by its Assistant Dean of Students, the respondent, Queen’s University at Kingston (“Queen’s”), states that at no time through the admission cycle was its Admissions Office made aware that there was any issue of misconduct arising from any administration of the LSAT test to the applicant, until the documents pertaining to his Application to the Tribunal were received. Queen’s submits that it was not aware of any such allegation at the time the decision not to admit the applicant was made. Queen’s takes no position with respect to the Request.

11The respondent, University of Windsor (“Windsor”), submits that, even if the Tribunal determines that the Application has merit, the applicant is not able to satisfy the second and third components of the test for granting an interim remedy. Windsor submits that the harm asserted presumes that the Tribunal will not fashion a full, effective and appropriate remedy in this matter, or, alternatively, that a law school will not comply with the decision of the Tribunal.

12Windsor submits that the balance of harm or convenience does not favour the granting of the Request as the applicant has provided documents in sufficient detail for the respondent to become aware of the nature of the dispute as between the applicant and LSAC. It is also submitted that, if the Application is decided in favour of the applicant, the Tribunal will be able to provide a full, effective, and appropriate remedy which could include a direction to the appropriate law schools. Windsor submits that the requested remedy is not necessary.

13The respondent, University of Ottawa (“Ottawa”), submits that the applicant does not have any pending application for admission to its Faculty of Law. Ottawa also submits that the requested interim remedy is not necessary to facilitate and ensure that the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing, should the Tribunal find that a violation of the Code has occurred. Lastly, Ottawa submits that the Application itself discloses that the applicant is the subject of a misconduct allegation and that, in the circumstances, the requested interim remedy is not appropriate and is simply unnecessary to further the remedial purposes of the Code.

14The respondent, Dalhousie University (“Dalhousie”), advises that it intends to take the position that the Tribunal does not have jurisdiction over the part of the Application relating to Dalhousie and takes no position on the Request.

15The Tribunal notes that the Application and Request delivered by mail to the individual respondent, Sheenah Khan, were returned, indicating that she had “moved”. Should the applicant wish to proceed with his Application, as against Ms. Khan, the applicant is directed to provide the Tribunal with a current and accurate address for Ms. Khan, within 20 days of the date of this Interim Decision. The applicant may wish to review decisions of the Tribunal that address the requirements of applicants to provide accurate contact information. See, for example: Guild v. Kyle-Jansen, 2008 HRTO 347, Begley v. Eratostene, 2009 HRTO 235, and Osman v. Elle Productions Security, 2009 HRTO 1426.

DECISION

16The conditions for awarding an interim remedy are set out in Rule 23.2 of the Tribunal’s Rules of Procedure:

The Tribunal may grant an interim remedy where it is satisfied that:

a) the Application appears to have merit;

b) the balance of harm or convenience favours granting the interim remedy requested; and,

c) it is just and appropriate in the circumstances to do so.

17In TA v. 60 Montclair, 2009 HRTO 369, the Tribunal stated that, since the Code is remedial legislation, the fundamental consideration in determining whether to award an interim remedy is “whether an interim remedy is necessary to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found.”

18Normally, the Tribunal’s power to order respondents to do, or refrain from doing something, is contingent upon a finding that they have violated the Code. Interim remedies are extraordinary in that they constitute an order to do, or refrain from doing something, in the absence of a finding that the Code has been violated. For this reason, an applicant bears a “significant onus” in establishing that the Tribunal should award an interim remedy: TA, supra.

19Assuming, without deciding, that the Application appears to have merit and meets the first criterion for granting an interim remedy, I am not satisfied that it has been established that the balance of harm or convenience favours granting the interim remedy requested, or that it is just and appropriate in the circumstances to do so.

20It appears from the materials that the applicant currently has only one pending application for admission to a law school, Osgoode. As York and other respondents submit, the applicant has already provided the respondents with much of the information, including a copy of the decision from the misconduct hearing, that he is asking the Tribunal order not be disclosed to law schools, pending the Tribunal’s determination of his Application. Consequently, the proposed interim remedy, as requested, would not alleviate the harm the applicant alleges would occur should the Request not be granted.

21It is also noted that York submits that the alleged harm is speculative and would not occur. The Assistant Dean explains in her declaration that Osgoode considers each application holistically, reviewing and weighing all the information provided, and the applicant’s own account of the circumstances leading to the misconduct complaint would certainly be considered if he chose to provide it. In addition, even if the applicant had not already provided much of the information in question to the respondents, I agree with York’s submission that granting the Request would be an extraordinary interference in Osgoode’s admission process, in the absence of the Tribunal finding discrimination and determining that such a remedy is appropriate. In the circumstances, I am not satisfied that the applicant has shown that the balance of harm or convenience favours the interim remedy requested.

22The third criterion in Rule 23.2, whether it is just and appropriate in the circumstances to grant an interim remedy, recognizes the discretionary nature of interim relief. There will be a number of factors that the Tribunal will consider, but ultimately it calls upon the Tribunal to decide whether the request is necessary to further the remedial purposes of the Code, and is fair in all of the circumstances. See TA, supra, at para. 35 and Arenson v. Law School Admission Council, 2009 HRTO 38, at para. 29.

23I agree with the submissions of Windsor and Ottawa that, if the Application is decided in favour of the applicant, the Tribunal will be able to provide a full, effective, and appropriate remedy at the end of the hearing. Accordingly, the requested remedy is not necessary to further the remedial purposes of the Code, and I am not satisfied, therefore, that it would be just and appropriate to grant the Request in the circumstances.

24The Request is denied.