HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Svetlana White

Applicant

-and-

National Committee on Accreditation

Respondent

DECISION

Adjudicator: Mark Hart

Date: September 20, 2010

Citation: 2010 HRTO 1888

Indexed as: White v. National Committee on Accreditation

APPEARANCES BY

Svetlana White, Applicant ) On her own behalf

National Committee on Accreditation, ) William McDowell and

Respondent ) Naomi Loewith, Counsel

[1] This is an Application made under section 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), dated January 5, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on September 3, 2004.

[2] The applicant who is from Russia alleges that she experienced discrimination because of ethnic origin and place of origin by the respondent National Committee on Accreditation (“NCA”) in respect of goods, services and facilities contrary to sections 1 and 9 of the Code, when she was denied advanced standing by the NCA in relation to her application for a Certificate of Equivalency to a Canadian law degree.

[3] The hearing in this matter was held on April 21, 2010 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53 applications proceed in an expeditious manner. I heard from Vern Krishna, the former Executive Director of the NCA, who was examined by NCA counsel and cross-examined by the applicant. The applicant was afforded an opportunity to provide any further evidence that she wished me to consider, and relied upon the materials that she had submitted to the Tribunal. A significant volume of materials were submitted by the parties to the Tribunal, which were marked as exhibits to this proceeding and have been carefully reviewed and considered by me.

[4] At the respondent’s request, the parties were afforded an opportunity to file additional written submissions. Written submissions dated May 7, 2010 were received from the respondent, and written submissions in response dated May 12, 2010 were received from the applicant.

The National Committee on Accreditation

[5] The National Committee on Accreditation (“NCA”) is a standing committee of the Federation of Law Societies of Canada and is made up of representatives from the committee of Canadian law deans, members of the practising bar, and members involved with the administration of provincial law societies.

[6] The NCA evaluates the legal training and professional experience of persons with foreign or non-common law legal credentials who wish to be admitted to a common law bar in Canada. Upon completion of its review, the NCA issues a recommendation describing the scope and extent of any further legal education that, in its opinion and at the material time, an applicant needs to complete to equal the standard of those who have earned a Canadian LL.B. degree. Most law societies and law schools in Canada use the NCA’s recommendations in setting their requirements for call to the bar.

[7] Applicants, whether Canadians with foreign legal education, foreign nationals with foreign legal education and applicants with Quebec civil law degrees, are evaluated on the basis of their academic and professional profile. The NCA certifies whether an applicant has an understanding and knowledge of Canadian law and knowledge equivalent to that of a graduate of a Canadian common law LL.B. program. At the relevant times, equivalency to an approved Canadian LL.B. degree served as the NCA’s benchmark when evaluating applicants with foreign legal education or training.

[8] The NCA bases it recommendation on the applicant’s legal background, both academic and professional. It takes into account the source of the country of legal education (common law, “hybrid”, or non-common law or “other”), subject matter studied, academic marks and standing, nature of the degree granting institution, professional qualifications, and length and nature of professional legal experience.

[9] The NCA initially reviews each applicant’s file on an individual basis. Upon completion of its review, at the time relevant to this Application the NCA would issue a recommendation that the applicant: (1) pass examinations in specified areas of Canadian law; or (2) take further education at a Canadian law school with a specified program of studies; or (3) complete a Canadian LL.B. program.

[10] Option 1 is generally restricted to applicants who have been admitted to a common law Bar by bar examinations or who have had substantial common law experience in Quebec. The NCA issues a Certificate of Equivalency upon successful completion of the requirements set out in Options 1 and 2. Option 3 applies in situations where the applicant’s foreign legal credentials and experience do not in the NCA’s opinion allow for any advanced standing to be recognized, and applicants in such circumstances receive a law degree upon successful completion of a Canadian LL.B. program.

[11] At the relevant time, NCA applicants were expected to demonstrate competence in the following basic practice areas of Canadian common law: business law; civil litigation; criminal procedure; estate planning and administration; family law; public and constitutional law; real estate; taxation; and evidence.

[12] As stated above, the NCA uses a general classification of foreign jurisdictions into common law, “hybrid” and “other”. This classification system is drawn from work done by the University of Ottawa–Faculty of Law on world legal systems, which comprehensively reviews a large number of foreign jurisdictions and categorizes them into various classifications. I heard evidence from Mr. Krishna that the NCA also relies upon the knowledge and experience of its members to assist in classifying foreign jurisdictions, as well as materials about foreign jurisdictions that are submitted by applicants to the NCA.

[13] Countries that follow a common law system include the United States, England, Wales, Australia, New Zealand, West Indies, Hong Kong, Singapore, India and Pakistan. These jurisdictions are considered to utilize a system of common law that is substantially similar to the common law system used in Canada. The NCA’s evaluation guidelines provide detailed guidance as to the kinds of factors the NCA considers, and provides examples of outcomes based on hypothetical scenarios.

[14] “Hybrid” jurisdictions are jurisdictions that have mixed legal systems that include a common law component. Countries that employ hybrid legal systems include Scotland, South Africa, Israel and the Philippines. While applicants with legal credentials or experience from hybrid jurisdictions are considered on criteria similar to those from common law jurisdictions, the NCA also takes into account the extent of the common law component in the particular program completed by the applicant. Once again, the NCA’s evaluation guidelines provide examples as to how these criteria generally are applied to applicants from these jurisdictions.

[15] “Other” legal systems are those jurisdictions with legal systems that do not have a substantial common law component. The NCA’s evaluation guidelines state that applicants from such jurisdictions are considered on a case by case basis, and professional legal experience subsequent to the applicant’s formal legal education is also considered in these cases. The NCA’s guidelines state that applicants who have no common law exposure (academic or professional) are, in the absence of relevant common law professional legal experience, unlikely to be recommended for any advanced standing in an approved Canadian law school.

[16] Once an application is submitted and is complete, the full file is reviewed by the Executive Director and an initial decision is made and communicated to the applicant regarding whether any advanced standing will be recognized and, if so, what further requirements need to be completed by the applicant to obtain a Certificate of Equivalency. If an applicant is not satisfied with the NCA’s initial decision, she or he has the ability to file an appeal application, setting out the basis of the appeal, any additional facts and evidence, and the grounds for the review. Appeal applications are reviewed by the full NCA committee, of which the Executive Director is not a member, and are considered afresh. On appeal, the NCA has the ability to issue such recommendation as it considers appropriate in the circumstances.

Ms. White’s Application to the NCA

[18] Ms. White was employed as a State Notary Public with the Department of Justice of the Rostov Province in Russia from 1989 to 1993, and thereafter was self-employed as a private notary public in Volgodonsk, Russia from 1993 to 1999. During this latter period, Ms. White also was employed part-time as a teacher of international law at the University of Volgodonsk from 1997 to 1998.

[19] As a private notary public, Ms. White prepared and drafted legal documents, such as wills, deeds, mortgages, patent applications, leases and contracts, conducted civil lawsuits and advised clients of their legal rights, prepared opinions on legal issues, interpreted laws, rulings and regulations for individuals and businesses, and represented clients in court or before governmental administrative agencies. As a state notary public, Ms. White prepared and certified legal documents such as wills and contracts, and acted as trustee, guardian or executor.

[20] From a review of her transcript from The Rostov State University, Ms. White appears to have achieved a reasonably high level of success in her studies. Ms. White also submitted with her application some glowing letters of reference from Russian lawyers, who describe her as a “well respected, persistent lawyer”, and from the President of the Notary Chamber in Rostov-on-Don, who described her as an “experienced, highly qualified lawyer”.

[21] Ms. White came to Canada in 1999 and was recognized as a Convention refugee, and she obtained permanent residence status in May 2000. Following her arrival in Canada, Ms. White attended an English as a second language course at St. Charles East Adult Education Centre, attained a certificate in the College Entrance English program at Mohawk College in 2002, and commenced studies in a Police Foundation Program at Mohawk College in September 2002.

[22] Ms. White’s NCA application was reviewed by Mr. Krishna on December 30, 2002. For the purpose of conducting such reviews, Mr. Krishna uses an evaluation worksheet on which he records his notes. For Ms. White, the evaluation worksheet records that Ms. White did not have an undergraduate degree, for which she was marked with a demerit point, and then under Legal Education is written “1987 – Russia”. This is followed by some checkmarks under Professional Qualifications and Professional Experience, which Mr. Krishna testified indicates merely that he reviewed these criteria. The overall recommendation is recorded as “NAS”, which means “no advanced standing”.

[23] The worksheet also includes a course comparison schedule to compare common law and equivalent courses taken by an applicant with courses taken in the first year of a Canadian LL.B. program, courses recommended by the Law Society, and other courses. This page was left blank. While Ms. White’s application included a detailed transcript setting out all of the courses taken by her at The Rostov State University and at Armavir School of Law, there was no evidence submitted to the NCA or to this Tribunal to indicate that any of these courses were equivalent or comparable to Canadian common law courses.

[25] The applicant was further informed that the NCA’s decision did not preclude her from making application to the law schools of her choice, and to seek admission as a regular student in a Canadian LL.B. program. The applicant was further informed that she would be required to write the Law School Admission Test (“LSAT”) as part of admission requirements for first year students. There was some discussion at the hearing about the inclusion of reference to the LSAT in this letter. I accept Mr. Krishna’s evidence that this is a requirement imposed by Canadian law schools and not by the NCA, and reference to the LSAT was included in the letter merely as an item of information for the applicant. While NCA applicants who are granted advanced standing are not required to write the LSAT in order to obtain a Certificate of Equivalency, the NCA does not control admission requirements set by Canadian law schools for applicants who are not granted advanced standing and therefore must complete the full LL.B. program.

[26] In May 2004, Ms. White filed an appeal from the NCA’s initial decision. By this time, the applicant had completed her program at Algonquin College (to which she had transferred from Mohawk College) and had received a diploma in Police Foundation, which included a significant number of courses in areas relating to Canadian criminal law. Ms. White also submitted a factum, in which she submitted that the NCA’s decision was discriminatory.

[27] Ms. White’s appeal was considered by the full NCA committee at its bi-annual meeting on June 22, 2004. The applicant’s complete file was sent out to the committee members in advance of the meeting, and included the worksheet for the initial NCA decision that had been completed by Mr. Krishna. While there do not appear to be any formal minutes for this meeting which record who was present, I accept Mr. Krishna’s evidence that six of the seven committee members attended in person and the seventh member attended by phone. Mr. Krishna’s notes of this meeting as the recording secretary indicate that the committee decided that there would be no change to the initial recommendation.

[28] As a result, on June 25, 2004, the NCA sent a further letter to the applicant advising her that her application had been considered at the June 22, 2004 meeting and repeating the same recommendation as set out in the January 10, 2003 letter.

[29] Ms. White thereafter filed her complaint with the Ontario Human Rights Commission on September 3, 2004.

ANALYSIS AND DECISION

[30] At the hearing in this matter, there was some discussion, mostly initiated by me, as to whether this was a case of direct or adverse effect discrimination. On further reflection and consideration, it appears to me that this is a case of adverse effect discrimination. The general requirement for admission to the Bar in a common law province in Canada is a requirement that a person have completed an LL.B. program at a recognized Canadian law school. In my view, the NCA was established by Law Societies in Canada as a form of accommodation for individuals who had received legal qualifications and credentials in foreign jurisdictions. While the NCA in the instant case did directly consider that Ms. White had received her legal education and experience in Russia, it did so in the context of considering whether to grant her advanced standing towards a Certificate of Equivalency as an exception to the general rule that a person had to have an LL.B. from a Canadian law school in order to obtain admission to the Bar. As a result, I find that the general requirement for an LL.B. from a Canadian law school is a facially neutral rule which may have an adverse impact on persons identified by a prohibited ground of discrimination recognized under the Code.

[32] The respondent takes the position that the Bitonti decision is no longer good law on this point, or is at least distinguishable, on the basis of two subsequent decisions. The first decision cited by the respondent is the subsequent decision of the British Columbia Human Rights Tribunal in [Agduma-Silongan v. University of British Columbia, [2003] B.C.H.D.T.D. No. 22, 2003 BCHRT 22](https://www.canlii.org/en/bc/bchrt/doc/2003/2003bchrt22/2003bchrt22.html). That decision dealt with the assessment of foreign credentials by the University of British Columbia (“UBC”), and in particular the applicant’s education in the Philippines. While the Tribunal member in that case recognized that UBC treats internationally credentialed students differently than domestically credentialed ones, it is stated that UBC does not do so based on assumptions about differences between educational systems around the world, but based on actual information garnered from a large number of resources about the merits of worldwide educational systems. This was distinguished from the situation in Bitonti, supra, in which it was found that the discriminatory rule was based upon assumptions about the merits of the British medical education system, with no effort to obtain an understanding of the medical education system anywhere else in the world. As a result, the Tribunal member in Agduma-Silongan held that engaging in an exercise to determine the equivalence of an international credential is a necessary undertaking in order to consider fairly both domestically and internationally credentialed students for admission to UBC, and is not prima facie discriminatory (see paras. 200 to 207).

[33] The second case relied upon by the respondent is the decision of the Alberta Court of Queen’s Bench in Veale v. Law Society of Alberta, [2001] A.J. 1535. That case dealt with a Canadian person who had obtained his legal education in Wales. While the applicant in that case was ultimately successful on the basis of a finding that a legislative change had been improperly applied retrospectively, he was not successful in arguing that his equality rights under section 15 of the Charter of Rights and Freedoms had been violated. While recognizing that there was a distinction between the treatment of Canadian law graduates and the applicant who had received his legal education in Wales, the Court found that this distinction did not amount to discrimination in violation of section 15 of the Charter. As stated by Justice Marceau (at para. 66):

The only distinction being made is a true or justifiable distinction. Canadian common law is the law applicable in all provinces but Quebec. The distinction simply recognizes that the law in foreign (albeit sometimes common law countries) is different, as is Quebec civil law. The rules may discriminate, but not for a wrong, unfair or unconstitutional reason. The reason for the distinction is real and the recognition by the applicant that the Law Society has an obligation to protect the public is the answer to the applicant’s argument. It is not an answer to say the public is adequately protected because the students must pass the bar admission course. It is the prerogative of the Law Society to decide that the competence of lawyers will require not only passing a bar admission course but having a degree in law that is equivalent to that of Canadian universities teaching Canadian common law.

[34] In my view, in order to decide the case before me, it is not necessary for me to resolve the difficult question of whether the assessment of foreign credentials to determine equivalency is prima facie discriminatory or results in an adverse effect on persons identified by a prohibited ground. As stated above, I am prepared to assume, without deciding, that there was such an adverse effect on the applicant because of her ethnic origin as Russian and her place of origin in Russia for the purpose of the adverse effect analysis.

[35] If adverse effect upon a prohibited ground has been established, the basic steps to be applied in the adverse effect analysis have been set out by the Supreme Court of Canada in [British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Services Employees’ Union (B.C.S.G.U.), 1999 CanLII 652 (SCC)](https://www.minicounsel.ca/scc/1999/652), [1999] 3 S.C.R. 3 (“Meiorin”). In Meiorin, the Court held that a prima facie discriminatory standard may be justified on the following basis: (1) that the standard was adopted for a rational purpose; (2) that the standard was adopted in an honest and good faith belief that it was necessary; and (3) that the standard is reasonably necessary to the accomplishment of its purpose.

[37] In the instant case, there can be no question, in my view, that the standard or requirement that persons have an LL.B. degree from a Canadian law school was adopted for a rational purpose and in an honest and good faith belief that it was necessary. There can be no doubt that there is a rational connection between having the education and training provided by the LL.B. programs offered at Canadian law schools and a person’s ability to provide competent legal services to the Canadian public in a common law jurisdiction. I also accept that this standard or requirement was adopted in an honest and good faith belief that foreign-trained lawyers need to be assessed to ensure that they have the relevant experience and training required to provide competent services in common law jurisdictions in Canada.

[38] The real issue is whether this requirement is reasonably necessary to the accomplishment of the objective of ensuring that lawyers are competent to provide legal services to the public in a common law jurisdiction in Canada. This requires me to consider whether the NCA has made sufficient efforts to accommodate foreign-trained lawyers. I find that it has.

[39] The process utilized by the NCA provides for an individualized assessment of foreign-trained lawyers who apply for a Certificate of Equivalency. As in Agduma-Silongan, supra, and unlike in Bitonti, supra, the assessment conducted by the NCA is not based upon assumptions that the Canadian legal education system is better but is based upon research and evaluation of the legal systems in other jurisdictions and the legal training and professional experience provided in such other jurisdictions. While the NCA does generally categorize different jurisdictions into the classifications of common law, hybrid or other, it is nonetheless open to any applicant to demonstrate that the legal training or professional experience that she or he received is equivalent to some or all aspects of the legal training provided by a Canadian law school.

[40] In the instant case, there is no evidence before me that any of the courses taken by the applicant at The Rostov State University or at Armavir Law School are equivalent to the courses offered at Canadian law schools that the NCA regards as being required to ensure minimal competence in practising law in a common law jurisdiction in Canada. I have reviewed the course listings from both of these institutions and do not see that there is any equivalency to the core areas of common law training that the NCA regards as essential. The applicant did not provide any evidence in the material filed by her with the NCA or with the Tribunal to indicate otherwise, and did not provide any evidence to this effect at the hearing. In fact, in her closing submissions, the applicant acknowledged the differences between the legal system in Russia as opposed to the common law legal system in Canada.

[41] Nor is there any evidence before me that the applicant obtained any professional experience while practising law in Russia that would warrant recognition of equivalency to Canadian common law courses of study. In her written submissions, the applicant alleged for the first time that the NCA ignored her “professional legal experience and her specialization in UK, London, and other countries, where Russian lawmaker specialized in Common Law system in order to improve their own homeland laws”. In making this submission, the applicant references a specific letter that formed part of her NCA application package. This letter does not support that the applicant had common law experience from her practice or teaching in Russia. It does say that she taught international law at the University of Volgodonsk, that she actively participated in the work on the improvement of the Russian legal system, and that she participated in various conferences including an international legal conference in London, England. It may be that these activities provided the applicant with some degree of exposure to the common law, but that is not evident on the material submitted by her to the NCA nor from the evidence before this Tribunal.

[42] The applicant places reliance on two pieces of evidence that she submitted. First, as part of her initial application to the NCA, the applicant included a letter she obtained from the University of Toronto Comparative Education Service dated September 24, 2001, which assessed equivalency of the applicant’s course of studies at The Rostov State University. While this letter states that the applicant’s qualifications would be considered equivalent in academic level to a Canadian Bachelor’s degree, the letter expressly states that “because of differences in admission qualifications, subjects, length of courses, degree requirements and practice experience required, we are unable to compare [the applicant’s] Diploma to the Bachelor of Laws offered by the Faculty of Law at the University of Toronto”.

[43] Second, the applicant relies upon an assessment done by World Education Services in 2008, which assesses the equivalency of the program taken by the applicant at Mohawk College and Algonquin College. There is no doubt that the courses taken by the applicant in her Police Foundation program provided her with training in Canadian common law, particularly in the area of criminal law. The problem with this is that the NCA does not recognize college diploma courses or even Bachelor degree courses in making its equivalency assessments. While some may debate whether a certain degree of credit should be given to such courses, the simple fact remains that not having regard to Canadian college or Bachelor degree courses does not amount to discrimination on any prohibited ground. In order for the applicant to succeed in this case, she needs to establish that the education and experience that she obtained in Russia were not adequately or appropriately considered by the NCA, not that subsequent Canadian education she received was not considered, as it is not considered for any applicant to the NCA.

[44] For all of these reasons, I find that, even if the requirement for an LL.B. from a Canadian law school had an adverse impact upon the applicant because of her Russian origin, the NCA has established that it appropriately conducted an individual assessment of the applicant’s education and experience in deciding not to grant her any advanced standing in Canada. Accordingly, I do not find that the applicant has made out a case of adverse effect discrimination.

[45] In concluding, I will say that the applicant appears to have been a well-respected and highly qualified lawyer in Russia, and has taken significant steps to continue her educational achievements in Canada. This decision does not take away any of those achievements from the applicant, but stands only for the conclusion that the NCA’s decision that she did not qualify for advanced standing was not discriminatory.

[46] The Application is dismissed.

Dated at Toronto, this 20^th^ day of September, 2010.

“Signed by”

Mark Hart

Vice-chair

Svetlana White v. National Committee on Accreditation, 2010 HRTO 1888

Case Summary

[1] This is an Application made under section 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), dated January 5, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on September 3, 2004.

[4] At the respondent’s request, the parties were afforded an opportunity to file additional written submissions. Written submissions dated May 7, 2010 were received from the respondent, and written submissions in response dated May 12, 2010 were received from the applicant.

[28] As a result, on June 25, 2004, the NCA sent a further letter to the applicant advising her that her application had been considered at the June 22, 2004 meeting and repeating the same recommendation as set out in the January 10, 2003 letter.

[29] Ms. White thereafter filed her complaint with the Ontario Human Rights Commission on September 3, 2004.

[46] The Application is dismissed.