Arenson v. Law School Admission Council Inc., 2010 HRTO 38

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Emma Arenson

Applicant

-and-

Law School Admission Council Inc.

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: January 12, 2010

Citation: 2009 HRTO 38

Indexed as: Arenson v. Law School Admission Council

INTRODUCTION

1The purpose of this Interim Decision is to address three issues: (a) the respondent’s request for early dismissal of the Application on the basis that it is outside the Tribunal’s jurisdiction, (b) the respondent’s position that it cannot file a full Response without a written authorization and release executed by the applicant, and (c) the applicant’s Request for an Interim Remedy.

BACKGROUND

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on July 16, 2009, which alleges that the respondent discriminated against her with respect to services, goods and facilities because of her disability. Specifically, she alleges that that the respondent refused to fully grant her request for accommodation of her disability-related needs during the writing of the Law School Admission Test (“LSAT”). She further alleges that she cannot take the LSAT without proper accommodation because she will under-perform and risk not being admitted to law school.

3The respondent filed a partial Response on September 16, 2009, which requests early dismissal of the Application on the basis that it is outside the jurisdiction of the Tribunal. Specifically, the respondent states it is a non-profit corporation organized under the laws of the State of Delaware in the United States, its sole place of business is in the Commonwealth of Pennsylvania, and all decisions related to test taker requests for accommodation on the LSAT are made in Pennsylvania. The respondent further states that, because of its confidentiality policy, it is unable to provide a detailed Response without an appropriate authorization and release executed by the applicant.

4The applicant filed a Reply on September 30, 2009, which denies that the Application is outside the jurisdiction of the Tribunal. Specifically, she states that the respondent conducts business in Ontario. She further states that the respondent is not impeded by law from filing a detailed Response, and in failing to do so, should be deemed to have accepted all the allegations in her Application.

5In an Interim Decision, 2009 HRTO 1767, dated October 23, 2009, the Tribunal requested further written submissions from the parties on whether the Application is within the Tribunal’s jurisdiction. Both parties filed submissions.

6The Interim Decision also stated that the respondent’s request that the applicant provide it with an executed written authorization and release in order to complete its Response will be addressed, if necessary, after the Tribunal has made a decision with respect to the issue of jurisdiction.

7On the same date that the Tribunal released its Interim Decision, the applicant filed a Request for an Interim Remedy, which requested that the Tribunal order the respondent to fully grant her request for accommodation of her disability-related needs during the writing of the LSAT prior to February 6, 2010 (the last test date that will allow her to be considered for admission to an Ontario law school in the fall of 2010). The respondent did not file a Response to the Request and the time for doing so has now lapsed.

8I will now address each of the above issues.

JURISDICTION

9The respondent submits that the Application is outside the jurisdiction of the Tribunal for three reasons. First, it is a business operating entirely outside Ontario. It operates exclusively in Newton, Pennsylvania in the United States, and processes registrations for the LSAT in Newton. It has no office or employees in Ontario, and does not even collect registration fees in Ontario. Second, the respondent’s decision about the applicant’s request for accommodation was made outside Ontario. It reviewed the applicant’s request and file and made its decision exclusively at its offices in Newton.

10Third, the respondent did not deny the applicant access to services, good or facilities. The applicant alleged in her Application that the service, good or facility that her Application is based on is “education and training”, but the respondent does not provide education or training, and the applicant did not seek education or training from the respondent. Furthermore, the applicant was not denied access to write the LSAT. The respondent provided her with an admission ticket and an offer of accommodation, but she rejected the offer and decided not to write the LSAT.

11The respondent further submits that the applicant can pursue her legal rights in Pennsylvania by filing a claim against the respondent under the Americans with Disabilities Act of 1990, 42 U.S.C.A.§12101 et seq.

12The applicant submits that the Application is within the jurisdiction of the Tribunal. She denies that the respondent operates its business exclusively in Newton and does not conduct any business in Ontario. She submits that the respondent sells its LSAT service to residents in Ontario (she paid the registration fee on-line in Ontario) and administers the writing of the LSAT in physical locations in Ontario (she was registered to write the test at a testing centre in Kingston). She states that if it was in fact true that the respondent operated its business exclusively in Newton, it would require residents of Ontario to travel to Pennsylvania to purchase its LSAT service and require them to write the test there.

13The applicant also submits that the fact that the respondent is not an educational entity is not an issue of jurisdiction because the respondent plays a gatekeeper role in admission to law schools in Ontario. She states that the real issue is whether, after her request for accommodation of her disability-related needs, the respondent provided her with reasonable, individualized accommodation.

14The applicant further submits that she has a real and substantial connection to Ontario: see Muscutt v. Courcelles, 2002 CanLII 44957 (ON C.A.). As such, she has the right to choose Ontario as her legal forum, rather than suing the respondent in Pennsylvania under the Americans with Disabilities Act of 1990. She states that it is not even certain that she could file such a claim in Pennsylvania, given that she is not a resident or citizen of the United States and suffered damages in Ontario.

15In its previous Interim Decision, the Tribunal requested that the parties’ submissions address the British Columbia Human Rights Tribunal’s decision on jurisdiction in Carlisle v. Law School Admission Council, 2004 BCHRT 353. In Carlisle, the facts and jurisdiction issue were similar to the case at hand:

1The complainant, Brian Carlisle, is a university student who currently receives medical accommodation for medical marijuana use during classes and exams, due to a physical disability. The respondent, the Law School Admissions Council (“LSAC”), is a non-profit corporation whose purpose is to coordinate, facilitate, and enhance the law school admission process. One of the services provided by LSAC is the co-ordination and administration of the Law School Admission Test (the “LSAT”), a half-day standardized test required for admission to most North American law schools.

2The LSAT is administered four times a year at test centres in the United States, Canada, and foreign locations. Both the University of British Columbia and the University of Victoria act as LSAT test centres.

3As part of its testing services, LSAC provides accommodations on the LSAT to individuals with documented disabilities. Persons seeking accommodations on the LSAT are required to submit documentation of their disability and their need for the requested accommodations. Following this process, Mr. Carlisle applied to the LSAC for permission to use marijuana while writing the LSAT, and provided them with forms completed by his physician. He alleges that the LSAC denied him this accommodation, and that this constitutes discrimination contrary to s. 8 of the Human Rights Code.

6In its application, LSAC argues that it is a corporation incorporated in the State of Delaware; that it is not a business or trade within the province of British Columbia; and that, because its decision was made extra-territorially, the Code does not apply and the Tribunal does not have jurisdiction over the complaint.

11The Tribunal was created by provincial legislation (the Code), and the rights provided for in the Code are statutory in nature. As a provincial statute, the Code is subject to the constitutional limitation that provinces may not legislate “extra-territorially”. The Constitution Act, 1867, makes it clear that provincial legislative jurisdiction is confined to “property and civil rights in the Province” (at s. 92(13)), and “generally all matters of a merely local or private nature in the province” (at s. 92(16)).

12In this case, LSAC argues that it does not perform any activities within the province of British Columbia. I do not accept this assertion. LSAC has not provided any information with respect to how it organizes the sitting of the LSAT exam or how it administers that exam at the test centres in British Columbia. In Ms. Dempsey’s affidavit, she refers to LSAC issuing ‘written instructions’ with respect to the testing procedures, but nowhere does LSAC elucidate to whom those instructions are provided, or what the relationship is between LSAC and the individuals receiving and, presumably, implementing those instructions.

14Mr. Carlisle alleges that LSAC discriminated against him with respect to an accommodation, service, or facility customarily available to the public, contrary to s. 8 of the Code. The ‘service’ at issue was the opportunity to write the LSAT, and the opportunity to write the LSAT was provided within British Columbia. LSAC has made arrangements to ensure that the LSAT is available to be written in British Columbia

15While I accept that LSAC’s decision with respect to the accommodations which would, or would not, be offered to Mr. Carlisle were made in Newport, Pennsylvania, they were clearly implemented in British Columbia, the alleged denial of accommodation was with respect to a test occurring in British Columbia, and the impact of that denial was felt by Mr. Carlisle in British Columbia.

16In all of these circumstances, I find that the Tribunal has jurisdiction to hear Mr. Carlisle’s complaint. LSAC’s application is, therefore, dismissed.

16The respondent submits that the decision in Carlisle should not be treated as a precedent because the parties reached an agreement to resolve the case, and the decision was therefore not appealed. The respondent states that it would have appealed the decision if the matter had not been resolved. The applicant appears to have mistakenly made submissions with respect to an earlier decision (Carlisle v. Law School Admission Council, 2003 BCHRT 152).

17The respondent’s request for early dismissal of the Application on the basis that it is outside the Tribunal’s jurisdiction is dismissed. I agree entirely with the analysis and decision in Carlisle, and find that it applies equally to the case at hand in Ontario. Furthermore, with respect to the real and substantial connection test in Muscutt, which was raised by the applicant, it is not clear to me that it applies to a human rights proceeding, but if it does, I find that the test favours the applicant. There is a clearly a strong connection between the applicant and Ontario, as well as some connection between the respondent and Ontario, and, given the fact that the applicant has no connection to Pennsylvania, the unfairness to the applicant in not assuming jurisdiction outweighs any unfairness to the respondent in assuming jurisdiction.

18I also agree with the applicant that the respondent’s position that it did not deny the applicant access to services, good or facilities does not raise a jurisdiction issue. Section 1 of the Code covers all service providers. The respondent does not deny that it is a service provider. The fact that the Tribunal’s Application form has a section with examples of different service providers, and the applicant arguably should have checked off “other” rather than “education and training”, does not narrow the scope of section 1 of the Code. Furthermore, the issue as to whether the respondent provided the applicant with access to writing the LSAT, in compliance with the duty to accommodate the applicant’s disability-related needs under the Code, goes to the merits of the Application.

FAILURE TO PROVIDE A COMPLETE RESPONSE

19The respondent submits that, because of its policies on confidentiality of its records, it is unable to file a detailed Response, which would involve the release of sensitive personal information from the applicant’s file, without an appropriate authorization and release executed by the applicant.

20The applicant submits that in defending itself, freedom of information and privacy legislation in Ontario and Canada allow the respondent to use all information provided to it by her. She requests that the Tribunal, pursuant to Rule 5.5(a) of its Rules of Procedure, deem the respondent to have accepted all the allegations in the Response. She states that the respondent’s failure to file a full Response is an attempt to delay the just resolution of the issues raised in her Application.

21In my view, the applicant’s pleadings and submissions constitute consent for the respondent to disclose any information from her file. Therefore, the respondent is ordered to file a complete Response with the Tribunal by no later than January 20, 2010. The applicant’s request to deem the respondent to have accepted all the allegations in the Application is denied.

INTERIM REMEDY

22Rule 23 of the Tribunal’s Rules deals with interim remedies. Rule 23.2 states that 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.

23The applicant requests that the Tribunal order as an interim remedy that the respondent fully grant her request for accommodation of her disability-related needs during the writing of the LSAT on February 6, 2010, which is the last test date that will allow her to be considered for admission to an Ontario law school in the fall of 2010. Specifically, she is requesting:

(a) A declaration that the respondent unlawfully discriminated against her contrary to the Code for a reason related to her disability.

(b) An order that the respondent forthwith permit her to write the LSAT with the following accommodations: (i) double time on every task in the LSAT, (ii) a human reader or a computer equipped with an electronic reader, (iii) a computer for writing the LSAT essay, and (iv) a separate room in which to take the LSAT.

(c) An order that she may continue her Application for other relief.

24The applicant submits that the Tribunal should grant her request for an interim remedy for the following reasons. First, her Application appears to have merit because illegal discrimination is shown. Second, the balance of harm or convenience favours granting the interim remedy because no one will be harmed or inconvenienced if she is granted her requested accommodation in order to write the LSAT on February 6, 2010. And third, it is just and appropriate in the circumstances to grant the interim remedy because without it she will lose another year of law school.

25The applicant’s request is denied for the following reasons. Since the purpose and object of the Code is remedial, it follows that the power to award interim remedies should focus on furthering that remedial objective. Generally this will mean asking 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: see TA v. 60 Montclair, 2009 HRTO 369 at para. 21.

26However, in requesting an interim remedy, an applicant is asking the Tribunal to take an extraordinary step. He or she is asking the Tribunal to order a respondent to take or not take certain actions before the merits of the Application have been decided. Even before any violation of the Code has been proven, the applicant wishes the Tribunal to intervene and provide remedies. An applicant seeking an interim remedy will therefore have a significant onus to meet to demonstrate that the Request meets the three elements in Rule 23.2 and is necessary to further the remedial objects of the Code: see Chopra v. Kratiuk, 2009 HRTO 109 at para. 11 and TA, supra at para. 29.

27The three criteria in Rule 23.2 are all ingredients to be considered in determining whether to grant an interim remedy. An applicant will be required to demonstrate that all three elements are met before being entitled to the remedy requested. However, they should not be seen as successive hurdles, where the applicant must meet the first, before moving onto the next. Rather, the decision to grant or refuse the Request should consider the collective impact of all factors, and the purpose of the provision as a whole: see TA, supra at para. 36.

28In my view, having considered the collective impact of all factors and the purpose of Rule 23 as a whole, the applicant has not met the significant onus of establishing that her Request for an Interim Remedy meets all three criteria in Rule 23.2 and is necessary to further the remedial objects of the Code. Assuming without deciding that the applicant has established that her Application appears to have merit and the balance of harm or convenience favours granting the interim remedy Request, I am not satisfied that it is just and appropriate in the circumstances to do so.

29The third criterion in Rule 23.2 recognizes the discretionary nature of interim relief. There will be a number of factors the Tribunal will consider, but ultimately it calls upon the Tribunal member 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.

30In my view, the applicant has failed to establish that it is just and appropriate in the circumstances to grant the interim remedy. Although the applicant may have to wait another year to apply for law school if an interim remedy is not granted, she has not established that the Tribunal will be unable to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found. In addition, even in the absence of a complete Response, it is obvious from the parties’ pleadings and submissions that there is conflicting evidence with respect to the issue of whether the accommodation offered by the respondent was appropriate. As such, the applicant has not established that the Request is necessary to further the remedial purposes of the Code, and is fair in all of the circumstances.

ORDER

31The Tribunal makes the following orders:

(a) The respondent’s request for early dismissal of the Application on the basis that it is outside the Tribunal’s jurisdiction is denied.

(b) The respondent is ordered to file a complete Response with the Tribunal by no later than January 20, 2010.

(c) The applicant’s request to deem the respondent to have accepted all the allegations in the Application is denied.

(d) The applicant’s Request for an Interim Remedy is denied.

32The Tribunal will attempt to schedule an expedited mediation prior to February 6, 2010 if requested by the parties. I am not seized of this matter.