HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
D.F. by his litigation guardian W.F.
Applicant
-and-
University of Ottawa
Respondent
A N D B E T W E E N:
S.F. by his litigation guardian W.F.
Applicant
-and-
University of Ottawa
Respondent
DECISION
Adjudicator: David Muir
Indexed as: D.F. v. University of Ottawa
1These are two Applications made under s. 53(5) of the Ontario Human Rights Code (“Code”), both dated January 8, 2009. The underlying humam rights complaints (“complaints”) were both filed with the Ontario Human Rights Commission (the “Commission”) on January 3, 2007.
2The applicants were both 10 years old at the time the underlying complaints were filed with the Commission. The complaints arise out of the enrolment of the applicants as special students in a science course at the respondent University in fall 2006, from which they subsequently were de-registered. The applicants allege discrimination in the provision of services because of age. The applicants have abandoned their claim that they were subject to discriminatory treatment on the basis of family status.
3In 2011 HRTO 1025 the Tribunal directed that the parties address the following preliminary questions:
In order to ensure the orderly adjudication of this Application, the Tribunal will entertain the parties’ oral submissions on whether the applicants can establish a prima facie case of discrimination on the basis of age in light of the definition of age in the Code. The applicants have also alleged discrimination on the basis of family status. There do not appear to be any facts pleaded that would support a finding of discrimination on that ground. The parties will also be prepared to make submissions on whether or not the Applications disclose a prima facie case of discrimination on the ground of family status.
4As a result of a scheduling conflict the Tribunal directed, at the request of the applicants, that these issues be dealt with in writing. I have received the parties’ submissions and have determined that these Applications ought to be dismissed. My reasons for this conclusion follow.
5The background facts are not complicated or controversial:
a) In September 2006, with the assistance of their mother, W. F., the applicants registered for a course at the University of Ottawa as special students. The course was entitled “Science and Society”.
b) The applicants’ registration was accepted by the administration of the respondent. The applicants were issued student cards confirming their registration as special students. The issue of the applicants’ age was discussed with an administrator of the faculty. The applicants state that they were given reason to believe that their ages would not be a problem. The applicants’ mother made a partial payment in registration of the Applicants’ fees.
c) The applicants began attending lectures in September 2006.
d) On October 17, 2006, the applicants’ mother received a letter from the President of the University indicating that their registration status had been revoked.
6The University's academic requirements are set out in the general admission requirements and the governing regulations of the University. The applicants sought to be enrolled as special students. The General Regulations and Procedures for Special Students can be found on the back of the registration forms that were completed by the applicants’ mother and provide as follows:
ADMISSION REQUIREMENTS
Special Students must meet the basic University admission requirements,
namely:
- The Ontario Sccondary School diploma (OSD) with six Ontario
Academic Credits (OAC's) and an overall average of 65%, or
the equivalent thereof;
OR
The Mature Student qualification provided that he or she:
Has not been engaged in full-time school studies for a
minimum period of two consecutive years;
Is considered to hold promise of academic success;
Meets the particular requirement of the faculty to which he
or she applies.
The University reserves the right to verify whether a student meets the above-mentioned requirements and to either cancel the registration or to prohibit further registration, if they are not met. In addition, depending on the purpose of studies to be undertaken (see categories listed below), certain documents are required at the time of registration and certain conditions are imposed.
7The applicant also relies on the description of the categories referred to above. These are the descriptions of categories of special students:
a) Personal interest
Individuals who do not provide proof that they meet the normal admission requirements may register for personal interest for a maximum of six credits per session and a cumulative total of 30 credits, provided they have not attended a secondary school as a full-time student for at least two years.
b) Professional certification
Anyone may take university courses in order to meet the certification requirements of an outside professional association. A justification letter from the association is required.
c) Transfer of credits
A person may take University of Ottawa courses for the purpose of transferring credits to another university or postsecondary institution where he or she is seeking a degree, diploma or certificate. A letter of permission or a formal written agreement from the student’s home institution is required. The student’s status (full‑time or part‑time) will depend on the number of credits taken with the permission of both the home institution and the University of Ottawa.
d) Upgrading
Individuals holding a recognized university degree may take courses at the University of Ottawa to update, improve or extend their training. Proof that the student holds a university degree is required.
e) Gifted student
Particularly gifted high school students in their last year of secondary school studies may, upon presentation of a written recommendation from their principal, enroll in one course (three credits) per session (maximum of six credits) while completing their secondary education (may be part-time status only at the University).
As can be seen from the above, the admissions criteria require that the prospective student have either completed secondary school with an over all average of 65% or be a Mature Student as described. The only exception to these general requirements appear to be the ability of students in their final year of secondary school to be admitted as "gifted students" as set out above.
The Definition of Age
8The primary issue raised in these Applications is whether the Tribunal can deal with them having regard to the definition of age in the Code. Section 10(1) defines age as follows:
In Part 1 and in this Part, age means an age that is 18 years or more.
9The respondent states that by virtue of the definition of age in section 10(1) of the Code, and the applicants being 10 at the time of the events in question, there can have been no violation of the Code by the respondents. By definition, the respondent states, the protections against age discrimination only apply to persons over the age of 18. The respondents further state that the Tribunal has no jurisdiction to expand the definition of age in the Code and states that the applicants have not sought to challenge the constitutionality of the definition. The respondents also state that the applicant’s reliance on a decision of the Tribunal in Arzem v. R. (Ontario), 2006 HRTO 17 (“Arzem”), is misplaced in that this decision is not binding on me and made no general declaration that the definition was invalid.
10The applicants rely on a purposive interpretation of the Code, and state that notwithstanding the definition in section 10(1) they can assert a violation of their right to be free from discrimination because they are or were 10 years of age. The applicant relies on the Arzem decision, above, in which the Tribunal declared section 10(1) to be of no force and effect in respect of the parties to that proceeding. It did not, nor could the Tribunal have done so, make a general declaration of constitutional invalidity.
11The Arzem decision has been referred to in a number of cases since, most recently perhaps in C.M. v. York Region District School Board, 2010 HRTO 1494 (hereafter “C.M”.), in which the Associate Chair concluded, as I have, that the decision in Arzem was not binding on him and made no general declaration of constitutional invalidity of the definition of age.
12I also note, as did the respondent, that in Arzem the complainants had given notice of their intention to challenge the definition of age on constitutional grounds. No such notice has been given here; accordingly I have no jurisdiction to consider this element of the applicants’ argument.
13The applicants state that a narrow and literal interpretation of the definition of age defeats the purposes of the Code. They state that the Code must be interpreted in harmony with the “Guide to your rights and responsibilities under the Human Rights Code,” published by the Ontario Human Rights Commission, which points out that applications may be filed by parents on behalf of children. The applicants state that if the Code did not protect the rights of persons under the age of 18 then the fact that a parent can file an application on behalf of their child would be meaningless.
14I do not agree. The applicants mis-state the problem by suggesting that the respondent’s argument is that the Code offers no protection to persons under the age of 18. It does in many circumstances. But as set out above, by definition, the protections against age discrimination only apply to persons over the age of 18. The applicants urge a purposive, not literal interpretation. I am not persuaded that in the absence of a constitutional challenge to the definition I can read the plain language to mean something other than what it plainly means. In C.M. the Associate Chair briefly discussed the rationale for the limitations flowing from the definition of age:
There is no question that in many circumstances, age is a necessary and legitimate ground for distinctions among children. Children at different ages are at different developmental stages, and require different degrees of care and supervision. Human rights law recognizes that children are entitled to special care and protection, and this often requires treating them differently in sensitivity to their age and development: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (S.C.C.), [1999] 2 S.C.R. 817. It is evident that it is necessary and respectful of human rights principles to treat children differently on the basis of age in many ways, from placing them in different grade levels in school to age requirements for engaging in various activities such as staying home alone or driving. Assuming that the limitation on the definition of age in s. 10 were to be struck from the Code, there must still be a purposive, contextual interpretation of discrimination under that ground that takes into account the nature of human development during childhood. It would not be required, in my view, for respondents [to] justify on a balance of probabilities every difference in treatment of children of different ages.
15In the absence of a challenge on Charter grounds there is no other basis for me to read out or expand the definition of age in the Code as suggested by the applicant. It says what it says. On the basis of that definition, I find that, even if age was a factor in the decision of the respondent to de-register the applicants, the Code does not prohibit the respondent from doing just that.
No Prima Facie Case
16Although not strictly speaking necessary given my conclusions above, I will now deal with the other issues raised by the applicants.
17Assuming the applicants may make a claim of age discrimination under the Code, there is a question about whether the facts would support such a claim in any event. The parties disagreed with respect to the standard to be applied. The applicants suggested that at this stage the standard is a real issue for trial as opposed to a prima facie case. I am persuaded that the proper standard is a prima facie case. The applicant only cited authority that pre-dates Ontario Human Rights Commission v. Simpson Sears, 1985 CanLII 18 (S.C.C.) (O’Malley). In any event, I find that it makes no difference in this case in light of the facts and most particularly the definition of age in the Code.
18The applicants state that they are clearly eligible to be granted Special Student status on the basis of “personal interest” above. They state that the only requirement to fulfill in respect of a “personal interest” Special Student is that the student has not attended a secondary school for at least two years. They further state that the respondent’s regulations do not state that the applicants need to have completed or attended secondary school as a necessary condition for registration as a special student. They state in effect that because they have never attended secondary school they meet the criteria. The applicants assert that age was a factor in the decision to revoke their registration.
19As regards the argument that the applicants clearly met the criteria for admission as Special Students in the personal interest category, and hence the only basis for their exclusion must have been their age, I do not agree. The implication of the applicants’ position is that notwithstanding the general admission requirement any person who claims to have an interest in taking university level courses can do so irrespective of any other consideration. This seems unlikely.
20The Regulations of the University were not drafted in contemplation of 10 year olds registering for courses. However they clearly contemplate that a person applying for entrance to a university level course will have completed a secondary school education or, by virtue of their age and life experience, have achieved a level of intellectual development sufficient to participate meaningfully in a university environment. The one apparrent exception to this general framework being a “gifted student” in their final year of secondary school who may in certain circumstances be admitted. The applicants do not, contrary to the applicants’ submission, meet the respondent’s entrance requirements as Special Students. The applicants were denied admission not because of their age, but because they do not meet the entrance requirements of the University.
21The applicants state that the issue raised in these Applications does fall within the jurisdiction of the Tribunal, notwithstanding the limiting scope of the definition of age in section 10(1) of the Code, based upon a consideration of substantive principles of equality enshrined in sections 1 and 14 of the Code and as understood through the interpretive filter of the Canadian Charter of Rights and Freedoms as well as the Tribunal’s case law.
22The applicants state that the purpose of the Code as a whole suggests that section 14(1) is not simply a saving provision for “special programs” but is also an interpretive aid that clarifies the full meaning of Code as promoting substantive equality. The applicants state that section 14 has the additional purpose of promoting “substantive equality” in conformity with the the overall purpose of the Code, being the provision of equal rights and opportunities without discrimination. Consequently, state the applicants, programs aimed at promoting substantive equality are reviewable by the Tribunal depending on the context in which the challenge is brought. The applicants state that the special student category at the University of Ottawa is an “affirmative action program” or a “special program” that assists students who otherwise would not have met the university’s entrance requirements.
23The applicants further state the the decision of the Universtiy was arbitrary and not rationally connected to any bone fide factors:
The Applicants are not asserting a right based on the principle of formal equality. In other words, they are not seeking to be treated in the same fashion as other ten year olds (who are also denied access), but rather they make their case based on the substance of what equality should dictate for persons capable of academic contribution such that age should not become a barrier to access. The substance of equality is not achieved by treating all ten year olds the same, or treating all pregnant women the same, but rather, the question is whether a special program can be legitimately restricted in its applicability to the Applicants based on a rationally connected and bona fide consideration. In the instant case, having met all criteria of merit relative to admission in the course in question (in distinction to the entrance requirements for University), there is no rational basis for limiting special student status to the Applicants based on their “personal interest” as understood within the meaning of section 1.1 of the University’s Regulations.
24Section 14 of the Code provides as follows:
A right under Part I is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under Part I.
25I do not understand how bringing section 14 into the argument assists the applicants. I note that the respondent has not taken the position that the special student status is a special program and states that it has not sought a special program designation as contemplated by section 14(2) of the Code. There is no indication that the special student category was conceived of or serves any human rights purposes.
26While I do not disagree with the applicants that section 14 may serve as an interpretive aid in understanding the scope of the Code’s protections, in my view it does not assist the applicants here. As I understand the applicants’ argument, it is that this “special program” is underinclusive in that, at least as applied by the respondents, it allows for the differential treatment of prospective students on the basis of age. Aside from the question of whether or not it is a special program, it seems to me that the real question must be whether the impugned act was discriminatory or not. I agree with the respondent that section 14 is not relevant to that enquiry.
27The applicants also state that the University, in its discretion, can allow persons under the age of 18 to register as special students but has said to them that as elementary students they do not meet and cannot meet that criterion. The applicants state that is a clear indication of a discretionary decision to deny them admission based on their age.
28In fact it is not, rather it is a clear indication that the respondent has a discretion to admit or not based on a certain level of academic achievement. While it is not likely that there will be many 10 year olds in their final year of high school studies, on the face of the respondents’ regulation such a child would be eligible to be considered for special student status. I agree with the respondent that the applicants did not meet any of the criteria for admission as a special student. I am not satisfied that there is any basis to conclude that age as such was a factor in the decision of the respondent University.
29The respondent relied upon C.M., above, which discussed the purposes of the Code:
Fundamental to deciding the issues in this Application is a purposive interpretation of the rights protected in the Code. The Code does not aim to eliminate all differences in treatment, but rather discrimination, in the form of disadvantage, prejudice and stereotyping, on the grounds set out in the Code: see generally Andrews v. Law Society of British Columbia, 1989 CanLII 2 (S.C.C.), [1989] 1 S.C.R. 143 at p. 174; R. v. Kapp, 2008 SCC 41, 2008 SCC 41; Ontario Disability Support Program v. Tranchemontagne 2009 CanLII 18295 (ON S.C.D.C.), (2009), 95 O.R. (3d) 327. The meaning of the grounds must be interpreted in light of these purposes: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City), 2000 SCC 27, 2000 SCC 27; B. v. Ontario (Human Rights Commission), 2002 SCC 66, 2002 SCC 66.
The role of the Tribunal in a case like this is not to determine whether the Board’s approach to pediculosis is a good one or sound educational policy. That is the responsibility of the Board. The Tribunal’s job is to determine whether the issues engage the purposes of the Code and amount to substantive discrimination on the basis of a Code ground.
30My role in this matter is not to determine whether the respondent’s admission criteria are fair or not, or whether they make academic sense. The question is whether or not the issues raised engage the purposes of the Code and amount to substantive discrimination on the basis of a Code ground. For the reasons set out above I have concluded they have not.
31For all of these reasons these Applications are dismissed.
Dated at Toronto, this 11th day of July, 2011.
”signed by”___________
David Muir
Vice-chair