Cohen v. Law School Admission Council, 2011 HRTO 703

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Cohen

Applicant

-and-

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

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: April 12, 2011

Citation: 2011 HRTO 703

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”), alleging discrimination on the basis of disability in the area of goods, services and facilities.

2The 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, Sheena Khan, a test centre supervisor, distracted him during the writing of the LSAT on two occasions.

3He alleges the respondent 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. Lastly, the applicant alleges that, during an academic hearing that stemmed from the discrimination, the personal respondent, Kristine Jackson, continued to support LSAC’s regime of discrimination by finding against him. He states that, in the hearing, LSAC said that he caused misconduct. However, the misconduct was caused when LSAC denied him his basic human rights.

4In an earlier Interim Decision, 2010 HRTO 1833, the applicant’s Request for Interim Remedy was denied.

RESPONDENTS’ REQUESTS

5In both its Response to the Application and in a Request for an Order During Proceedings, the respondent, Dalhousie University (“Dalhousie”), requests that the Application, as it pertains to Dalhousie, be dismissed as outside the jurisdiction of the Tribunal. The respondents, LSAC and Kristine Jackson, also submit in their joint Response to the Application that the Tribunal does not have jurisdiction over LSAC, which has no physical presence in Ontario.

6While some of the parties have raised other preliminary issues, the purpose of this Interim Decision is to address the above jurisdictional issues only.

Dalhousie’s Request

7Dalhousie submits that the allegations in the Application made against it, concerning the applicant’s application for admission to its law school, took place outside of Ontario, in Nova Scotia, and fall under the jurisdiction of the Nova Scotia Human Rights Act, R.S.N.S. 1989, c. 214. More particularly, Dalhousie submits that the applicant sought admission to a Nova Scotia law school, and his application for admission was filed, processed and denied by it in Nova Scotia. Dalhousie submits that the Tribunal has no jurisdiction over allegations concerning the applicant’s application for admission to a Nova Scotia university. The applicant did not respond to Dalhousie’s request for dismissal and the time for doing so has elapsed.

8The Code is provincial legislation, and generally provides protection from discrimination for acts committed within Ontario. The Code may also cover acts occurring outside the province, where the acts, in pith and substance, relate to matters within the province. As stated in Cash v. Stryker Canada, 2009 HRTO 1738

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” (s. 92(13)), and “generally all matters of a merely local or private nature in the province” (s. 92(16)).

9It appears that the allegations in the Application against Dalhousie concern matters that took place outside of Ontario and do not relate, in pith and substance, to matters within the province. In my view, the Application lacks a “sufficient connection” to Ontario: see Cash, supra. As such, the Tribunal has no jurisdiction over these allegations. The Application, as against Dalhousie is therefore dismissed, and the style of cause is amended accordingly.

LSAC’s Request

10In their Response to the Application, the respondents, LSAC and Ms. Jackson, contend that the Tribunal does not have jurisdiction to consider this Application as the acts complained of took place outside of Ontario. They submit that all decisions regarding the applicant’s request for accommodations were made in Newtown, Pennsylvania, and the hearing regarding the allegations of misconduct was conducted by telephone conference, hosted in Newtown, Pennsylvania.

11In his Reply, the applicant submits that his Application, as against LSAC, is within the jurisdiction of the Tribunal and the acts complained of did in fact take place in Ontario. He submits that he paid LSAC to write the LSAT in Ontario, which LSAC arranged and provided a location for in Ontario. He submits that the accommodation that he sought from LSAC was for accommodation that would have been granted and arranged for in Ontario.

12With respect to the telephone conference, the applicant submits that the effects of the hearing are felt by him in Ontario. He submits that the law schools in Ontario that receive information from LSAC, due to the hearing, base their decisions on his Applications in Ontario. The applicant refers to LSAC’s earlier submissions, in response to his Request for an Interim Remedy, wherein LSAC submitted that to withhold information regarding the misconduct hearing decision from law schools would work an injustice as they would not have an important piece of information about the applicant for consideration in the admission process.

13In his submissions, the applicant relies on the Tribunal’s Interim Decision in Arenson v. Law School Admission Council, 2010 HRTO 38, wherein the Tribunal had sought submissions from the parties on the British Columbia Human Rights Tribunal’s (the “BCHRT”) decision on jurisdiction in Carlisle v. Law School Admission Council, 2004 BCHRT 353. In Carlisle, the BCHRT held, in part, as follows at paragraphs 14 to 16:

Mr. 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.

While 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.

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

14In Arenson, supra, after considering the parties’ submissions, the Tribunal held as follows:

The 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.

15Similarly, in the present case, I find that LSAC provides a service in Ontario. In addition, even accepting, without determining, that all decisions regarding the applicant’s request for accommodations were made in Newtown, Pennsylvania, I find that these decisions were implemented in Ontario and the alleged denial of accommodation was with respect to tests occurring in Ontario. It also appears that the applicant makes allegations concerning matters that occurred during the writing of the tests in Ontario.

16With respect to the telephone conference hearing, I also find that it was directly related to the service provided in Ontario, and incidents alleged to have occurred during the provision of that service, and the effects of the misconduct hearing are felt by the applicant in Ontario. In the circumstances, I find that the Tribunal does have jurisdiction to consider this Application as against the respondents, LSAC and Ms. Jackson.

17LSAC also requests that, in the event the Tribunal finds that it does have jurisdiction over it, the Tribunal order the applicant to provide LSAC with written consent to disclose all necessary information from his LSAC file and that LSAC be given a period of two weeks from receipt of the applicant’s consent to file a detailed Response to the allegations.

18From the respondents’ submissions, it is not apparent to the Tribunal that the applicant’s express consent, or an order, is required for the respondents to use or disclose information in the applicant’s LSAC file for the purpose of responding to this Application. The respondents have not pointed to any legal impediment. In addition, the applicant submits in his Reply that LSAC is not impeded by law from filing a detailed Response. He does submit, however, that, in failing to file a detailed Response, LSAC should be deemed to have accepted all of the allegations in the Application.

19The respondents, LSAC and Ms. Jackson, are directed to file a complete Response with the Tribunal within 14 days of the date of this Interim Decision. The applicant’s request to deem LSAC to have accepted all of the allegations in the Application is denied.