Cohen v. Law School Admission Council, 2013 HRTO 1563

Human Rights Tribunal of Ontario

Between:

David Cohen Applicant

-and-

Law School Admission Council Respondent

Interim Decision

Adjudicator: Ruth Carey Date: September 17, 2013 Citation: 2013 HRTO 1563 Indexed as: Cohen v. Law School Admission Council

Written Submissions

David Cohen, Applicant Self-represented

Law School Admission Council, Respondent Michael J. Torrance, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to goods, services and facilities because of disability. It involves the administration of the Law School Admission Test ("LSAT").

2This Application is scheduled to be heard in Toronto on October 2 and 3, 2013.

3On August 16, 2013, the respondent filed with the Tribunal and delivered to the applicant a Request for Summary Hearing and a Request for an Order During Proceedings ("the respondent's RFOP"). The respondent's RFOP asks for orders only in the alternative should the Request for Summary Hearing be denied.

4On August 23, 2013, the Tribunal denied the respondent's Request for Summary Hearing.

5On August 20, 2013, the applicant filed and delivered a Request for an Order During Proceedings ("the applicant's RFOP of August 20, 2013") requesting an extension of time for filing his witness list and witness statements.

6On August 30, 2013, the applicant filed and delivered a Response to a Request for an Order and another Request for an Order During Proceedings ("the applicant's RFOP of August 30, 2013"). On September 3, 2013, the respondent filed and delivered its Response to a Request for an Order with respect to the applicant's RFOP of August 20, 2013 and on September 12, 2013, with respect to the applicant's RFOP of August 30, 2013.

7This Interim Decision addresses the respondent's and the applicant's respective RFOPs. The parties should take note that any additional requests that arise shall be dealt with at the in-person hearing.

The Respondent's RFOP

8The respondent's RFOP asks that portions of the Application be struck; that the hearing be bifurcated; and that the respondent be permitted to amend its list of documents to be relied on. It also seeks an order for production with respect to expert witness reports, and all records, notes and background materials associated with the testimony of the applicant's experts; and an order prohibiting the applicant from introducing into evidence his experts' reports unless the background materials requested are produced and the experts are available to be cross-examined.

9The applicant objects to the respondent's RFOP in its entirety.

The Requests to Strike Portions of the Application

10For the reasons stated below, the requests by the respondent to strike portions of the Application are denied, except with respect to the remedies sought against the former respondent law schools.

11The respondent's RFOP asks that the allegations in the Application with respect to the applicant's sitting of the LSAT in December of 2009 be struck because the Application does not disclose a breach of the Code with respect to that incident, and the applicant did not seek accommodation for his disability at that time. The applicant agrees that his Application does not contain any allegations of a Code violation with respect to December of 2009, and that he did not request accommodation for that sitting of the LSAT.

12As the parties agree that the Application does not disclose any allegation of a breach of the Code with respect to the applicant's sitting of the LSAT in December, 2009, there is no need to strike any portion of the Application. Rather it is sufficient to say that at the hearing the applicant will not be permitted to advance a different position; namely, that the events of December, 2009 do constitute a breach of the Code. However, he will be permitted to lead some limited evidence with respect to that period as part of the background narrative to his Application if he wishes to do so.

13The respondent's RFOP also asks that the Tribunal strike from the Application any allegations relating to alleged misconduct by the applicant at the February, 2010 sitting of the LSAT and the subsequent misconduct hearing conducted by the respondent. The stated reasons for this request are that the incident that occurred in February, 2010 is unrelated to the Code, and alternatively, the allegations should be dismissed pursuant to s. 45.1 and Rule 22 of the Tribunal's Rules of Procedure on the basis they have been appropriately dealt with in another proceeding.

14The applicant disputes the assertion that the alleged misconduct incident is unrelated to the Code. He states that there is a direct correlation between the alleged failure of the respondent to accommodate the applicant's disability for the February, 2010 sitting of the LSAT, and his possession of a cell phone during that sitting, which was the basis for the misconduct hearing. This assertion is consistent with the Application as originally filed. As a result, I am not prepared to strike the allegations in the Application that concern the applicant's alleged misconduct in February of 2010, or the misconduct hearing, on the basis that they are not Code related.

15With respect to s. 45.1 of the Code and Rule 22, the assertion that another proceeding has appropriately dealt with the substance of part of the Application requires an oral hearing. This Application is already scheduled to be heard on the merits on October 2, and 3, 2013. That hearing will necessarily involve the applicant leading evidence as to his request for accommodation for the February, 2010 sitting of the LSAT, and how the lack of accommodations for that sitting affected him. Therefore, the applicant will lead evidence with respect to the events of February, 2010 and the misconduct hearing in any event. As a result, it seems to me that the most expeditious way to address this issue is to invite the parties to make oral submissions at the conclusion of the merits hearing as to whether or not the allegations in the Application concerning the applicant's alleged misconduct in February, 2010 were appropriately dealt with by the respondent in the misconduct hearing. In order to assist the parties in making those submissions, I would direct their attention to the recent Interim Decision of the Tribunal in Claybourn v. Toronto Police Services Board, 2013 HRTO 1298.

16The respondent's RFOP also asks that the Tribunal strike any allegations in the Application related to the law school admission process. The basis for this request is that the Application originally named a number of law schools as respondents and alleged that they discriminated against the applicant when they refused the applicant admission to their law schools. A number of the remedies requested in the Application specifically address the law schools' conduct. However, the applicant subsequently withdrew his Application as against the law school respondents.

17As the law schools are no longer parties to the Application, the allegations of discrimination against them are moot. The applicant will not be permitted to advance an argument that the law schools acted in breach of the Code. That being said, the applicant's success or failure in gaining admission to law school is arguably relevant to the question of how the respondent's actions impacted him should the applicant establish the respondent failed to accommodate his disability in contravention of the Code. Therefore, the applicant will be permitted to lead evidence at the hearing with respect to applications for admission to law school in the context of impact evidence, but the remedies requested as against the law schools shall be struck from the Application.

Bifurcation

18The respondent's RFOP seeks bifurcation of the hearing and requests that a determination on liability be made prior to any evidence being lead with respect to remedy. The stated reasons for this request are that the remedies requested by the applicant are complex, and the Application has little reasonable prospect of success, so expending resources on remedial evidence would not be a good use of the Tribunal's or the parties' time.

19The respondent's request for bifurcation of the hearing into liability and remedy stages is denied for the following reasons.

20The Application as originally filed contains multiple requests for remedies but most of those became moot when the applicant withdrew his Application as against the law schools. The only remaining remedies requested are for monetary compensation and an opportunity for the applicant to sit the LSAT again with certain accommodations in place. I would not characterise those remedial requests as being complex.

21Evidence with respect to accommodations the applicant allegedly needs to write the LSAT will necessarily be presented during the hearing as part of the applicant's argument with respect to breach of the Code. It is the applicant's position that the respondent failed to accommodate his disability in February of 2010, and the respondent's position is in part that its accommodation process is Code compliant. As a result, it would appear that the bulk of the anticipated evidence with respect to potential remedy will be led in any event to address the liability issues.

22Given all of the above, I do not believe bifurcation in this instance will be administratively efficient. Therefore, it is not necessary or appropriate in my view to address the submission of the respondent that the Application has little reasonable prospect of success.

Adding Documents to be Relied On

23The respondent's RFOP requests that it be permitted to rely on additional documents at the hearing that were not part of its previous productions. This request is granted for the reasons given below, subject to the requirement that the respondent file and deliver a complete copy of the documents in question as those that accompanied the respondent's RFOP appear to be incomplete.

24The central dispute in this Application concerns the accommodation process that was put in place by the respondent for addressing requests by disabled students for accommodation in the testing process. The respondent's RFOP says the applicant completed some of the respondent's forms and produced completed versions of them as part of his productions. It also alleges the applicant produced blank copies of the current forms used by the respondent. The respondent seeks to rely on a complete blank set of the relevant forms which existed at the time relevant to the Application. It states the forms were not previously filed due to inadvertence.

25The applicant takes the position that the respondent should not be permitted to rely on additional documents because it failed to deliver to the applicant its arguably relevant documents by the deadline pursuant to Rule 16.1.

26The documents are relevant to the central issue in the Application. The Tribunal's Rules with respect to disclosure are intended to ensure the hearing is fair to all parties and efficiently managed. As the applicant is familiar with the documents the respondent wishes to rely on, he will not experience any prejudice if the respondent's request is permitted. The balance of fairness favours the respondent's request that it be permitted to rely on a blank version of the accommodation process forms as they existed in February, 2010.

27That being said, the copy of the forms that accompanied the respondent's RFOP appears to be incomplete. It consists of 13 pages as follows:

a. One page entitled "Accommodated Testing Frequently Asked Questions". This appears to be complete.

b. Two pages entitled "Accommodations Request Packet". This also appears to be complete.

c. Two pages entitled "Candidate Form". This appears to be incomplete. Page 1 (C1) and Page 4 (C4) were provided but pages 2 and 3 were not.

d. Two pages entitled "Evaluator Form". This form appears to be complete.

e. Two pages entitled "Vision Evaluation Form". This form appears to be incomplete. The first page provided indicates at the bottom it is "page 1 of 4" and the second page provided says it is "page 4 of 4".

f. One page entitled "Guidelines for Documentation of Cognitive Impairments". This form would appear to be incomplete as the page provided ends mid-sentence.

g. One page entitled "Summary Score Sheet". This form appears to be complete.

h. Two pages entitled "Physical Evaluation Report". This form appears to be complete.

28The respondent shall be ordered to file and deliver the missing parts of the forms in question as soon as possible.

The Respondent's Request with Respect to Expert Witnesses

29The respondent's RFOP states that the applicant seeks to rely on expert reports or statements from three psychologists or physicians: Dr. Lola Farber; Lynda M. Thompson; and Dr. Umesh Ravi Jain. It seeks an order requiring production of "all records, notes and background materials" related to those reports or statements on the basis that they are arguably relevant and should have been disclosed pursuant to Rule 16.1. This request is granted in part; namely, the applicant shall disclose to the respondent the documents relied on and identified by Dr. Jain as forming the basis of his opinion in his expert's report. The admissibility of documents originally created by Dr. Farber or Ms. Thompson is an issue to be determined at the hearing.

30The respondent's RFOP also seeks an order requiring the applicant to call as a witness any individual who authored an expert report he intends to rely on; and if that person is not available to testify, then the corresponding report not be allowed into evidence. This request is denied with the proviso that in the normal course of events parties are entitled to challenge at the hearing the admission into evidence of any document they object to.

31The applicant's list of proposed witnesses indicates that of the three people named in paragraph 29 above, he only intends to call Dr. Jain as a witness. The applicant has filed and delivered an expert's report from Dr. Jain. His expert report lists a number of documents the witness reviewed and relied on in developing the opinion he is expected to testify to: WAIS-IV; Wide Range Achievement Test – Fourth Edition (WRAT 4); Wechsler Fundamentals; Nelson-Denny reading Comprehension; TOVA; IVA+ Plus; letter from diagnosing physician at age 3; transcript from Ryerson University; and transcript from Sheridan College.

32The applicant submits that these documents should not be the subject of a production order because Dr. Jain was retained for litigation purposes only and his records, notes and background materials are subject to litigation privilege. In support for this submission the applicant relies on Rule 31.06(3) of the Rules of Civil Procedure and Kennedy v. McKenzie, [2005] O.J. No. 2060 (S.C.).

33Rule 31.06(3) concerns examinations for discovery in civil proceedings and is therefore not relevant here.

34Kennedy v. McKenzie is a case from Ontario's Superior Court of Justice that restates the traditional rule regarding litigation privilege (at para. 20). The first element of that test is that the documents in question be created "for the dominant purpose of existing, contemplated or anticipated litigation". Although Dr. Jain's report was clearly created in contemplation of litigation, that is not true of the documents listed in his report. It would appear that all of those documents relate to the applicant's previous medical history, diagnostic testing he underwent, and accommodations provided to him by various educational institutions. They are not covered by litigation privilege.

35As the documents are relevant to the proposed expert witness's opinion they should be disclosed to the respondent and an order will issue requiring the applicant to do so.

36Although it is not entirely clear, it would appear from the applicant's productions that Dr. Farber was his pediatrician and the first person to diagnose him as having a disability. Ms. Thompson is the professional who conducted diagnostic testing on the applicant related to his disability and completed parts of the forms that made up the applicant's request of the respondent for accommodation. Neither of these individuals is being offered as witnesses. Whether documents created by them will be admissible into evidence at the hearing is an issue best left to be addressed during the hearing itself. It is unclear what expert or other reports the respondent is referring to in its RFOP so the admissibility of those documents shall be determined at the hearing.

37The applicant's proposed witness list identifies a second expert witness by the name of Dr. Theresa Cerulli. Rule 17.3 requires the applicant to provide a full summary of her proposed evidence or an expert's report from her. The applicant has not provided the Tribunal or the respondent with an expert's report written by her but he has provided a brief summary of evidence he anticipates she will testify to. From the brief summary of evidence provided it would appear her proposed evidence may be the same as that of Dr. Jain's. Pursuant to s. 15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, the Tribunal may refuse to admit unduly repetitious evidence. Therefore, it is reasonable to require the applicant file with the Tribunal and deliver to the respondent a detailed summary of Dr. Cerulli's proposed evidence or an expert's report drafted by her that includes some indication as to how her proposed evidence differs from that of Dr. Jain.

The Applicant's RFOP

38The applicant's RFOP of August 20, 2013, requests an extension of time to file his witness list and witness statements. The applicant filed with his RFOP the amended witness list and statements which were only a few days short of the 45 set out in the Tribunal's Rules. This request by the applicant is reasonable and the respondent does not object to it so it is granted.

39The applicant's RFOP of August 30, 2013, requests that he be permitted to amend the Application; that his expert witnesses be permitted to testify via teleconference or by some other technology; that the respondent not be permitted to enter into evidence any documents; that the respondent provide the applicant with the names and contact information of other test takers who attended the sitting of the LSAT in February of 2010; that the respondent be ordered to produce certain documents; and an order waiving the requirement that an expert witness report be required for Dr. Cerulli.

The Request to Amend the Application

40The applicant's request to amend the Application is denied in part and granted in part.

41The applicant's RFOP of August 30, 2013, states that the amendments are necessary to "better articulate the facts" and "except for the remedies sought the amended application does not stray from the content of the first application". The respondent disputes this characterisation of the proposed amendments, but assuming the applicant's statements to be true with respect to new facts, it is unnecessary to amend an Application merely to clarify the facts or issues. Therefore, that part of the applicant's request to amend the Application is denied.

42With respect to the amendments related to the remedies, the RFOP seeks to increase the amount claimed from $100,000 to $600,000. The respondent does not object to this part of the request to amend. As changing the amount claimed in the Application will not actually alter the evidence to be led by the parties, the respondent will not be prejudiced by this request. Therefore, the request to amend the amount of compensation claimed in the Application will be granted.

43The applicant's RFOP of August 30, 2013, also seeks to add remedies that are actually integral to the Tribunal's determinations. For example, the applicant seeks to add as a non-monetary remedy a finding by the Tribunal "that the respondent failed to recognise the applicants [sic] rights as a disabled individual" and a finding "that the respondent had a duty to accommodate and failed to meet that duty". An exploration of these issues is necessary to deal with the allegations in the Application. Therefore, it is unnecessary to amend the Application in this respect.

44The RFOP also seeks to add future compliance remedies to the Application. Pursuant to s. 45.2(2) of the Code, the Tribunal may direct a party to an application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act even if no such order is requested in the Application. In other words, the Tribunal has the power to consider such remedies even where they are not set out in the Application. Therefore, it is not necessary to amend the Application to include these remedies at this time.

The Request regarding Teleconference Evidence

45The applicant's RFOP of August 30, 2013, requests that the applicant's expert witnesses be permitted to testify via teleconference or through some other form of electronic media. With respect to Dr. Jain, this request was granted by the Tribunal by way of an Interim Decision issued on May 24, 2013 in 2013 HRTO 899.

46The respondent states that this request is redundant as it has already been decided, but that is only true with respect to Dr. Jain and not with respect to Dr. Cerulli. The Interim Decision did not address the question of whether Dr. Cerulli should be permitted to testify via teleconference.

47With respect to Dr. Jain, the Interim Decision indicates that part of the reason why he is permitted to testify via teleconference is because he will be out of the country on the date scheduled. The applicant's RFOP of August 30, 2013, offers no reasons at all as to why Dr. Cerulli is unable to attend to testify in person. As a result, the applicant's request with respect to Dr. Cerulli is denied.

The Request that the Respondent not be Permitted to Enter Documents into Evidence

48The applicant's RFOP of August 30, 2013, requests an order barring the respondent from entering into evidence any documents at the hearing because it failed to comply with the 21-day deadline set out in Rule 16.1 of the Tribunal's Rules of Procedure. This request is denied.

49By way of Registrar's letter, the 21-day deadline for exchange of arguably relevant documents was extended to May 1, 2013. The respondent complied with this deadline in that it sent its arguably relevant documents to the applicant on May 1, 2013. However, the applicant did not receive them until May 7, 2013, due to difficulties with his address.

50The Tribunal's disclosure requirements are intended to assist the parties and the Tribunal and to ensure that the hearing is as fair and efficient as possible. As the applicant received the respondent's arguably relevant documents in advance of filing his witness statements and documents to be relied on, it would serve no purpose to grant the applicant's request and would arguably result in procedural unfairness to the respondent.

Disclosure of the Names and Contact Information of Other LSAT Takers

51The applicant's RFOP of August 30, 2013, requests that the Tribunal order the respondent to disclose the names and addresses of other individuals who took the LSAT on February 8, 2010, so that the applicant may call them as witnesses at the hearing. This request has already been considered by the Tribunal. It was made by the applicant in a previous RFOP and denied by way of the Interim Decision of May 24, 2013.

The Request with Respect to Productions

52The applicant's RFOP of August 30, 2013, requests production of the applicant's request for accommodation to the respondent, and "a copy of the documented appeal request and denial for the misconduct hearing appeal in its entirety".

53On May 1, 2013, the applicant filed with the Tribunal a copy of his arguably relevant documents. His request for accommodation seems to be included in those documents so it would appear the applicant already has in his possession his request for accommodation. It is therefore unclear what further documents the applicant wishes to obtain with respect to his application for accommodation and that part of his request for production is denied.

54With respect to the documents concerning the misconduct hearing, it is unclear what documents the applicant is seeking that he does not already have. For example, attached to his RFOP of August 30, 2013, is what appears to be a transcript of the misconduct hearing. Included with his arguably relevant documents is a copy of the warning notices he received during the February 10, 2010 sitting of the LSAT and various witness statements about what happened that day. The respondent's documents to be relied on include the original misconduct decision, the applicant's letter objecting to the decision, and the respondent's findings following the misconduct hearing. The RFOP does not indicate what additional documents the applicant is seeking. The request for further production appears on its face to be a request for documents the applicant already has. As a result, the request is denied.

The Request with Respect to Dr. Cerulli

55The applicant's RFOP of August 30, 2013, requests that the Tribunal waive the requirement that Dr. Cerulli provide an expert witness report or the applicant file a detailed summary of her evidence. The stated reason for this request is that Dr. Cerulli will be relying on information already submitted by the applicant with his productions and on Dr. Jain's report. However, the RFOP notes that her evidence will not be the same as Dr. Jain's.

56Expert's reports or detailed summaries of evidence are required of expert witnesses because experts are entitled to testify to more than the facts that are within their personal knowledge. They are entitled to offer their expert opinions. The Tribunal's disclosure requirement means that an opposing party has the ability to meaningful consultation of experts of its own to help it prepare for cross-examination. If Dr. Cerulli's proposed evidence actually does differ from Dr. Jain's, then an expert's report or detailed witness statement is necessary. If her testimony does not differ from Dr. Jain's, then it may be she will be precluded from testifying as her evidence may be unduly repetitive. If the applicant wishes to call Dr. Cerulli as a witness at the hearing then he will be required to produce an expert witness report authored by her or a detailed summary of her evidence. The report or summary must set out clearly how her proposed evidence will differ from that of Dr. Jain.

Order

57The Tribunal makes the following order:

a. The remedies requested in the Application as against the former respondent law schools are struck from the Application. All other requests by the respondent to strike portions of the Application are denied.

b. The Application is amended to increase the monetary compensation sought from $100,000 to $600,000. All other requests by the applicant to amend the Application are denied.

c. The respondent's request for bifurcation of the hearing is denied.

d. The applicant's request to extend the time for filing of his witness list and witness statements to August 20, 2013, is granted.

e. The respondent's list of documents to be relied on at the hearing is amended to include a complete blank set of the respondent's accommodation request forms as they existed in January of 2010, provided that the respondent files a complete set of those forms with the Tribunal and delivers them to the applicant no later than September 27, 2013.

f. By September 27, 2013, the applicant shall file with the Tribunal and deliver to the respondent a copy of the documents referred to in Dr. Jain's expert witness report including: WAIS-IV; Wide Range Achievement Test – Fourth Edition (WRAT 4); Wechsler Fundamentals; Nelson-Denny reading Comprehension; TOVA; IVA+ Plus; letter from diagnosing physician at age 3; transcript from Ryerson University; and transcript from Sheridan College.

g. If the applicant wishes to call Dr. Cerulli as a witness at the hearing, then by September 27, 2013, he shall file with the Tribunal and deliver to the respondent an expert witness report authored by her or a detailed summary of her evidence. The report or summary must set out clearly how her proposed evidence will differ from that of Dr. Jain.

h. The request that Dr. Cerulli be permitted to testify via teleconference is denied.

i. The applicant's request for additional productions is denied.

j. All other aspects of the applicant's and the respondent's respective RFOPs are denied.

k. Issues with respect to the admissibility of documents and any future requests filed by the parties shall be addressed at the in-person hearing.