HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
R.L.
Applicant
-and-
Federation of Law Societies of Canada – National Committee on Accreditation
Respondent
DECISION
Adjudicator: Brian Eyolfson
Decision Date: September 25, 2014
Indexed as: R.L. v. Federation of Law Societies of Canada – National Committee on Accreditation
APPEARANCES
R.L., Applicant
Carolyn Hart, Counsel
Federation of Law Societies of Canada – National Committee on Accreditation, Respondent
Naomi Loewith and Lindsay Beck, Counsel
Introduction
1This Application was filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on September 11, 2012, and alleges discrimination on the basis of disability, in the area of membership in a vocational association, by the respondent, Federation of Law Societies of Canada (“FLSC”) – National Committee on Accreditation (“NCA”).
2The NCA is an academic review body responsible to the FLSC. The NCA evaluates the legal training and professional experience of individuals with foreign, or non-common law, legal credentials who wish to be admitted to a common law bar in Canada.
The Application
3The applicant obtained a law degree at Cardiff University (“Cardiff”) in Wales. He alleges that the respondent subjected him to discrimination on the basis of disability when it denied him the opportunity to write “equivalency exams”, so that he could proceed to write bar exams in Ontario, because of low marks that he received with his law degree. He explains that he appealed the respondent’s initial denial to the NCA’s Appeal Panel, based mainly on medical grounds, but the appeal was unsuccessful.
4The applicant also explains in his Application that he had cognitive difficulties in law school, and that he experiences “blackouts” in exams, as a result of extensive chemotherapy and radiation he had for treatment of cancer when he was a child. He alleges that the respondent stated that it was not their policy to “look behind” the reasons why his marks were low, and that he should have known about his cognitive difficulties.
5The applicant asserts that it is quite common for cancer survivors to experience cognitive difficulties later in life, and that he could not have known the extent of his difficulties until his blackouts began. He explains that, after his first year of law school, he was assessed and it was recommended that he use a computer for writing exams. He explains that using a computer helped somewhat, but he still experiences blackouts in exams, and it is only through techniques that he has learned in the last two years that he has been able to improve his cognitive difficulties.
The Respondent’s Response
6The respondent submits that the NCA evaluates candidates with foreign legal education on the basis of their academic and professional profile, and certifies whether they have an understanding and knowledge of Canadian law equivalent to that of a graduate of a Canadian common law LL.B. or J.D. program. The NCA reviews files on an individual basis, and makes recommendations about the areas in which candidates must demonstrate competence in order to obtain a “certificate of qualification”. The respondent explains that, in most cases, the NCA gives candidates a choice of demonstrating competence through its examination procedure (“challenge examinations”), by taking courses in assigned subjects in a Canadian law school’s LL.B. or J.D. program, or a combination of both.
7The respondent submits that the applicant obtained an LL.B. degree in Wales, with Third Class Honours. On January 13, 2012, the NCA advised the applicant that its policy states that no recognition will be given to candidates whose academic performance is third class or pass class. The NCA also noted that the applicant had not been called to a bar or licensed to practice law in a common law jurisdiction, which are factors the NCA also considers in evaluating candidates. Accordingly, the NCA concluded that it was unable to provide recognition to the applicant’s legal education, and advised him that he must undertake a three-year Canadian common law degree before proceeding to the bar admission program of a common law province or territory in Canada.
8The respondent explains that the applicant appealed the NCA’s decision based on a number of grounds, including that he has cognitive difficulty in exam-type settings due to extensive radiation and chemotherapy he received for childhood cancer. The applicant also explained in his appeal that, after his first year law school exams, he requested and was given permission to use a computer to write his exams, and to do so in a room with other students with disabilities, but continued to encounter difficulties.
9The NCA’s Appeal Panel dismissed the applicant’s appeal, indicating that candidates with poor academic performance will not receive any recognition for their legal education, and the NCA considers a candidate who has graduated with Third Class or lower standing in the United Kingdom to have poor overall academic performance. The Panel also indicated that personal circumstances which negatively impacted the applicant’s grades should have been raised by the applicant with his law school, and it is not within the NCA’s mandate to consider this and “look behind” the grades on a candidate’s transcript, which must be taken at “face value”. The Panel found that the NCA’s original assessment properly did not consider the applicant’s circumstances, and correctly applied the respondent’s policy to the facts, and that the decision to give no advanced standing for the applicant’s law degree was reasonable.
10The respondent submits that there was no discrimination on the ground of disability, and that, even if the NCA had considered the circumstances behind the applicant’s poor academic performance, the evidence does not support an allegation of discrimination. The respondent submits that only the applicant’s performance in his second and third year of law school was relevant to his standing, and throughout his second and third years, the applicant was provided with the accommodation he requested, and his physician supported, but his academic performance still did not meet the required level.
Anonymization
11At the hearing, the applicant requested that his name not be published in the Tribunal’s Decision, and the respondent agreed with the applicant’s request.
12The applicant submits that the Tribunal has considerable discretion under its Rules of Practice addressing “Public Proceedings”, and that the Tribunal has the authority to grant his request, pursuant to Rule 3.11 of the Tribunal’s Rules, which states: “The Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so.”
13I find that it is appropriate that I exercise my discretion to grant the applicant’s request to anonymize. The applicant’s name will be substituted with initials in this Decision.
WITNESSES
14The applicant gave evidence at the hearing, and called Jennifer Cano and Gil Labine as witnesses. Ms. Cano is a registered occupational therapist who assessed the applicant’s cognitive abilities, and she was also qualified as an expert in the area of cognitive rehabilitation. Mr. Labine is a lawyer who knows the applicant, and his law firm employed the applicant as a summer student in 2008.
15The respondent called Deborah Wolfe as a witness. Ms. Wolfe is the Managing Director of the NCA.
EVIDENCE
The applicant
16The applicant testified that he is 32 years old. In high school, he was an Ontario Scholar, and obtained an 86.7% average. He received a Bachelor of Science degree from Lakehead University in 2006, and commenced legal studies at Cardiff in Wales in 2007.
17In his first year of law school at Cardiff, the applicant had a total of four courses. All four courses were assessed by final exams that counted for 100% of his final grade in those courses, and he failed three of the four exams. It was his first time writing “100% exams”. He testified that he was shocked because, up to that point, he did not think that he had any problem writing exams, and he thought that he had a good understanding of, and “grip” on, the materials. He believed that he had a good grip on the materials based on discussions with peers, and from bringing his assignments to tutorials. He testified that his work, for the most part, matched that of the top and average students in the class, and he was not showing up at tutorials completely out of his “league” or anything like that.
18The applicant testified that he did think he had trouble with one of the exams. He also had a study group, which he stated may have led to some confusion, and maybe was not the best scenario for him, now that he knows how he has to study. He also testified that, looking back to his undergraduate degree, all of his good marks were with multiple choice exams, and the types of exams he can write well.
19The applicant explained that he also had assignments in every year at Cardiff, but they did not count for marks, with the exception of second year in which the odd assignment counted. Otherwise, he received mock marks on tutorial assignments. He had tutorial assignments in all of his courses in first year, and he completed all of the assignments. He usually received second class marks on the assignments.
20The applicant explained that, in the United Kingdom, there are high and low first and second class marks, then third class. He recalled that second class marks were in the high 40s to mid-50s, and a pass was 40. In cross-examination, he agreed that second class is 50 or higher.
21The applicant testified that he did not receive any accommodation in his first year of law school. Knowing that he would have to re-write exams in the summer, he connected with Ms. Cano and asked her to do an assessment, which took place in the summer of 2008. He testified that he had not previously been identified as having any learning disability.
22The applicant explained that he was diagnosed at the age of about 2 years and 10 months with stage 4 cancer of the neural system. He received chemotherapy and full body radiation in the United States. He went into remission, but relapsed, and was treated in Toronto with more chemotherapy and full body radiation. Around 1987, he was sent to an institute in the United States for some experimental treatment, and it ended around 1988 or 1989. He was 6 or 7 years old by the time it was all over.
23The applicant explained that the treatment he received had an extreme effect on his growth, and he has had constant health problems. He gets tumours and has to have them removed if they are too painful. A tumour on his back got too big when he was trying to finish his last year of law school.
24The applicant testified that, after he was assessed by Ms. Cano, he rewrote his first year law school exams in August 2008, and he passed all of them. He explained that when one rewrites a failed exam at Cardiff, it is a “pass/fail” exam, so the best possible outcome is 40. He did not have any accommodation when he rewrote his first year law school exams.
25In the summer of 2008, the applicant worked for Mr. Labine’s law firm, making many appearances in bail court as agent for Mr. Labine. He also worked with a family law lawyer doing research, but mostly worked with Mr. Labine doing research and helping him prepare and work with young offenders and adults. He also attended trials and took notes. The applicant testified that he received really good feedback from all of the lawyers he worked with, and was offered a spot again the next summer.
26The applicant testified that in his second year at Cardiff, he requested the accommodation Ms. Cano recommended. He explained that, with respect to “space, tools and time”, he had two of those things because he wrote exams on a computer in a small area with maybe four or five people and it was quiet. He explained that he did not ask for more time simply because he did not think that time was the issue. He explained that getting the information out in sequence was the problem and he felt that being good at typing more than made up for that. He also felt that he did not want to take too much time, and that whether it be called an “unfair advantage” or something like that, he did not think it was required, and he does not think time was an issue.
27In his second year of law school, the applicant had two courses with 100% exams (land law and employment law). He also took intellectual property and criminal law, which had assigned essay components, of 35% and 25%, respectively. He testified that he received second class marks, and was sure he got over 50, on the assignments.
28The applicant explained that, in his second year, he tried studying a good month earlier than he had done the year before, but he still had not really “figured it out” at that point. He put more time into it, but it was before Ms. Cano showed him a “skeleton” way of mapping out answers. The applicant testified that he wrote his exams on a computer, in a computer room that was quiet. He passed the two courses that had assignments as part of the marks, but he did not pass the employment and land law courses.
29The applicant testified that, again, he was shocked, and really frustrated, having had a grip on the material. He testified that he was probably one of the better students in his employment law class, and that he really liked the course and understood it very well. The applicant also explained that with the land law exam, there were four questions. If one question was not completed, or received a failing grade, the whole exam was failed. He testified that he almost got a passing grade, but automatically failed, because he “blacked out” with the fourth question, and could not find the information in his mind.
30The applicant testified that he rewrote the two exams that he failed in August 2009, and he passed land law but failed employment law again. That summer he worked with a labour relations firm in Toronto, doing lots of research on labour relations matters, and working with a number of unions. His role was primarily research and taking notes at the Labour Relations Board. He also met with clients and prepared witnesses. After his second summer with that firm, a lawyer who supervised most of his work wrote him a recommendation letter.
31The applicant testified that in October 2009, his mother passed away quite suddenly and unexpectedly. The applicant explained that he experienced grief, and the first year after his mother passed away was kind of a shock, and a “numbing” experience. He also explained that he had to sit out that year of law school anyway because of the failed employment law exam.
32The applicant testified that the next opportunity to rewrite the employment law exam was in May 2010. He went back to Cardiff and wrote the exam, which he passed. He explained that he studied for three whole months, as he was pretty sure that, if he did not pass the exam, that would have been “it” for him at Cardiff.
33The applicant testified that right before he went back to Cardiff for his third year, his back pain “took over his life”. He would stay up for days, then all of a sudden the pain would go away. He testified that there was something terribly wrong before he went back for his final year, but he could not sit out another year, so he went to Cardiff with the pain, and took Percosets for the pain. He explained that he had an “MRI” when he returned home for Christmas, which showed that he had a tumour on his spinal cord that had expanded and pushed his spinal cord up against the wall of his spinal casing. He explained that humidity levels would cause extreme swelling, resulting in the most pain that would come and go with huge “spikes”. The tumour was removed in November 2011, after he finished his exams.
34The applicant testified that for his third year exams, he went “completely over the top” with time. He started studying long before they had even finished their last few topics in lectures, and he researched a “skeleton” way of writing notes that Ms. Cano had told him about. His notes that year looked more like maps and flow charts and he felt that taking notes like that was better. He also did some reading about study times and when to study. As a result, he studied first thing in the morning, and not beyond 6:00 or 7:00 p.m., and he found that he retained information better. He went into his third year knowing in advance that he would study two or three months early, and he did research online and put some time into learning about cognitive disabilities.
35The applicant also testified that he thought that, without the pain, he probably would have received good enough marks that he probably would not be sitting in the hearing. He passed all of his third year exams. He testified that he thought that he gained a whole lot of insight and learned a lot about his disability, but he was adjusting, and it took a while to come to grips with that. He graduated with third class standing based on his second and third year results.
36The applicant testified that he applied to the NCA for the opportunity to write “challenge exams”. He was not aware that he needed to obtain more than third class standing to have his degree recognized. He thought that he had to obtain a qualifying legal degree (“QLD”), and could not just take the courses he wanted to take. He testified that the NCA said what courses it wanted him to take, and that if he got marks above 45 the NCA would give him credit for those courses. He testified that “essay courses” were available where all, or the majority, of the grade was based on assignments, but they were not listed on the NCA website as the recommended courses to take. He took courses such as employment law and the ones he was told that the NCA looks for.
37In cross-examination, the applicant testified that he thought that he needed a QLD, and he did not see a requirement to have above a third class, or a “2:2” (lower second class), standing. He testified that he looked at the NCA’s website, but did not see that requirement. He looked for what credits he had to take, and the NCA directed him to the website, but nothing was said about “2:2” or anything. He queried why if he was directed to credits on the website was he not told about the marks he needed to obtain. He testified that the focus was on the credits, and that he only looked for the credits, and not the marks that were required.
38The applicant testified that he currently works as a labour relations specialist, and deals with compliance with legislation, and interprets collective agreements. He testified that he was offered a position with a law firm that his employer uses and that he works with in his current position, but had to tell them that he was not “there” yet.
39The applicant testified that if he were permitted to write either the NCA challenge exams, or the bar admission exams in Ontario, he thinks that he would be successful as he knows the exam formats, and both sets of exams are not 100% essay format, and would not pose a difficulty for his cognitive impairment. The applicant testified that he thought he was on the right track in his third year of law school, minus the pain and the grief, but the pain in his back more so. He thinks that he knows how to prepare properly, with the proper amount of time, and he has worked at finding his way around his cognitive impairment. He knows what to ask for in terms of accommodation and he thinks that he would be successful.
Jennifer Cano
40Ms. Cano has been an occupational therapist since 1990, and has maintained a private practice since 1993. She has also been employed as an occupational therapist with Thunder Bay Regional Health Sciences Centre, St. Joseph’s Care Group, which is a rehabilitative facility, since 2005. Ms. Cano testified that she spent close to ten years providing rehabilitation in school environments to individuals with a variety of disabilities, including physical, cognitive and behavioural disabilities. She has worked with people with learning disabilities in both elementary and high schools, and at college and university levels. She explained that a number of children she saw would return to her as adults, or when transitioning into college or university. Ms. Cano also taught cognitive rehabilitation to staff of Brain Injury Services of Northern Ontario.
41Ms. Cano was a clinical lecturer and occupational therapy co-ordinator with the Northern Studies Stream of the School of Rehabilitation Sciences, McMaster University (“McMaster”), from 1999 to 2006, and taught cognitive rehabilitation. Since 2006, Ms. Cano has continued to lecture on a variety of topics as a professional associate with McMaster. In 2005, she was appointed to the Family Medicine Section of the Northern Ontario School of Medicine, where she currently assists with the admissions process.
42The respondent did not object to Ms. Cano being considered an expert in the area of cognitive rehabilitation and she was qualified as such.
43Ms. Cano was asked about a letter signed by both her and Dr. K. Simpson, concerning the applicant. She testified that it was written in the summer of 2008. She explained that it is a letter advocating for the applicant to be accommodated in writing exams in a way that the applicant and her hoped would overcome some of the difficulties he was experiencing. She also explained that it was the outcome of an assessment that she did with the applicant about two months prior to the letter. The letter states, in part, as follows:
[R.L.] was diagnosed with an aggressive form of cancer as a child and subsequently underwent extensive treatment including total body radiation and chemotherapy. This form of treatment can have associated side effects that include mild cognitive or learning difficulties.
[R.L.] has demonstrated difficulty with organization and sequencing of written and spoken communication that is exacerbated when time pressures are present. Testing has been completed that indicates that these difficulties can be compensated for when [R.L.] uses a computer and the associated cut and paste features to structure a document. As a result, we strongly recommend that [R.L.] be provided with computer access to complete exams while enrolled in your facility.
44With respect to her assessment of the applicant, Ms. Cano testified that she met with him to collect both subjective and objective data, and to formulate a “picture” of what was going on. She explained that, subjectively, she needed to hear about his experiences writing exams, his basic senses of vision and hearing, and whether or not the difficulties he experienced occurred elsewhere. She needed to obtain a bit of an academic history, as well as a medical history. She also asked the applicant’s mother what the applicant had said to her about the difficulties he was having. She also did a bit of objective testing to make sure that the information he gave her about vision and hearing were correct, and to rule out any physical issues. She also asked the applicant to bring some of his notes from school so that she could see how he was organizing, and how he approached tasks.
45Ms. Cano explained that they also did some simulation activities, including some typing testing, with both copying and self-generating materials, and with time pressure, to try to replicate an exam scenario. Ms. Cano observed a significant discrepancy between the applicant’s typing speed when he was copying, as opposed to when he was generating answers, and his cognition and processing speed appeared to be significantly less than would be expected of someone who had gone through an undergraduate degree with reportedly no difficulties.
46Ms. Cano testified that the applicant talked about the pressure of 100% exams, whereas, in his undergraduate, exams were often only worth a portion of the marks. He also talked about a frequent need to edit, and Ms. Cano came to understand that it was quite difficult for the applicant to make sure he both introduced and summarized things in a comprehensive way under time pressure. He also wished that he could “cut and paste”, and she saw a bit of an emerging strategy, that the applicant started to generate himself, with a fair amount of schematic drawing in his initial approach to answering large exam questions.
47With respect to her conclusions, Ms. Cano felt that the applicant was very focused on the tasks at hand in a quiet environment. She testified, however, that he seemed to be having some difficulty with “sequencing”, which she described as the natural, fast decision-making that everyone does when constructing arguments. She explained that the applicant’s sequencing seemed to slow a bit under testing environment conditions. She also testified that having these difficulties was a surprise to the applicant, and difficult for him to accept, and that he had a bit of a negative perception of needing accommodation for himself.
48While the letter signed by Ms. Cano and Dr. Simpson only recommends that the applicant be provided with computer access to complete exams, Ms. Cano testified that she had wanted a quiet environment and extended time as well, and that was her initial recommendation. She explained, however, that given a bit of a debate about how much the applicant was willing to accept in terms of advocating for himself, they came to a compromise. Ms. Cano testified that her thinking was that it was a start, and they could see one process in isolation, and if it made a difference; if not, maybe the applicant would ask for a little bit more. Ms. Cano testified that the “time, space and tools” approach is a common way to ask for accommodation.
49Ms. Cano testified that she saw the applicant again some time after his mother passed away, and she asked him how he was doing, what accommodations he put in place, and if he needed a letter again. She testified that he said it had been okay having computer access, and that the “cut and paste” made a difference. She asked again about space and time, and they talked a little bit about the “skeleton” approach of answering questions, starting with one or two words per paragraph, and then going back, so that the tasks of sequencing and wordsmithing are separated.
50Ms. Cano was asked about the timing of the identification of the applicant’s cognitive impairment, and how common that was. She testified that it is not as common as it is to have an impairment identified within the first six months of injury or impairment. She explained, however, that there is a spectrum of cognitive difficulties and if they are particularly mild then they are often not identified until a task is hard enough to reveal them. She explained that the “layering of cognitive tasks” may not get to the point that this occurs until law school. She testified that the applicant is one of a “handful” of examples that she has come across.
51Ms. Cano was also asked why a full credit essay exam course would pose a particular problem for the applicant or his particular cognitive impairment. She explained that cognition is like an onion, with the “heart” of the matter or the cognitive potential in the centre, and when you add “layers” of pain, sleep deprivation, stress, time pressure, and/or physical limitations, all of those things can “multiply” the cognitive issue. With respect to the applicant, Ms. Cano testified that she thought the combination of being surprised at running into some cognitive limitation, and the mental health pressure of 100% exams, added enough pressure to reveal difficulties. As to why a full credit essay exam would be any different than a multiple choice exam for the applicant, Ms. Cano testified that multiple choice involves reading and making a decision, whereas essay exams involve a whole host of skills, so they are harder cognitively, and there are more layers or multi-tasking.
52With respect to having access to a computer for exams, and whether she thought it would be all that the applicant needed, Ms. Cano testified that getting it right the first time is more in the minority and there are times when strategies have to be added to work towards a solution. She also testified that it is not a “one-size fits all” approach, as it depends on the cognitive task being approached, but she saw computer access as a good start. She also explained that, in her experience, the right accommodation usually impacts immediately and people express relief at being able to perform.
53With respect to how long it would take for the applicant to adjust for the impairment once it was identified, Ms. Cano testified that the resistance she felt from him in terms of asking for accommodation struck her as something that might slow him down a bit. If he was not willing to ask for accommodation, and she had to do more convincing for him to ask, then it would probably take longer to put those things in place.
54Ms. Cano testified that she knew that the applicant failed two exams in his second year and that told her that they needed to go back and look at other strategies of accommodation.
55She also testified that she was not aware that the applicant was coping with significant pain, but that pain is another layer of the “onion” that often hides true cognitive ability. She also testified that, unfortunately, if one tries to eliminate pain, pain medication if often a cognitive depressant.
56Ms. Cano testified that, having failed exams in his second year, his mother passing away, and having pain, would not make an ideal circumstance for the applicant to use his best cognitive abilities. She testified that, with pain, and assuming he was on pain medication, and with cognitive difficulties, and having not yet got to a perfect strategy, all of those things would affect performance on exams worth 100% under time pressure. She testified that there is more cognitive pressure with 100% finals.
57Ms. Cano also testified that there is a learning curve to people accepting their disability and moving on to accommodation. She testified that, in his third year of law school, the applicant was not “all the way there” in terms of his acceptance.
58In cross-examination, Ms. Cano testified that she encouraged the applicant to seek out services to help cope with his disability. She drafted a letter regarding accommodation that, in her professional opinion, he required. She clarified that if a client does not agree with her asking for four accommodations, and can only accept one accommodation, she will not ask for four, but just the one, as she does not write things that the client does not want her to write. She agreed that, with the accommodations the applicant requested in place, his disability would have been compensated for.
59Ms. Cano also testified that she met with the applicant after his second year of law school and he appeared more accepting of his disability. He expressed that the accommodation had been okay, although he failed two exams. They discussed strategies once again, including the “skeleton” approach to exam questions and sequencing. Ms. Cano also testified that some further accommodation may have been necessary, around time and space. She did not write a further letter to Cardiff, but filled out a form required by Cardiff that suggested the accommodation only that the applicant was willing to accept at that point. She agreed that she recommended further accommodations but the applicant was only willing to accept the same accommodations as before, although she does not know what he discussed with Cardiff. She also testified that the same letter was sent to Cardiff, even though it was her opinion that some further accommodations would have been helpful. She did not meet further with the applicant regarding law school.
Gil Labine
60Mr. Labine is a partner in a law firm that employed the applicant as a student in the summer of 2008. Mr. Labine is certified by the Law Society of Upper Canada as a specialist in criminal litigation.
61Mr. Labine explained that his firm’s summer students, who are in law school, take on quite a responsible role. They normally start their summer students off by having them shadow the lawyers in court, and the students are exposed to, and appear before, three levels of court: Superior Court, provincial court, and provincial offences court.
62In Superior Court, the students appear in assignment court to speak to matters, and set pre-trial and trial dates. Also, the applicant, in particular, took notes and played “second chair” in trials in provincial court. He assisted Mr. Labine with the conduct of trials, on a number of occasions, and engaged in some legal research, which was quite well-done and comprehensive, and assisted greatly in their course of action with cases. The applicant also attended bail court, and spoke to justices of the peace, and was quite good at assisting in some bail hearings. He also spoke to clients, and was quite good at it. Mr. Labine explained that the applicant was certainly capable of interacting with clients, and has the type personality that is quite endearing to clients in stressful situations. The applicant also appeared in provincial offences court, and did quite well, dealing with matters mostly under the Highway Traffic Act.
63Mr. Labine testified that, in addition to helping him in the area of criminal law, the applicant helped other lawyers in the firm with real estate, estate planning, and corporate matters, and did research for them. Mr. Labine testified that he and the other lawyers were always very pleased with the applicant’s work. Mr. Labine also testified that two former summer students are now partners at his firm, and the quality of the applicant’s work was the same as, if not better than, theirs. Mr. Labine testified that he would certainly have hired the applicant had he chose to remain with them, but the next year he chose to go with a labour firm in Toronto. Mr. Labine testified that the applicant is well-suited for litigation, and he would not hesitate to hire the applicant if he was a lawyer and wanted to come back and work for his firm. Mr. Labine was quite surprised that the applicant was having difficulty with accreditation.
64Mr. Labine also explained that his daughter graduated from Cardiff and had problems with accreditation, but not to the same degree as the applicant. His daughter also worked for his firm as a summer student, and articled with them as well. Another lawyer who graduated from Cardiff also articled with his firm and they hired her. Mr. Labine testified that his firm would not hesitate to hire anyone graduating from Cardiff.
65Mr. Labine explained that he has known the applicant since the applicant was young as he is a friend of Mr. Labine’s son. Mr. Labine also commented that it is quite amazing what the applicant went through as a two-year old and has overcome.
66Mr. Labine testified that his relationship with the applicant’s family certainly got the applicant “in the door” for an interview, as they get a lot of applications, but he would never be hired unless he could do a good job, and he would not get a good recommendation from them unless he did a good job.
67In cross-examination, Mr. Labine confirmed that it is difficult for a law student to get a summer position. He also testified that he knew that the applicant was struggling with grades at Cardiff, however, his firm hired the applicant as quite capable, based on speaking to him, and the interaction and exchanges they had. Mr. Labine explained further that he knew the applicant, the applicant was capable, and he had been to first year law school.
Deborah Wolfe
68Ms. Wolfe testified that she has been the NCA’s Managing Director since 2009. She has also been the FLSC’s Director of Law School Programs since 2012. In her role with the NCA, Ms. Wolfe leads the operations of the NCA and supports the work of its committee members.
69Ms. Wolfe is a civil engineer and was in the military, where she gained expertise around educational standards and careers. In 1994, she left the military and joined Engineers Canada where she built expertise in the areas of evaluating foreign credentials and the accreditation of university programs.
70Ms. Wolfe has been a member of the Royal College of Canadian Physicians and Surgeons Accreditation Task Force since 2010, where she provides input on qualifications for family physicians. Since 2010, Ms. Wolfe has also been a member of the University of Toronto’s Internationally Trained Lawyers Program (“ITLP”) Advisory Group. She explained that the ITLP provides support to lawyers trained outside of Canada, and its clients are also the NCA’s clients.
71Ms. Wolfe also testified that, at the FLSC, law societies were looking at creating standards for Canadian law schools. In 2012, a Canadian common law approval committee was created, and Ms. Wolfe offered to lead the staff and support both the committee and an ad hoc committee on new law programs. She explained that, in addition to evaluating new law programs, all of the existing Canadian law programs were evaluated twice, and about to be evaluated for a third time.
72Ms. Wolfe testified that in the previous year (July 1, 2012 to June 30, 2013), the NCA received just over 1300 applications. Most applicants had degrees from outside Canada, and some had degrees from civil law programs in Quebec or Ottawa.
73Ms. Wolfe explained that Canadian law societies state that, in order for someone to apply to a bar admission or licensing process, they must graduate from an approved Canadian program, or have a certificate of approval from an accreditation program. Section 9(1)1 of the Law Society of Upper Canada’s By-law 4 requires that applicants for a Class L1 licence must have either an LL.B. or J.D. from an accredited Canadian law school, or a certificate of qualification issued by the NCA.
74She testified that Canadian law societies require that people coming to them have grounding in the basic concepts of law through a Canadian law degree, and the law societies have chosen not to build an expertise in determining who has an equivalent to a Canadian law degree. She testified that the law societies’ processes are set to take people with Canadian law degrees, and that the law societies delegate authority to the FLSC to evaluate and demonstrate competencies of lawyers trained outside Canada.
75Ms. Wolfe testified that the FLSC’s job is to protect the public by making sure that applicants have met requirements equivalent to a graduate of a Canadian law school. Ms. Wolfe agreed that the NCA’s policies are designed to protect the public, and they provide a reasonable degree of protection, but are not perfect. She testified that the NCA’s polices look only at the “first stage”, the equivalence to a Canadian law degree, and what happens in terms of the next steps is not within the NCA’s mandate.
76Ms. Wolfe testified that the overall purpose of the NCA is twofold: first, there is a customer service role with the application of the standards to see if they are met; then, people are assisted to gain the knowledge they require to go into a licensing or bar admission process. She explained that a file is looked at to see where an applicant falls within a spectrum of standards, then a mechanism is provided for applicants to demonstrate competence and go through a process that will enable them to practice law in Canada. She explained more particularly that contracts law in Canada, England and New Zealand would be similar, but not constitutional law, so it is mandatory for everyone coming through the NCA process to take Canadian constitutional law. All applicants, even those with top grades, take several mandatory Canadian subjects, such as Canadian constitutional, administrative and criminal law.
77Ms. Wolfe testified that the NCA has six members: two Canadian law school deans; two practicing members appointed by the FLSC in consultation with the law societies; one staff member from a law society; and one public member who is involved in one of the law societies, such as through convocation. She testified that the NCA has a long history of understanding different legal systems, and the licensing practices in other countries, and talks to experts in comparative law. The actual members tend not to do the research, but rely on NCA staff to bring them the research. She also testified that an understanding is gained through actually reviewing the files, and she evaluated all of the 1300 files for the previous year. Ms. Wolfe also explained that there are about four major “countries” from which they receive hundreds of applications each year: England, Wales and Northern Ireland; the United States; India; and Australia.
78In terms of how knowledge of foreign practices is translated into NCA policies, Ms. Wolfe explained that, originally, it was based on what happens at Canadian law schools, but it has grown over time as credentialing has changed in Canada and around the world. She explained that an alliance of credentialing in Canada has put forward best practices, identifying what are artificial barriers and what are best practices. She testified that standards are based on Canadian standards for Canadian law schools, the “legal tradition”, the recognition of the institution, overall academic performance and performance on the NCA’s core subjects, the mode of delivery, the content of courses taken, and the age and relevance of the degree. There are also compensating factors, including subsequent legal education, such as an LL.M. degree, and completion of a bar licensing process, or licensed employment in a common law jurisdiction. She explained that the NCA’s policy lays out the aspects that they evaluate.
79The assessment process involves candidates assembling their materials, applying, and paying a fee to the NCA. They are assessed, and after they complete any assigned requirements, they can request that a certificate of qualification be issued.
80There is also an appeal policy which states that all assessments may be appealed within 60 days. Ms. Wolfe explained that she is not involved in the appeal process, but looks at every appeal that comes in to see if she made a mistake, or perhaps missed a document. If that is not the case, an appeal book is prepared and appeals are heard quarterly. Ms. Wolfe is also asked to put together a Managing Director’s response to appeals, commenting on how she assessed the application.
81With respect to assessing, Ms. Wolfe testified that she first looks at the documents to see where the applicant was educated, which leads her to a conclusion on the legal tradition, and whether it is common law or civil law. She also explained that it depends on the country. She testified that with England, Wales and Northern Ireland, one big issue is to look at academic performance, because a law degree in those jurisdictions is purely an undergraduate degree, and only about 30% of graduates go on to practice as a barrister or solicitor, so the academic performance aspect is a bit different there than it is in Canada.
82Ms. Wolfe also explained that Cardiff offers both a three-year and a two-year LL.B. program, and that the three-year program can be accessed directly from high school, whereas the two-year program is “graduate entry”. The NCA’s policies require an applicant with a two-year law degree to complete a minimum of seven additional courses or exams.
83Ms. Wolfe testified that, based on their research on regulatory bodies in England, Wales and Northern Ireland, the NCA’s minimum overall academic standard is a lower second class honours degree. She explained that it is based on requirements in that jurisdiction, and the NCA would not put Canadian standards on another country.
84Ms. Wolfe explained that most law schools in Canada may have a 50% pass, but one may need 60% to proceed to the next year. England, Wales and Northern Ireland all have a pass of 40%, and the NCA does not say 40 is not equal to 50, but evaluates the applicant on the standards of the system and the law school in the country where they were educated. She explained that in England, Wales and Northern Ireland, first class is 70% and above, upper second is 60 to 69%, lower second is 50 to 59%, third is 45 to 49%, and pass class is 40 to 44%.
85Ms. Wolfe also explained that the NCA questions how a graduate would be viewed by the profession in the particular country. She testified that an applicant with a law degree from Wales with standing below lower second class would be absolutely barred from becoming a barrister. She referred to a 2:2 (lower second class) standing as being the minimum.
86Ms. Wolfe also testified that it would be very difficult for a person with less than a 2:2 standing to become a solicitor, as a graduate would have to find a space in a legal practice course, and it would be very difficult to do so with a third class degree. Also, to find what would be the equivalent to articles in Canada would be very difficult with a third class degree.
87Ms. Wolfe was referred to the NCA’s Policies and Guidelines, in effect August 15, 2011. The NCA’s Assessment Policy addresses “Academic Performance”. It states, in part, as follows:
An Applicant with poor overall academic performance will not receive any recognition for his or her legal education. By way of example, the NCA considers an Applicant who has achieved Third Class or lower standing in the United Kingdom, India or Nigeria to have poor overall academic performance…
The NCA will not recognize any competencies arising from a course in which the Applicant has demonstrated poor academic performance. Poor academic performance constitutes a failing grade or a grade within 5% of the passing grade in the relevant institution. An Applicant with these low grades has not shown sufficient command of the subject. For example, in the United Kingdom, a grade of 40% constitutes a passing grade. Therefore, all grades of 45% and lower are considered by the NCA to be poor academic performance.
88Ms. Wolfe testified that the policy that third class standing is considered “poor overall academic performance” is longstanding, and would pre-date 2007. She also testified that these policies are available on the NCA’s website and have been for years. Ms. Wolfe also confirmed that the NCA’s overall academic standard is different than the standard for deciding whether a person should be given a particular challenge exam.
89Ms. Wolfe testified that the NCA’s role and her role are delegated, and that the policies are laid out, and are specific and clear. She testified that, because the policies are under delegated authority, there should not be a lot of “wiggle room”, and the discretion is limited. There is, however, an exception with respect to “Additional Legal Studies”, and Ms. Wolfe testified that there is discretion, but it is limited to further legal studies, or legal experience as a licensed lawyer in a common law jurisdiction.
90Under “Additional Assessment Considerations”, the NCA’s Assessment Policy addresses Additional Legal Studies, as follows:
Any additional common law legal studies undertaken by the Applicant may assist in establishing the Applicant’s equivalence. Additional legal studies may include a graduate degree such as an LL.M. or legal education program required for licensure as a lawyer, barrister or solicitor. These studies will be considered by the NCA and may address some of the competencies or such deficiencies as length or mode of study, identified in the Applicant’s assessment.
91With respect to Additional Assessment Considerations, the NCA’s policy also addresses “Professional Legal Experience”, as follows:
An Applicant’s licence to practice law and his or her experience practicing law in a non-Canadian common law jurisdiction will be considered by the NCA and may address some of the competencies or such deficiencies as length or mode of study, identified in the Applicant’s assessment.
92With respect to additional legal studies, Ms. Wolfe was asked in cross-examination whether she would be looking at the course areas or just at whether there was an advanced degree. Ms. Wolfe explained that if an applicant had a third class LL.B. from England, and an LL.M. in tax law, or other area of law, with improved academic performance, such as 2:2 or above, that would allow the NCA say that the overall academic policy was met. The NCA would then go back and look at the courses, with the totality of the applicant’s education, to determine what subjects they would be required to write exams in. Ms. Wolfe confirmed that the NCA would be looking for improved performance in legal studies, but not in a particular area.
93In cross-examination, Ms. Wolfe agreed that it is possible for someone to graduate with less than a 2:2 degree in Wales, and to qualify as a solicitor, and being a solicitor would be a factor in the NCA’s assessment as the applicant would be considered licensed. Ms. Wolfe also testified that if an applicant was licensed in another jurisdiction, for example India, and had a third class degree but 20 years of work experience, the NCA would say that 20 years of experience compensates for a third class degree. She would then proceed to assign exams based on what the applicant took at law school and the Canadian requirements. Ms. Wolfe also testified that if an applicant from Cardiff had a 2:2 degree, and got 42% on contracts, but was licensed as a solicitor with a significant portion work in contracts for 7 or 10 years, she would not assign contracts in that case. Ms. Wolfe also testified, however, that the work experience policy and discretion are quite narrow, and in a hundred cases professional experience is typically brought in less than once. She also testified that she is very conservative in the application of the policy, so her assessment rarely hinges on it.
94Ms. Wolfe also testified in cross-examination that some NCA applicants who were civil law graduates may have been counselled that they require a common law degree. Ms. Wolfe was also asked about a statement in the NCA’s policy that applicants who have studied in a common law jurisdiction, or in a hybrid jurisdiction with a common law component, may be able to satisfy one or more of the core competency requirements on the basis of coursework completed as part of his or her law degree, or other legal education. With respect to her discretion in this area, Ms. Wolfe testified that having an LL.M. from the United States would compensate for having a law degree from a law school that was completely civil law, or taking courses and qualifying to practice in England would compensate for graduating in Europe. Ms. Wolfe referred back to the “limited criteria” in the NCA’s policy.
95With respect to an applicant who had been admitted to the New York bar, Ms. Wolfe testified in cross-examination that it demonstrates competence by a standardized and rigorous process, and would not allow the applicant to practice law in Canada, but would allow the NCA to assess the applicant to determine what exams are necessary to write to proceed to be qualified in Canada.
96Ms. Wolfe explained that, if an applicant is not required to go back and do a law degree, it may be that there are courses that they have to take. She explained, again, that certain subjects must be taken, such as constitutional law, and there is a choice. The NCA offers exams four times per year around the world, and most people are allowed to write their exams. A small number of people are asked to take a course at a Canadian law school, because they have a distance law degree and did not sit in a class. Other people who are told that they must complete subjects can take either NCA exams or a course at a Canadian law school.
97Ms. Wolfe explained that the NCA’s challenge exams are set by their experts and are typical of Canadian law school exams involving fact patterns, and may have short answer questions, or questions that require the development of argument. The exams are three-hour, open-book exams, and are marked on a pass or fail basis. If the challenge exams are passed, then a certificate of qualification is issued to the law society that the applicant wants to be admitted to.
98In summarizing her approach to assessing applications, Ms. Wolfe testified that she makes sure that the law school is an approved law school, and that the degree received is a QLD. She explained that regulatory bodies for barristers and solicitors set standards for law schools in England, Wales and Northern Ireland, where there are seven subject competencies: public (including constitutional and administrative), criminal, European Union, contracts, torts, property and trusts law.
99Ms. Wolfe then looks at academic performance, and whether or not a 2:2 (lower second class), or better, is met. She then looks for compensating factors, including completed further legal education with an improved academic performance, or licensing and practice experience in a common law jurisdiction. She also looks at the courses taken, and if the marks are 45% or above in contracts, property, torts, corporate law, and evidence, challenge exams in those courses are not needed. She also looks to the mode of study, as distance education is treated differently. She also looks to the age of the degree and, for example, if a person graduated 15 years ago and has not practiced.
100In cross-examination, Ms. Wolfe was asked about the NCA’s policy which provides that an applicant who has not attended law school or practiced law within the five years prior to applying to the NCA will normally be assigned additional requirements because their legal education and/or experience is no longer current. Ms. Wolfe explained that additional subjects would be assigned to the applicant, and testified that she would decide how many additional subjects would be assigned and what those subjects would be. Where the age of the degree is an issue, she also looks for subsequent education or practice, referring to the NCA policy on “Additional Assessment Considerations”. Ms. Wolfe agreed that, where she has discretion, the policy tells her what she can take into account in exercising that discretion.
101With respect to the applicant’s application to the NCA, Ms. Wolfe testified that it was received May 12, 2011. With respect to her assessment of his application, Ms. Wolfe explained that she noted that he attended Cardiff in the U.K., and that one of the unique features for Wales, England and Northern Ireland is academic performance. On a copy of his transcript, Ms. Wolfe circled an indication that he received third class honours, and testified that it is the first thing that she would look for. She knew that Cardiff offers approved QLD programs, and she did not need to check that.
102Ms. Wolfe testified that the NCA’s policy covers both overall academic performance, and performance in their core subjects, and third class honours does not meet the NCA’s overall policy requirement. She concluded that the applicant did not meet the academic requirements.
103By letter dated January 13, 2012, and signed by Ms. Wolfe, the applicant was advised that his application for a certificate of qualification had been assessed, and the NCA was not able to provide any recognition to his legal education. The letter notes that he obtained his legal education at Cardiff, and graduated with third class honours, and that NCA policy states that no recognition will be given to applicants whose academic performance was third class or pass class. The letter also notes that the applicant had not been called to a bar or licensed to practice law in a common law jurisdiction. The applicant was advised that he must undertake a full three-year Canadian common law degree before proceeding to the bar admission program of a common law province or territory in Canada.
104Ms. Wolfe testified that she looked for compensating factors and, if the applicant was licensed, or had taken an LL.M., that would have been taken into consideration. Ms. Wolfe testified that the NCA’s polices are based on research and long-standing experience working with applicants from other countries, how licensing works in those jurisdictions based on bar standards, and what happens with people who have a third class or pass class degree from an English or Welsh school. She testified that a 2:2 is the minimum, and the policy there is that a graduate with a third class degree does not have sufficient command of the material.
105Ms. Wolfe was referred to documentation from the Bar Standards Board (“BSB”) in the United Kingdom which states, “[t]he minimum standard for a QLD undertaken for the purpose of completion of the Academic Stage for qualification as a barrister is lower second class honours (ie ‘a II(ii)’).” Other documentation from the BSB refers to a “2:2 UK Honours degree or its equivalent” being the standard and minimum requirement. Ms. Wolfe testified that this policy of the BSB underpins and goes to the NCA’s overall academic policy that a 2:2 is the NCA’s minimum requirement for England, Wales and Northern Ireland.
106Ms. Wolfe was also asked about the BSB’s special discretion to allow students to proceed without meeting the minimum standard. The BSB’s documentation states that the discretion will only be exercised rarely and where there are exceptional circumstances, and sets out the following criteria that must be met in order for the discretion to be exercised:
i) there is clear evidence (in terms of the majority of grades achieved, especially in the foundation subjects) that the student is academically of second class quality overall;
ii) it appears that the student’s failure to achieve a second class degree was directly attributable to a temporary cause which prevented/ impeded him/her fulfilling his/her full academic potential, which can be securely demonstrated as not having already been taken into account by the awarding institution in the award of the third class degree, for good reason beyond the student’s control: mitigating circumstances will not be taken into consideration twice;
iii) it plainly appears that this cause is not of such a character as to render the student unsuitable to practise at the Bar; and
iv) there is clear motivation to qualify and practise at the Bar.
107Ms. Wolfe testified that the NCA would not exercise the BSB’s discretion on their own, however, if the BSB had exercised its discretion in a case, and the NCA received a letter to that effect, then the NCA would accept that because the BSB has the background do to that. She testified that she has not seen the BSB do that, but she has seen the Solicitors Regulation Authority (“SRA”) in the United Kingdom do that, and the NCA has accepted that. Ms. Wolfe testified that the NCA would not substitute its discretion, but if the BSB or the SRA deems a person to have met the requirements, then the NCA would accept that because those are the authorities for the legal profession in that jurisdiction.
108In cross-examination, Ms. Wolfe testified that the BSB determines who can become a barrister in the United Kingdom, and not having a 2:2 degree is a barrier. She testified that, although someone can become a barrister with less than a 2:2 degree, the BSB’s policy states that the discretion will only be exercised rarely. With respect to the discretion of the SRA, Ms. Wolfe testified that she knows that they can make an exception and deem someone to have passed a QLD if they have not passed all of the core subjects, and the NCA takes that into consideration.
109With respect to the applicant’s appeal, received by the NCA on February 16, 2012, Ms. Wolfe testified that it would have gone to the appeal clerk, who would have put the file together and provided it to Ms. Wolfe so that she could look at it to see if she made a mistake, as in every case. She did not find anything in the applicant’s case. The appeal then went to the next panel on April 30, 2012, and Ms. Wolfe prepared a Managing Director’s memo, laying out background information, her assessment decision, and the rationale for the decision. She also summarized what the applicant was appealing, and his grounds of appeal, and provided comments on the grounds.
110The applicant identified four grounds in his appeal: 1) he suffers from significant cognitive difficulty in exam-type settings due to extensive radiation and chemotherapy for a very aggressive childhood cancer; 2) his mother passed away tragically in October 2009 and it had a major effect on him mentally during his final year; 3) during his final year he had a large tumor growing out of his spinal cord which caused him intense pain at times; and 4) the FLSC’s policy states that he needed a QLD, yet he knows many students from Cardiff without QLDs who were allowed to write NCA exams.
111In her Managing Director’s memo, with respect to the applicant’s first three grounds of appeal, Ms. Wolfe commented that the applicant describes the challenges he encountered prior to and during his studies in Wales, and that personal circumstances were not considered in the evaluation of his file. With respect to his fourth ground of appeal, Ms. Wolfe commented that the NCA requires that law degrees from England and Wales be both accredited and a QLD. In cross-examination, Ms. Wolfe testified that, based on the applicant’s transcript, he took the required courses for a QLD, but a 2:2 is still required.
112As a supporting document to his appeal, the applicant attached the letter signed by Ms. Cano and Dr. Simpson recommending that he be provided with computer access for exams. Ms. Wolfe testified that she considered the letter at the time she made her comments, but the NCA does not consider personal circumstances, because they do not substitute their opinions for the opinions of a law school. She also testified that any accommodation a law school chooses to grant to a student is based on the information they have at the time, and their policies, and the NCA sees that as an internal matter. Ms. Wolfe testified that the letter signed by Ms. Cano and Dr. Simpson would have been relevant for any accommodation the NCA would have offered during exams.
113The applicant also attached to his appeal a letter of recommendation received from a lawyer he worked for as a summer student. Ms. Wolfe testified that NCA policy states that legal experience, in order to be considered in an NCA assessment, must be obtained as a licensed lawyer in a common law jurisdiction, so the letter is not applicable, but she did look at it.
114The applicant also attached medical documentation, including a letter from his doctor. The letter stated, in part, that his doctor believed that, prior to the removal of a tumour, the applicant had a significant pain problem that might have affected his academic performance. Again, Ms. Wolfe testified that she looked at the letter, but it would not have been relevant because it goes to personal circumstances – health issues being a personal circumstance – and she does not take them into consideration in her assessment.
115In cross-examination, Ms. Wolfe was asked about the NCA’s policy not making reference to personal circumstances. She testified that it is her understanding that she has no discretion to consider personal circumstances. She also agreed that she has no discretion to consider work in the legal field, other than as a licensed lawyer.
116Ms. Wolfe explained that the applicant would have been given an opportunity to provide a response to her memo, and then the appeal package would have been put together. She explained that the composition of the NCA Appeal Panel changes, but three members are assigned to each Panel, including one of the law school dean members. Ms. Wolfe testified that she had no involvement in the Panel’s deliberation or decision-making.
117Ms. Wolfe testified that if a student qualifies for NCA challenge exams, the NCA provides accommodation within their ability, and people can request accommodation. She explained that, typically, if a law school has provided accommodations, the NCA will mirror those accommodations as closely as possible, and the NCA works diligently to provide accommodations that are requested and justified. If there is no justification, something from a doctor is required.
118Ms. Wolfe testified that she has no knowledge if the NCA’s academic performance policy was developed with accommodation in mind, and that it is a long-standing policy. She agreed that it is designed to ensure students have sufficient grounding in basic concepts.
119With respect to candidates diagnosed with a learning disability during or after a law degree, Ms. Wolfe could only recall one candidate who was diagnosed with a learning disability after obtaining a law degree. She testified that the application was also refused because of poor academic performance, and no compensating factors of experience as a practicing or licensed lawyer, or additional legal education.
ANALYSIS AND DECISION
Relevant Code Provisions
120Sections 6, 9 and 11 of the Code state as follows:
Every person has a right to equal treatment with respect to membership in a vocational association, without discrimination because of… disability.
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
11.(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.
(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
121In s. 10(1) of the Code, “disability” is defined, in part, as follows:
(b) a condition of mental impairment or a developmental disability,
(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language, …
Does the applicant have a disability within the meaning of the Code?
122In his Application, the applicant refers to having a mental impairment and explains that he has cognitive difficulties as a result of extensive treatment he received for cancer as a child.
123At the hearing, the applicant referred to having a cognitive impairment. The Tribunal was also provided with a letter, signed by Ms. Cano and Dr. Simpson, which explains that extensive treatment the applicant underwent for cancer as a child can have associated side effects that include mild cognitive impairment or learning difficulties. The letter also explains that the applicant demonstrated difficulty with organization and sequencing of written and spoken communication which is exacerbated when time pressures are present.
124Ms. Cano also gave evidence about her assessment of the applicant and the cognitive difficulties he was experiencing. She confirmed in cross-examination that, when she met with the applicant in 2008, she concluded that he had a mild cognitive impairment.
125The applicant also testified that he experienced pain in his third year of law school because of a tumour in his back that was eventually removed. A letter provided to the Tribunal, signed by the applicant’s doctor, explained that, prior to the removal of the tumour, the applicant’s clinical state included progressive weakness in his leg and excruciating pain, and that he believed the applicant had a significant pain problem that might have affected his academic performance.
126At the hearing, the parties agreed that the applicant was diagnosed with a mild cognitive impairment, and that he was suffering from pain in his third year of law school. The applicant’s position was that pain is relevant because it affects the accommodation and the applicant’s ability to compensate for the cognitive impairment, although it is not a disability in and of itself.
127The respondent also did not dispute that the applicant’s cognitive difficulty was related to his cancer treatment, and that his cognitive impairment is a disability within the meaning of the Code.
128In the circumstances, I find that the applicant has a mild cognitive impairment that constitutes a disability within the meaning of the Code.
Has the applicant established a prima facie case of discrimination on the basis of disability?
The parties’ positions
129The applicant submits that a prima facie case of discrimination has been made out based on the unchallenged evidence of the applicant and Ms. Cano.
130More particularly, the applicant submits that he was diagnosed with a cognitive impairment. His disability was essentially revealed in law school, as a result of having to write 100% essay exams, which are particularly difficult.
131Ms. Cano testified that there is a learning curve with adjusting to a disability. The applicant submits that he was still learning to cope with his disability after his second year of law school. In addition, the death of his mother, the pain he experienced in his third year of law school, which affected his sleep, and the medication he took for pain, would have negatively impacted on his ability to compensate for his disability in his third year.
132The applicant submits that he had a good understanding of the material going into his law school exams, but the exam results did not line up with his understanding and his performance on assignments. He also submits that the computer, and the space in which he wrote his exams, were not sufficient accommodation.
133In the circumstances, he did pass all of his third year exams, after making changes to the way he took notes and studied, and studying further in advance. The applicant submits, however, that his disability caused him to obtain grades from Cardiff that were below the lower second class threshold set by the NCA in its academic performance policy. He argues that the NCA’s policy, therefore, had a discriminatory impact, or effect, on him.
134The applicant submits that his case is a close parallel to British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868 (“Grismer”). See also British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”).
135In Grismer, the claimant’s driver’s licence was cancelled as a result of a medical condition affecting his peripheral vision. The standard in question required a minimum of a 120 degree field of vision, and while exceptions to that standard were permitted in other cases, individuals with the claimant’s particular medical condition always have less than a 120 degree field of vision, and were never permitted to drive in British Columbia. In that case, it was held that the claimant established a prima facie case of discrimination by showing that he was denied a licence that was available to others, and that the denial was made on the basis of a disability. The Court went on to hold that the claimant was entitled to an individual assessment.
136The respondent, on the other hand, submits that the applicant was not subjected to discrimination, including adverse effect discrimination, because of disability. The respondent states that, to establish a prima facie case of discrimination, the applicant has to demonstrate that a requirement, in this instance the NCA’s policy, had an adverse effect on him because of disability. Although the respondent does not challenge that the applicant has a disability, it submits that he has not demonstrated that his failure to obtain a 2:2 degree, or higher, was because of a disability.
137The respondent submits that the applicant’s disability was diagnosed before he took any courses or exams that affected his academic standing, and that he consulted an expert, Ms. Cano, who explained that his disability would be accommodated if he was permitted to write his exams with a computer. The respondent argues that, because the applicant’s disability was accommodated in the way he asked, he cannot now submit that not meeting the academic standing required under the NCA’s policy was because of his disability. The respondent submits that any adverse effect, or negative consequence, is not tied to the applicant’s disability.
138The respondent referred to the Tribunal’s decision in A.J.J. v. Toronto District School Board, 2013 HRTO 1189, which noted that it is a well-established principle that accommodation is a collaborative process, citing other cases, including Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 at paras. 43-44. The respondent submits that the applicant was accommodated by Cardiff, and, although the applicant says that his failure to obtain a 2:2 degree was because of his disability, his disability was dealt with by that point.
139The respondent also referred to a decision of the Health Professions Appeal and Review Board, Caliao v. College of Nurses of Ontario, 2011 CanLII 90733, concerning a regulatory requirement that an applicant for registration as a nurse pass a national exam in three attempts. The applicant in that case was unsuccessful in all of her eligible writings of the exam. Following her third failure to pass the exam, the applicant raised accommodation needs in relation to her first exam attempt. Applying provisions of the Code, the Board determined that the applicant was aware of her circumstances prior to attempting the exam, and if she was of the view that she required accommodation, it was her responsibility to communicate that to the College. The Board concluded that the applicant’s registration application was correctly refused.
140The respondent submits that, in the present case, the applicant knew about his disability, but was reluctant, or failed, to get full accommodation for law school exams that mattered. The respondent argues that Ms. Cano advised there were additional accommodations she thought would be helpful, such as extra time, but the applicant asked her not to put it in the letter seeking accommodation, and it was not asked of the law school. The respondent submits that, even after he failed exams in his second year, the applicant still asked that Ms. Cano only submit the same letter asking only for access to a computer. The respondent also submits that the applicant was aware of a support office, and never once sought help.
141The respondent submits that, even with a learning curve with being diagnosed with a disability, there is a duty to take some steps, and having failed to take any action beyond the accommodation that was granted, it is not appropriate for the applicant to now say his failure to get a 2:2 degree was because of disability.
142The respondent submits that the applicant has not made out a prima facie case of discrimination because either his disability was accommodated as requested, and he still failed to meet the requirement, or what he is now seeking is not accommodation for a disability, but for the adverse impact due to his resistance to seek help. The respondent submits that a prima facie case of discrimination has to be discrimination on a Code ground, and not on the basis that one chose not to seek help that was available and refused to do so on more than one occasion.
Findings with respect to a prima facie case of discrimination on the basis of disability
143The applicant has the onus of establishing that the respondent’s standard, as set out in the NCA’s policy, is prima facie discriminatory. Only then does the burden shift to the respondent to demonstrate that the standard is reasonable and bona fide in the circumstances. See Meiorin, supra, at paras. 69 and 70.
144While the applicant submits that this case closely parallels Grismer, in my view, the circumstances in the present case are quite different from those in Grismer. In Grismer, the claimant’s driver’s licence was cancelled by the Superintendent of Motor Vehicles on the ground that he no longer met the Superintendent’s standards for safe driving because of a medical condition affecting his peripheral vision. While exceptions were made to the peripheral vision standard in other cases, exceptions to the standard were not made for people with the claimant’s particular medical condition, and they were never permitted to drive. The claimant, therefore, clearly established a prima facie case of discrimination on the basis of his disability, and the Court ultimately held that he was entitled to an individual assessment, in light of the Superintendent’s goal of reasonable safety.
145In the present case, the applicant asserts that, because of his disability, he obtained grades from Cardiff that were below the lower second class threshold set by the NCA in their academic performance policy, and that the NCA’s policy, therefore, had a discriminatory impact on him. The applicant also asserts that this case is about the right to be assessed, and that the respondent should have accommodated him by providing a personal assessment to verify his competence and providing him with an opportunity to show that he can meet the standards underlying the respondent’s academic performance policy in an alternate way. He submits that he is not asking the respondent to waive its standards, but that he be given an opportunity to demonstrate his capabilities and show that he can meet the respondent’s standards in another way. He submits that the respondent could have accommodated him, without lowering its standards, by assessing him, without applying the policy. However, with respect to remedy, the applicant seeks to be able to write the respondent’s challenge exams.
146As indicated above, however, an applicant must first establish a prima facie case of discrimination on a Code ground, before the analysis turns to whether a respondent has a reasonable and bona fide justification, which often includes an analysis of the duty to accommodate short of undue hardship. See Meiorin, at para. 54 and Grismer, at para. 23. With respect to the prima facie analysis in the present case, I also note that the circumstances of this case are also different from those in Grismer, and somewhat more complex, in that the applicant has already undergone considerable academic assessment by a third party, Cardiff, before being assessed by the respondent. The respondent has, in turn, relied on Cardiff’s assessment of the applicant in carrying out its task of determining if the applicant has met requirements that are equivalent to a graduate of a Canadian law school, having regard to the respondent’s academic performance standards. Indeed, much of the applicant’s evidence in this case concerns what transpired at Cardiff in Wales, and, in particular, the applicant’s performance on exams at Cardiff and the accommodations he did, or did not, receive at Cardiff.
147With respect to establishing a prima facie case, the Court of Appeal noted in Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 74, that the test for establishing discrimination under the Code is consistently expressed in the jurisprudence as requiring a distinction based on a prohibited ground that creates a disadvantage. The Court of Appeal explained that, in most instances in the human rights context, it will be evident that a prima facie case of discrimination has been established based solely on the claimant’s evidence showing a distinction based on a prohibited ground that creates a disadvantage (at para. 90). See also Keith v. College of Physicians and Surgeons of Ontario, 2013 HRTO 1646 at para. 51.
148The Court of Appeal in Tranchemontagne, at para. 75, also referred to the Supreme Court of Canada’s decision in Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, wherein McIntyre J. described discrimination, in the case of adverse effect discrimination, in employment, as follows, at p. 551:
It arises where an employer… adopts a rule or standard… which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force.
149More recently, in Moore v. British Columbia (Education), 2012 SCC 61 at para. 33, the Supreme Court of Canada held that, to demonstrate prima facie discrimination, complainants must show that: they have a characteristic protected from discrimination; they have experienced an adverse impact with respect to the service; and, the protected characteristic was a factor in the adverse impact.
150There is no dispute that the applicant in the present case has a disability within the meaning of the Code, and that he has been disadvantaged in not having his law degree recognized by the respondent. However, for the reasons that follow, I do not find that the applicant has established on a balance of probabilities that his disability was a factor in any adverse impact he experienced in relation to the respondent’s academic performance policy.
151To begin with, there is insufficient evidence before me showing that the NCA’s academic performance policy, requiring above a third class standing from a U.K. law school, has a disproportionately negative effect on persons with disabilities, such as the applicant, as a group. See Meiorin, supra, at paras. 11, 13 and 69. In this case, the focus of Ms. Cano’s evidence was particular to the applicant. She gave evidence concerning the applicant’s disability, and explained why a “full credit essay exam” would pose a particular problem for him. She also testified, however, as to what accommodations, in her opinion, would have assisted the applicant while writing exams at Cardiff, in light of his disability. There was no suggestion in her evidence that persons with disabilities such as the applicant’s, who were accommodated in exam writing, could not perform well enough on exams at Cardiff, in order to ultimately meet the NCA’s academic performance standard. The applicant also testified that he thought, without the pain in his third year of law school, he probably would have received good enough marks. In the circumstances, I am not able to conclude, based on the evidence before me, that the NCA’s academic performance policy has a disproportionately negative impact on persons with mild cognitive impairments, such as the applicant, as a group.
152With respect to the applicant’s particular circumstances, he failed three of his four final exams in his first year of law school at Cardiff. He had not previously been identified as having any learning disability, and, at that point, he asked Ms. Cano to assess him. He was assessed by Ms. Cano in the summer of 2008, but he re-wrote and passed the first year exams that he failed, prior to any accommodations being in place.
153The applicant testified that in his second year at Cardiff, he requested the accommodation Ms. Cano recommended. He thereafter wrote his exams on a computer and in a room that was quiet.
154The applicant explained in his evidence that, in his second year, he tried studying a good month earlier than he had done the year before, but he still had not really “figured it out” at that point. He put more time into it, but it was before Ms. Cano showed him a “skeleton” way of mapping out answers. The applicant testified that he wrote his exams on a computer, in a room that was quiet. He did not pass his employment and land law courses, which had 100% final exams. He rewrote those two exams in August 2009, and he passed land law but failed employment law again. As a result of failing employment law a second time, the applicant had to “sit out” the following year.
155The applicant rewrote the employment law exam during the next opportunity to do so in May 2010, and he passed the exam. He explained that he studied for three whole months, as he was pretty sure that if he did not pass the exam that would have been “it” for him at Cardiff.
156The applicant testified that for his third year exams, he went “completely over the top” with time, and started studying long before they had even finished their last few topics in lectures. He also researched a “skeleton” way of writing notes that Ms. Cano had told him about, and adjusted the time during the day that he studied based on some reading he did about study times and when to study. He went into his third year knowing in advance that he would study two or three months early, and he did research online and put some time into learning about cognitive disabilities. The applicant passed all of his third year exams, and graduated with third class standing based on his second and third year results.
157Based on the evidence, it appears that only the applicant’s grades in his second and third years at law school counted towards his final standing. Despite having the accommodations in place that he requested at Cardiff, in light of his disability, the applicant did not attain above a third class standing in his second and third years. While the applicant passed all of his third year exams on his first attempt, and performed better on average in his third year, based on the documentary evidence, it appears that only one of four grades he received in his third year was above 50%, and his grade average in his third year was below 50%.
158In light of the accommodations the applicant requested and received during law school, and the considerable efforts he explained he made to adjust his study habits in light of his disability-related needs, I am not able to determine that the standing the applicant received at Cardiff was attributable to his disability. I am not able to determine, therefore, that the respondent’s academic performance policy disadvantaged the applicant because of his disability.
159I also note that the applicant submits that he had to go through a “learning curve” in his second and third years of law school and accept his disability and experiment with different forms of accommodation. Ms. Cano testified that there is a learning curve to people accepting their disability and moving on to accommodation, and that the applicant was “not all the way there” in terms of his acceptance in his third year of law school. She also testified that when she met with the applicant after his second year of law school, he appeared more accepting of his disability.
160More particularly, Ms. Cano testified that when she met with the applicant after his first year of law school, having difficulties was a surprise to the applicant, and difficult for him to accept. She testified that he had a bit of a negative perception of needing accommodation for himself. She also testified that, while the letter signed by her and Dr. Simpson only recommended that the applicant be provided with computer access to complete exams, Ms. Cano had wanted a quiet environment and extended time as well, and that was her initial recommendation. She explained that, in light of what the applicant was willing to accept, they came to a compromise. She explained that the letter she wrote for the applicant reflected what he needed and what he was willing to accept.
161Ms. Cano testified that the resistance she felt from the applicant in terms of asking for accommodation struck her as something that might slow him down a bit. If he was not willing to ask for accommodation, and she had to do more convincing for him to ask, then it would probably take longer to put those things in place. She testified that she thought that the applicant was equating having to ask for accommodation as either being a weakness, “fudging” the system, or perhaps getting an unfair advantage, so it took her a little while to let him know this happens lots, and lots of folks out there deserve accommodation and get it, and it was worth asking for as it may correct the “speed bump” he was running into.
162Ms. Cano testified that she knew that the applicant failed two exams in his second year and that told her that they needed to go back and look at other strategies for accommodation. She again asked the applicant about space and time. They also discussed strategies once again, including the “skeleton” approach to exam questions and sequencing. She testified that some further accommodation may have been necessary, around time and space, but she did not write a further letter to Cardiff, and only filled out a form required by Cardiff that suggested only the accommodation that the applicant was willing to accept at point. She agreed that she recommended further accommodations but the applicant was only willing to accept the same accommodations as before. At the time, it was her opinion that some further accommodations would have been helpful.
163The applicant explained that, with respect to “space, tools and time”, he had two of those things because he wrote exams on a computer in a small area with maybe four or five people and it was quiet. He explained that he did not ask for more time simply because he did not think that time was the issue. He explained that getting the information out in sequence was the problem, and he felt that being good at typing more than made up for that. He also felt that he did not want to take too much time, and that whether it be called an “unfair advantage” or something like that, he did not think it was required, and he does not think time was an issue.
164In cross-examination, the applicant testified that he did not speak with anyone at Cardiff about what accommodations would be available, but just submitted the “paperwork”. He also testified that there is a support centre at Cardiff, but he did not meet with anyone from the support centre. He agreed that Ms. Cano’s letter concerning his accommodation only asked for a computer, but testified that he also got the space with the computer. He confirmed that, after second year, he did not ask Ms. Cano to recommend any other accommodations, because a quiet room was included with the computer and he did not ask for extra time.
165I appreciate that it may take time to adjust to a disability and figure out what accommodations work. However, the applicant was in law school. He was assessed by Ms. Cano prior to his second and third years, which were the years that counted towards his academic standing in law school. He also had a year off between his second and third years of law school, and rewrote exams in August 2009 and May 2010. Cardiff provided him with the accommodation he requested for his second and third year exams. As set out above, based on the applicant’s own evidence, it appears that he made considerable efforts to adjust his study habits in light of his disability. He testified that, although he was adjusting and it took a while to come to “grips” with his disability, he thought that he gained a whole lot of insight and learned a lot about his disability. Ms. Cano also testified that she discussed strategies for exam writing with the applicant. Despite the accommodation provided by Cardiff, the applicant’s efforts to adjust his study habits, and discussing exam writing strategies with Ms. Cano, the applicant still did not attain a 50% average in this final year of law school. Again, in all of the circumstances, I am not able to determine that the applicant’s standing at Cardiff was attributable to his disability, and that the respondent’s academic performance policy therefore disadvantaged the applicant because of his disability.
166It is also clear from the evidence of both the applicant and Ms. Cano that the applicant did not want to ask to be accommodated with extra time for writing exams. Although Ms. Cano recommended that the applicant ask for extra time prior to his second year of law school, the applicant testified that he did not, and does not, think that time was an issue. Ms. Cano also testified that she raised the issue of extra time with the applicant after he had failed two of his four exams in his second year. It also appears that this was after he had failed his rewrite of his employment law exam. Despite Ms. Cano’s recommendation, the applicant proceeded to third year only asking for the same accommodation that was previously in place.
167In my view, it is speculative if the applicant would have achieved above third class standing had he asked for and received extra time during exam writing as an accommodation. The applicant was provided with the accommodations he asked for and he testified that he did not, and does not, think that time was an issue. While Ms. Cano testified as to what accommodations she recommended for the applicant, she did not comment on his ability to achieve above a third class standing, with or without accommodations. In my view, however, it was also not reasonable for the applicant not to request the further accommodation of extra time for writing exams that Ms. Cano was clearly recommending, in the circumstances, particularly after the applicant failed two of four exams in second year and his first rewrite of employment law. I find that, to the extent the failure to request extra time for exam writing may have impacted on the applicant’s standing at all, this is attributable to the applicant’s failure to request extra time when it was clearly recommended, and not the applicant’s disability.
168With respect to the applicant’s assertion that other factors, such as pain, impacted on his ability to compensate for his disability in his third year, the applicant could have asked Cardiff for any accommodations that were appropriate in the circumstances, but he did not do so.
169In all of the circumstances of this case, I do not find that the applicant has established, on a balance of probabilities, that the academic standing he received in law school was because of his disability. I do not find, therefore, that the applicant has established that he has been disadvantaged by the respondent’s academic performance policy on the basis of his disability, or that his disability was a factor in any adverse impact he experienced in relation to the respondent’s policy.
170I find that the applicant has not established a prima facie case of discrimination. Having found that the applicant has not established a prima facie case, I need not address whether the respondent can demonstrate that its academic performance standard is reasonable and bona fide in the circumstances.
171The Application is dismissed.
Dated at Toronto, this 25th day of September, 2014.
“Signed by”
Brian Eyolfson
Vice-chair