Cohen v. Law School Admission Council, 2014 HRTO 537

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Cohen Applicant

-and-

Law School Admission Council Respondent

DECISION

Adjudicator: Ruth Carey Date: April 14, 2014 Citation: 2014 HRTO 537 Indexed as: Cohen v. Law School Admission Council

APPEARANCES

David Cohen, Applicant Self-represented

Law School Admission Council, Respondent Michael Torrance, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services and facilities because of disability. It is about the administration of the Law School Admissions Test (“LSAT”), the applicant’s request that he be permitted to write the test under non-standard conditions because of his disability-related needs, and what happened when he wrote the test without accommodations.

2This Application was heard in Toronto on October 2, October 3, 2013, and January 16, 2014. The applicant testified as did his witness, Dr. Umesh Jain. Dr. Kim Dempsey testified on behalf of the respondent.

The Expert Witness Issue

3Both Dr. Jain and Dr. Dempsey were proffered as expert witnesses.

4There is really no dispute that Dr. Jain is an expert with respect to diagnosing and treating attention deficit hyperactivity disorder (“ADHD”); but he is the first to acknowledge he is not an expert with respect to standardized testing or designing accommodations in the context of standardized testing. He also has a Master’s in Education and considerable expertise and experience advocating for his patients with schools to ensure they offer an optimal learning environment. As a result I permitted Dr. Jain to give opinion evidence within his areas of expertise; namely, with respect to diagnosing, and treating patients with ADHD, and with respect to what his patients with ADHD need for an optimal learning environment.

5With respect to Dr. Dempsey, the respondent requested that she be qualified as an expert witness with respect to granting accommodations in the context of standardized testing. The applicant objected on the basis that the respondent had failed to comply with the Tribunal’s Rules of Procedure concerning expert witnesses. Rule 17.3 says when a party proposes calling an expert witness they are required to give the opposing party and the Tribunal a written report, or a full summary of the expert’s proposed evidence, and the expert’s curriculum vitae no later than 45 days prior to the hearing. There is no dispute the respondent did not comply with the Rule.

6Rule 17.3 serves an important purpose as expert witnesses are entitled to give opinion evidence. Unless the opposing party knows what the witness’s credentials are prior to the hearing, they are not in a position to challenge their expertise. Without the expert’s report they are unable to identify the basis for the expert’s opinions and properly prepare a challenge to the opinion evidence offered.

7Because of the respondent’s non-compliance with the Rule I reserved my decision with respect to whether or not Dr. Dempsey would be accepted as an expert witness qualified to give opinion evidence. At the end of her testimony in chief it was evident to me that it was unnecessary to do so as the entirety of the evidence the respondent sought to lead through her was direct evidence. She is the Manager of the respondent’s Accommodated Testing department and has personal knowledge of its practices, the reasons for those practices, and the applicant’s file. As a result I declined to declare her an expert witness entitled to give opinion evidence.

FINDINGS OF FACT

8The applicant was diagnosed with ADHD at the age of 3 when he and his family were living in South Africa. The primary symptoms associated with ADHD are distractibility and impulsivity. He has been identified as having the combined subtype of ADHD which means he exhibits at least 6 out of 9 symptoms associated with distractibility and at least 6 out of 9 symptoms associated with impulsivity.

9The applicant was prescribed Ritalin from the age of 3 to 13, which is when his family moved to Canada. According to a letter from his doctor at the time, in South Africa he attended a special school for children with learning problems for grades 4 through 6. The applicant dropped out of high school sometime after he turned 16. As an adult he returned to school taking courses at both the university and college levels but either dropped out or was asked to leave prior to completing his course of studies. He is currently a student enrolled in a paralegal program.

10The applicant says that throughout his education in both South Africa and Canada he has requested and received accommodations for his ADHD from all of the educational institutions he has attended. According to his application for accommodation to the respondent:

All the accommodations that I have received has been in the area of extra time so that I was able to compete on the level with other peers, so that I would have enough time to absorb the information.

11At some point in time the applicant decided he wanted to pursue a career in law so on December 7, 2009, he wrote the Law School Admissions Test (“LSAT”). The LSAT is a standardised test designed to identify individuals who are likely to succeed in first year law school. Not all law schools require applicants to take the LSAT but most do. The LSAT is administered by the respondent, a non-profit corporation located in the United States.

12Prior to taking the LSAT in December, 2009, the applicant invested time and money in preparing for it. He took time off work, participated in a preparation course, and hired a tutor. With his tutor the applicant did timed sample tests that led him to believe he was capable of scoring well on the LSAT.

13The applicant did not request any form of accommodation from the respondent for the December 7, 2009 test.

14On the day of the test the applicant attended with his sister. They chose the seats they wanted. During the third segment of the exam a disturbance broke out next door in a dentist’s office; a woman started yelling. The applicant says the disturbance was exacerbated by the proctor and location manager, who talked between themselves and entered and exited the room. He further states that the disturbances substantially impacted his ability to concentrate on the test and contributed to his low score. The applicant scored in the 11th percentile; based on his sample tests with his tutor he believes he is capable of scoring in the 80th or better percentile range.

15Because of the disturbance in the exam room on December 7, 2009, the applicant asked for a refund from the respondent for the fee he had paid to take the test. The respondent granted that request and refunded the applicant’s fee. The applicant also immediately signed up to take the exam again and decided that this time he was going to request accommodation for his disability.

The Accommodation Request

16The respondent offers the LSAT four times a year. Its busiest sitting is in the fall when maybe 40,000 people around the world take the test. Dr. Dempsey estimates the respondent receives about 1,600 to 2,000 requests for accommodation every year. More than half of the people who ask for it receive some form of accommodation.

17In order to request accommodation in the testing process, an applicant must first be registered to take the LSAT. For each sitting of the exam there is a deadline for applying for accommodation. Because people are allowed to register late for the LSAT, there is a second deadline for applying for accommodation that is only applicable to the group of people who register late for the sitting. These deadlines are posted on the respondent’s web site; they are strictly observed and non-negotiable. No documents received after the deadline for a specific sitting will be considered for that sitting, although they will be considered for future tests if the person is registered for the future sitting.

18The respondent’s witness, Dr. Dempsey, says the strict time lines associated with applications for accommodated testing are related to the number of applications received and the work associated with processing them and then implementing accommodations. After a decision is made to grant an accommodation, the respondent has to make arrangements to implement those accommodations and communicate them to the site manager overseeing the local test centre. Sometimes this means identifying alternative testing sites or conducting the test on a different date than the one the test taker registered for.

19The applicant wanted to write the LSAT for a second time at the sitting scheduled to be held on February 8, 2010. For that sitting the deadline for applying for accommodation was January 5, 2010.

20Because of the volume of tests administered and accommodation requests received, the respondent has developed detailed instructions and guidelines explaining what applicants must do to request accommodation. These materials, along with the forms to apply, are available on the respondent’s web site in both accessible and non-accessible formats.

21The amount of information applicants are asked for is substantial. Each applicant must complete a four-page long candidate form and produce a complete record of all standardised tests taken previously. Where an applicant has received accommodation for a standardised test in the past that must be verified by the prior testing body. Each applicant must also get an independent evaluator to complete an evaluator’s form and provide a current assessment of the applicant’s disability and its impact; the information the evaluator must provide varies depending on the nature of the disability.

22The respondent explains the reason why it requires detailed written information in a document entitled “Accommodated Testing Frequently Asked Questions” as follows:

The LSAT is a high-stakes test. In order to be fair to all test takers, we must ensure that our decisions are based on appropriate documentation that supports your legal right to accommodations. Because [the respondent] receives over 2,000 accommodation requests in a year, we must have a process that relies on written submission…

23In keeping with this reasoning, the respondent’s accommodated testing process includes strict rules about the application process and how accommodations are implemented once granted. For example, its document entitled “Steps to Follow When Requesting Accommodation” says in part:

Note: if the required documentation related to your condition is not received, your file will not be reviewed until LSAC is in receipt of the necessary information. For candidates who fail to register, or for requests for accommodations that are received after the deadline associated with your LSAT registration, your documentation will not be reviewed…

Unauthorized changes to approved accommodations or standard test conditions made by the testing supervisor or the candidate may result in the invalidation of your test score. [Emphasis in original.]

24With respect to disabilities like ADHD, the respondent’s accommodated testing package of materials incudes “Guidelines for Documentation of Cognitive Impairments” (the “Guideline”). This document is intended primarily for test takers’ evaluators, in order to explain to them what information the respondent requires. It says that the evaluator must have sufficient training and experience in working with adult populations; the evaluator is required to detail their academic credentials and qualifications. The evaluator must do a psycho-educational or neuropsychological assessment or both depending on the nature of the cognitive disability, and the assessment must have been conducted within the last three years as the respondent requires current information. The Guideline sets out what the respondent requires in terms of the content of an evaluator’s report including: a diagnostic interview; specific aptitude tests; specific achievement tests; information processing measures; personality testing where necessary to support a dual diagnosis or to untangle the impact of the learning impairment from other disorders; and the raw data from the tests administered. Relevant parts of the Guideline are discussed more fully below.

25After deciding to request accommodation from the respondent, the applicant set about finding a suitable evaluator that he could afford. The tests can be expensive and the applicant says that none of the people he contacted offered an evaluation that included all of the tests required by the respondent. He found a respected, qualified psychologist who was willing to complete the forms at a cost of $750 plus GST, but the tests available to her to administer did not include a comprehensive achievement battery normed on adults that was on the list of acceptable tests set out in the Guideline. In this respect the Guideline states in part:

A comprehensive achievement battery normed on adults, with all subtest, standard, or scaled scores and percentiles normed by age must be provided. The diagnostic battery needs to include current levels of academic functioning in reading (decoding and comprehension) and written language (spelling and written expression). Acceptable instruments include, but are not limited to, the Woodcock-Johnson Psychoeducational Battery III: Tests of Achievement (WJ-III) and the Wechsler Individual Achievement Test-III (fall 2009).

In addition, a timed reading comprehension measure, which has been normed on adults and which allows for both extended and regular administration, is required. At the present time, the reading skills assessed, and the format utilized, by the Nelson-Denny Reading Test (NDRT) form G or H most closely match those measured on the LSAT… It should be noted that the NDRT cannot serve as a substitute for a comprehensive diagnostic comprehension measure and should not be utilized for that purpose.

Please be aware that the Wide Range Achievement Test-4 (WRAT-4) is also not a comprehensive measure of achievement and, therefore, is not acceptable if used as the sole measure of achievement. [Emphasis in original.]

26For the purposes of this Decision the psychologist who the applicant retained to be his evaluator is referred to as Dr. T. She met with him to conduct the assessment on December 14, 20, and 30, 2009. Her report is based in part on a number of tests she administered on those dates but she did not administer either the Woodcock-Johnson Psychoeducational Battery III: Tests of Achievement (WJ-III) (“WJ-III”) or the Wechsler Individual Achievement Test-III (fall 2009). The witnesses who testified at the hearing agree that the tests she did administer do not include a comprehensive achievement battery.

27During the same period the applicant was undergoing testing with Dr. T, he was looking for another evaluator who could perform the test she could not, namely, a comprehensive achievement battery normed on adults from the list of acceptable tests set out in the Guideline.

28The respondent filed into evidence an e-mail copied to the applicant dated December 21, 2009, from another evaluator who is referred to in this decision as Dr. L. The e-mail is addressed to Dr. L’s assistant and instructs her to contact the applicant to schedule an appointment for “WJ achievement testing, standard battery only, and no cognitive testing needed.” This is a reference to the WJ-III. The cost of the test was to be $200. The e-mail indicates that Dr. L was about to go on vacation, so presumably the testing was to be scheduled after his return. In the end the applicant did not do the achievement battery with Dr. L and submitted his application for accommodation to the respondent without it.

29On January 4, 2010, the applicant says he faxed his 33-page application for accommodated testing to the respondent. The respondent received it but not until January 5, 2010, the deadline for applying for accommodations for the February 8, 2010 sitting of the test. Nothing in this Decision rests on this discrepancy.

30The applicant’s request for accommodation included: a covering letter; the candidate form; the evaluator form; Dr. T’s narrative report; the raw data from the tests administered by Dr. T; the applicant’s transcript from Ryerson University; a letter dated October 20, 2009, from the applicant’s childhood doctor in South Africa; and a letter of support from the applicant’s tutor.

31In his covering letter the applicant says:

I am requesting to receive an accommodation of extra time of 25 minutes per section of exam, also I would like to request an extra ten minutes for the break. My request is to ensure that I have enough time to properly focus, adsorb and process the material provided by in the LSAT.

I am also requesting that I receive a quiet room, a room where no one else will be there to distract me and I would like to please be able to use ear plugs, this is probably the most important request with the extra time… With ear plugs and extra time I can focus solely on the exam.

32The evaluator’s narrative report and form support these requests. She writes:

Extra time on LSAT examinations is an appropriate accommodation for [the applicant] because he will process things differently due to his having Attention-Deficit/Hyperactivity Disorder. The extra time will allow a fairer estimate of his true abilities. Although about 1/3 extra time allowed him to finish the Nelson-Denny, given the extra stress and the more complex material to be read on the LSAT, it would be prudent to allow even more extra time and I recommend an extra 25 minutes because his reading rate of 164 wpm is quite slow. A fast reader would be reading almost twice as quickly as [the applicant], but he does not feel he needs twice as much and a session longer than 1 hour might become counter-productive because he could become restless. The extra 25 minutes on the 35 minute test will make his testing time 1 hour.

Even more important than extra time (though that is definitely appropriate) is the provision of writing in a quiet room without distractions and with earplugs allowed. Though he has developed techniques over the years to compensate for many aspects of his ADHD, the distraction of noise when he is trying to concentrate has an extremely deleterious effect on his functioning…

In addition, then, to the quiet room, permission to insert ear plugs, and extended time, it will be important for the proctor to know of [the applicant’s] ADHD and concomitant distractibility so that they remain quiet during the test period.

33On January 11, 2010, the respondent wrote to the applicant acknowledging receipt of his request for accommodations. Its letter states in part:

Based on a preliminary screening of your file, it appears that you have not provided all of the documentation required in order to process your request.

Since the receipt deadline for this administration of the LSAT has passed, no further consideration will be given to your request and you remain registered to test under standard conditions. If you choose to pursue your request for accommodations, you will need to register for a future administration of the LSAT and submit the following documentation by the appropriate deadline:

• Results and summary from (sic) with the Woodcock-Johnson-III: Tests of Achievement or the Wechsler Individual Achievement Tests-II (WIAT-II)

• High school transcripts to include standardized testing

• Copies of past psychoeducational evaluation reports/ADHD diagnostic reports for historical information.

34The same day this letter was sent to the applicant, he responded by e-mail to the respondent. His e-mail states in part:

I had a feeling that your organization would discriminate against me, I have no choice but to report you and your company to the Ontario human rights tribunal and forward that application to all the schools that I have applied for.

Your organization is notorious for denying bona fide request by bona fide disable people.

I have given you enough documentation including a letter from my physician in South Africa form over 20 years ago to provide me with accommodation.

You are asking for documentation that is not available to me, another form of stonewalling.

I will see you in court.

35The respondent wrote back asking the applicant to have his lawyer send a letter of representation to the respondent’s lawyer if he is represented by counsel. The applicant replied shortly thereafter:

I will have my attorney send you a plaintiffs claim, you can talk to the judge, I have instructed council (sic) not to waste a penny on speaking to you, we will see you in court[.]

36The next day the applicant wrote to the respondent again. His letter does not refer to any of the proposed legal action against the respondent but rather is a request that the respondent reconsider its decision. In his letter he argues that two out of the three things being requested by the respondent do not exist or are unavailable to the applicant because of the passage of time. With respect to the missing comprehensive achievement battery he writes:

As for the Woodcock Johnston exam, there is no one doctor that tests with all these specific exams that you require, however, I did find a physician who is an ADHD specialist with over 30 years experience in documenting ADHD…

She did all the testing you required except the woodcock Johnston as she did not have this exam, however she also conducted several more tests for your convenience, which all show that I require extra time on the LSAT.

I have provided you with more then enough evidence…

37The letter then goes on to ask that the respondent at least provide a quiet room and the right to wear earplugs; and then it asks for those two things as alternatives for each other.

38On January 14, 2010, the respondent sent an e-mail in response saying it would take no further action with respect to the applicant’s request for accommodation as the deadline had passed. This is consistent with the respondent’s stated policy on its web site; namely, that applicants can request reconsideration of the respondent’s decisions with respect to accommodations but any reconsideration request must be made by the same deadline for requesting accommodation associated with the sitting the applicant is registered for. This is presumably one of the reasons why the respondent’s web site cautions people to apply well in advance of any deadline for accommodation. The respondent’s e-mail also says if the applicant signs up for a future sitting and submits the missing information, his request for accommodations would be reviewed.

39The applicant says that after this he went to see a psychiatrist to start on medication designed to help him focus. The applicant’s testimony with respect to the medication is contradicted by Dr. T’s narrative report which indicates that:

Adderall, Wellbutrin and Strattera have all been tried in the last four months… He stopped Strattera on December 7 after he completed his LSAT examination. He feels that being on Strattera perhaps helped him sit through the exam.

40The applicant says that between January 11, 2010, and February 8, 2010, he was prescribed Wellbutrin, then Adderall, and then Strattera. He says the Strattera made him anxious, angry, and snappy; it gave him a “rushy” feeling and put him in a disposition to lose patience quickly. The applicant did not contradict Dr. T’s report, so it is possible that the applicant was taking the same medication during both of his sittings of the LSAT.

41Chronologically it would appear that the next thing that happened is that the applicant got back in touch with Dr. L to do the comprehensive achievement battery required by the respondent. The materials filed into evidence include an e-mail from the applicant to Dr. L dated February 5, 2010, in which he identifies the WJ-III as the test he needs.

42On February 8, 2010, Dr. L followed up with the applicant by e-mail. His e-mail quotes the respondent’s Guideline set out above and then says:

I am assuming with respect to the WJ-III, we need to test Achievement (which appears to be compulsory), and not Aptitude (which appears to be optional). Please bring a cheque for $200 made out to…. As discussed earlier, this would cover the “standard battery” only. The “extended battery” would cost $400, but from their description, I don’t think that is required. You might want to check this out with the LSAT people.

The Events of February 8, 2010

43On the same day this e-mail was sent to the applicant, the applicant attended a test centre to take the LSAT a second time without accommodation. The parties’ version of events of that day differ somewhat but they do agree that it was a disaster; the applicant’s behaviour was such that he was asked to leave and he was not allowed to finish taking the test.

44According to the applicant, when he and his sister arrived to write the LSAT for the second time on February 8, 2010, the same proctor from the previous sitting was present. The location was the same as for the test on December 7, 2009, but the rooms being used were in a different part of the building away from the source of the noise that had disturbed the applicant previously. They mentioned this change in a laughing manner to the test site manager who told them the respondent changed the layout because of the applicant’s noise complaint.

45The applicant’s sister entered the test room first and saw the same proctor from the previous test. According to the applicant the proctor recognised her and said something to the effect of “oh it’s you again” before directing the applicant’s sister to another room.

46When the applicant entered the test room he noticed that the proctor was sitting at a table in the front row closest to the door. Because of the distractibility associated with the applicant’s disability, that is choice seating as there are no visual distractions in front and any noise from outside is reduced. So the applicant approached the proctor, explained he has ADHD, and asked her to give up her seat for him. She refused. The applicant did not take no for an answer but instead argued with the proctor about it until one of the other test takers told him to leave her alone.

47The applicant then approached the location manager and asked if he could use ear plugs. When the manager told him that was not permitted the applicant said something to the effect that there is no rule barring him from putting tissue paper in his ears. The manager acknowledged that was true so the applicant stuffed his ears with tissue paper. The applicant says this was a temporary fix that did not really work but it did reduce the sound levels.

48The LSAT consists of five sections. Each section must be completed within 35 minutes. One section is an unscored writing sample and one is an unscored experimental section that the respondent uses to produce research data.

49At some point during the second portion of the test the same test taker who told the applicant to leave the proctor alone put up his hand and called out to the proctor to get her attention. The proctor and this individual then spoke to one another. Without realising he was doing it the applicant started speaking out loud to himself. Apparently this is called sub-vocalisation and is an attention focussing technique commonly used by people with ADHD.

50Not surprisingly the proctor then approached the applicant about the noise he was making. The applicant replied “okay”. At that point the proctor warned him that if he continued to disturb others he would receive a written warning. The applicant says he told the proctor that he heard her the first time and waved her to go away which he believes angered her.

51During the break the proctor approached the applicant to give him a written warning. The applicant believes this written warning should not have been issued because the proctor had told him it would only be issued if she had to warn him a second time not to disturb others. In his own words, the applicant then flipped out.

52The applicant says he was yelling at the top of his lungs, threatening to sue the school and that he exchanged “choice words” with the proctor. During his submissions he stated he told her she was a “nasty little girl” filled with vengeance. The applicant says he then went to the coatroom to retrieve his cell phone with the intention of recording the proctor. He says he and the proctor then exchanged “more choice words” at which point the manager entered, confiscated the applicant’s cell phone, and instructed the applicant to accompany him. After that it became clear to the applicant he was not going to be permitted to continue writing the test so he asked for the return of his possessions and left.

53The respondent disputes some of the details provided by the applicant about what happened that day but this dispute is not material to the issues before the Tribunal; and as the respondent did not produce any witnesses to attest to an alternative version of what happened on February 8, 2010, I accept the applicant’s evidence in this regard.

Events Relevant to the June 7, 2010 Sitting of the LSAT

54The day after these events occurred at the testing centre, the applicant sent another e-mail to Dr. L. His e-mail asks Dr. L to confirm that the test Dr. L offers tests achievement, and if so says, “lets go for it”. Dr. L subsequently responds that he cannot guarantee which parts of the WJ-III the respondent requires, but believes it is the standard battery which includes sub-tests 1 through 7.

55At some point during this period the applicant registered for the next sitting of the LSAT to be held on June 7, 2010, at a different testing centre.

56On February 10, 2010, the applicant wrote to the respondent directing it to cancel his score from the February 8, 2010, sitting and to cease any further communication with any law schools or third parties about him. His letter states that the proctor and site manager committed “misconducts” on February 8, 2010, and it is evident he is being specifically targeted. He then provides the name and address of his lawyer and says:

Any request for further information must be in writing from your solicitor to my solicitor on his or her legal letter head.

57On February 16, 2010, the applicant sent an e-mail to the respondent asking it to clarify which parts of the WJ-III were required. His e-mail says he has already sent two previous e-mails requesting the same information but only one of these alleged prior e-mails was entered into evidence before me and it is dated February 15, 2010. At the bottom of the applicant’s February 16, 2010, e-mail he names his lawyer and indicates his e-mail is being copied to him.

58The respondent wrote back to the applicant the same day saying:

It appears you are represented by counsel; therefore, all communication must be through counsel.

59The applicant replied saying the respondent was blocking him from receiving the information he needed to pursue his accommodation requests. On February 17, 2010, the respondent sent an e-mail explaining again that if the applicant was represented by counsel, communication needed to go through counsel. It would appear that the applicant never told the respondent he was not actually represented by counsel.

60The applicant wrote back on February 17, 2010, saying the respondent should refund him his money for the June 7, 2010, sitting.

61The next day the applicant sent the respondent another e-mail saying he had cancelled an appointment with his doctor for the comprehensive achievement battery because the respondent “decided to play immature unprofessional games” with him. He writes:

At this point you can grant me accommodation for extra time on the LSAT based on the long standing history that I have provided you with plus the university documentation should you request it but I am not going to play games with this doctor because you decided to withhold pertinent information from me…

Give me the accommodation based on the info you have or refund me my money within the next five business days.

62On February 19, 2010, the respondent notified the applicant that it would not process the request for accommodation without the missing documentation and offered to refund to the applicant his registration fee for the June 7, 2010 sitting of the test if he signed a standard refund request form. The applicant submitted the refund request form and the respondent returned his registration fee to him.

The Misconduct Proceedings

63After the events of February 8, 2010, the proctor and the site manager reported to the respondent what had happened. That triggered a process internal to the respondent. On March 30, 2010, the applicant was notified that allegations of misconduct had been made against him.

64This is because the respondent has a detailed policy entitled “Rules Governing Misconduct and Irregularities in the Admission Process” (the “Misconduct Rules”). The Misconduct Rules define misconduct to include any violation of test centre regulations. They require the respondent to investigate allegations of misconduct.

65The respondent’s letter of March 30, 2010, informed the applicant he was entitled to request a hearing of the allegations. The applicant elected to participate and the hearing proceeded by way of teleconference. The hearing was presided over by the dean of one of the law schools that is a member of the respondent non-profit corporation.

66During the course of the hearing the applicant argued that the respondent had wrongfully denied him accommodation of his disability-related needs and was in breach of the Code. The presiding dean told him she was not in a position to make a decision as to whether or not he should have been granted accommodation; the purpose of the hearing was to determine whether or not he had committed misconduct on February 8, 2010. The applicant was invited to explain what had happened from his point of view and the presiding dean asked him a number of questions aimed at confirming he had received notification of the test centre rules.

67On July 23, 2010, the presiding dean released her decision. She made the following findings:

[The applicant] was in possession of his cell phone during the testing break, which is a violation of the LSAT test centre regulations. [The applicant] was given adequate warning and notice that an applicant is not to have their cell phone in the test center.

[The applicant] also violated the LSAT test centre regulations by causing a disturbance during a test section, then during a break. During the test, he was reading aloud. Although he assumed no one could hear him, his voice was a disturbance to other test takers. Then his loud and offensive behaviour in the hallway during the break also created a disturbance.

68Based on these findings the presiding dean found that the applicant had committed misconduct. This means that if the respondent were to transmit information about the applicant to any law schools in the future, the law schools would receive information about what happened and the finding of misconduct. Apparently the applicant appealed this decision internally and his appeal was dismissed but neither party filed any documents into evidence related to this appeal.

ANALYSIS

69There is no dispute between the parties that the testing service offered by the respondent is a service within the meaning of section 1 of the Code or that the applicant’s ADHD is a disability as defined in s. 10(1).

70Rather, the primary dispute between the parties involves whether or not the respondent breached the applicant’s right to access the LSAT without discrimination. The parties articulate this somewhat differently; namely, they describe the issue as being whether or not the respondent breached the substantive or procedural component of the duty to accommodate by failing to provide the applicant with the accommodations he requested.

71The applicant also alleges that the misconduct proceedings were in breach of the Code on the basis that if the respondent had granted the accommodations he believes he is entitled to, then the events of February 8, 2010, would not have occurred.

The Duty to Accommodate Issues

72The starting point in the analysis with respect to questions concerning the duty to accommodate is to identify the discriminatory conduct or impact complained of. The duty to accommodate arises in the context of discrimination, whether it occurs by differential treatment or adverse impact. In this Application what the applicant is alleging is adverse impact or constructive discrimination; namely, he alleges he had to write the LSAT under the same conditions as non-disabled test takers and that had a negative or adverse impact on him.

73Section 11 of the Code says:

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.

(3) The Tribunal or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship.

74The requirement or qualification that is in issue here is the respondent’s neutral requirement that all test takers of the LSAT take the test under the same conditions.

75In its submissions to the Tribunal at the hearing, the respondent did not argue that requiring the applicant to take the LSAT under the same conditions as other test takers does not adversely impact him or result in an exclusion, restriction or preference. The respondent’s only witness did not concede that the applicant needs a distraction-free environment or earplugs in order to compensate for the distractibility caused by the applicant’s ADHD, but neither did she deny it; and the applicant’s and Dr. Jain’s evidence indicates that is the case. Therefore, I accept that the normal testing environment the respondent imposes on LSAT test takers has a differential impact on the applicant because of the distractibility associated with his disability.

76The real issue here is with respect to s. 11(2). It requires the Tribunal to explore the question of whether or not the respondent could have accommodated the applicant up to the point of undue hardship. The Tribunal must do this in the context of determining whether or not the respondent’s testing procedure is reasonable and bona fide.

77As stated by the Tribunal in Fisher v. York University, 2011 HRTO 1229 at para. 42:

The duty to accommodate includes both procedural and substantive components. The procedural component requires that the respondent undertake a reasonable investigation to understand the applicant’s learning disability and needs for accommodation. The substantive component requires that the respondent provide reasonable accommodation or demonstrate that it is impossible to accommodate the applicant without undue hardship. The respondent is not obliged to provide perfect accommodation. The onus is on the respondent to demonstrate that, procedurally and substantively, it did what was reasonable in the circumstances to accommodate the applicant up to the point of undue hardship.

78So the first question here is: did the respondent undertake a reasonable investigation to understand the applicant’s needs for accommodation? The applicant essentially argues that it did not because:

• The respondent required information that either did not exist or could not be obtained;
• The respondent acted unreasonably in response to the applicant’s requests for clarification as to what documentation was needed;
• The respondent acted unreasonably in that it had sufficient information before it decided whether to grant some of the accommodations the applicant was asking for, if not all.

79The last of these points above is also relevant to the issue of the substantive component of the duty to accommodate because the applicant takes the position that:

• It would have caused no hardship for the respondent at all to grant him at least some of the accommodations requested; and
• It would have caused no hardship at all for the proctor to have given him her seat at the sitting on February 8, 2010, as the applicant had requested.

80The respondent essentially takes the position that it never made a decision with respect to the applicant’s request for accommodations as the applicant ran out of time and frustrated the process. In other words, it claims it was impossible to provide accommodations to the applicant under the circumstances.

Did the Respondent Require Information that Does not Exist or Could not be Obtained?

81If a service provider requires information from an accommodation seeker that it knows or ought to know does not exist and cannot be reasonably obtained, in my view that would constitute an unreasonable investigation of the accommodation seeker’s needs. But I am not satisfied that is what happened in this instance for the reasons stated below.

82As indicated, the respondent’s letter of January 11, 2010, informed the applicant that his request for accommodated testing was incomplete and that the respondent needed:

• Results and summary from (sic) with the Woodcock-Johnson-III: Tests of Achievement or the Wechsler Individual Achievement Tests-II (WIAT-II)
• High school transcripts to include standardized testing
• Copies of past psychoeducational evaluation reports/ADHD diagnostic reports for historical information.

83There is no real dispute between the parties that the vital piece of missing information was the first item on this list, namely a comprehensive achievement battery. The applicant acknowledged this during the misconduct hearing when he said:

… I was denied because I did not do one of the exams – one of the psycho educational assessments.

84There is also no dispute that comprehensive achievement battery testing was available to the applicant, albeit at a price. The evidence establishes that the applicant did not obtain a complete psycho-educational assessment as required by the Guideline because he was price sensitive and left it too late in the day to meet the respondent’s deadline.

85With respect to high school transcripts “to include standardized testing” the applicant had available to him a high school transcript. The applicant filed into evidence a copy of it issued on February 5, 2010; I take the date of issuance to mean that the applicant obtained it in response to the request for additional information in the respondent’s letter of January 11, 2010. It is not clear if this transcript was ever provided to the respondent but it cannot be said that it did not exist or could not reasonably have been obtained by the applicant, because eventually it was.

86The applicant also argues that the Guideline does not require the filing of high school transcripts and this was something extra the respondent was asking from him after the fact. In other words, the applicant argues the respondent simply kept adding new barriers and requirements as it went along. However, the Guideline says:

The report of assessment must include a comprehensive diagnostic interview that contains relevant background information to support the diagnosis. In addition to the candidate’s self-report, the report of assessment should include a description of the presenting problem(s), including… an academic history, including high school transcript(s), especially in classes related to LSAT performance… [Emphasis added.]

In other words, the Guideline says a high school transcript should have been provided to Dr. T as information to support her assessment and then included with her evaluator’s report submitted to the respondent. Therefore, I do not accept the applicant’s argument that the Guideline does not require high school transcripts.

87In the context of whether or not the respondent’s requests for information were unreasonable, I would note that Dr. Dempsey testified that historical information like high school transcripts is useful to the respondent as an investigative tool in that it can corroborate current claims of disability by showing they existed in the past. The applicant’s witness, Dr. Jain, also says historical data is very useful, albeit in the context of diagnosing, treating and advocating for his patients.

88In addition, the wording of the respondent’s January 11, 2010 letter in this regard is worth noting as it indicates what it is seeking is high school transcripts “to include standardized testing”. I take this to be a reference to the fact that because the respondent is resident in the United States it is used to operating in an environment where standardized testing is more common than it is in Ontario. For example, the respondent’s Guideline refers to the SAT and the ACT, standardized tests taken primarily by high school students in the United States because many colleges and universities there require them for first year admittance. There is no real dispute between the parties that a test taker’s prior performance on standardized tests, particularly when taken with some accommodations, is very valuable information for the respondent to have. The Guideline explicitly states such information will considerably expedite the processing of accommodation requests by the respondent.

89The applicant has no experience of standardized tests other than the LSAT so he cannot produce records with respect to them. Although it is clear from the respondent’s materials and evidence that such information would be very helpful to it, there is no suggestion in the evidence that an individual with no history of standardized tests would not receive accommodated testing from the respondent.

90With respect to the request in the respondent’s letter of January 11, 2010, that the applicant provide copies of past psycho-educational evaluation reports/ADHD diagnostic reports for historical information, the applicant is correct when he says the respondent’s Guideline does not require these items. Therefore, he could not have known the respondent would require that information prior to requesting accommodated testing.

91It is not entirely clear from the applicant’s evidence whether or not he had any psycho-educational assessments done prior to the one conducted by Dr. T. If he did not then that is something he clearly could not be expected to provide either before or after the respondent’s deadline for applying for accommodated testing. He did in fact provide historical ADHD diagnostic information with his original request for accommodated testing by way of a letter from his doctor in South Africa.

92It seems to me that in the situation where a service provider establishes strict deadlines for making accommodation requests, it should clearly identify all the information it requires to make a decision up front. In the context of a process involving strict deadlines, adding new information requirements mid-way through the process should be avoided as much as possible. This is particularly true in the situation where the service provider takes the position the new information requested is central to the decision with respect to accommodations.

93In the situation here this is a somewhat theoretical issue as at the time the respondent wrote its letter of January 11, 2010, it had no way of knowing whether or not there were prior psycho-educational assessments or additional ADHD diagnostic reports or not, and the evidence does not establish they were central to the respondent’s ability to make a decision with respect to the applicant’s need for accommodations. Dr. Dempsey states that when these kinds of things simply do not exist the respondent makes decisions based on what is available. It is common ground between the parties that the key piece of missing information was the comprehensive achievement battery. Because the applicant never submitted a comprehensive achievement battery, it is unknown whether or not the respondent would have continued to take the position his request for accommodation was incomplete or not.

94As a result I am not satisfied the respondent’s investigation was unreasonable; it did not require the applicant to produce information that did not exist or could not be obtained.

Did the Respondent Act Unreasonably in Response to Requests for Clarification?

95This question arises because on February 8, 2010, Dr. L sent the applicant an e-mail saying that he had read the Guideline and it looked to him like the respondent only required the standard battery of tests with respect to achievement on the WJ-III and not the extended battery but he suggested the applicant might want to check it out.

96The documentary evidence indicates the applicant sent two e-mails asking for this clarification: one on February 15 and the second on February 16, 2010. This was a point in time after the applicant had written to the respondent and demanded that any requests for additional information go through counsel. His February 16, 2010 e-mail explicitly indicated the applicant was copying his counsel on the e-mail. The respondent replied in writing on February 16, 2010, expressing its concern about communication needing to go through counsel. By the next day, February 17, 2010, the issue of accommodation was moot because the applicant decided he did not want to write the LSAT on June 7, 2010, and demanded the return of his money. As stated above, the respondent does not consider requests for accommodation unless the requester is registered for the test.

97At the hearing before me the applicant challenged the respondent’s behaviour in raising the question of communicating through counsel in response to his requests for clarification as being wrong-headed or inappropriate. Although I agree that it would have been preferable for the respondent to simply answer his question directly, I am not prepared to find that its behaviour in writing the e-mail on February 16, 2010, was unreasonable.

98In many jurisdictions, including Ontario, there are rules governing the behaviour of lawyers which indicate that where an opposing party is represented by counsel, communications concerning the dispute in issue should be with the representative and not directly with the party. In Ontario this stricture is found in Rule 6.03(7) of the Rules of Professional Conduct. By February 16, 2010, the respondent had every reason to believe the applicant had retained counsel because he said so; the applicant had been given contact information for respondent’s corporate counsel; and the applicant had repeatedly stated he was instigating legal action against the respondent with respect to its accommodation testing practices.

99The applicant also says that he telephoned the respondent and orally asked what the alternatives were for achievement testing if the WJ-III was not available. He says he believes this occurred during the period when he was courting Dr. T, which means it must have been prior to December 14, 2009. He further says that the respondent told him more than once that it was up to his doctor. The respondent appears to have no records of these alleged phone calls and led no evidence with respect to them so I accept the applicant’s evidence in this regard.

100However, it is not clear to me that the respondent’s answer to the applicant’s question was particularly unreasonable given the complexity of the assessment process, the expertise required of evaluators, the information provided in the Guideline, and the evaluator’s central role in choosing which test instruments to administer in performing the evaluation. As can be seen from the Guideline, evaluators are given options as to which tests to administer. In the context of the requirement to do a comprehensive achievement battery, the Guideline indicates acceptable instruments include but are not limited to the WJ-III and the Wechsler Individual Achievement Test-III (fall 2009). In other words, the respondent’s answer “it is up to your doctor” is exactly what the Guideline says.

101I would observe at this point that it is fairly clear from the Guideline and the respondent’s materials that what the respondent requires from accommodation seekers with cognitive impairments is a current psychological assessment done by a single evaluator who looks at all the required test results prior to coming to a recommendation about accommodations. For example, evaluators are given a “Summary Score Sheet” they can use to summarise the raw data and Dr. T used and signed that form. It explicitly says:

In order to be considered for additional test time as an accommodation for cognitive impairments, the candidate’s documentation must include a psychoeducational assessment report that includes data from both cognitive and achievement measures.

102It is obvious from looking at Dr. T’s completed report and this form that the only achievement testing she did for the applicant was in the nature of screening tests and the Nelson-Denny Reading Test, which the Guideline explicitly states is not an acceptable substitute for a comprehensive achievement battery. In other words, it would have been clear to the respondent that Dr. T’s report was deficient on its face.

103As the applicant was proposing to go to a different evaluator to do the missing comprehensive achievement battery, it is unclear if that meant Dr. L would take Dr. T’s report and create a new psycho-educational assessment using her test results, or if Dr. T would have re-done her report to incorporate the data from the missing comprehensive achievement battery. In fact, the evidence supports the conclusion that the applicant intended to just ship the raw comprehensive test data off to the respondent in the expectation it would do the work of an evaluator for him. In other words, what the applicant appeared to be trying to do was completely outside the normal psycho-educational assessment process and in that context it was not unreasonable for the respondent to tell him to discuss the respondent’s requirements with his evaluator.

Did the Respondent Act Unreasonably in Not Making a Decision?

104The applicant’s primary argument at the hearing before me was that the respondent had sufficient information before it by the deadline to make a decision in his favour with respect to his requests for a quiet room and or ear plugs. He based this argument on the evidence of Dr. Jain.

105Dr. Jain states that there is no diagnostic test that is capable of measuring the degree of distractibility a patient with ADHD experiences. Distractibility is central to the diagnosis but there are variations in degree among the patient population. As a result, when Dr. Jain makes recommendations to schools to assist ADHD students he perceives it as a yes/no issue; if the patient has distractibility, he recommends accommodation. The precise nature of the accommodation depends on three things: the possibilities that are available; the patient’s experience with different accommodations; and the clinician’s observations of the patient. In terms of environmental possibilities a quiet room is optimal; if that is not available then sitting away from windows at the front of a classroom is the next best thing. Medication is a less desirable fall-back position where environmental manipulation is not possible.

106This evidence of Dr. Jain’s is not disputed by the respondent and it explains why the Guideline indicates evaluators should access and discuss historical data and provide observational information.

107Dr. Jain and Dr. Dempsey also agree as to the reason why the respondent’s Guideline requires comprehensive achievement battery testing. When you compare an individual’s aptitude to their ability to achieve, results should match. In other words, in non-disabled individuals the results will show the individual is living up to their potential. Where there is a gap between aptitude and achievement that is evidence of some form of learning disability or cognitive impairment. In other words, a comprehensive achievement battery is one measure of the impact of a disability. Without confirmation of a gap between aptitude and achievement, requests for accommodation in the form of additional time cannot be justified.

108What was surprising about Dr. Jain’s evidence was that he disagreed with Dr. T’s assessment that the applicant needs extra time. According to Dr. Jain the raw screening data attached to Dr. T’s report indicates the applicant does not have impairment with respect to his working memory so any problem the applicant has in achievement testing is not related to his ADHD. As a result, a comprehensive achievement battery would simply have confirmed the applicant does not need extra time and would not have added anything new to the testing data the respondent had available to it. For this reason, the applicant argues that the respondent should have provided him with a quiet room and or ear plugs for the February 8, 2010, sitting of the LSAT.

109The problem with this argument is that it assumes a different process in place than the one used by the respondent. At the time the applicant filed his request for accommodations the respondent’s process was to first check the application for completeness. If the request was incomplete, the person was notified accordingly. This was done by clerical staff. There was no substantive assessment of the request by someone with the expertise necessary to make a decision as to whether or not to grant or deny an accommodation request.

110Dr. Dempsey says that since 2010 that process has actually changed. She now reviews all incomplete files prior to a letter going out. She says this process adjustment was possible because additional resources became available; the respondent’s staff changed. Dr. Dempsey says that under the current process the applicant’s incomplete request would come to her for review; and she would probably write him a letter indicating that the file was incomplete but also give him a heads up that it appears the applicant is not entitled to accommodations tied to achievement.

111Dr. Dempsey was asked what would happen if the applicant requested only a quiet room and ear plugs. She says such a request would be very unusual as the normal request is for additional time and if that is granted it automatically results in the test taker being in a separate room. But in the hypothetical scenario put to her she says she would have looked at the focus of the evaluator’s report to see if a case had been made out for it.

112In that context one of the problems here is that Dr. T’s report says that although a quiet room and earplugs are the most important accommodations required, the applicant also needs additional time. This means that if the respondent had simply decided on its own to give the applicant a quiet room and or earplugs but not extra time, it would have been doing so in defiance of the applicant’s wishes as stated in his request and his own evaluator’s recommendations. If the respondent had somehow been aware of Dr. Jain’s view contradicting Dr. T’s recommendation, it would have been wholly justified in wanting to resolve the conflict by asking for additional information.

113Given all of the above I am not prepared to find that the respondent’s behaviour in telling the applicant his request was incomplete on January 11, 2010, rather than simply providing some but not all of the accommodations requested was unreasonable.

114As a result of all of the above I am satisfied that the respondent did not breach the procedural duty to accommodate.

The Substantive Component / The Duty to Cooperate / Undue Hardship Issue

115As stated above the duty to accommodate includes both a procedural and substantive component. With respect to the substantive component there is no dispute between the parties that the respondent did not in fact provide accommodations to the applicant. The applicant essentially argues that this means the respondent breached the substantive component of the duty to accommodate as it could have accommodated his disability without undue hardship.

116The respondent argues it never denied the applicant accommodations as it never got a chance to; the applicant’s request for accommodation was incomplete. Although this is arguably factually correct, from the applicant’s perspective what happened was the same as a denial so it does not assist the legal analysis to frame the argument in this way.

117But the respondent also argues that it has met its obligation under the Code because the accommodation process was frustrated by the applicant’s failure to co-operate and provide the information requested. Its submission is based on the Supreme Court of Canada’s decision in Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC).

118As stated in Renaud, above, at para. 43, the search for accommodation is a collaborative process. The individual requesting accommodation has a duty to assist in securing appropriate accommodation. Renaud, above, says at paras. 43-45:

To facilitate the search for an accommodation, the complainant must do his or her part as well. Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation. Thus in determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered.

This does not mean that, in addition to bringing to the attention of the employer the facts relating to discrimination, the complainant has a duty to originate a solution. While the complainant may be in a position to make suggestions, the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer's business. When an employer has initiated a proposal that is reasonable… and would, if implemented, fulfil the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed. The other aspect of this duty is the obligation to accept reasonable accommodation…. The complainant cannot expect a perfect solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer's duty is discharged.

In my opinion the member designate did not err in this respect. The complainant did everything that was expected of him with respect to the proposal put forward by the employer. It failed because the union refused consent and the employer refused to proceed unilaterally. The appellant had no obligation to suggest other measures. Moreover, it is not suggested that the appellant turned down any reasonable proposal which was offered to him.

119The principle enunciated in Renaud, above, is equally applicable in social areas other than employment. In Fisher v. York University, above, and in Worthington v. Algonquin College of Applied Arts and Technology, 2012 HRTO 715, the Tribunal applied the principal in the context of the provision of education services.

120In Fisher v. York University, above, the Tribunal writes at paragraph 43:

The Renaud case dealt with accommodation in the employment context. The duty to cooperate applies equally in the context of services for persons with disabilities and the requirements of the duty are determined contextually. The person with the disability in the least will have an obligation to disclose sufficient relevant information about her disability to permit the service provider to determine appropriate accommodation and to assist in the identification and implementation of the appropriate accommodation. [Emphasis added.]

121There can be no dispute that the applicant’s request for accommodated testing did not include all of the information that the respondent asked for. His request clearly indicates the applicant wanted and needs extra time as an accommodation in addition to a quiet room, and ear plugs. Even Dr. Jain acknowledges that the reason the respondent requires a comprehensive achievement battery is so it has the information necessary to determine whether or not a test taker’s cognitive disability means they need extra time. For the reasons stated above with respect to the procedural component of the duty to accommodate, I am not satisfied the respondent’s behaviour in informing the applicant his request was incomplete was unreasonable.

122It seems to me that part of the problem that the applicant encountered was the respondent’s strict rules with respect to deadlines for requesting accommodated testing and reconsideration requests. Because he delayed requesting accommodated testing for the February 8, 2010 sitting until the last or next to last day, the applicant ran out of time with respect to that sitting. It is clear that the applicant thinks the respondent should be more flexible; for example, that it should have agreed to consider his out of time reconsideration request of January 12, 2010, in which he asked for a quiet room and ear plugs or either in the alternative for the February 8, 2010 sitting.

123Although I would agree with the applicant that the respondent’s accommodated testing request process would be better if it was more flexible, perfection in accommodation processes is not the standard required. As stated above, the respondent processes about 1,600 requests for accommodation a year, or about 400 for each sitting of the test. As more than 50% of requests are granted, the respondent must arrange and implement a range of accommodations granted for more than 200 people each sitting. The Accommodated Testing department has three clerical employees, one individual with a Master’s in special education, and Dr. Dempsey. Under the circumstances its policy of sticking to rigid deadlines is regrettable but understandable.

124After the January 5, 2010 deadline had passed for requesting accommodations for the February 8, 2010 sitting, the accommodation issue shifted to the June 7, 2010 sitting. During the period that the respondent could have considered accommodations with respect to that sitting, the applicant repeatedly made communication difficult by threatening litigation and claiming he was represented by counsel, did not provide the additional information requested and by February 17, 2010, he had effectively withdrawn by demanding his money back.

125Given all of the above I am satisfied that the applicant did not reasonably co-operate with the respondent in the accommodation process, which means that the respondent discharged its duty with respect to the substantive component of the duty to accommodate under the Code.

The February 8, 2010 Sitting

The Impromptu Accommodation Requests

126The applicant takes the position that the respondent could and should have accommodated him with respect to the February 8, 2010 sitting by way of the proctor agreeing to give up her seat and/or allowing him to wear ear plugs. The applicant is correct in that this would have been easy and inexpensive for the respondent to do; but his submission completely disregards the reason for the LSAT and the reason for the respondent’s strict accommodated testing policy.

127The purpose of the LSAT is to compare each test taker against all the other test takers and identify for law schools which test takers are most likely to succeed in law school. The purpose of granting accommodations in that context is to ensure that test takers with disabilities are neither disadvantaged nor advantaged in comparison with non-disabled test takers. The LSAT is a timed test so it is designed to favour those who can answer the questions in the time allowed. As a result, it is not surprising that requests for additional time on the LSAT by disabled test takers are scrutinized carefully, as providing extra time where it is not warranted because of disability gives that test taker an advantage that skews the results of the test, frustrating its purpose.

128If a test taker can simply walk into the testing centre and successfully demand accommodation from a proctor who has no expertise in accommodated testing, mistakes would be made. People not entitled to accommodations would receive them almost randomly based on who the proctor was and the integrity of the testing results would be undermined.

129This situation is very different from the schooling environment where the primary purpose of accommodating disabilities like ADHD is to maximize the student’s learning. In that context, educators, students, and advocates like Dr. Jain all want as many accommodations as possible because that is the best way to go about achieving the overall goal of learning. In contrast, the purpose of granting accommodations to test takers in the LSAT is most certainly not to help them do the best they can do; it is designed to equalize the competition.

130As a result it would be inappropriate for a proctor to do as the applicant suggests. I am satisfied that requiring the respondent to permit such impromptu accommodation requests would so undermine the integrity of the testing process that it would result in undue hardship to the respondent.

The Behaviour that Resulted in Discipline

131The applicant also argues that the respondent’s misconduct process or its finding against him of misconduct is a breach of the Code. He argues that none of his behaviour of February 8, 2010, that constitutes misconduct would have occurred if the respondent had simply granted him the accommodations he requested. That may or may not be true, but it does not mean what happened is discrimination.

132Discrimination is differential treatment on the basis of a protected ground or neutral treatment that results in an adverse differential impact.

133It cannot be said that the discipline meted out to the applicant for his behaviour on February 8, 2010, was direct discrimination meaning differential treatment based on his disability. I say this for a number of reasons.

134First, there is nothing in the evidence that suggests the respondent does not issue warning notices to disruptive non-disabled students who talk out loud during the exam.

135As stated above, the applicant believes he should never have been issued the written warning he received during the break because the proctor indicated she would only do that if he did not stop talking. The respondent’s materials indicate the proctor issued the written warning because the applicant did not stop talking after her initial warning but for the reasons stated above, I accept the applicant’s evidence in this regard. However, the point is that there is no evidence to suggest that the reason the proctor issued the written warning was because the applicant is disabled. The applicant himself says that he believes the reason she issued the written warning was because he angered her in the manner he initially responded to her.

136Second, there is no reason to conclude non-disabled students who scream and yell in the break area are not subject to discipline.

137Third, there is no evidence to suggest non-disabled students who carry cell phones through the testing centre on a break are not expelled from the exam. I say this even though the applicant says there was one other test taker who was caught with a cell phone on February 8, 2010, at the beginning of the test. As far as I can tell from the evidence the respondent’s proctors bring bags with them and collect electronic devices from test takers who forget they are not supposed to bring them. Those devices are then locked away and cannot be accessed even during breaks. Having a cell phone and turning it over to the proctor at the beginning of the test before it starts is not the same thing as having one in your possession while the test is ongoing.

138So the next question is whether or not the discipline administered to the applicant is constructive or adverse impact discrimination. As indicated above, the discipline that the applicant experienced on February 8, 2010, is tied to three different incidents that day: talking out loud during the test; yelling during the break; and having a cell phone in the break area during the testing period.

139With respect to talking out loud the evidence supports the conclusion that this behaviour is related to the applicant’s ADHD. Dr. Jain confirms that talking out loud is a learning aid and the impulsivity related to ADHD means an individual may not be censoring what is actually coming out of his or her mouth. What this means is that the respondent’s neutral rule of disciplining or at least warning people who talk out loud during the test does have the potential of having a negative impact on individuals with ADHD because of their disability. The respondent’s Misconduct Rules explicitly say that intent is not an element of a finding of misconduct so whether or not the applicant realised he was talking out loud is not considered to be relevant by the respondent.

140That being said, no evidence was led in support of the proposition that if the only thing the applicant had done that day was talk out loud, the discipline process would have gone to a hearing. The Misconduct Rules indicate whether or not a hearing is held is a discretionary decision on the part of the respondent’s staff. The evidence is also insufficient to establish whether or not the written warning alone would have been noted on the applicant’s permanent record and forwarded to law schools. As a result, with respect to the circumstances of this Application, it is impossible to know what if any actual negative impact the respondent’s neutral rule regarding talking out loud in tests had on the applicant. Without evidence of negative impact, it is not open to the Tribunal to make a finding of discrimination.

141The second incident that occurred that day that resulted in discipline was the yelling and screaming the applicant did when he admits he flipped out during the break. The applicant says this behaviour is linked to his disability in that it was caused by the medication he was on. If this is true, that would support the proposition that being disciplined for yelling and screaming at the proctor on the break was discriminatory as it would represent a differential impact because of disability flowing from the application of the neutral rule about not disturbing others in the test centre.

142However, Dr. Jain says it is possible this behaviour was related to his medication but it is also possible it was not. As a result, I am not prepared to find that it is more likely than not that the applicant’s disability was a factor in his behaviour in yelling and screaming at the proctor during the break.

143With respect to the third incident of misconduct, there is no apparent connection between the applicant’s disability and his possession of a cell phone except for the applicant’s statement that reading takes him a long time so he did not bother to read the testing centre rules that were provided to him in advance of the test date. The applicant’s choice not to read the rules carefully in advance may be tangentially connected to his disability, but there is no question that he could in fact have read the rules if he wanted to. Therefore, I am not satisfied that the application of the respondent’s disciplinary regime to the applicant because of his possession of a cell phone had a differential impact on him because of disability.

144Given all of the above, I am satisfied that the evidence is insufficient to support a finding that it is more likely than not that the respondent’s disciplinary approach on February 8, 2010, had a differential impact on the applicant as a result of his disability.

The Misconduct Proceedings

145The same analysis applies to the misconduct hearing conducted by the respondent.

146There is no evidence to suggest that the misconduct hearing was conducted differently than it would be for a non-disabled person, that the hearing had a differential impact on him because of his disability, or that in order to participate fully in the misconduct hearing the applicant needed accommodation or requested it. The transcript of the hearing indicates he was given ample opportunity to lead evidence and make submissions.

147I would also point out that the only Code-related issue the applicant raised during the misconduct hearing was with respect to the respondent’s failure to provide him with any of the accommodations he requested for the February 8, 2010 sitting. He did not suggest that the behaviour resulting in the discipline measures was related to his disability. For example, no argument was made that sub-vocalisation is connected to ADHD. Rather the applicant claimed during the discipline hearing that he was not talking out loud during the test, rather he was only mumbling or whispering and it was, “Nothing that people could hear.”

148A more difficult issue and one that was not argued before the Tribunal is whether or not the presiding dean should have addressed the Code issue that the applicant did raise during the misconduct hearing; namely, the question of whether or not the respondent breached the Code by denying him equal access to the LSAT without discrimination. It could be argued that the presiding dean’s refusal to explore that question is in and of itself discrimination under the Code. However, it could also be argued that the presiding dean’s jurisdiction extended only to the issue of misconduct as that is clearly indicated in the Misconduct Rules; this means any application by her of the Code would have been with respect to the allegations of misconduct and not the issue of accommodation. And given the analysis described above, even if she had applied the Code to either the misconduct allegations or the accommodation issue, it would not have resulted in a finding of discrimination.

149As a result, I am not satisfied that the respondent breached the Code with respect to the misconduct findings or proceedings.

DECISION

150The Application is dismissed.