Cohen v. Law School Admission Council, 2015 HRTO 222

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Cohen

Applicant

-and-

Law School Admission Council

Respondent

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: February 20, 2015

Citation: 2015 HRTO 222

Indexed as: Cohen v. Law School Admission Council

1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision 2014 HRTO 537, dated April 14, 2014, which dismissed this Application.

2On May 14, 2014, the applicant filed a Request for Reconsideration of the Tribunal’s Decision.

3Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), provides as follows:

45.7 (1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

4Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The Tribunal has issued rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008 amended June 2008).

5The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

6As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

7In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties to an Application have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.

8The Tribunal’s Rules of Procedure provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 26.5 of the Rules provides:

A Request for Reconsideration will not be granted unless the Tribunal is satisfied that:

a. there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

b. the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

c. the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

d. other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

9As a result, I need to determine whether the material filed by the applicant in support of the Request for Reconsideration satisfies any of the criteria set out in Rule 26.5. The applicant relies upon the criteria identified in Rule 26.5(a), (c) and (d).

10The primary basis upon which the applicant challenges the Tribunal’s decision arises from the respondent’s Guidelines for Documentation of Cognitive Impairments and the specific requirement for the accommodation requestor to provide a comprehensive achievement battery as a required part of the accommodation request package. The Guideline identifies the Woodcock-Johnson Psychoeducational Battery III: Tests of Achievement (WJ-III) and the Wechsler Individual Achievement Test-III (fall 2009) as acceptable testing instruments, but does not limit an evaluator’s ability to use other instruments, so long as they meet the requirements set out in the Guideline.

11In support of his reconsideration request, the applicant has submitted a letter dated May 13, 2014 from Dr. T., who is the psychologist who did the assessment provided by the applicant to the respondent as part of his accommodation request package. In this letter, Dr. T. takes the position that she did in fact administer a comprehensive achievement battery for the purpose of her assessment report, through the combination of the WAIS-III as the intellectual measure with a battery of selected academic measures, namely the Nelson Denny Reading Comprehension Test, all sub-tests of the WRAT4, and the Wechsler Fundamentals Academic Skills Reading Comprehension sub-test. As a result, the applicant takes issue with the respondent’s position that he failed to submit a comprehensive achievement battery as part of the accommodation request submitted to it.

12The problem with Dr. T.’s letter is it was submitted to the Tribunal after the Decision was issued and was not tendered as evidence at the hearing. Dr. T. was not called by the applicant to testify as a witness on his behalf. Rather, he chose to call Dr. Jain as an expert witness, who contradicted one of the central recommendations made by Dr. T. in her assessment report, namely that the applicant required more time to complete the LSAT.

13Whether or not Dr. T.’s letter amounts to facts or evidence that could potentially be determinative of the case, the problem is that there is no indication in the material filed by the applicant that Dr. T.’s evidence could not reasonably have been obtained earlier. As a result, I am unable to conclude that the applicant has satisfied the requirements of Rule 26.5(a) in submitting Dr. T.’s letter.

14The applicant takes issue with the statements made at paras. 101 and 102 of the Decision, to the effect that it would have been clear to the respondent that Dr. T.’s report was deficient on its face given that she did not administer a comprehensive achievement battery. The applicant takes issue with this statement on the basis that Dr. T. in fact did administer a comprehensive achievement battery. While I appreciate that this is the position taken by Dr. T. in her May 13, 2014 letter, this was not evidence that was presented at the time of the hearing or that was before the Tribunal for the purpose of its Decision, and as I already have found above, the applicant has failed to establish that this evidence could not have been obtained at an earlier time. Nowhere in her evaluation report as submitted by Dr. T. to the respondent does Dr. T. state the position that she is now enunciating, namely that she administered a comprehensive achievement battery through a combination of tests.

15The applicant further takes issue with the statement made at para. 105 of the Decision, to the effect that Dr. Jain’s evidence was that there is no diagnostic test that will measure the degree of distractibility experienced by a person with ADHD. The applicant takes issue with this statement on the basis that he says that Dr. Jain in fact pointed to two specific tests that measure distractibility, namely the TOVA and the IVA+Plus. Whether or not that is the case, in my view this does not affect the rationale for the adjudicator’s Decision. The issue was not the absence of testing to support distractibility, but rather the applicant’s failure to submit as part of his accommodation request package the required comprehensive achievement battery.

16The applicant further objects to the Tribunal’s Decision on the basis that while a comprehensive achievement battery may be required for accommodation of a learning disability, such testing is not required in order to accommodate ADHD, at least to the extent of reducing distractibility by providing the applicant with a quiet room and allowing him to use ear plugs. The problem with this argument is that Dr. T.’s assessment report as submitted with the accommodation request package did not just request those two accommodations, but also requested extra time for the applicant on each part of the test and for the break. It was in order to evaluate that aspect of the applicant’s accommodation request that the respondent required the comprehensive achievement battery. The request for extra time was not withdrawn by the applicant until his e-mail dated January 9, 2010, which was after the deadline for requesting accommodation for the February 2010 LSAT sitting had already expired. Given the nature of the accommodation request as submitted by the applicant, the adjudicator found that it was not unreasonable for the respondent to regard the request as incomplete without the comprehensive achievement battery. I agree.

17The applicant takes the position that the respondent could have inquired of him as to whether partial accommodation through providing a quiet room and the use of ear plugs would have satisfied his request. The difficulty that I have is that this is not the nature of the request as submitted by the applicant. While I appreciate that accommodation is not an all or nothing proposition, I agree with the adjudicator that it is not unreasonable for a service provider to process an accommodation request on the basis that it is made and to reasonably request information or material to support what in this case was the main accommodation being requested. Rather, if it was the applicant’s view that extra time was not required as an accommodation, then in my view it was incumbent upon him to formally advise the respondent that he was withdrawing his request for extra time prior to the expiry of the deadline for requesting accommodation for the February 2010 LSAT sitting, which he did not do.

18The applicant further takes the position that the respondent misled the Tribunal by insisting on the Woodcock Johnson test as a comprehensive achievement battery rather than accepting the assessor’s evaluation of what comprised a comprehensive achievement battery. It is clear from the respondent’s Guideline that the Woodcock Johnson test is only one example of what will be accepted as a comprehensive achievement battery. However, Dr. T.’s position that the combination of tests that she administered constitutes a comprehensive achievement battery was not articulated in evidence before the Tribunal, and only emerges as a result of her May 13, 2014 letter, which post-dates both the hearing and the Decision. After-acquired evidence, unless it could not reasonably have been obtained at an earlier time, is not a proper basis to support reconsideration.

19The applicant submits that the respondent additionally misled the Tribunal by testifying that the Woodcock Johnson test measures distractibility. He asserts that it does not, and submits an outline of the Woodcock Johnson test to support his position. Once again, whether or not the Woodcock Johnson test provides some measure of distractibility is not the issue. The issue is that the adjudicator found that the respondent required a comprehensive achievement battery to support his request for extra time, and this was never submitted by the applicant. It is only after the hearing and the Decision that the applicant and Dr. T. are now taking the position that Dr. T. did in fact administer a comprehensive achievement battery, which was not in evidence before the Tribunal at the time of the hearing or Decision.

20Accordingly, I am not satisfied that the applicant has presented new facts or evidence that could not reasonably have been obtained at an earlier time. I further am not satisfied that the Tribunal’s Decision is in conflict with established jurisprudence or Tribunal procedure or that other factors exist that outweigh the public interest in the finality of Tribunal decisions.

21For all of the foregoing reasons, the applicant’s Request for Reconsideration is denied.