DIVISIONAL COURT FILE NO.: 274/02

DATE: 2002/04/14

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

R.A. BLAIR R.S.J., ELLEN MACDONALD and B. MACDOUGALL JJ.

B E T W E E N:

Selwyn Pieters

Applicant

• and -

University of Toronto and Ontario Human Rights Commission

Respondents

Selwyn Pieters, in person

John B. Laskin and Sarah Wright, for the University of Toronto

Cathy Pike and Amyn Hadibhai, for Ontario Human Rights Commission

HEARD: December 13, 2002

REASONS

R. A. BLAIR R.S.J.:

Overview

[1] Selwyn Pieters, an African-Canadian male, is presently a third year law student at York University.

[2] In 1995 and again in 1997 Mr. Pieters applied for admission to the University of Toronto Faculty of Law as a mature student for the academic years commencing in 1996 and 1998, respectively. He was denied admission on each occasion. He subsequently filed complaints with the Ontario Human Rights Commission, asserting that his equality rights had been violated because he had been refused admission on the basis of a below-the-cuttoff-point score on the Law School Admission Test (the “LSAT”). Mr. Pieters contends the LSAT is an arbitrary and irrelevant measure of merit, which has an adverse effect on African-Canadians – they consistently score lower on the LSATs than caucasians – and the use of it by the University in denying him entrance to the law school therefore constitutes systemic discrimination.

[3] On this basis Mr. Pieters alleged before the Commission that his rights to equal treatment with respect to services and facilities without discrimination because of his race (Black), colour, ethnic origin (African-Canadian), ancestry (African) and the intersectionality of these grounds, had been infringed by the Law School in contravention of the Ontario Human Rights Code, R.S.O. 1990, c.H. 19 (the “Code”).[^1] After receiving lengthy written representations from Mr. Pieters and from counsel for the University of Toronto, the Commission declined to refer the subject-matter of the complaint to a board of inquiry under s. 36 of the Code. Following a request by Mr. Pieters for a reconsideration of that decision, and further representations from both parties, the Commission refused to alter its decision.

[4] Mr. Pieters now applies for judicial review of the Commission’s decisions not to deal further with his complaint. In our view, the Application must be dismissed, for the reasons that follow.

Facts

[5] Mr. Pieters filed his initial complaint with the Commission in May 1998 and his amended complaint in May 2000. The thrust of his grievance is set out in the following paragraphs of his Amended Complaint:

1. On or about October 18, 1995, I applied for admission to University of Toronto Law School under the Applicant Category called “Mature” for admission to the LLB program.

2. On or about October 03, 1997, I applied for admission to University of Toronto Law School under the Applicant Category called “Mature” for admission to the LLB program.

3. I wrote a personal statement setting out the personal disadvantage I experienced as a African Canadian Male in Toronto, my volunteer community experience, extra-curricular activities at U of T, the undergraduate program I completed at the University of Toronto, my grade point average, LSAT score, and my potential contribution to the law school.

4. In my personal statement dated October 09, 1997, I stated, “I am … an applicant for admission to the first year of law at the University of Toronto, Faculty of Law. I am an African Canadian male[m] interested in the study of law. My choice of this university is necessitated by efforts on the part of the African Canadian Community, myself, the Faculty of Law, and Dean Daniels to increase the number of qualified black applicants and students at the school.”

5. My grade point average was a “B-” average.

6. The Law School calendar then points out that the LSAT is compulsory for all applicants seeking admission to first year law.

7. I have written the LSAT on two occasions. The first was on December of 1995 and my LSAT score was 142. The second time I wrote the LSAT was in February 1996 any my score was 146. My LSAT socres (sic) ranked me in the 26.1 percentile.

8. Both the 1995 and 1997 applications for admission were rejected by the faculty of law.

9. Black, African Canadians, comprise 6.5% of the population of Toronto. Yet the admission rate of African Canadians has consistently been between 0% and 3% of the Law Faculty’s first year class.

10. The rejection of my applications for admission to the respondent law school, which is due at least in part to the reliance which it place on the LSAT as a measure of merit for the purpose of admission, amounts to constructive discrimination and is contrary to ss. 1, 9, and 11 of the Code. This conclusion is based on the following propositions: (i) Performance on the LSAT is an arbitrary and irrelevant measure of merit and is not a reliable or accurate predictor of performance at law school (ii) African Canadians do not do as well on the LSAT as white students, (iii) using an arbitrary and irrelevant measure of merit to exclude or restrict African Canadians from admission is systemic discrimination.

11. I was denied fair and equal educational access to University of (sic) University of Toronto Law School because of the law school’s use of the LSAT, which is not objective and is arbitrary.

12. The Law school main criteria for admission are Grades and LSAT scores. Which means that “merit” means having a high undergraduate average and a great LSAT score even though the latter is inherently flawed. Accordingly, the respondent law school use of the LSAT in rejecting my applications for admission has infringed my rights, and the rights of similarly situated applicants, under the Code.

13. I am an African Canadian Male and I believe that my rights to equal treatment with respect to services and facilities without discrimination because of my race (Black), colour, and ethnic origin (African Canadian) and Ancestry (African) have been infringed by the above named respondents in contravention of sections 1, 9, and 11 of the Human Rights Code.

14. I believe that the Respondents’ use of LSAT cut off scores to determine which applicants are presumptively admitted, presumptively rejected, and applicants which are remitted to the admissions committee for further consideration, has adversely affected African Canadian persons, like myself, on the grounds of race, colour, ancestry and ethnic origin contrary to sections 1, 9, and 11 of the Code.

15. Using the LSAT in making admission decisions is not a requirement, qualification or factor that is reasonable and bona fide in the circumstances, and thus its use is not saved or justified by section 11(1) (a) of the Code. It is possible to accommodate the needs of African Canadians without undue hardship on the respondent law school.

[6] The usual process that is followed when a complaint before the Commission is being investigated with a view to determining whether the complaint will be referred to a board of inquiry under s. 36 of the Code was followed in this case. An investigator was appointed pursuant to s. 33 of the Code. The University submitted a response to the complaint with supporting documentation. Commission Staff then prepared what is known as a Section 36 Case Analysis, outlining the main points from the complainant’s position and the main points from the respondent’s position, then setting out and analysing the background and the evidence, and concluding with its summary analysis and recommendation. In this case Staff recommended, pursuant to s. 36(2) of the Code, “that the Commission not refer the subject matter of this complaint to the Board of Inquiry”. The Case Analysis concluded that “based on the above analysis, referral is not warranted on the evidence”.

[7] The Summary Analysis & Recommendation portion of the Case Analysis stated:

46. The evidence shows that racial and ethnic minorities including Black African-Americans perform less well on the LSAT than do Whites. However, the evidence is inconclusive with respect to the impact of the LSAT score on the complainant as a member of the group, which traditionally has performed less well on the LSAT.

47. The evidence shows that as a result of ongoing concerns about the utility and predictive validity of the tests, the LSAC[^2] has developed a set of cautionary policies to guide law schools on how to use the test. It is not apparent from the evidence that the respondent has implemented all of these measures, particularly, the need to conduct validity studies of its admission policies.

48. The evidence suggests that the respondent has implemented measures to increase the representation of Blacks and other minorities in its law school. At issue is whether these alternative measures are sufficient to offset the negative impact of the LSAT or whether other non-numerical indices are needed.

49. There is insufficient data on the applicant pool of African-Canadians. Therefore, the exact nature of the adverse impact on African-Canadians cannot be accurately established. However, it is reasonable to conclude that for admission purposes, the area of search would be broader than the metropolitan area.

50. The evidence suggests the need for Canadian law schools to conduct studies of the effectiveness of their admission policies. The LSAC studies do not purport to address all the questions Canadian law schools should address as they review their own admission process.

51. The evidence does not suggest, in the complainant’s case, that he was refused admission to the respondent law school on the basis of his LSAT score only. Absent the LSAT score, the complainant’s GPA[^3] was less than the average required for admission and less than those of the successful candidates.

[8] The Section 36 Case Analysis was provided to both Mr. Pieters and the University. Each submitted a written response. That of the University consisted of a 12 page letter, with backup material from the Law School Admission Council, designed to show (amongst other things) that the University was indeed in compliance with the Law School Admission Council’s Cautionary Policies Concerning LSAT Scores (see the concern expressed in para. 48 of the Case Analysis cited above) and reiterating the diversity-focus of the Faculty’s admissions policy and its minority outreach program. The response of Mr. Pieters consisted of 65 pages of submissions and 280 further pages of appendices and additional materials. These articles, studies and reports had earlier been presented to the Commission in connection with Mr. Pieters’ original Complaint. Mr. Pieters’ response was a thorough combination of legal submissions and factual submissions relating to the evidence and his contentions concerning the discriminatory effect of the LSAT.

[9] No changes were made to the Case Analysis as a result of these responses. However, both responses were before the Commission when it made its decision on March 27, 2001 not to refer Mr. Pieters’ complaint to the board of inquiry. That decision, and the reasons for it, reads as follows:

Pursuant to subsection 36(2) of the Human Rights Code, the Commission has decided not to refer the subject matter of this complaint to the board of inquiry for the following reasons:

1. The evidence is insufficient to indicate that the complainant was subjected to unequal treatment in services because of race, ancestry, colour or ethnic origin.

2. The evidence is insufficient to conclude that the respondent’s use of the Law School Admission Test (LSAT) scores in its admissions process has an adverse impact on racial and ethnic minorities or on the complainant because he is African-Canadian.

3. The evidence indicates that the respondent did not admit the complainant into its law school because, in addition to a low score on the LSAT his Grade Point Average (GPA) was less than the average required for admission and less than those of the successful candidates.

For the above reasons, the Commission is of the view that the evidence in this case does not warrant referral of the subject matter of this complaint to the board of inquiry.

Approved: ________________________________

Keith C. Norton Q.C., B.A., LL.B.

Chief Commissioner

Date: March 27, 2001

[10] Mr. Pieters sought a reconsideration of this decision pursuant to s. 37 of the Code. Much the same process was followed. He made submissions, arguing the Commission had failed to consider the materials previously submitted by him and relying upon essentially the same points. The University responded. The Commission Staff prepared a reconsideration report. Mr. Pieters submitted a lengthy response with supporting documentation.

[11] On the section 37 reconsideration the Commission exercised its discretion and decided to uphold its original decision not to refer the complaint to the board of inquiry. In its April 17, 2002 Reasons it said:

Whereas pursuant to Section 37 of the Ontario Human Rights Code the Commission has an unfettered discretion to reverse its original decision;

and whereas the Commission has reviewed its original decision and reasons, and has considered the matters raised in the application for reconsideration;

pursuant to Section 37 of the Code, the Commission has decided to uphold its original decision pursuant to subsection 36(2) of the Code for the following reasons:

1. The Commission remains of the view that there is insufficient evidence to indicate that the complainant was subjected to unequal treatment in services because of race, colour, ethnic origin or ancestry.

2. The Commission remains of the view that there is insufficient evidence to conclude that the respondent’s use of LSAT scores in its admission process has an adverse impact on racial and ethnic minorities or on the complainant because he is African-Canadian.

3. The Commission remains of the view that the respondent did not admit the complainant into its law school due to its over-all assessment of his application, which included his low scores in Grade Point Average and LSAT.

Approved: ________________________________

Keith C. Norton Q.C., B.A., LL.B.

Chief Commissioner

Date: April 17, 2002

[12] With that summary of the background and facts in mind, we turn now to a consideration of the relevant provisions of the Code, the applicable standard of review and an analysis of Mr. Pieters’ application for judicial review.

The Statutory Provisions

[13] At the relevant time, sections 36 and 37 of the Code stated:

36. (1) Where the Commission does not effect a settlement of the complaint and it appears to the Commission that the procedure is appropriate and the evidence warrants an inquiry, the Commission may refer the subject-matter of the complaint to the board of inquiry. S.O. 1994, c.27, s. 65(12).

(2) Where the Commission decides to not refer the subject-matter of a complaint to the board of inquiry, it shall advise the complainant and the person complained against in writing of the decision and the reasons therefor and inform the complainant of the procedure under section 37 for having the decision reconsidered. R.S.O. 1990, c.H.19, s.36(2); S.O. 1994, c.27, s.65(13).

37. (1) Within a period of fifteen days of the date of mailing the decision and reasons therefor mentioned in subsection 34(2) or subsection 36(2), or such longer period as the Commission may for special reasons allow, a complainant may request the Commission to reconsider its decision by filing an application for reconsideration containing a concise statement of the material facts upon which the application is based.

(2) Upon receipt of an application for reconsideration the Commission shall as soon as is practicable notify the person complained against of the application and afford the person an opportunity to make written submissions with respect thereto within such time as the Commission specifies.

(3) Every decision of the Commission on reconsideration together with the reasons therefor shall be recorded in writing and promptly communicated to the complainant and the person complained against and the decision shall be final. R.S.O. 1990, c. H. 19, s. 37.

Standard of Review

[14] The exercise of the Commission’s discretion under these sections is subject to judicial review on the standard of “patent unreasonableness”.

[15] In Gismondi v. Ontario Human Rights Commission and The Corporation of the City of Toronto, [2003] O.J. No. 419, this Court recently examined the standard of review in cases involving judicial review of the Commission’s exercise of its discretion under ss. 34 and 37 of the Code. The Court held, having regard to the statutory role of the Commission, its expertise in dealing with human rights complaints and, particularly, the preliminary investigative and screening function it was performing under ss. 34 and 37, that the appropriate standard of review was patent unreasonableness. At paras. 24 and 25 of that decision, the Court said:

[24] Here, there is no general privative clause in the Commission’s regulatory legislation. On the other hand, there is no right of appeal from a decision of the Commission under sections 34, 36 or 37 – unlike from a decision of a Board of Inquiry under the Code (s. 42). However, section 37(3) – the reconsideration provision that lies at the end of the screening process – provides that the Commission’s decision on the reconsideration “is final”. These features of the legislative scheme are consistent with the nature of the function being performed by the Commission when acting under those sections. The Commission – whose relative expertise in fact finding and processing complaints in the human rights context is well recognized – is engaging in a screening function, which is more administrative than quasi-judicial in nature. The fundamental purpose of the Code is to establish a legislative framework “to ensure that all members of our society enjoy the essential right to be free from discrimination on racial and other grounds”: Payne v. Ontario (Human Rights Commission) (2000), 192 D.L.R. (4th) 315 (Ont. C.A.) at 361. The Commission is the statutory vehicle established to carry out that function. Its role is to investigate complaints, to screen them, and, where warranted, to establish a Board of Inquiry to hear and determine the complaints. In carrying out the first two of these roles the Commission is not sitting as a tribunal (whose decision may be appealed to the Divisional Court) but rather it is acting in an investigative and administrative screening capacity. As Boland J. stated in Brome v. Ontario (Human Rights Commission) (1999), 35 C.H.R.R. D/469 (Ont. Div. Ct.), leave to appeal dismissed [1999] O.J. No. 2537 (C.A.), at para. 18:

The combined effect provided by the legislature in s. 34 is to enable the Commission to sift through the complaints and remove a number of them from the time-consuming process of investigation. The power to bar certain complaints from proceeding further, regardless of their merit, reflects the legislature’s overriding commitment to considerations of administrative efficiency and to specif[ic] policy objectives. The Commission is not under a public duty to proceed with every complaint; it has a discretion which i[t] may exercise depending upon the circumstances.

(Underlining added.)

See also, Syndicat des employés de production du Québec et de l’Acadie c. Canada ( Commission canadienne des droits de la personne) et al., [1989] 2 S.C.R. 879 at 911, per L’Heureux-Dubé J. (in dissent).

[25] Given the Commission’s acknowledged expertise in dealing with human rights complaints, the purpose of the legislation and the nature of the particular problem being addressed by the Court on a review of a section 34 or 37 decision, we have no hesitation in concluding that its decisions in such matters are entitled to the degree of deference found at the “patent unreasonableness” end of the spectrum of review set out in such cases as Pezim v. British Columbia (Superintendent of Brokers) (1994), 114 D.L.R. (4th) 385 (S.C.C.), Canada (Director of Investigation and Research) v. Southam Inc. (1997), 144 D.L.R. (4th) 1, and Pushpanathan v. Canada (Minister of Citizenship and Immigration), supra. The doctrine of “unreasonableness”, recognized by the English Court of Appeal in Wednesbury, supra, and referred to by L’Heureux-Dubé J. in Baker, supra, must be viewed in light of the subsequent development of that “spectrum” approach in this context, in our opinion. The result is nonetheless in keeping with the “considerable deference” approach favoured by the Supreme Court of Canada in Baker.

[16] Reconsideration decisions made by the Commission under s. 37 of the Code fall squarely within the jurisdiction of the Commission, of course. They are not to be disturbed unless they are patently unreasonable: see Trest v. Ontario (Human Rights Commission), [1998] O.J. No. 570 (Div. Ct.); and Devlen v. Ontario (Human Rights Commission) (1998), 105 O.A.C. 301 (Div. Ct.).

[17] Although it may be said that a decision under s. 36 of the Code is made after a more extensive investigation than that which occurs under s. 34, the Commission is nonetheless carrying out an investigative and screening function under s. 36 as well. In Jazairi v. Ontario (Human Rights Commission) (1997), 99 O.A.C. 184 (Div. Ct.), aff’d (1999) 1999 3744 (ON CA), 122 O.A.C. 356 (C.A.), leave to appeal to S.C.C. dismissed [1999] S.C.C.A. No. 448, Corbett J. observed (paras. 23 and 27):

23. The Commission is charged with exercising its discretion [under s. 36(1)] on an assessment of the evidence. The Code does not require all complaints to be referred to a Board of Inquiry. The Commission’s approach has been to assess whether there is a reasonable basis in the evidence for proceeding to a hearing by a Board.

24. Having regard to the language of s. 36(1) of the Code, I am of the opinion that the Commission is given somewhat greater responsibility than merely assessing whether liability may be inferred. On the question of referral, considerable deference should be given to the Commission on matters pertaining of the role and function given to the Commission by the Code and having regard to its expertise in fact-finding and processing complaints in a human rights context.

[18] We therefore conclude that the same standard of review should apply to the judicial review of decisions made under s. 36 and s. 37 as applies when decisions are made under s. 34 and confirmed on reconsideration under s. 37. That standard is patent unreasonableness.

Analysis

[19] The task of the Commissioners pursuant to s. 36 of the Code is to determine, on the basis of the record before them, whether the particular complaint they are considering should be referred to the board of inquiry for adjudication. Is that procedure appropriate and does the evidence warrant such a referral?

[20] Upon a review of the Commission’s exercise of its discretion not to refer, the issue to be determined by the Court is not whether the complaint that was before the Commissioners should succeed on the merits, but whether the Commission acted in a patently unreasonable manner in reaching the decision it did. Here, therefore, the issue for us to determine is not whether the University’s use of the LSAT scores had an adverse discriminatory impact on African-Canadians, including Mr. Pieters, but whether the Commission acted in a patently unreasonable fashion in declining to refer his complaint to the board of inquiry, having regard to all of the material before it at the time when it made its decision.

[21] A patently unreasonable decision is one that is “evidently not in accordance with reason” or “clearly irrational”: Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, per Cory J. at 963-964. In our view, neither the Commission’s decision not to refer the complaint to the board of inquiry under s. 36 of the Code nor its decision to uphold that determination on the s. 37 reconsideration can be successfully attacked on that basis.

[22] Mr. Pieters argued the Commission’s decision was patently unreasonable because:

a) it misapprehended and failed to give effect to, or simply ignored, “the vast documentary evidence” he had put before it regarding the adverse impact on racial and ethnic minorities, and on himself, of the University’s use of the LSAT scores in its admission process;

b) it erred in law in concluding that reliance on the prohibited ground must have been the only cause for the rejection of his application;

c) it breached the rules of procedural fairness; and,

d) it created a reasonable apprehension of bias.

The LSAT Issue:

[23] Mr. Pieters put forward a case based upon academic articles, studies and jurisprudence that tended to show “racial and ethnic minorities including Black African-Americans perform less well on the LSAT than do Whites” (Section 36 Case Analysis, para. 46). He noted the President and Executive Director of the Law School Admission Council acknowledged in correspondence with Dean Daniels of the University’s Faculty of Law that:

Unfortunately, persistent differences in overall test performance across racial and ethnic groups do exist. Minority groups, overall, tend to perform less well than whites. The difference between the LSAT means for black and white test takers, for example, is about 1 standard deviation, or 10 points on the 120-180 LSAT score scale.

[24] Samples from other sources relied upon by Mr. Pieters include:

Preface to an article by Linda Wightman, The Threat to Diversity in Legal Education: An Empirical Analysis of the Consequences of Abandoning Race as a Factor in Law School Admissions Decisions, (1997) 72 N.Y.U.L. Rev. 1 at 1.

The use of affirmative action policies in school admissions has been a continuing source of controversy. . . . In an effort to inform the debate, Professor Wightman has engaged in a comprehensive empirical analysis to examine the impact of abandoning considerations of race and ethnicity in the law school admission process. Using data obtained from students who applied to law schools in 1990-1991 and from Fall 1991 first-year law students, she examined the likely effects of an admission policy that relied exclusively on LSAT scores and undergraduate grade-point averages. Countering arguments that affirmative action policies merely reallocate minority students among schools, Professor Wightman’s study indicates that such a “numbers only” policy would result in a sharp increase in the number of minority applicants who would be denied access to a legal education, not just at the schools to which they applied, but to any of the law schools included in the study. In striking contrast to the decline in admission rates, Professor Wightman found no significant differences in the graduation rates and bar passage rates between those minority students who would have been accepted to law schools and those who would not. Thus a “numbers only” policy would deny a legal education to many minority applicants who were fully capable of the rigors of legal education and of entering the legal profession. . . . (Underlining added.)

Susan Sturm and Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, (1996) 84 Calif. L. Rev. 953 at 957:

Typical among the existing criteria and selection methods are paper-and-pencil tests, such as the Scholastic Assessment Test (SAT), the Law School Admissions Test (LSAT), and civil service exams. These tests, which are used to predict future performance based on existing capacity or ability, do not correlate with future performance for most applicants, at least not as a method of ranking those “most qualified”. These tests and informal criteria making up our “meritocracy” tell us more about past opportunity than about future accomplishments on the job or in the classroom. (Underlining added.)

The Canadian Bar Association, Touchstones for Change: Equality, Diversity and Accountability, 1993, at 13:

Indirect discrimination arises from the use of the LSAT test to screen law school applicants. While the same test is used on all students, it adversely affects students from non-Anglo-Saxon backgrounds.

[25] From these and other academic articles and studies, Mr. Pieters argued that a “numbers-only policy” of admissions to law school, based upon an assessment of the applicant’s LSAT score and undergraduate record, disadvantages African-Canadian and other minorities in a disproportionately adverse way. Such a policy – which he contended was the type of policy employed by the Faculty – is therefore discriminatory against those groups, and against him as a member of one of them. With an average LSAT score of 144, his results were 9 points below the Faculty’s threshold of 153 for the 1997 entering class and his application was therefore “presumptively rejected” in the Faculty’s admission’s process. He submitted, here and before the Commission, that the LSAT is a subjective and arbitrary test for merit which, because of its adverse impact on minorities, virtually excludes Blacks from admission to the Faculty of Law at University of Toronto.

[26] Mr. Pieters effectively summarized his position in the following fashion, at para. 75 of his factum:

The Applicant submits that . . . systemic discrimination in the provision of service and facilities at University of Toronto, Faculty of Law can be described as a web of direct and indirect barriers, embedded in the accepted norms shaping their admissions policies, practices, procedures and tests, which has the cumulative effect of excluding members of disadvantaged racial minority groups (including Black or African Canadian persons) from equal educational access and equal opportunity in the provision of facilities (i.e., common law schools in Ontario) and services (i.e., legal education). This occurs through the application of admissions policies and practices based on criteria (particularly the LSAT) that are neither relevant nor rationally connected to academic success in law school or the ability to be a good lawyer, nor reasonably necessary as the basis for acceptance to law school. These systemic barriers both reflect and reinforce the discriminatory attitudes that are relied upon to rationalize the exclusion or under-representation of African-Canadian students from common law schools in Ontario.

[27] The University responded to all of this, on the other hand, by submitting evidence and documentation aimed at demonstrating:

a) that the group LSAT performance differences did not themselves mean the test discriminates against members of minority groups, because studies of the Law School Admission Council showed the LSAT is designed to predict law school performance (rather than to be a test of general intelligence) and it performs the prediction function equally well for members of all racial or ethnic groups;

b) that the Faculty’s admissions policy was not a “numbers-only policy under which decisions were based on strict numerical cut-offs” – which the University submitted was the underlying premise of Mr. Pieters’ complaint – but instead was a holistic admissions policy specifically aimed at enhancing diversity and taking into account a wide range of factors including not only an applicant’s undergraduate record and LSAT score but also other aspects of the applicant’s history including non-academic achievements, responses to racial and other barriers, and additional personal circumstances;

c) that the Faculty’s admissions policy gives mature applicants, like Mr. Pieters, special consideration; and,

d) that when Mr. Pieter’s application was considered on its merits, in accordance with the foregoing principles – and even if his very low LSAT score were not taken into account – his very weak academic record, compared to those of other applicants (including other minority and African-Canadian applicants), disqualified him from acceptance because “in the judgment of the Chair of the Admission’s Committee and the director of Admissions, there was nothing else in his application to demonstrate a capacity for academic achievement in the Faculty’s program”.

[28] The Faculty of Law at the University of Toronto has the highest law school admission standards in Canada, and amongst the highest in North America. There are approximately 1700 applications, including about 300 from mature students, for 170 places in the first year class. Everyone cannot be admitted. These numbers alone demonstrate that approximately 10% of those who apply are admitted. The evidence is that the Faculty has gone to considerable length to develop and adhere to criteria for admission that respond to the very issues raised in this application.

[29] In addition to the admission policy described above, the University filed materials indicating that for each year the Admissions Committee defines guidelines based on undergraduate records and LSAT scores. The guidelines determine applications that are “presumptively admitted”, “presumptively rejected”, or “remitted to the Admissions Committee for future consideration”. Applications are screened by a three-person committee, consisting of two faculty members and one student. If an application is “presumptively rejected” it is nonetheless remitted to the Director of Admissions, and sometimes also to the Chair of the Admissions Committee, for a further review, taking into account all of the factors referred to above. This is what happened to Mr.Pieters’ applications.

[30] For the 1998 academic year the entry class was particularly strong, according to the evidence. The average GPA of a regular applicant was 84.7%, and the average LSAT score was 165 (the 93.8 percentile). For mature applicants, the average GPA was 80.7% and the average LSAT score was 163 (the 90.7 percentile). About 25% of the class comprised students from visible minorities (although, as Mr. Pieters correctly pointed out, the percentage of African-Canadians was much smaller –approximately 3.3%). The guidelines for that year provided that the applications of mature applicants with a university record of 74% or less and an LSAT score of 154 (60th percentile) or less would be presumptively rejected.

[31] Mr. Pieters’ undergraduate GPA was 71.7% and his average LSAT score was 144 (the 26.1 percentile). Both the Chair of the Admissions Committee and the Director of Admissions reviewed his application as against the admissions policy referred to above and taking into account all of the specified factors regarding which Mr. Pieters had provided information, including his race and ethnic origin and his experiences in dealing with and overcoming racial and ethnic barriers. They concluded that, given his weak academic record and very low LSAT score, his personal circumstances and work and extra-curricular activities did not justify his admittance. The results would have been the same without taking into account the LSAT score, since those reviewing the application were of the view that the balance of the contents of the application did not reveal an ability for academic achievement in the Faculty’s program in comparison to other candidates.

[32] The Commission had all of this evidence and information before it, both at the time of its decision not to refer the complaint to the board of inquiry and at the time of its reconsideration of that decision. The Section 36 Case Analysis is the “work up” of the case by Staff, prepared for the Commission for purposes of its decision-making process. At the March 27, 2001 meeting at which Mr. Pieters’ complaint was considered, and the decision made, Staff reviewed the contents of the Case Analysis with the Commissioners present.

[33] In the Section 36 Case Analysis, Staff approached its examination of the foregoing evidence and the record by asking three questions, namely:

a) Does the evidence indicate that the complainant was denied fair and equal access to the respondent’s law school because of the school’s reliance on the LSAT?

b) Does the evidence indicate that the LSAT has an adverse impact on African-Canadians, i.e., the group to which the complainant belongs?

c) Does the evidence indicate that the LSAT is a non-objective and arbitrary test or that the test is not reasonable and bona fide?

[34] After evaluating the evidence and the materials before it, the Staff arrived at its “Summary Analysis and Recommendation”, recited in para. 7 above. While the Case Analysis does not constitute the reasons of the Commission, it is something to which the Court can look for an understanding of the Commission’s reasons, and it verifies that the Commission had before it a thorough analysis of the evidence relevant to all of the issues raised by the Applicant and by the Respondent. In addition, of course, the Commission also had before it the various submissions made by the parties, both before and after the preparation of the Case Analysis.

[35] Having regard to the foregoing, then, there was ample evidence before the Commission upon which it could base its decision not to refer Mr. Pieters’ complaint to the board of inquiry and its subsequent confirmation of that decision. In considering a tribunal’s reasons the Court may look at the material that was before the tribunal and the result reached to see if there is a rational basis for the result: see Gee v. Canada (Minister of National Revenue-MNR), 2002 FCA 4, [2002] F.C.J. No. 12 (C.A.). Here, the Commission had evidence and documentation before it that supported the positions put forward by both parties. It was both entitled to and required to sort out this material in its s. 36 investigative stage and come to a decision whether or not to refer Mr. Pieters’ complaint to the board of inquiry. That is precisely what it did, and it cannot be said, in our view, that it misapprehended or ignored the Applicant’s position or the evidence before it in arriving at its conclusions.

[36] The Commission’s decisions survive the test of patent unreasonableness, or even that of reasonableness, in our view, and cannot be interfered with on this basis.

Error in Law Respecting the Impact of Discriminatory Policies on the Decision

[37] Mr. Pieters argued that the Commission erred in law by concluding, in effect, that there was no discrimination because the Faculty’s reliance on his LSAT score was not the sole reason for rejecting his application. He submits that it is not necessary for a finding of discrimination that the action, policy, practice or test in question be the only cause of the discriminatory effect, so long as it is found to be a contributing cause: see Basi v. Canadian National Railways Co (1988), 9 C.H.R.R. D/5029 (C.H.R.T.) at paras. 38496-38498. We agree with this statement of principle. However, the Commission was entitled to find -- as it implicitly did in paragraphs (1) – (3) of its Reasons -- that there was insufficient evidence to indicate there was any discrimination in the circumstances of this case, and therefore that discriminatory practices were neither the sole or contributing cause of Mr. Pieters’ rejection as an applicant.

Procedural Fairness

[38] In addition, Mr. Pieters submitted that the Commission’s decisions should be set aside for lack of procedural fairness.

[39] The Commission must abide by the rules of procedural fairness, of course. In this regard, the following observations of Sharpe J.A. in Payne v. Ontario (Human Rights Commission) (2000), 192 D.L.R. (4th) 315 (Ont. C.A.) at para. 156 are apt:

In any event, procedural fairness dictates that the complainant and other parties who may be affected by a decision of the Commission be given notice of the facts, arguments and considerations upon which the decision is to be based and an opportunity to make submissions. Under the procedures adopted by the Commission, the complainant and others who may be affected by the decision are not entitled to attend the meeting at which the complaint is considered by the Commissioners. In advance of that meeting, they are provided with a copy of the Case Analysis Report that will be put before the Commissioners and are given an opportunity to make written submissions. If the Commission were to proceed on a different recommendation or to base its decision on factors or considerations undisclosed to the complainant and the others there would be no opportunity to respond and the right to fairness would be infringed.

[40] Here, the Applicant had full notice of the facts, arguments and considerations upon which the Commission’s decision was to be based, and the opportunity to make submissions. He took full advantage of that opportunity, advancing very thorough and carefully researched written argument on all points, and at the various stages of the process. There can be no denial of natural justice in that regard.

[41] Mr. Pieters speculates, however, that the Commission may have proceeded “on a different recommendation” or “base[d] its decision on factors or considerations undisclosed to [him]” and respecting which he did not have an opportunity to respond. This concern arises out of an exchange of correspondence between him and Commission counsel in May and June 2002. In a letter dated May 10th to the Commission, Mr. Pieters asked to be provided with certain information, including “a full, accurate and complete copy of the record of proceedings from the Ontario Human Rights Commission”. In item number 3 on his list (of ten items) he asked “Whether the Commission Staffers spoke to the case at the Commission’s meeting”. On June 27th Mr. Hadibhai responded on behalf of the Commission. Although they are not numbered, it is apparent from a reading of this letter that its contents respond to the matters raised by Mr. Pieters in a consecutive fashion. The third full paragraph responds to item number 3 in Mr. Pieters list. It reads:

I can advise you that the presentation by staff at the March 27, 2001, Commission meeting was limited to reading from the Section 36 Case Analysis, contained in the Record of Proceedings. No presentations were made to the Commissioners at the April 27, 2002, Commission meeting.

[42] Mr. Pieters argues from this response that the Commissioners had nothing else before them but the Case Analysis, and Staff’s comments in that regard, when they made their decision not to refer his complaint to the board of inquiry on March 27, 2001, and when they decided to uphold that decision on the s.37 reconsideration on April 17, 2002. If that were so, there would be a basis for the argument that the parameters set out by Sharpe J.A. in Payne had been infringed. However, we find this not to be the case. Mr. Hadibhai’s letter is responsive to the question asked by Mr. Pieters, namely, “whether the Commission Staffers spoke to the case” at the meeting. It indicates that they did, but they confined their remarks to the contents of the Case Analysis. It does not follow that all of the other materials which the Record indicates were before the Commissioners as well at this time – Mr. Pieters’ complaint, the University’s response to the complaint and its response to the Case Analysis, Mr. Pieters’ response to the Case Analysis, and the similar panoply of materials in relation to the s. 37 decision – were not before the Commission at the relevant meetings. We find on the Record that they were.

[43] Part of Mr. Pieters’ skepticism in this regard is founded on the fact that the Commission Registrar filed three certificates with the Court respecting the Record of Proceedings before the Commission. A Record of Proceedings of the Respondent Ontario Human Rights Commission was first prepared with a Registrar’s Certificate dated 23rd May 2002. That Record contained documentation relating to both the s. 36 and s. 37 decisions, and the Registrar certified “that the documents that have been bound and annexed hereto are:

A. A true copy of the documents which were before the Commission pertaining to the complaint of Selwyn Pieters, at its meeting of March 27, 2001, and;

B. A true copy of the documents which were before the Commission pertaining to the complaint of Selwyn Pieters, at its meeting of April 17, 2002.

[44] Although this Record purported by its index to contain all of the materials that had been filed with the Commission in relation to the s. 37 decision, it only contained the body of Mr. Pieters’ response to the reconsideration report that had been prepared by Staff. It did not contain the voluminous attachments that had been forwarded with it. A second, Supplementary Record of Proceedings was prepared over a Registrar’s certificate dated 3rd June 2002. It contained an identical certification to B above respecting the April 17th meeting, and was comprised of academic articles, correspondence between Mr. Pieters and the Law School, submissions made by Mr. Pieters and various authorities – all of which had been filed by Mr. Pieters with the Commission. But apparently it did not contain all of this type of material. A third Amended Supplementary Record was prepared over a Registrar’s certificate dated 11th June 2002. This time the Registrar’s certificate stated specifically that the Amended Supplementary Record contained “a true copy of the documents pertaining to the complaint of Selwyn Pieters which were made available to the Commissioners at the Commission meeting of April 17, 2002”.

[45] What Mr. Pieters seeks to deduce from all of this is that the entirety of his submissions were not before the Commissioners, particularly in relation to the s. 37 reconsideration decision. We do not accept that argument. We note that the Court stamp indicates all three Records were filed with the Court at the same time, namely on June 18, 2002. This is not an uncomplicated or thin file. It may have taken more than one effort to get the contents of the Record straight. The Registrar of the Commission has certified to the Court that the documents contained in the three volumes were before the Commission at the pertinent time. We have no reason to doubt the correctness of the Registrar’s certificates, however, and are satisfied that the Commission had before it at the two meetings in question the documents certified to have been there.

Reasonable Apprehension of Bias

[46] Finally, Mr. Pieters submitted that the Commission’s decisions should be set aside on the grounds of reasonable apprehension of bias. This argument is founded upon the premise that the Chief Commissioner, Mr. Norton, was present and participated in the decision of March 27, 2001, not to refer – and, indeed, signed the decision on behalf of the Commission – while he was at the same time a Respondent in other proceedings brought by the Applicant before the Commission. We reject this argument as well.

[47] It is true that Mr. Norton was named as a respondent by Mr. Pieters in another prior proceeding brought before the Commission. That proceeding arose because Mr. Pieters was dissatisfied with the Commission’s delay in dealing with an earlier complaint he had filed with the Commission alleging discrimination on the part of the Ministry of Correctional Services. Because of the Commission’s practices regarding such complaints, Mr. Norton was not made aware of the fact that there was a complaint naming him – along with the former Executive Director and a former Human Rights Officer – as a respondent. It is not clear from the Record before us whether this complaint had been disposed of by Commission Staff prior to the decisions regarding Mr. Pieters’ complaint against the University of Toronto. It may have been. In any event, we are satisfied that Mr. Norton was named in the complaint in his institutional capacity by virtue of his position rather than in any personal capacity. The evidence before us is that Mr. Norton did not participate in the discussion at the March 27th meeting, that he did not vote on the referral issue, and that he was not present at the April 17th reconsideration meeting.

[48] In these circumstances we are not prepared to interfere with the Commission’s decisions regarding Mr. Pieters’ complaint against the University of Toronto on the grounds of reasonable apprehension of bias.

Disposition

[49] In view of foregoing determinations, it is not necessary to deal with the additional issue raised by the Respondents, namely whether certain of the remedies sought by Mr. Pieters are unavailable on judicial review.

[50] The Application for judicial review is dismissed.

[51] The University does not seek costs. Because of the allegations of bias, the Commission does. In our view, however, this is not an appropriate case for costs, and we make no order in that regard.

R.A. Blair R.S.J.

I agree: ___________________________

Ellen Macdonald J.

I agree: ___________________________

B. MacDougall J.

Released: April 14, 2003

COURT FILE NO.: 274/02

DATE: 2002/04/14

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

R.A. BLAIR R.S.J., ELLEN MACDONALD and B. MACDOUGALL JJ.

B E T W E E N :

Selwyn Pieters

Applicant

• and -

University of Toronto and Ontario Human Rights Commission

Respondents

REASONS

R.A. BLAIR R.S.J.

DATE: April 14, 2003

[^1]: See Applicant’s factum, para. 2. [^2]: The Law School Admission Council, a non-profit organization whose members comprise 198 law schools in Canada and the United States. LSAC develops and administers the LSAT, as well as dealing with other matters concerning admission standards to Canadian and American law schools. [^3]: Grade Point Average.