Cespedes v. University of Toronto (No. 1)

COURT FILE NO.: 481/02 DATE: 20040123

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

HANS CESPEDES Applicant

• and -

UNIVERSITY OF TORONTO and ONTARIO HUMAN RIGHTS COMMISSION Respondents

Acting In Person Cathy Pike for the Ontario Human Rights Commission John B. Laskin for the University of Toronto

HEARD: December 17, 2003

REASONS FOR JUDGMENT

Epstein J.

[1] Mr. Cespedes' application arises from a complaint under the Ontario Human Rights Code, R.S.O. 1990. c. H. 19, as amended, alleging that the admission policy of the University of Toronto Faculty of Law is discriminatory. His application is for judicial review of the Commission's decision not to refer his complaint to a Board of Inquiry and of the Commission's decision not to reconsider this decision.

[2] The respondent, University of Toronto, seeks to quash Mr. Cespedes' application on the basis that there is no reasonable prospect that it can succeed. The basis for this argument is this Court's disposition of a very similar complaint.

The Facts

[3]The facts consist primarily of the history of Mr. Cespedes' complaint through the Human Rights complaint process and that of the similar complaint to which I have just referred, that being the complaint of Mr. Selwyn Pieters. In setting out the facts I have borrowed heavily from the factum filed on behalf of the Faculty.

[4] In May of 1998, Mr. Pieters filed a complaint with the respondent, the Ontario Human Rights Commission concerning the Faculty's admission policy. Mr. Pieters amended his complaint in May of 2000. The amended complaint alleged that the Faculty's use of the LSAT in its admission policy adversely affected African Canadians, such as Mr, Pieters, on the grounds of race, colour, ancestry and ethnic origin.

(5] The applicant, Mr. Cespedes, applied to the Faculty for admission for the 2000 academic year. In a personal statement he identified himself as an Hispanic/Latino Canadian Male. He was not granted admission.

[6] In March of 2000 Mr. Cespedes filed a human rights complaint. He alleged that the Faculty's use of the LSAT in its admission policy adversely affected Hispanic/Latino Canadians, on the grounds of race, colour, ancestry and ethnic origin, contrary to sections 1, 9, and 11 of the Code.

[7] The two complaints were very similar. Among other things, both complainants alleged that they applied to the Faculty as mature students. The information supporting each complaint included a personal statement setting out the disadvantage the complainant felt he had suffered as a result of being a member of a particular racial or ethnic group, his volunteer experience, the undergraduate program completed, his LSAT score and his potential contribution to the Faculty. Both complainants pointed out that the Faculty calendar indicated that the LSAT is compulsory for all applicants and that for that reason, they submitted LSAT scores.

[8] Furthermore, both complaints alleged that the primary or only criteria for admission to the Faculty are grades and LSAT scores.

[9] The focus of both complaints is the allegation that the LSAT is not a reliable or accurate predictor of law school performance, and that members of the racial or ethnic groups of which the complainants are members did not perform as well on the LSAT as Caucasian students. On this basis both complainants alleged that he was "denied fair and equal educational access to the Faculty because of the Faculty's use of the LSAT which is not objective and is arbitrary". Both alleged that the Faculty uses the LSAT as a screening mechanism even though it is biased and a form of adverse effect discrimination.

[10] Finally, both complaints contain allegations that the Faculty contravened sections 1, 9 and 11 of the Code and that the grounds on which they suffered discrimination were "race, colour and ethnic origin".

[11] The Faculty responded to both complaints in considerable detail. Given the similarity in the two complaints, the responses closely resembled each other. The Faculty denied that its admission decisions were in any way based on colour, ethnic origin or race. It said that its admission policy was inclusive, and took into account a wide range of factors, only one of which is the LSAT score. The Faculty further noted that its admission policy had been reviewed and changed in 1990 with the express purpose of adding diversity to the student body. The responses proceeded to outline the manner in which the complainants' applications were assessed on their merits. Finally, the Faculty provided information about the LSAT, its predictive value and the efforts the organization that administers the test makes to ensure that it is not discriminatory.

[121 The two complaints proceeded in parallel through the Commission process. The Commission dealt with them at the same time. In each case the Commission staff, on reviewing the evidence, recommended that the Commission not refer the subject matter of the complaint to the Board of Inquiry.

[13] The assessments contained in the two case analysis reports prepared by staff were very similar. They both indicated that even if the complainant had received a higher LSAT score, the complainant might not have been admitted to the Faculty because of the relatively low academic performance. With respect to the impact of the LSAT scores, both reports said that the evidence about the impact of the LSAT on the complainant as a member of a group that has traditionally performed less well on the LSAT, was inconclusive, particularly in light of the Faculty's efforts to increase the representation of minorities among its students.

[14] In both cases the complainants and the Faculty responded to the case analyses. At this stage Mr. Cespedes asked Mr. Pieters for assistance. Because the two cases were very similar and because Mr. Pieters was involved in preparing both responses, the complainants' responses raised essentially the same issues.

[15] On March 27, 2001 the Commission decided, in the exercise of its discretion under s. 36 of the Code not to refer either Mr. Pieters' or Mr. Cespedes' complaint to the Board of Inquiry. The two decisions were very similar. In both cases the Commission reasoned that, among other things, the evidence was insufficient to indicate that the complaint was subjected to unequal treatment because of race, colour or ethnic origin and that it indicated that the Faculty did not admit the complainant because, among other reasons, the complainant's academic record was lower than that of successful candidates.

[16] Both complainants applied for reconsideration of the Commission's decisions. Mr. Pieters made submissions on his own behalf and on behalf of Mr. Cespedes. The two reconsideration submissions were largely identical.

[17] On April 17, 2002 the Commission decided to uphold its original decisions and not refer either complaint to the Board of Inquiry. These two decisions were expressed in virtually identical terms. In both cases the Commission decided to uphold its original decision because it remained of the view that there was insufficient evidence to indicate the complainant was subjected to unequal treatment because of race, colour or ethnic origin or to conclude that the Faculty's use of LSAT scores has an adverse impact on minorities or on the complainants by reason of their racial or ethnic backgrounds and that the Faculty did not admit the complainants due to its overall assessment of the strength of their applications.

[18) The complaints' next step was to apply for judicial review of the Commission's decisions. While Mr. Pieters' notice of application was issued 3 months earlier than Mr. Cespedes' the applications were worded in a very similar fashion; setting out the ,history, the details of the applications to the Faculty and the alleged discrimination.

[19] Mr. Pieters' application was heard by a panel of this court on December 11, 2002 and was dismissed on April 13, 2003. In its very thorough reasons, the Divisional Court identified the issue not as whether Mr. Pieters' complaint should succeed on its merits but whether the Commission acted in a patently unreasonable manner in reaching its decisions. The Court held that there was "ample evidence before the Commission upon which it could^, base its decision not to refer the complaint". The Court further held that the Commission's decisions would survive not only the patent unreasonableness test but also that of reasonableness simpliciteur, if applied.

[20] On July 14, 2003, the Court of Appeal dismissed Mr. Pieters' motion for leave to appeal the decision of the Divisional Court.

[21] On September 18, 2003 Mr. Cespedes served his factum in support of this application for judicial review. The factum is, for the most part, a copy of Mr. Pieters' factum in his unsuccessful motion for leave to appeal to the Court of Appeal. In fact, there are a number of places where it is a direct photocopy, necessitating the whiting out of Mr. Pieters' name and personal characteristics and superimposing those of Mr. Cespedes.

[22] Upon receipt of Mr. Cespedes' factum, counsel for the University of Toronto and counsel for the Commission separately wrote to him suggesting that he abandon his application on the basis that since it is indistinguishable from that of Mr. Pieters, there is no reasonable prospect that the application for judicial review can succeed.

[23] Mr. Cespedes did not accede to this request.

Analysis

[24] Rules 14.09 and 25.11 give this court jurisdiction to strike out an application for judicial review where the application is frivolous or vexatious or an abuse of process of the court.

[25] The jurisprudence under these sections establishes that an application for judicial review will be quashed or dismissed on this basis only where it is plain and obvious that the application will fail.

[26] Counsel for the Faculty and for the Commission argue that Mr. Cespedes' case is, in all material respects, identical to that of Mr. Pieters. Given the Divisional Court's thorough examination of the merits of Mr. Pieters' application for judicial review and the result of that examination, together with the limited scope of a judicial review, Mr. Cespedes' application has no real chance of success. Accordingly, to save the parties and the court the resources required to consider Mr. Cespedes' application, it only makes sense to dismiss it at this stage.

[27] Mr. Pieters who, with the consent of counsel for the moving parties, responded to this motion to quash on behalf of Mr. Cespedes submitted that there were three reasons why Mr. Cespedes' application warrants an independent review. He says that there are factual differences in the two cases. Secondly, Mr. Pieters submits, in paragraph 7 of the factum filed on behalf of Mr. Cespedes, that certain new evidence " submitted to the Commission by Mr. Laskin was not disclosed to Mr. Pieters and the Commission stated that it did not consider this evidence in the Pieters case during the Commission decision making stage." As a result Mr. Pieters raises an issue under the duty of fairness. Thirdly, Mr. Pieters relies on the decision of the United States Court of Appeals for the Sixth Circuit in Grutter v. Bollinger (02-241) (2003), 288 D.3d 732, a decision which he says would be relevant to Mr. Cespedes' application.

[28] From my review of the record I cannot see any material difference in the two cases. The factual differences are merely because of the differences in the personal circumstances of Mr. Pieters and Mr. Cespedes. Such differences are not relevant to the issues upon which the Divisional Court has ruled

[29] In terms of the alleged procedural unfairness, it is clear that this issue was raised in Mr. Pieters' application and dealt with by the Divisional Court. Any additional material upon which Mr. Cespedes may wish to rely at this stage cannot be considered within the context of a judicial review.

[30] The Grutter decision does not affect my assessment of whether Mr. Cespedes' application for judicial review has a chance of success. The Commission did not have that decision before it but did refer to the lower court decision. In any event, the decision has no bearing on the reasonableness test.

[31] The thrust of Mr. Cespedes' application is the alleged discriminatory nature of the LSAT. That the same arguments would be made in Mr. Cespedes' application as were made in that argued and disposed of in the Pieters matter, is evident from the similarity between Mr. Cespedes' factum filed in support of this application and in Mr. Pieters' factum filed in support of his motion for leave to appeal to the Court of Appeal. A comparison of these two factums makes it clear that the core of the two cases is identical. The same words are used to advance the same arguments on the same principles. If anything Mr. Pieters' application stood the greater chance of being successful as the arguments Mr. Pieters made on his own behalf were more expansive than those he made on behalf of Mr. Cespedes. Mr. Pieters argued systemic bias, an argument that was not advanced on behalf of Mr. Cespedes.

[32] It is therefore clear that in dismissing Mr. Pieters' application, the Divisional Court dealt with all of the issues Mr. Cespedes has raised in his application for judicial review. Given the limited scope of judicial review, there is no reason to think that the result in this application will be any different from that in Mr. Pieters' application.

[33] It follows that a full hearing of this application would cause unnecessary expense for all parties and would be an inappropriate use of the limited resources of the Court. Against the background of the history I have set out in these reasons, Mr. Cespedes' persistence in proceeding with this application is an abuse of the courts process.

Disposition

[34] Mr. Cespedes is attempting to litigate, with Mr. Pieters' assistance, the same issues as Mr. Pieters' unsuccessfully litigated, relying on a record and arguments that are not different in any material way. Given the reasoning of the Divisional Court and the Court of Appeal's disposition of the leave application it is clear that this application has no reasonable chance of success. It is only fair to all the parties and to the court that the application be dismissed.

[35] For these reasons, the motion is granted. The application for judicial review is dismissed.

[36] If the parties are not able to resolve the issue of costs, they may make written submissions within 20 days.

__________________ Epstein J.

Released: January 23, 2003 [sic]