[1997] 1 F.C. 582
T-2743-94
Daniel Arnold (Applicant)
v.
Canadian Human Rights Commission (First Respondent)
and
Social Sciences and Humanities Research Council (Second Respondent)
Indexed as: Arnold v .Canada (Human Rights Commission) (T.D.)
Trial Division, Muldoon J.—Ottawa, January 8 and September 18, 1996.
Human rights — Application to quash CHRC’s dismissal of complaint alleging discriminatory policies in fellowship program administered by Social Sciences and Humanities Research Council — Applicant, dyslexic, denied fellowship — Screening, selection criteria based on academic merit — Applicant disclosing dyslexia on application as explanation for low grades — University allowing learning disabled students extra time to write exams, submit papers, but applicant not requesting such accommodation — After unsuccessful appeal, filing complaint with CHRC — Investigator concluding accommodation for learning disability built into educational system, but applicant not taking advantage of it — CHRA, s. 25 definition of “disability” including learning disability — Alternatively, learning disability analogous ground — As creature of Parliament, SSHRC subject to all laws enacted by Parliament, including CHRA — Must comply in own right with CHRA in matter of accommodation, not adopt “surrogate” accommodation by university, which SSHRC unable to configure, control, enforce as to quality, extent — CHRC erred in assuming SSHRC according accommodation, exonerating SSHRC from duty of direct compliance with CHRA.
This was an application to quash the CHRC’s dismissal of the applicant’s complaint alleging discriminatory policies in the fellowships program, administered by the Social Sciences and Humanities Research Council (SSHRC). The applicant, who has dyslexia, applied for a doctoral fellowship in law. Although the application form does not ask persons with disabilities to identify themselves, the applicant disclosed his dyslexia as the explanation for his problem in achieving high grades. Fellowships are awarded on the basis of academic merit. The applicant was not successful and appealed. When his appeal was dismissed, he complained to the Canadian Human Rights Commission (CHRC), alleging discriminatory policies in the fellowships program. The CHRC’s investigator concluded that the fellowship selection process indirectly accommodated learning disabled students because the university which the applicant attended allowed students with learning disabilities, upon request, extra time to complete exams and term papers. Their marks thus reflected their aptitude and knowledge. The applicant had chosen not to take advantage of such accommodation. Relying on the investigator’s report and after considering the parties’ submissions, the CHRC dismissed the complaint as unfounded.
Disability is a prohibited ground of discrimination under Canadian Human Rights Act, subsection 3(1). Section 25 defines “disability” as any previous or existing mental or physical disability.
Held, the application should be allowed.
The statutory definition of “disability”, if accorded a large, liberal, purposive interpretation, was intended to include Specific Development Dyslexia (SDD), dyslexia and dysgraphia, even though the condition might not obviously be “physical” or “mental” in their restrictive senses. Alternatively, “learning disability” is included in “disability” as an obviously analogous ground of discrimination under subsection 3(1). Also, the doctoral fellowship program is a “service … customarily available to the general public” as contemplated in Canadian Human Rights Act, section 5.
The CHRC erred in assuming that the SSHRC can avoid direct compliance with the human rights law’s duty of accommodating so long as someone else, i.e. the university, accommodates “for” the SSHRC. The university is a creature of the province and not subject to the Canadian Human Rights Act , but to the human rights legislation of Ontario. The SSHRC is a federal board subject to this Court’s judicial review. As a creature of Parliament, it is subject to all the laws enacted by Parliament, including the Canadian Human Rights Act. Parliament has never accorded to the SSHRC any exemption from compliance with the Act. It must comply in its own right, on its own behalf, with the appropriate federal law in the matter of accommodation and not purport to accept and adopt “surrogate” accommodation which it does not directly offer and which it can neither configure nor control, much less enforce as to quality and content. It must perform its own legal duties itself.
The SSHRC failed to directly accommodate the applicant’s learning disability. The CHRC erred in assuming that the SSHRC accorded accommodation because of the university’s accommodation and in exonerating the SSHRC from its duty of direct compliance with the case law and provisions of the Canadian Human Rights Act.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 3(1), 5, 25 “disability”, 44(3)(b )(i) (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 64), 67.
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(2) (as enacted by S.C. 1990, c. 8, s. 5).
Federal Court Rules, C.R.C., c. 663, RR. 6 (as enacted by SOR/90-846, s. 2), 1602(4) (as enacted by SOR/92-43, s. 19), 1614 (as enacted idem), 1618 (as enacted idem).
Interpretation Act, R.S.C., 1985, c. I-21.
CASES JUDICIALLY CONSIDERED
APPLIED:
Canada (Human Rights Commission) v. Canada (Attorney General), [1994] 2 F.C. 447 (1994), 17 Admin. L.R. (2d) 2; 164 N.R. 361 (C.A.); University of British Columbia v. Berg, [1993] 2 S.C.R. 353; (1993), 102 D.L.R. (4th) 655; 26 B.C.A.C. 241; 79 B.C.L.R. (2d) 273; 18 C.H.R.R. D/310; 152 N.R. 99; 44 W.A.C. 241.
REFERRED TO:
Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181; (1981), 124 D.L.R. (3d) 193; 14 B.L.R. 157; 17 C.C.L.T. 106; 2 C.H.R.R. D/468; 81 CLLC 14,117; 22 C.P.C. 130; 37 N.R. 455; Harelkin v. University of Regina, [1979] 2 S.C.R. 561; (1979), 96 D.L.R. (3d) 14; [1979] 3 W.W.R. 676; 26 N.R. 364; Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3; (1995), 122 D.L.R. (4th) 129; 26 Admin. L.R. (2d) 1; [1995] 2 C.N.L.R. 92; 177 N.R. 325; Bissett v. Canada (Minister of Labour), [1995] 3 F.C. 762 (1995), 102 F.T.R. 172 (T.D.); Turnbull v. Canadian Institute of Actuaries (1995), 129 D.L.R. (4th) 42; [1996] 1 W.W.R. 1; 107 Man. R. (2d) 63; 109 W.A.C. 62 (Man. C.A.); Delmas v. Vancouver Stock Exchange (1995), 130 D.L.R. (4th) 461; [1996] 4 W.W.R. 293; 15 B.C.L.R. (3d) 136 (B.C.C.A.); Allen v. Canadian Human Rights Commission (1992), 92 CLLC 16,461; 59 F.T.R. 155 (F.C.T.D.); Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; (1993), 100 D.L.R. (4th) 658; 13 Admin. L.R. (2d) 1; 46 C.C.E.L. 1; 17 C.H.R.R. D/349; 93 CLLC 17,006; 149 N.R.1; Cluff v. Canada (Department of Agriculture), [1994] 2 F.C. 176 (1993), 94 CLLC 17,018; 71 F.T.R. 122 (T.D.); Dickason v. University of Alberta, [1992] 2 S.C.R. 1103; (1992), 127 A.R. 241; 95 D.L.R. (4th) 439; [1992] 6 W.W.R. 385; 4 Alta. L.R. (3d) 193; 17 C.H.R.R. D/387; 92 CLLC 17,033; 11 C.R.R. (2d) 1; 141 N.R. 1; 20 W.A.C. 241.
APPLICATION to quash the CHRC’s dismissal of a complaint alleging policies discriminating against learning disabled students in the fellowships program administered by the Social Sciences and Humanities Research Council. Application allowed.
APPEARANCE:
Daniel Arnold on his own behalf.
COUNSEL:
Arnold Fradkin for respondent SSHRC.
APPLICANT ON HIS OWN BEHALF:
Daniel Arnold.
SOLICITORS:
Deputy Attorney General of Canada for respondent SSHRC.
The following are the reasons for order rendered in English by
Muldoon J.: The applicant applies for orders in the nature of certiorari and mandamus (a) “quashing the decision of one or both respondents in the matter of the applicant’s doctoral fellowship application” and (b) “compelling one or both respondents to reconsider the matter in accordance with the requirements of procedural fairness.”
Both respondents are federal boards, commissions or other tribunals.
In his originating notice of motion filed November 17, 1994, the applicant alleges:
On or about September 30, 1992, the Applicant submitted an application through his faculty for a Doctoral Fellowship in law. That scholarship program is administered by the Respondent Social Sciences and Humanities Research Council (hereinafter referred to as the “SSHRC”). The Applicant was later advised by the SSHRC that he had been an unsuccessful candidate. The Applicant appealed on grounds of irregularities and discrimination against a learning disabled person. The Director of the Fellowships Division turned down his appeal on July 24, 1993. A complaint was made by the Applicant to the Respondent Canadian Human Rights Commission (hereinafter referred to as the “CHRC”) alleging discriminatory policies in the Fellowships Program by letter dated October 26, 1993. That complaint was dismissed by letter dated October 20, 1994, and that decision was final.
This application is based on the following grounds:
(1) That the Respondent SSHRC erred in declining to exercise its jurisdiction to deal with the Applicant’s complaint of irregularities and discrimination in the 1993-94 law competition of the Doctoral Fellowship Program, contrary to the requirements of procedural fairness;
(2) That the Respondents CHRC and SSHRC erred in their interpretations of the term “disability” as used in Sections 3(1) and 25 of the Canadian Human Rights Act , R.S.C. 1985, c. H-6, by failing to include learning disabilities as a proscribed ground of discrimination;
(3) That the Respondents CHRC and SSHRC alternatively erred in their interpretations of Section 3(1) of the Canadian Human Rights Act by failing to include learning disabilities as an analogous ground of discrimination;
(4) That the Respondents CHRC and SSHRC erred in their interpretation of the term “service” as used in Section 5 of the Canadian Human Rights Act , by excluding the Doctoral Fellowship Program from its scope;
(5) That the Respondents CHRC and SSHRC erred in finding that there was no direct or indirect discrimination against the Applicant, and/or in their interpretations of bona fide occupational requirement or duty to accommodate;
(6) That the Respondents CHRC and SSHRC erred in finding there was no discrimination, when irregularities in the Doctoral Fellowship Program gave rise to an inference that the Applicant was discriminated against;
(7) That the Investigator appointed by the Respondent CHRC to prepare a report pursuant to Section 44 of the Canadian Human Rights Act erred in the preparation of her Investigation Report, by failing to provide an adequate, complete and accurate report, so as to comply with the requirements of procedural fairness;
(8) That the said Investigator erred in her obligation to fully inform the Applicant concerning the evidence obtained, so as to comply with the requirements of procedural fairness;
(9) That the Respondent CHRC erred in not ordering an inquiry into the Applicant’s complaint pursuant to Section 44(3)(a)(i) of the Canadian Human Rights Act, given that there were issues of credibility that required cross-examination of witnesses, and/or that the Applicant had satisfied the onus of proof;
(10) That the Respondents CHRC and SSHRC fall within the meaning of the term “federal board, commission or other tribunal” in Section 2(1) of the Federal Court Act, R.S.C. 1985, c. F-7 (as amended).
The following statutory provisions are relied on:
— Canada Council Act, R.S.C. 1985, c. C-2, ss. 8(1) and 9.
— Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11, s. 15(1).
— Canadian Human Rights Act, R.S.C. 1985, c. H-6, ss. 3(1), 5, 25, 44, as am. R.S.C. 1985, c. 31 (1st Supp.), ss. 63 and 64.
— Federal Court Act, R.S.C. 1985, c. F-7, ss. 2 and 18, as am. S.C. 1990, c. 8, ss. 1, 4 and 5.
— Financial Administration Act, R.S.C. 1985, c. F-11, s. 85(1), as am. R.S.C., c. 46 (1st Supp.), s. 7.
— Social Sciences and Humanities Research Council Act, R.S.C. 1985, c. S-12, ss. 4(1), 13(1), and 15(4).
The originating notice of motion and its supporting affidavit of Louise Arnold, sworn on November 17, 1994, (despite the motion’s assertion otherwise), were duly served on the respondents. The applicant is his own solicitor and counsel, as he is entitled to be.
By letter dated December 8, 1994, the CHRC sent to the Court certain documentary material requested by the applicant, but declined to furnish its investigator’s “time sheets or records summarizing the nature of the work undertaken by the investigator in this matter” on the grounds that, if these documents exist, they are confidential and also irrelevant.
Later, by letter dated April 3, 1995, the CHRC’s counsel, mindful of this Court’s Appeal Division’s decision in Canada (Human Rights Commission) v. Canada (Attorney General), [1994] 2 F.C. 447 decided not only that the CHRC would decline to respond actively, but also that the CHRC would “not be seeking leave to intervene in the above cited judicial review”. So, not even being an intervener, the CHRC instructed just a watching brief in these proceedings. It was utterly passive.
Subsequently, by order of Madam Justice Tremblay-Lamer dated April 19, 1995, the applicant was permitted to file a supplemental affidavit in further support of his originating notice of motion. He filed, in addition to Louise Arnold’s supplemental affidavit, sworn on January 6, 1995 with supplemental exhibits B, J and K, a whole supplemental application record, which goes somewhat further than the terms of Madam Justice Tremblay-Lamer’s order. The surviving respondent, the SSHRC [Social Sciences and Humanities Research Council] seems not to have objected.
Not only did the applicant file his supplementary material prior to the hearing, but he produced some seven new documents which, by the generosity and kindness of the SSHRC’s counsel, the applicant caused to be exhibited at and during the hearing, exhibits 2 through 8.
The CHRC’s reported decision in this matter is exhibited on page 62 of the applicant’s record, the letter of one, Brenda Macmillan, the CHRC’s A/Secretary. Dated October 20, 1994, it runs:
The Canadian Human Rights Commission has reviewed the investigation report of your complaint (H33184) against Social Sciences and Humanities Research Council of Canada dated December 10, 1993, alleging discrimination in the provision of services on the ground of disability. The Commission also reviewed your submissions dated July 22, 1994, July 23, 1994, August 18, 1994, September 9, 1994, September 29, 1994, as well as the documentation that you provided.
The Commission has decided, pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act, to dismiss the complaint because on the evidence the allegation of discrimination is unfounded.
As the Commission’s decision is final, we have closed our file on this complaint.
The applicant had already received a copy of the above-mentioned investigation report under cover of the CHRC’s letter to him dated July 5, 1994. Referring to the applicant as the complainant, and to the SSHRC as the respondent, the investigator’s report, upon which the CHRC’s impugned decision was based, runs in full, as follows:
1. The complainant, who was diagnosed as having dyslexia, applied for a doctoral fellowship in law through the respondent’s program. In March 1993, he was advised that he was not one of the successful candidates. He alleges that because his marks and evaluation from the university he is attending were quite satisfactory, the respondent should have taken his disability into consideration when it awarded doctoral fellowships in its 1993-1994 campaign.
2. The respondent finds it difficult to understand the complainant’s allegation of adverse differential treatment in light of the fact that academic merit is the only factor considered in the adjudication process of its Doctoral Fellowships Program. The complainant’s application was duly submitted for adjudication in the same manner as were all the other applications in the competition. The doctoral fellowships are awarded on the basis of competitive adjudication and they are regarded as a benefit rather than a service to doctoral students. The fellowships are awarded on the basis of academic excellence as demonstrated by transcripts, awards and distinctions as well as the program of study and research and its potential contribution to the advancement of knowledge. In addition, relevant professional and academic experience, including research training as evidenced by papers presented at conferences and the publication record, as well as the evaluations of referees (teachers, advisers, professors) and the academic institution’s departmental appraisal are considered in determining the academic excellence of the candidates.
3. The respondent does not keep track of the number of disabled students applying for doctoral fellowships, however, it is aware that applicants with disabilities have been funded over the last few years. The application form itself does not ask persons with disabilities to identify themselves. Nonetheless, the respondent has, over the years, attempted to maintain the relevance of its procedures to the needs and developing trends within the academic community in addition to taking into account any legislation which might affect such practices.
4. The respondent provided documents relevant to its 1993-1994 campaign. There were 68 candidates competing to obtain a doctoral fellowship in the primary discipline of law. Out of those, 13 candidates were successful applicants whose scores, out of a possible score of 30, ranged between 26 and 22. The complainant scored 10 out of a possible score of 30. Five other candidates scored lower than the complainant. The application forms of the 13 successful candidates and that of the complainant were thoroughly examined according to the assessment criteria outlined in the respondent’s SSHRC fellowships: guide for applicants, namely, “excellence in past academic results; training acquired in the domain or discipline chosen for doctoral studies; evaluations of the referees, originality of the program of study and research, and potential contribution to the advancement of knowledge in the chosen field of study”. The review of the application forms of the 13 successful candidates indicated much stronger recommendations from the referees and the institutions than those received from the complainant. A summary of his comparative data is presented in Appendix 1 on page 4 of this report.
5. While the complainant acknowledges that the respondent’s screening and selection criteria is based solely on the assessment of the candidates’ academic merit, he alleges that it fails to recognize the obstacles confronting individuals who have to cope with a learning disability. He therefore alleges that the respondent’s selection and screening criteria should be changed and that a certain percentage of the doctoral fellowships be awarded to disabled persons and that quotas for persons with disabilities be instituted. He believes that the respondent has such hidden quotas for gender (approximately the same number of females and males are selected) and for regions (attempts to select applicants from all provinces). In light of this, the complainant wants, as a remedy to his complaint, that the respondent amends its policy with respect to the screening and selection criteria and that 5.7% of the doctoral fellowships be allotted to disabled applicants. He also suggests that the respondent makes a concession such as accepting lowers [sic] marks from the disabled applicants.
6. The complainant states that the respondent cannot appropriately determine that a candidate is better than another if it does not administer a screening examination followed by an interview. He believes that all of the respondent’s screening criteria are subject to interpretation and that only a standardized test could determine an applicant’s standing. He also suggests that the individual academic institutions make the decision themselves and select one doctoral student to receive the fellowship. The complainant states that he would have better accepted a decision which came from his academic institution than the one handed down by the respondent as he feels evaluations by professors are not as fair as having a standard test as at least one of his evaluations was performed by a professor who did not know him well nor knew his work well.
7. The complainant alleges that some of the respondent’s clerks, responsible for processing the applications, told him that his was not much different than those who won. The complainant, however, refused to name them and that statement was not verified.
8. The complainant refused to be accommodated at the academic institution he is attending because of stigmas or labelling by the professors. Although he recognizes that he could have requested to be accommodated and that the request would have been granted (the existing policy is that students suffering from dyslexia are allowed twice the time to write exams or submit papers), he refused to do so claiming he would have had better marks in the long run but poorer evaluations from the professors.
9. The complainant raised the question of accommodation by the respondent because of a learning disability. Appropriate accommodation is already built in the educational system found at academic institutions. Students with learning disabilities only need to request such accommodation and they are granted extra time in which to complete examinations and term papers. The marks obtained by those students thus reflect their aptitude and knowledge. As a result, the respondent’s selection process indirectly accounts for the accommodation of students with a learning disability. The complainant indicated that it was possible for him to request accommodation at the institution he attends. The complainant, however, chose not to do [sic].
10. Furthermore, a review of the application forms submitted by the complainant and the successful candidates indicates that the successful students presented much stronger applications.
11. In conclusion, the complainant’s allegation of differential treatment in the provision of a service as alleged, does not constitute discrimination under the Canadian Human Rights Act. In light of this, it is recommended that the complaint be dismissed.
Even before considering the response of the one active respondent, the SSHRC, this Judge may be permitted to observe that the present case is not simple, and its disposition and precedential value, if any, would surely not suffer from the scrutiny of this Court’s Appeal Division. No little part of the difficulty has been the applicant’s diffusion of argument and propagation of after-thought in this proceeding.
Difficulty may not seem to reside in the form of this proceeding, as it would not, if the proceeding were simply summarily dismissed pursuant to subsection 1602(4) [of the Federal Court Rules, C.R.C., c. 663 (as enacted by SOR/92-43, s. 19)]. That Rule exacts that a “notice of motion shall be in respect of a single decision, order or other matter only” with one exception not relevant here. Subsection 1602(4) of the Rules appears not to be subject to any clemency provision such as Rule 1614 [as enacted idem] about time extensions. However, by the same token, the operation of subsection 1602(4) of the Rules seemingly can be varied by agreement. In the adversarial legal system, agreement is evinced not only in formal writing or by counsel’s statement to the Court, but also by conduct, usually forbearance. Here, neither respondent has invoked subsection 1602(4) against the applicant. No judge’s order is prescribed for exoneration from the strictures of subsection 1602(4), unless perhaps notions of public policy or public law be brought into play which could provoke judicial action by way of an order.
However, since the sought-for judicial review of the SSHRC’s decision was and remains time-barred herein, and therefore not before the Court (at least, not without the judge’s order contemplated in Rules 6 [as enacted by SOR/90-846, s. 2] and 1614, not to emphasize subsection 18.1(2) of the Federal Court Act [R.S.C., 1985, c. F-7 (as enacted by S.C. 1990, c. 8, s. 5)], all requiring a judge’s order) the applicant’s notice of motion, in effect, is “in respect of a single decision … only”—that is, the CHRC’s impugned dismissal of his complaint. Obviously the applicant would have been in a posture of conflict had he sought an extension of time for judicial review of the SSHRC’s decision for success on that application would have invalidated his notice of motion pursuant to subsection 1602(4) of the Rules, unless he had abandoned his sought-after review of the CHRC’s decision. Clearly however, he had to sacrifice his motion for judicial review of the SSHRC’s refusal to award him a doctoral fellowship because, in making his time-consuming complaint of discrimination without accommodation in regard to his disability, he had to await the CHRC’s decision. After all, there is no actionable common law tort of discrimination: Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181.
This is not even a case of “adequate alternate remedy” because in seeking a remedy for alleged breach of his human rights on the basis of unaccommodated adverse effect discrimination against him on account of his dyslexia, the applicant’s only avenue of redress was by complaint to the CHRC. This Court would not have entertained his motion for judicial review if the applicant had sought to circumvent the CHRC in pressing a human rights complaint. Harelkin v. University of Regina, [1979] 2 S.C.R. 561, is the locus classicus of this proposition. There is ample jurisprudence on this score: Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3; Bissett v. Canada (Minister of Labour), [1995] 3 F.C. 762(T.D.); Turnbull v. Canadian Institute of Actuaries (1995), 129 D.L.R. (4th) 42 (Man. C.A.) and Delmas v. Vancouver Stock Exchange (1995), 130 D.L.R. (4th) 461 (B.C.C.A.). At bottom, however, whoever seeks relief for alleged breach of human rights, must first invoke the procedures of the CHRC as the applicant did, time consuming as that was.
Therefore it appears that, almost willy-nilly, the applicant’s notice of motion is in fact brought in respect of only one decision, that of the CHRC. Who is the real respondent, the real party adverse in interest, since it cannot be the CHRC? The decision in Canada (Human Rights Commission) v. Canada (Attorney General), cited earlier herein, forbids the CHRC. Again, almost willy-nilly the applicant has his adverse-interest respondent on the CHRC review, in the form of the SSHRC, even although review of the latter’s refusal decision would have been one review too many pursuant to subsection 1602(4) of the Rules. The SSHRC, by its filed written record and the conduct of its counsel, accepts the rôle of adverse-interest respondent, forbidden to the CHRC, which merely watches.
The applicant, in every practical sense, was obliged to take the time to complain to the CHRC. His complaint basically sounds in the allegation of breach of his human rights as a disabled person suffering discrimination because of his dyslexia, including dysgraphia. In attempting a multifarious proceeding for judicial review, he strayed from his basic objective by purporting to articulate other judicial review remedies for relief for other complaints.
In other proceedings, for example, it is quite possible that the applicant might succeed in impugning the SSHRC’s procedures as being tainted by conflict of interest. Surely, in all of Canada, the SSHRC could assemble selection committees without including academics from universities several of whose students are to be assessed. The applicant could have a valid argument there on conflict for surely the academic himself or herself would have enough sense to retire from the panel, confronted by several applications from students at the academic’s own university. Perception of fairness is important. Counsel for the SSHRC did admit at the hearing that of the 68 candidates among whom the applicant was competing the top three were students at the same university at which one of the three committee members was a professor. Such a fact could—in this case—have perhaps been significant in relation to the applicant’s disability had he been rated close to the category of accepted candidates—some 13 of 68—but it becomes most improbable, since the applicant was rated 63rd of those 68 candidates, as shown on page 25 of his supplemental record.
The applicant says, and with probable good reason, that his application to the SSHRC ought not to have been assessed by a law committee at all, but rather by a history committee. He urges that the SSHRC erred in that regard, as seems likely.
The applicant’s difficulty with these two complaints, conflict of interest and inappropriate assessment committee is that, even if correct, they have no place in these proceedings. They have nothing to do with the applicant’s assertions of unaccommodated discrimination on account of his dyslexia.
The applicant disclosed his dyslexic condition on his fellowship application thus:
Note:—A learning disability called dyslexia or dysgraphia explains my problem in achieving high grades during some years at university (see attached correspondence). [Applicant’s record, at page 19.]
Dyslexia is discussed in a document produced by the Canadian Dyslexia Association forming part of Exhibit K to the affidavit of Louise Arnold, found on pages 148 through 157 of the applicant’s record. The Association estimates (at page 149), that some 4,200,000 are afflicted by dyslexia. On page 150, it is stated that the World Federation of Neurology in 1968 defined dyslexia as “a disorder of constitutional origin manifested by a difficulty in learning to read, write or spell, despite conventional instruction, adequate intelligence, and socio-cultural opportunity.” Further facts stated there are these:
Dyslexia knows no boundaries, affecting all races, socio-economic and ethnic groups.
Dyslexia tends to run in families.
The degree of difficulty ranges from mild to severe.
…
Specific Development Dyslexia (SDD) is a primary disorder of reading, comprehension, writing, and spelling in an individual with normal intelligence, conventional school instruction, and adequate socio-cultural opportunity. The disorder is constitutional and indicates a disturbance of cognitive functions dealing with the abstract symbols of written language.
…
The most pervasive quality of SDD is the difficulty in learning the alphabet and its phonic properties, and retaining this information for immediate recall on a reflex basis. This automatic recall, the basis of learning to read, write, and spell, is absent in individuals with SDD. Consequently, we are dealing with a cognitive breakdown in the storage and/or retrieval of abstract symbols related to written language. The reason for a lack of development of these functions in some people is not clear. The degrees of severity may be classified as mild, moderate, and severe.
…
The moderate to severely involved student will avoid anything to do with written language, except listening to adults read to him/her. Learning the names of the letters is difficult enough, but writing them correctly on paper is even more arduous.
In the primary grades, reading and writing present the major difficulties. The problems become more evident with the introduction of cursive writing in the second or third grade when the change from manuscript printing occurs. An entirely new mode of writing is suddenly required although the student with SDD has not mastered the old system. Unless special training is provided, reading becomes a continuous struggle. Reading comprehension gradually becomes very difficult as the student begins to read for meaning, and spelling is usually the most difficult of the written language skills for the student with SDD to master. Even with adequate training, the spelling skills do not improve at the same rate as reading, and reading comprehension does not improve at the same rate as reading and writing. [Application record, at pages 150-152.]
Subsection 3(1) of the Canadian Human Rights Act, R.S.C., 1985, c. H-6, as amended, the appropriate text, proceeds as follows:
3. (1) For all purposes of this Act, race, national or ethnic origin, colour, religion, age, sex, marital status, family status,. disability and conviction for which a pardon has been granted are prohibited grounds of discrimination.
Section 25 of that Act runs thus:
25. …
“disability” means any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug.
The expression “mental or physical disability” is not further defined in that Act nor in the Interpretation Act, R.S.C., 1985, c. I-21.
This Court is satisfied that the definition of “disability” was intended by Parliament to include SDD, dyslexia and dysgraphia, just as Parliament must have intended to include, say, the dumbness which is caused by congenital deafness. This Court interprets that statutory expression in a large, liberal, purposive manner to comprehend such a learning disability even although it might not obviously be “physical” or “mental” in their restrictive senses. Alternatively, and reasoning in the opposite line, “learning disability” is included as an obviously analogous ground of discrimination under subsection 3(1): Allen v. Canadian Human Rights Commission (1992), 92 CLLC 16,461 (F.C.T.D.), at pages 16,462 and 16,463, wherein Madam Justice McGillis made good sense of the matter of reasoning by analogy.
Most noteworthy in the context of this case is that the respondent’s counsel did not object to, or purport to repudiate the above conclusions about learning disabilities but conducted his client’s case as if they were givens.
This Court also finds that the doctoral fellowship program administered by the SSHRC is a “service … customarily available to the general public” as contemplated in section 5 of the Canadian Human Rights Act. Of course, that fellowship program is not a service available upon payment of a fee by any and every member of the general public, but this notion presents no obstacle as was explained by the Supreme Court of Canada in University of British Columbia v. Berg, [1993] 2 S.C.R. 353. The majority judgment was rendered by Chief Justice Lamer, who noted, at page 369:
As La Forest J. noted in Mossop [[1993] 1 S.C.R. 554], the superior expertise of a human rights tribunal does relate to fact-finding and adjudication in a human rights context, but “does not extend to general questions of law”. Turning to the issue before the Court, it is clear that the question of what constitutes a service customarily available to the public is a general question of law with wide social implications, in which the Council has no particular expertise. There being no reason why deference should be given to the Council on this question, the appropriate standard of review is one of correctness.
The Chief Justice later continued, at pages 371, 383:
(b) Interpretation of Section 3
(i) Analogous Provisions
Most, but not all, human rights Acts contain similar limiting provisions. The Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 5, provides that discrimination on prohibited grounds in the “provision of goods, services, facilities or accommodation customarily available to the general public”….
…
… for example, restaurant service is not available to people with no money, nor is tavern service available to those under the legal drinking age. Such an absolute position, requiring the “public” to include every member of a “community”, cannot be maintained if human rights legislation is to have any impact.
Therefore, I would reject any definition of “public” which refuses to recognize that any accommodation, service or facility will only ever be available to a subset of the public. Students admitted to a university or school within the university, or people who enter into contracts of insurance with a public insurer, or people who open accounts with financial institutions, become the “public”… and once that “public” has been defined through the use of eligibility criteria, the Act prohibits discrimination within that public.
The proper significance of an eligibility or admission threshold in this context was recognized by the Board of Inquiry in Rawala [(1982), 3 C.H.R.R. D/1057], where such a selection process was not used (at p. D/1062) “to establish an exclusive or private institution from which ordinary members of the public will generally be excluded”, but rather to insist “only on such educational qualifications as are necessary to permit the individual to take successful advantage of the services offered”.
Thus spoke the Supreme Court of Canada (with one dissent), leaving no doubt about the SSHRC’s doctoral fellowship program being truly the kind of service contemplated in section 5 of the federal human rights legislation.
The CHRC’s decision herein, rendered pursuant to subparagraph 44(3)(b)(i) [as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 64) of the Act was based, with subsequent submissions of the parties, on the investigator’s report and recommendations dated July 4, 1994, earlier above-recited in full.
A letter from the University of Ottawa—an original not a copy—is exhibited under K to the affidavit of Louise Arnold, being pages 139-140 in that one of the several copies of the applicant’s first record marked “Judge’s copy”. The letter is dated November 7, 1994, long after the SSHRC’s negative final decision of July 24, 1993, and months after the CHRC investigator’s report dated July 4, 1994, and weeks after the CHRC’s impugned decision dated October 20, 1994. Obviously that particular letter was never considered by the respondents or the investigator. Its third paragraph sets out examples of accommodations which the university offered, after 1988, to the learning disabled, including dyslexics. The applicant foolishly pounced on that passage because it does not state any accommodation by way of extra time to produce term papers or theses, nor to write shorter term papers. Counsel for the respondent countered that the list does not purport in any way to be exhaustive, nor could this letter have ever been seen by any of the respondents or the investigator. He also noted that the investigator found (paragraph 8) that the applicant declined to be accommodated for his own reasons (applicant’s record, at page 65).
At the hearing, the applicant confirmed this, thus:
THE COURT: Did you accept the extra time for exams?
MR. ARNOLD: There were no exams.
THE COURT: Did you ask for extra time for [term] papers?
MR. ARNOLD: … So anyone could have taken extra time [i.e. 5 years] I could have instead of taking two courses in one term, I could have taken one. But the impact on myself would have been a far greater expense in terms of cost of attending University, and it would also prolong the period of time that I would have been enrolled.
And obviously, in attending University, people would like to minimize the amount of time they are required to take a particular degree, rather than extend it, because there is not really a benefit to say that I took extra time to get my LL.M. than a normal student would have.
THE COURT: So you declined the extra time because you wanted to complete the course in the ordinary time?
MR. ARNOLD: Yes, your Honour. [Transcript, at pages 79-80.]
The respondent SSHRC in a refreshingly slim respondent’s record and oral argument submits that the sole issue here is whether the CHRC’s decision of October 20, 1994, was correctly made in fact and in law. The respondent does not contest the CHRC’s jurisdiction in and over the SSHRC’s proceedings, and accepts that they were carried out under an Act of Parliament, and that those proceedings and their related activities fitted within the definition of a “service”. The SSHRC also submits that the standard of judicial review of the CHRC’s proceedings is set out in Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554. There being no privative clause, any interpretation of enabling legislation constitutes a question of law and is subject to the Court’s supervision on the basis of correctness, and not on the standard of reasonability. It additionally cites Cluff v. Canada (Department of Agriculture), [1994] 2 F.C. 176 (T.D.). Curial deference as to fact-finding and adjudication only by a human rights tribunal (as distinct from the Commission, itself) is a valid proposition of law, says the SSHRC’s counsel, citing Dickason v. University of Alberta, [1992] 2 S.C.R. 1103.
Further, the SSHRC asserts that:
10. The decision to dismiss a complaint is an administrative one to which the doctrine of fairness applies. The Commission need not hold an oral hearing before making this decision but must give parties a copy of the full investigation report and invite written submissions. Written notice of the decision to dismiss must be given to the parties but need not set out the reasons for the decision: s.44(4)
See: Syndicat des employés de production du Québec et de l’Acadie, [1989] 2 S.C.R. 879, at 899-903; Fournier v. Canada Human Rights Commission, (1993), 152 N.R. 237 (F.C.A.); leave to appeal refused 23 September 1993 (S.C.C.).
See also: Allen v. Canada (H.R.C.) (1992), 92 C.L.L.C. 17,045 (F.C.T.D.).
Submissions received need not be sent to the opposing party unless they qualify or add to the information contained in the report: Mercier v. Canadian Human Rights Commission, (1991), 7 Admin.L.R. (2d) 58 (F.C.T.D.); Canada (Attorney General) v. Canadian Human Rights Commission, (1992), 7 Admin.L.R. 214 (F.C.T.D.); Cohen v. British Columbia (Council of Human Rights), (1990), 72 D.L.R. (4th) 306 (B.C.S.C.).
Prem Malhotra v. Canadian Human Rights Commission and Minister of Transport, FCTD (unreported decision, T-1772-92) judgment rendered on March 18, 1994.
THE DECISION
11. It is submitted that the decision under review should not be disturbed. It is based on the findings of fact that:
a) by the time of a competition of this nature, accommodation for the learning disability had already been built into the educational system.
b) the complainant indicated it was possible for him to have obtained accommodation, but he chose not to do so.
c) finally, a review of all of the applications indicated that the successful students had much stronger applications.
12. It is submitted making further allowances for the complainant (at least in a competition of this type), given the factual background, would result in a “double” accommodation for the learning disability. This would not result in a level playing field and would work as a prejudice to the other candidates.
13. It is further submitted that a review of all of the other materials and arguments submitted by the complainant present nothing that should modify or vary the ratio of decision under review. Fundamentally, the finding is that for the purposes of the competition he received equal treatment based on academic merit and was not successful.
14. In conclusion, it is submitted that the Human Rights Commission in reaching their decision correctly interpreted their jurisdictional mandate, their enabling legislation, and the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11. Furthermore, it is submitted that the factual finding of “no discrimination” was support [sic] by the evidence before the Tribunal.
The point upon which the CHRC’s decision must be quashed is a point of law. All of the parties herein have proceeded on a wrong assumption although the applicant in oral argument evinced some grasp of the true state of the law as revealed in the transcript at pages 54 through 64. The wrong assumption of law is that the SSHRC can avoid direct compliance with the human rights law’s duty of accommodating so long as someone else, the university, for instance, accommodates “for” the SSHRC. The wrong assumption is not entirely devoid of logic and practicality—a proposition which would be much stronger if Canada were a unitary state.
The university is a creature of the province and not subject to the Canadian Human Rights Act, but to the human rights legislation of Ontario for whose purposes the university’s duty and practice of accommodation of the disabled are formed and extended. Neither the CHRC nor this Court has any jurisdiction to be reviewing the university’s mode or extent of accommodation. The university, in terms of human rights accommodations does not and cannot effect the SSHRC’s compliance with the federal human rights law. To coin a phrase, the SSHRC cannot claim “surrogate” accommodation for itself, and its compliance with the law of Canada.
The Social Sciences and Humanities Research Council is a federal board subject to this Court’s judicial review. More importantly, it is subject to all the laws enacted by Parliament, since it is a creature of Parliament. It must comply in its own right, on its own behalf, with the appropriate federal law in the matter of accommodation, and not purport to accept and adopt “surrogate accommodation” which it does not directly offer and which it can neither configure nor control, much less enforce as to quality or extent. The SSHRC is subject to the law and jurisprudence of the Canadian Human Rights Act. Its own quality, configuration and extent of accommodation for the purposes of federal human rights law are the essence of its legal duty.
When, as here, the SSHRC’s decision is impugned in this Court, can the SSHRC simply shrug off the duty of accommodation onto a surrogate in the form of a provincial university whose performance is beyond this Court’s supervision? Not by a long shot! The SSHRC must perform its own legal duties itself. The disabled applicant indeed is entitled, not merely to surrogate provincial law accommodation, but rather to direct federal law accommodation.
The university, in according whatever sort of accommodation it accords to learning disabled students, does so for its own provincial scholastic purposes—the imparting of higher education, certified by the awarding of a degree, which represent no mean accomplishment by any student, disabled or not! Be that as it may, such purposes are constitutionally beyond the powers of Parliament and of its creature, the SSHRC.
Viewing the matter from a slightly different perspective, it is clear that Parliament has never accorded to its creature, the SSHRC, any exemption from compliance with the Act or its generated jurisprudence. It is easy to see and discover such an exemption, for Parliament has already done it once. The Canadian Human Rights Act, in section 67, expresses the only exemption from its provisions, thus:
67. Nothing in this Act affects any provision of the Indian Act or any provision made under or pursuant to that Act.
The human rights statute contains no other exemption, and certainly none for the SSHRC. Nor does that respondent’s constituent statute express any such exemption for the SSHRC. Needless to say the Council’s by-law powers could hardly give it a kind of “bootstrap” levitating power to exempt itself from the quasi-constitutional provisions of human rights legislation.
The SSHRC is therefore fixed with the duty, itself, to accord appropriate accommodation to disabled, including dyslexic, applicants for fellowship and other grants. It has no authority to shrug off duty onto the provincial universities. The SSHRC’s duty to accommodate exists for the federal purpose of direct compliance with the federal legislation, the Canadian Human Rights Act. The form and content of such direct accommodation is to be decided and devised by the SSHRC, at least in the first instance.
Direct accommodation of the applicant’s disclosed learning disability, dyslexia, is what the SSHRC failed to do. In proceeding with the investigator’s false assumption, and in exonerating the SSHRC from its duty of direct compliance with the jurisprudence and provisions of the Canadian Human Rights Act represents an egregious error of law on the part of the Canadian Human Rights Commission in its impugned decision of October 20, 1994. The University of Ottawa could not legally serve as the SSHRC’s surrogate for purposes of according the accommodation exacted by the federal law, of which the university was oblivious and unconcerned.
The correct application of federal law was, and is, fundamental to the SSHRC’s decision to award the applicant a fellowship or not. That correct application of law will not necessarily guarantee him the fellowship he seeks, but he is and was entitled to accommodation of and by the SSHRC for his learning disability. The SSHRC cannot lawfully shirk that, and the CHRC cannot lawfully ignore that. The CHRC’s decision is based on an error of law in assuming that the SSHRC accorded accommodation which it did not accord, because of the university’s accommodation which the applicant did not accept.
Accordingly, the CHRC’s impugned decision is quashed and the applicant’s complaint is referred back to the CHRC to be decided according to law, as this Court states it. Nothing in these reasons forecloses any reasonable compromise dispositions by agreement or consent of the parties.
This appears to be a case of first impression which might be thought to support the “special reasons” for costs mentioned in Rule 1618 [as enacted by SOR/92-43, s. 19]. The applicant served as his own solicitor and counsel, which might well be the reason why his documentation and oral submissions camouflaged the true critical path to the determination of his case. He should therefore bear his own disbursements, and since he apparently incurred no lawyer’s fees, the Court will award him—and the respondents, of course—no costs, pursuant to Rule 1618.
An order will follow.