Imagine you have a disability of some sort, say, a learning disability. And you want to go to law school. Are you entitled to special accommodation on the LSAT test (which all applicants to law schools must take)? If so, what sort of accommodation?
These are the questions at issue in a recent complaint filed at the Ontario Human Rights Tribunal called Arenson v. LSAC. This isn’t an employment case, but its interesting for its treatment of the human rights issues generally. Arenson requested that the organization that runs the LSAT accommodate her, arguing that she would underperform without the accommodation. She wanted the following accommodation ordered:
(i) double time on every task in the LSAT, (ii) a human reader or a computer equipped with an electronic reader, (iii) a computer for writing the LSAT essay, and (iv) a separate room in which to take the LSAT.
LSAC responded that the Ontario legislation does not apply to it, since it is an American company with no office in Ontario, and the decision to deny accommodation was made in the U.S.
The Tribunal rejected that argument, finding that since LSAC offers a service in Ontario, and the accommodation sought was to take place in Ontario, the legislation applied. In so finding, it relied on a BC Human Rights decision called Carlisle v. LSAC. In Carlisle, the applicant sought the right to smoke marijuana during the exam (uh, for medical reasons). So if you offer a ‘service’ in Ontario, you are covered by the Code provisions prohibiting discrimination in the provision of services, even if you are in fact a foreign company without an Ontario office. Straightforward enough.
Interim Remedy Issue
But Arenson had another problem. By the time her complaint was heard and decided by the Tribunal, the February LSAT test would be over, and she would miss out on her chance to get accepted for next fall’s law school classes. So she asked the Tribunal to issue a fast, “interim” remedy, ordering the accommodation so she can write the February test. An interim remedy is an order that will apply until the Tribunal has decided the case. These are permitted, and governed by Rule 23 of the Tribunal’s Rules of Procedure. Rule 23 says:
Rule 23.2 states that the Tribunal may grant an interim remedy where it is satisfied that:
a) the Application appears to have merit;
b) the balance of harm or convenience favours granting the interim remedy requested; and,
c) it is just and appropriate in the circumstances to do so.
Applying this test, the Tribunal refused to order the interim remedy. It indicated that interim remedies are ‘extraordinary” and that, therefore, there is a heavy burden to meet to get one. The Tribunal concluded that, even assuming the first two criteria had been met, it was not ‘appropriate’ to order the remedy sought. In other words, the third criteria gives the Tribunal an ultimate discretion.
The fact that Arenson’s chance to apply to law school this year is probably lost without the interim remedy was not enough to sway the Tribunal. It found:
…the applicant has failed to establish that it is just and appropriate in the circumstances to grant the interim remedy. Although the applicant may have to wait another year to apply for law school if an interim remedy is not granted, she has not established that the Tribunal will be unable to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found. In addition, … it is obvious from the parties’ pleadings and submissions that there is conflicting evidence with respect to the issue of whether the accommodation offered by the respondent was appropriate. As such, the applicant has not established that the Request is necessary to further the remedial purposes of the Code, and is fair in all of the circumstances.
In other words, there is a real issue about whether the accommodation sought is required, and a hearing needs to be held to decide that. If it turns out that accommodation is required, the Tribunal can order it, and Arenson can write next year.
Do you think that is a fair outcome in this case?