Yashcheshen v University of Saskatchewan, 2019 SKCA 67

Court of Appeal for Saskatchewan Docket: CACV3219 Citation: Yashcheshen v University of Saskatchewan , 2019 SKCA 67 Date: 2019-07-30 Between: Alicia Yashcheshen Appellant (Applicant) And The University of Saskatchewan Respondent (Respondent) Before: Richards C.J.S., Caldwell and Leurer JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr.

Justice Leurer On Appeal From: 2018 SKQB 57 , Saskatoon Appeal Heard: October 4, 2018 Counsel: Alicia Yashcheshen appearing on her own behalf Robert Affleck for the Respondent Richards C.J.S. I. INTRODUCTION [ 1 ] Alicia Yashcheshen sought admission to the College of Law at the University of Saskatchewan. She asked that her application be considered without a Law School Admission Test [LSAT] score in order to accommodate disabilities that, in her view, prevented her from having a fair opportunity to write the LSAT. [ 2 ] The College advised Ms.

Yashcheshen that its admissions policy required all applicants to provide an LSAT score. She elected not to submit a score and, as a result, the College did not consider her application. Ms. Yashcheshen then applied to the Court of Queen’s Bench advancing an argument that the College’s admissions policy violated the equality rights guaranteed by s. 15 of the Canadian Charter of Rights and Freedoms . [ 3 ] A Chambers judge denied Ms. Yashcheshen’s application.

He concluded the Charter did not apply to the College’s admissions policy because the University was not governmental in nature and because the admissions policy did not further a government program or policy. [ 4 ] Ms. Yashcheshen, who acts on her own behalf, has appealed the decision of the Chambers judge to this Court. Her arguments focus on the question of whether the College’s LSAT policy violates s. 15 of the Charter . As explained below, I conclude that Ms. Yashcheshen’s appeal must be dismissed. The Chambers judge correctly found that the Charter does not apply to the LSAT aspect of the admissions policy.

Ms. Yashcheshen’s other arguments are also without merit. II. BACKGROUND [ 5 ] The College of Law has three categories of admission application: regular; special; and Aboriginal. Applicants in the regular admission stream are assessed primarily on a combination of their academic record and LSAT score. In the special admission stream, there is more flexibility and room to consider how hardship has impacted academic performance. All applicants, including special admission applicants, are required to provide transcripts and an LSAT score. [ 6 ] In February of 2014, Ms.

Yashcheshen applied for admission to the College. She explained in her application form that she was “unable to satisfy the demands of the LSAT because [her] test taking abilities [were] greatly hindered by the manifestations of Crohn’s Disease”. [ 7 ] The College responded to Ms. Yashcheshen by indicating that, without a current LSAT score, it would not be able to evaluate her application. She advised, in return, that her disability interfered with her test-taking ability. The College then confirmed it required an LSAT score for all admission applications.

It also indicated that it did not administer the LSAT and pointed out that any accommodation with respect to writing the LSAT would have to be provided by the Law School Admission Council. [ 8 ] Ms. Yashcheshen did not submit an LSAT score to the College. As a result, in May of 2014, the College advised her that it would be not possible to evaluate her application and that she would not be offered a place for the 2014–15 academic year. [ 9 ] In April of 2015, Ms. Yashcheshen filed a discrimination complaint against the College with the Saskatchewan Human Rights Commission.

The Commission reviewed the complaint and, in July of 2015, concluded that “the information filed [by Ms. Yashcheshen] is insufficient to support a complaint of discrimination on the basis of disability”. More specifically, it held that the medical information provided by Ms. Yashcheshen did not establish that her condition at the relevant time prevented her from writing the LSAT. In addition, the Commission pointed out to Ms. Yashcheshen that she had not pursued or explored accommodations which might have helped her in

writing the LSAT. [10] The Commission invited Ms. Yashcheshen to provide additional information or evidence in support of her complaint. She didnot provide such information nor did she seek judicial review of the Commission’s decision. [11] In July of 2016, Ms. Yashcheshen contacted the Law School Admission Council and requested accommodations based onCrohn’s disease, hypothyroidism and iritis.

She requested a large print test booklet, seating close to a washroom and “stop the clock”testing, i.e., testing wherein the time allotted for writing the LSAT would be extended by the amount of time she spent away from thetesting room. It appears that she also asked for permission to use marijuana during testing and breaks. The Admission Council seems tohave granted Ms. Yashcheshen some accommodations in the form of extended times to write each test

section and extended break timesbetween test sections. It declined to offer her stop the clock testing or permission to use marijuana. III. THE QUEEN’S BENCH PROCEEDINGS [12] In August of 2017, Ms. Yashcheshen filed a notice of application in the Court of Queen’s Bench. She asked for an orderexempting her from the requirement of submitting an LSAT score and striking the LSAT feature of the College’s admissions policy asbeing invalid insofar as it affected her. This request for relief was grounded on s. 15 of the Charter.

Section 15 provides that everyindividual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discriminationon the basis of, among other things, physical disability. [13] As noted above, the Chambers judge dismissed Ms. Yashcheshen’s application (2018 SKQB 57). He did so by finding that theCharter did not apply to the College’s admissions policy.

I understand the Chambers judge to have arrived at this conclusion because theUniversity was not governmental in nature and because the admissions policy did not further a government policy or program. [14] The Chambers judge also dismissed a submission to the effect that the decision to deny Ms. Yashcheshen’s admission to theCollege was invalid because the Dean of the College had been biased. IV. ANALYSIS [15] Ms. Yashcheshen raised a variety of issues in her notice of appeal.

Some of those issues involved matters, such as thereasonableness of the Human Rights Commission’s handling of her complaint, that were not before the Chambers judge and hence are notproperly before this Court. In her factum, Ms. Yashcheshen described the issues in this appeal as being whether the Bill of Rights of 1689gave her a right to accommodation, whether the College’s LSAT policy violated s. 15 of the Charter, whether the Dean of the Collegewas biased and whether the Chambers judge erred in awarding costs against her.

That said, her factum contains no substantivesubmissions on the Bill of Rights issue and she made no reference to it in oral argument. Rather, in her oral submissions, Ms. Yashcheshenfocussed on her Charter argument. She submitted the Chambers judge had erred in finding the College’s admissions policy to be beyondthe reach of the Charter and, as well, in failing to find that the policy offends s. 15 of the Charter. [16] In light of Ms. Yashcheshen’s submissions, I need to deal only with the issues of the Charter and alleged bias. I will considerthem in turn.

It will also be necessary to deal with her application to adduce fresh evidence and with the question of costs. A. Does the LSAT policy violate the Charter? [17] The threshold question in considering Ms. Yashcheshen’s Charter argument involves determining whether the Charter appliesto the LSAT aspect of the College’s admissions policy. If it does not, then Ms. Yashcheshen’s argument must fail. [18] The scope of the application of the Charter is addressed by s. 32(1) of that document. It reads as follows: 32.

(1) This Charter applies (

a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating tothe Yukon Territory and Northwest Territories; and (

b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province. [19] The reference to Parliament and the provincial legislatures means the Charter applies to laws enacted by those bodies. Thereference to “government” indicates that it also applies to the executive branch of government. See: RWDSU v Dolphin Delivery Ltd., (SCC), [1986] 2 SCR 573 at 598.

However, beyond the boundaries of those particular institutions, the question of whetherthe Charter can be engaged by the actions of a body or organization becomes somewhat more involved. [20] The Supreme Court has identified two ways in which the Charter can be applicable to the activities of an entity. The firstfocusses on the nature of the entity itself. The second is based on the nature of the activities carried out or performed by the entity.

JusticeDeschamps explained all of this in Greater Vancouver Transportation Authority v Canadian Federation of Students – British ColumbiaComponent, 2009 SCC 31 at para 16, [2009] 2 SCR 295: Thus, there are two ways to determine whether the Charter applies to an entity’s activities: by enquiring into the nature of the entity or byenquiring into the nature of its activities. If the entity is found to be “government”, either because of its very nature or because thegovernment exercises substantial control over it, all its activities will be subject to the Charter.

If an entity is not itself a government entitybut nevertheless performs governmental activities, only those activities which can be said to be governmental in nature will be subject tothe Charter.

[21] Accordingly, in order to determine if the Charter applies to the College’s LSAT policy, it is necessary to begin by askingwhether the University is “government” by virtue of its nature. The answer to that question is clear. Numerous cases have found thatuniversities are not “government” in this sense. See, most significantly: McKinney v University of Guelph, (SCC), [1990]3 SCR 229 at 270–271. [22] The next question is whether the University is “government” because the government proper exercises substantial control overit. The answer to that question is also clear.

By virtue of s. 3 of The University of Saskatchewan Act, 1995, SS 1995, c U-6.1, theUniversity is an “autonomous corporation” and, as per s. 6(1) of that same Act, it has the “exclusive power” to, among other things,“formulate and implement its academic and research programs, policies and standards” and “formulate and implement its standards foradmission and graduation”. While the University is financed in part by public funds, it is managed by and through its Senate, Board ofGovernors, and Council.

The members of those bodies are not appointed by the government and there is nothing before the Court tosuggest that, in some other way, the government exercises control over the University or the College. [23] The remaining question, therefore, is whether the College’s policy requiring applicants for admission to submit an LSAT scoreis a matter that can be said to be governmental in nature and to thereby attract the application of the Charter on that basis.

This “activity”test is most directly rooted in Eldridge v British Columbia (Attorney General), (SCC), [1997] 3 SCR 624 [Eldridge],where the Supreme Court held that the Charter will apply to the actions of a non-governmental or private entity if those actions are “truly‘governmental’ in nature — for example, the implementation of a specific statutory scheme or a government program” (at para 44). JusticeLa Forest put it this way at paragraph 43 of Eldridge: … In order for the Charter to apply to a private entity, it must be found to be implementing a specific governmental policy or program.

AsI stated further on in McKinney, at p. 269, “[a] public purpose test is simply inadequate” and “is simply not the test mandated by s. 32”. (Emphasis in original) See also: Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44 at para 34, [2000] 2 SCR 307. [24] Ms. Yashcheshen does not suggest that the College’s LSAT policy, or for that matter its admissions policy more generally, arein any way connected with the implementation of a specific government policy or program. It follows that s. 15 of the Charter does notapply to the LSAT dimension of the College’s admissions policy. As a result, Ms.

Yashcheshen’s Charter argument must fail. [25] In saying all of this, I appreciate that there is a line of cases where the Charter has been applied to actions of universities whenthose actions have involved the exercise of what might be called statutorily-based powers of compulsion. See, for example: Pridgen vUniversity of Calgary, 2012 ABCA 139, 350 DLR (4th) 1 (student discipline); R v Whatcott, 2014 SKPC 215, 464 Sask R 105(prohibition of a demonstration); and R v Whatcott, 2002 SKQB 399, [2003] 4 WWR 149 (prohibition of pamphleting).

These authoritiesdo not deal with situations parallel to the one at hand and it is therefore not necessary to consider them in order to resolve this appeal. B. Was the admission decision tainted by bias? [26] In Chambers, Ms. Yashcheshen contended that the difficulties she had experienced in gaining admission to the College werebecause of bias. She grounded this submission on the fact that she had supported an individual who had been involved in Law Societydisciplinary proceedings in which the Dean of the College, as a Law Society bencher, was a participant. The Chambers judge dismissedthis argument saying (

a) the LSAT policy applied to all applicants for admission, (

b) Ms. Yashcheshen had not established that the Deanhad been involved in putting the admissions policy in place, and (

c) there was no evidence that the Dean had participated in the work ofthe College’s admissions committee. The Chambers judge concluded that Ms. Yashcheshen’s concerns about bias were “unreasonable andsuspicious at best”. [27] Ms. Yashcheshen did not press the bias argument in her oral submissions. This was a sound call on her part. The decision of theChambers judge on the bias issue is unimpeachable. This aspect of Ms. Yashcheshen’s argument cannot succeed. C. Should the fresh evidence be admitted? [28] Ms. Yashcheshen filed a notice of motion seeking leave to introduce “fresh evidence” in the form of her affidavit swornSeptember 13, 2018. That affidavit speaks to (

a) correspondence between Ms. Yashcheshen and the Human Rights Commission, (b)correspondence concerning a 2018 application for admission to the College, and (

c) correspondence concerning what appears to have beenan attempt by Ms. Yashcheshen to appeal the College’s 2014 admission decision. [29] The test for the admission of fresh evidence on appeal is well known. As indicated by the Supreme Court in R v Palmer, (SCC), [1980] 1 SCR 759 at 775 [Palmer], that test involves the following points:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen. [footnote omitted]

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affectedthe result. [30] Ms. Yashcheshen’s application fails, most obviously, on consideration (4) of the Palmer test. The evidence she proposes to putbefore the Court does not in any way touch on or affect the question of whether the Charter applies to the College’s admissions policy.Accordingly, that evidence cannot affect the outcome of the Chambers proceeding. It follows that the fresh evidence application must be

dismissed. [ 31 ] Ms. Yashcheshen also filed the affidavit of Nadine Yashcheshen sworn October 2, 2018. It recounts the particulars of a visit that Ms. Yashcheshen paid to the Human Rights Commission office in June of 2018 and, in so doing, criticizes the conduct of Commission staff and the position taken by the Commission. This affidavit, concerned as it is with the conduct of the Commission, is not relevant to matters at issue in this appeal. Therefore, it should not be admitted. D. Did the Chambers judge err in awarding costs? [ 32 ] The Chambers judge gave costs to the University when he dismissed Ms.

Yashcheshen’s application. She submits this was an error and, in this regard, relies on The Fee Waiver Act , SS 2015, c F-13.1001 [ Act ], apparently believing that this legislation insulated her from a cost award. [ 33 ] Ms. Yashcheshen’s submissions on this issue are based on a misreading of the Act . Pursuant to s. 3 , a person may apply for a fee waiver certificate. If a certificate is issued, the person who receives it is excused from paying any fee of the court in question.

For this purpose, the Act defines “fee” as follows: 2(1)(b) “fee” means a prescribed fee that is payable to a court or public body with respect to a proceeding in or before that court or public body and includes a fee that is payable with respect to the enforcement of an order of a court or public body[.] [ 34 ] Accordingly, “fees” are quite distinct from “costs” in the scheme of the Act . The latter are of course payable, not to the court itself, but to another party in the proceedings.

Section 7 of the Act provides that, contrary to Ms. Yashcheshen’s view, costs can be awarded against the holder of a fee waiver certificate. That

section reads as follows: 7(1) In this section, “costs” means any payment by one party to another party in a proceeding that is intended to reimburse the recipient for any fee or expense paid by the recipient with respect to that proceeding.

(2) Subject to the regulations, a court or public body maintains discretion to make an order for costs to or against the holder of a fee waiver certificate in accordance with any Act , regulation, rule or policy that governs the court or public body.

(3) When determining whether to make an order for costs to or against the holder of a fee waiver certificate, a court or public body may take into account one or more of the following: (

a) access to justice; (

b) fairness to the parties; (

c) the conduct of the parties; (

d) any other factor that the court or public body considers appropriate. [ 35 ] It follows from all of this that the Act did not bar the Chambers Judge from making a costs award against Ms. Yashcheshen. V. Conclusion [ 36 ] I conclude that Ms. Yashcheshen’s appeal must be dismissed. The University is entitled to costs which I fix at $500. “Leurer J.A.” For Richards C.J.S. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Leurer J.A.” Leurer J.A.