Alicia Yashcheshen Applicant/Appellant (Plaintiff) v. Law School Admission Council Inc., 2021 SKCA 149

Court of Appeal for Saskatchewan Docket: CACV3702 Citation: Yashcheshen v Law School Admission Council Inc. , 2021 SKCA 149 Date: 2021-11-24 Between: Alicia Yashcheshen Applicant/Appellant (Plaintiff) And Law School Admission Council Inc. and American Bar Association Respondents/Respondents (Defendants) Before: Ryan-Froslie, Tholl and Kalmakoff JJ.A. Disposition: Fresh evidence application dismissed, appeal allowed Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Madam Justice Ryan-Froslie The Honourable Mr.

Justice Kalmakoff On appeal from: 2020 SKQB 209 , Regina Appeal heard: October 13, 2021 Counsel: Alicia Yashcheshen, self-represented Nicholas Cann, Q.C., for the Law School Admission Council Inc. No one appearing for the American Bar Association Tholl J.A. I. INTRODUCTION [ 1 ] Alicia Yashcheshen commenced an action in the Court of Queen’s Bench against the Law School Admission Council Inc. [LSAC] and the American Bar Association [ABA], in which she sought damages related to the design and administration of the Law School Admission Test [LSAT]. In her pleadings, Ms.

Yashcheshen asserted that the failure to accommodate her disabilities by modifying the test, and the conditions under which it must be written, entitled her to damages. Upon application by LSAC, Ms. Yashcheshen’s statement of claim was struck in its entirety on the basis that the Court of Queen’s Bench did not have jurisdiction to hear it because claims rooted in discrimination must be adjudicated under the processes set out in The Saskatchewan Human Rights Code, 2018 , SS 2018, c S-24.2 [ Code ]: Yashcheshen v Law School Admission Council Inc. , 2020 SKQB 209 [ Chambers Decision ].

The Chambers judge declined to address the remaining grounds upon which LSAC sought to have the statement of claim struck. [ 2 ] Ms. Yashcheshen asserts that the Chambers judge erred in finding that the Court of Queen’s Bench did not have jurisdiction to hear her claim. She further challenges the award of costs made against her. Ms. Yashcheshen seeks to introduce fresh evidence on the appeal. [ 3 ] In my view, the application to introduce fresh evidence should be dismissed, the appeal should be allowed and the Chambers Decision should be set aside.

The matter is remitted to the Court of Queen’s Bench to address the remaining grounds upon which LSAC sought to have Ms. Yashcheshen’s statement of claim struck. II. BACKGROUND [ 4 ] On November 8, 2019, Ms. Yashcheshen filed a statement of claim in the Court of Queen’s Bench in the judicial centre of Regina, with herself as plaintiff and LSAC and the ABA as defendants. The statement of claim is 65 paragraphs long, so a comprehensive examination of its contents at this point is neither appropriate nor helpful. In

summary, the claim, as it related to LSAC, alleged the following facts: (

a) Ms. Yashcheshen suffers from a debilitating disease, chronic pain and other issues, which limit her ability to read, write, learn, concentrate, communicate, sit, bend and walk. She has attention deficits, working memory deficits, slow processing speed and migraine headaches. Her major bodily functions are also negatively affected. (

b) Ms. Yashcheshen wishes to attend law school and become a lawyer. (

c) LSAC designs, offers and administers the LSAT. The LSAT is required for admission at virtually every law school in Canada. Ms. Yashcheshen’s understanding of many aspects of the LSAT are set out in the statement of claim. (

d) The LSAT discriminates against persons with Ms. Yashcheshen’s medical conditions by failing to provide stop-the-clock testing, an alternative format and washroom breaks. (

e) The necessity to use diagrams for the analytical reasoning portion of the LSAT placed Ms. Yashcheshen at a substantial disadvantage in answering the questions because she is unable to draw and use diagrams. There are no accommodations that would be sufficient to erase the disadvantage caused to her by this requirement.

(

f) In June of 2014, Ms. Yashcheshen wrote the LSAT, unaccommodated, in Brandon, Manitoba. The score she received was not indicative of her aptitude and was significantly and adversely affected because of her inability to draw diagrams and the associated fatigue and stress she experienced. (

g) In May of 2016, Ms. Yashcheshen requested that LSAC provide her with specific accommodations to write the LSAT in June of 2016. The statement of claim does not allege what occurred with this request, but Ms. Yashcheshen did not write the LSAT in June of 2016. (

h) In July of 2016, Ms. Yashcheshen registered to take the LSAT in September of 2016. She requested accommodations from LSAC, but would have been required to travel to Saskatoon to receive accommodations. She did not write the LSAT in September of 2016. (

i) Ms. Yashcheshen requested accommodations in the form of 50% extra time for each section, the use of a computer to complete the writing sample and a reader–scribe to read her the questions and record her answers. It is unclear in the claim as to whether this request was for the June or September sittings of the LSAT. (

j) LSAC offered accommodations that are not set out in the statement of claim. (

k) LSAC has refused to adapt the exam so that it accurately reflects Ms. Yashcheshen’s aptitudes and achievement level. This refusal has forced her to take a discriminatory test and erected discriminatory barriers to her admission to law school. (

l) LSAC has failed to provide prospective law students with Ms. Yashcheshen’s medical condition with full and equal enjoyment of its goods, services, facilities, privileges, advantages and accommodations and denied them the ability to fairly compete for educational opportunities. LSAC engaged in a pattern or practice of discrimination. (

m) In July of 2016, LSAC refused to exempt Ms. Yashcheshen from the requirement to write the LSAT. [ 5 ] Under the heading of Causes of Action in the statement of claim, Ms. Yashcheshen listed negligence, negligent misrepresentation, breach of fiduciary duty, breach of contract, and infliction of mental suffering , with details related to each of the causes of action. [ 6 ] Ms.

Yashcheshen alleged she has suffered from psychological symptoms, exacerbated inflammatory bowel disease symptoms, emotional and psychological harm, impairment of her mental and physical health, pain and suffering and a loss of enjoyment of life. Ms. Yashcheshen further alleged she has suffered an impairment in her ability to be admitted to law school, diminished workplace functioning, loss of income, loss of competitive advantage and a diminution of earning capacity. As a remedy, Ms.

Yashcheshen sought general damages, aggravated damages, punitive and exemplary damages, and special damages, in the total amount of $1,495,099. She did not seek declaratory relief or any remedies under the Code , although the statement of claim alleged that she is entitled to an LSAT requirement waiver from both LSAC and the ABA due to her physical inability to take the test . The statement of claim does not refer to the Code or rely on any portions of that Act. [ 7 ] LSAC promptly applied to have the entirety of the claim struck on the basis of Rules 3-14 and 7-9(2)(a), (b), (

d) and (

e) of The Queen’s Bench Rules . Neither party relied on any affidavit evidence for the application, although LSAC filed a certified copy of the pleadings from another similar action: see QBG 3275 of 2019 (Sask). [ 8 ] There is no indication that the ABA has participated in this matter at any stage. It did not appear at the application in the Court of Queen’s Bench or at this appeal. The record regarding service on the ABA is incomplete, so I am unable to determine whether the statement of claim has even been properly served on it.

The ABA has not filed a statement of defence, but has not been noted in default of defence. III. CHAMBERS DECISION [ 9 ] The Chambers judge decided the application solely on the basis of Rule 3-14. The relevant portions of that Rule are as follows: Objection to jurisdiction 3-14

(1) Within the time limited for service and filing of a statement of defence and before serving and filing the statement of defence, a defendant may apply to the Court to object to the jurisdiction of the Court. …

(3) On an application made pursuant to this rule, the Court may make any order it considers just … . [ 10 ] The Chambers judge’s reasons for striking the claim are encapsulated in the following excerpt from the Chambers Decision : [4] The essence of the claim is that LSAC and ABA have discriminated against Ms. Yashcheshen by failing to reasonably accommodate her disability.

However, this Court’s jurisdiction to hear complaints of discrimination is restricted by The Saskatchewan Human Rights Code, 2018 , SS 2018, c S-24.2 [ Code ]. [5] The court’s jurisdiction to deal with discrimination complaints under the Code is only engaged after the processes mandated by the Code have been complied with: Lawless (Litigation Guardian of) v Conseil scolaire Fransaskois , 2014 SKQB 23 at paras 57–58 , 436 Sask R 196; and Forsberg v Saskatchewan , 2017 SKQB 326 , 19 CPC (8th) 170.

In other words, this Court has no jurisdiction to adjudicate alleged infractions of the Code outside the process directed by the Code . [6] The substance of the claim’s allegations is that LSAC discriminated against Ms. Yashcheshen by failing to provide her with reasonable

accommodations in respect of the LSAT. Implicit in these allegations is that the failure or refusal to accommodate is in breach of ss. 12and 15 of the Code, which prohibit, respectively, discrimination on the basis of disability in the provision of services customarily offeredto the public and in any contract that is offered to the public. [7] Ms.

Yashcheshen argues that human rights tribunals in British Columbia and Ontario have found that they do not have jurisdiction todeal with complaints against LSAC because LSAC does not do business or operate in Canada, and is a body corporate in the United States.Respectfully, this is not the finding of the British Columbia nor the Ontario Human Rights Tribunals.

On the contrary, each of the BritishColumbia Human Rights Tribunal and the Ontario Human Rights Tribunal found that it had jurisdiction to hear a human rights complaintfiled by an individual who alleged that LSAC discriminated by failing to provide reasonable accommodation in relation to the LSAT.

TheTribunals each found that because the LSAT was administered in Canada and the alleged denial of accommodation respecting the testoccurred in Canada, as did the alleged impact of the denial felt by the complainant, the Tribunal had jurisdiction to hear the complaint inits respective province: Arenson v Law School Admission Council, 2010 HRTO 38 at para 17; and Carlisle v Law School AdmissionCouncil, 2004 BCHRT 353 at paras 1–16. [8] The claim contains allegations of negligence, negligent misrepresentation, breach of fiduciary duty, breach of contract, and inflictionof mental suffering.

However, these claims are simply reiterations of the discrimination that is alleged. They cannot stand independently. [9] At its core, Ms. Yashcheshen’s claim alleges that LSAC failed to properly accommodate her. There is no independent civil action forsuch allegations, outside a complaint filed under the Code. Ms. Yashcheshen is required to follow the procedures set out in the Code foraddressing such complaints before this Court has the jurisdiction to hear them. Permitting the claim to continue constitutes animpermissible collateral attack on the process required by the Code. [11] The Chambers judge struck Ms.

Yashcheshen’s claim in its entirety and awarded costs to LSAC on Column II of the Tariff ofCosts. IV. ISSUES [12] The following issues arise in this matter: (

a) Should Ms. Yashcheshen’s fresh evidence be admitted? (

b) Was the statement of claim properly struck under Rule 3-14 of The Queen’s Bench Rules? (

c) Should Ms. Yashcheshen be permitted to raise a new ground of appeal by alleging that the rule of audi alteram partum wasviolated? (

d) If the claim stands as dismissed, did the Chambers judge err by ordering costs against Ms. Yashcheshen? V. ANALYSIS A. Should Ms. Yashcheshen’s fresh evidence be admitted? [13] Ms. Yashcheshen applied to adduce fresh evidence pursuant to Rule 59(1) of The Court of Appeal Rules. She seeks to have theaffidavit of Nadine Yashcheshen, sworn July 3, 2021, admitted and considered on this appeal.

LSAC opposes the application. [14] The well-known test for introducing evidence on appeal is based on R v Palmer, (SCC), [1980] 1 SCR 759 at775, and was recently summarized in Patel v Saskatchewan Health Authority, 2021 SKCA 115: [83] Applications to adduce fresh evidence in civil appeals are governed by Rule 59 of The Court of Appeal Rules and require an exerciseof discretion on the part of the Court.

The principles that govern the exercise of that discretion depend on whether the evidence existedbefore the decision from which the appeal is taken or arose only thereafter (Maitland v Drozda (1983), (SK CA), 22Sask R 1 (CA) [Maitland]; Turbo Resources Ltd. v Gibson, (SK CA), [1987] 60 Sask R 221; Cannon [2021 SKCA 77]at para 46). Where the evidence that a party seeks to introduce on appeal existed at the time the decision under appeal was made, thisCourt has consistently employed the test set out in cases such as Maitland and R v Palmer, (SCC), [1980] 1 SCR 759[Palmer]. That test is as follows: (

a) the evidence will not be admitted if, by due diligence, it could have been adduced at trial; (

b) the evidence must be relevant in the sense that it bears upon a decisive, or potentially decisive, issue in the action; (

c) the evidence must be credible in the sense that it is reasonably capable of belief; and (

d) 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. [84] Where the evidence a party seeks to introduce on appeal came into existence after the decision under appeal was rendered, the test isslightly different, as observed in Cannon: [49] Evidence that arises after the hearing need not meet the Palmer test, but the Palmer factors are still relevant to the question ofwhether such evidence should be admitted (C.H. v S.F., 2021 SKCA 24 at para 18 [C.H.]).

The evidence must be admissible and relevantto an issue under appeal “in the sense that it bears upon a decisive, or potentially decisive, issue in the proceeding”; it must be credible;

and if believed, it must reasonably have the potential, when taken with the other evidence adduced, to have affected the result (C.H. atpara 18). Further, as stated in S.B. [2021 SKCA 18] at paragraph 8, “it must not violate the principle of public policy that favours finalityto litigation”. [15] With one small exception, Nadine Yashcheshen’s affidavit describes events that occurred long before the application was heardby the Chambers judge. The averments found in paragraphs 1 to 13 of the affidavit, many of which are based on hearsay, describeMs.

Yashcheshen’s interactions with the Saskatchewan Human Rights Commission [Commission], along with argument and opinion as tothe effect of those communications. Ms. Yashcheshen chose not to place any of this evidence, or any evidence at all, in front of theChambers judge when the application was heard. The affidavit contains no explanation why this evidence, which significantly predatedthe application, could not have been provided to the Chambers judge. In argument, Ms.

Yashcheshen submitted that the evidence was notavailable until after the Chambers decision was appealed because her email account was temporarily unavailable and her limited means,absence of legal training and disability all affected her ability to file the evidence on the application. However, there is no evidence toexplain how these factors affected her ability to file a short affidavit for the application. In any event, this argument is significantlyundermined by the fact that Ms.

Yashcheshen had filed an affidavit from Nadine Yashcheshen in October of 2018, in a different matter,which contained much of the same information and a significant amount of identical wording to the current affidavit: see QBG 1398 of2017 (Sask). Therefore, the evidence found in paragraphs 1 to 13 of Nadine Yashcheshen’s July 3, 2021, affidavit could have, with duediligence, been adduced by Ms. Yashcheshen at the Queen’s Bench application. [16] Paragraphs 14 and 15 of Nadine Yashcheshen’s affidavit describe a brief email exchange that occurred betweenMs.

Yashcheshen and the Commission on June 25, 2021, and July 2, 2021, regarding the possibility of the involvement of the ManitobaHuman Rights Commission. This exchange occurred after the application was heard so it could not have been available by the exercise ofdue diligence. [17] Leaving aside the due diligence requirement, it is my view that the entirety of the affidavit is not relevant because it does notbear upon a potentially decisive issue. Additionally, it could not reasonably, when taken with the other evidence adduced, have beenexpected to affect the result.

The issue to be determined on this appeal is narrow. The allegations in the statement of claim provided thebasis for an examination of whether the claim was one that can be pursued in the Court of Queen’s Bench without first engaging theprocesses found in the Code. The proposed evidence does not have a bearing on that determination. As such, the evidence provided inNadine Yashcheshen’s affidavit is not relevant, and cannot be expected to affect the result, so it will not be admitted. [18] The application to adduce fresh evidence is dismissed. B.

Was the statement of claim properly struck under Rule 3-14 of The Queen’sBench Rules? 1. Positions of the parties [19] Ms. Yashcheshen asserts that her claim fell within the jurisdiction of the Court of Queen’s Bench and could be prosecutedthrough the means of filing a statement of claim and following the normal procedures associated with such an action. She notes that shewas not alleging any breach of the Code and was not seeking any remedies under that legislation. Ms.

Yashcheshen asserts that the Codedoes not explicitly or implicitly exclude a court action, so her claims in tort and breach of contract can be pursued by means of statement ofclaim in the Court of Queen’s Bench, even if those claims have an element of associated discrimination. In her written argument, shefocussed on the alleged breach of contract which, in her view, does not engage the Code. Ms.

Yashcheshen also points out that some of theimpugned conduct by LSAC occurred in Brandon, Manitoba, which she argues would not fall within the jurisdiction of the Commission inSaskatchewan. [20] LSAC contends that the Chambers judge correctly found the statement of claim represented a claim for discrimination; and,because the Code provides a complete code for addressing such issues, the Court of Queen’s Bench had no jurisdiction to adjudicate onsuch a matter when it was commenced via a statement of claim.

It argues that attempts to disguise a claim in discrimination by simplyreferencing torts or breach of contract in the pleadings does not change the essential nature of such a claim. 2. Standard of review and framing of the issue [21] The question of whether a claim such as the one represented by Ms.

Yashcheshen’s statement of claim can be struck for want ofjurisdiction under Rule 3-14 raises a question of law and attracts the correctness standard of review: New Brunswick (Board ofManagement) v Dunsmuir, 2008 SCC 9 at para 59, [2008] 1 SCR 190, and Regina Qu’Appelle Regional Health Authority v Dewar, 2013SKCA 3 at para 24, 405 Sask R 248, leave to appeal to SCC refused, . See also Harpold v Saskatchewan (Correctionsand Policing), 2020 SKCA 98 at para 21; Reisinger v J.C.

Akin Architect Ltd., 2017 SKCA 11 at para 27, 411 DLR (4th) 687; andCanada (Attorney General) v Merchant Law Group LLP, 2017 SKCA 62 at para 17, [2017] 10 WWR 664, leave to appeal to SCCrefused, . [22] As mentioned, neither party filed any affidavit material on the application to strike the claim. In relation to the portion of theapplication that relied on Rule 3-14, the Chambers judge had only the allegations in the statement of claim as a basis upon which toevaluate whether the claim fell within the jurisdiction of the Court of Queen’s Bench. For Ms.

Yashcheshen’s benefit, I would reiteratethat the assertions of facts in her written argument in this Court, including the attribution of statements to people or organizations, are notevidence. [23] The Court of Queen’s Bench has jurisdiction over claims in tort and breach of contract actions in Saskatchewan. The statementof claim relied on the torts of negligence, negligent misrepresentation, breach of fiduciary duty and infliction of mental suffering.Ms. Yashcheshen also claimed for breach of contract. She sought damages as a remedy.

On the surface, these are the types of claims forwhich the Court of Queen’s Bench has jurisdiction in an action commenced by a statement of claim. As a result, I must consider whetherthe nature of the claim, examined in the context of the Code, provides a reason why such a claim could not be adjudicated by the Court of

Queen’s Bench. 3. Process for filing a complaint under the Code [24] Sections 29 to 35 of the Code set out a process by which a complaint related to discrimination may be brought before theCommission and, ultimately, the Court of Queen’s Bench. While the procedure contains nuances, it generally requires a claimant to firstfile a form with the Commission that describes a complaint about an issue that is within its jurisdiction. The claimant must providesufficient evidence establishing that reasonable grounds exist to believe that a person has contravened the Code.

After receiving acomplaint, the Commission may, inter alia, investigate the complaint, dismiss it, attempt to resolve it through various means, or apply tothe Court of Queen’s Bench requiring a hearing to be held in that court. The Queen’s Bench Rules apply to the conduct of such a hearing,with any necessary modifications. A claimant must follow these steps if they wish to have their claim under the Code adjudicated by ajudge of the Court of Queen’s Bench and receive a remedy under that legislation. Ms.

Yashcheshen has not followed this procedure andher complaint has not been referred by the Chief Commissioner to the Court of Queen’s Bench for a hearing. [25] Among the types of complaints that fall within the jurisdiction of the Commission are those contained in s. 12 and s. 15 of theCode: Discrimination in accommodation, service or facility prohibited 12(1) No person, directly or indirectly, alone or with another or by the interposition of another, shall, on the basis of a prohibited ground: (

a) deny to a person or class of persons any accommodation, service or facility to which the public is customarily admitted or that isoffered to the public; or (

b) discriminate against a person or class of persons with respect to any accommodation, service or facility to which the public iscustomarily admitted or that is offered to the public. … Discrimination in contracts prohibited 15(1) No person shall, in making available to any person a contract that is offered to the public: (

a) discriminate against any person or class of persons on the basis of a prohibited ground; or (

b) include a term or condition in the contract that discriminates against a person or class of persons on the basis of a prohibited ground. [26] The definition of prohibited ground found in s. 2 of the Code includes disability. As such, a person who alleges discriminationin the provision of a service (s. 12) or in the offering of a contract to the public (s. 15) may file a complaint with the Commission. Therecitation of facts set out in Ms.

Yashcheshen’s statement of claim, if established, appears to support the filing of a complaint under theCode. [27] There is no common law tort of discrimination in Canada: Bhadauria v Seneca College of Applied Arts & Technology, (SCC), [1981] 2 SCR 181; Lawless v Conseil Scolaire Fransaskois, 2014 SKQB 23 at para 53, 436 Sask R 196 [Lawless]; andAllen M. Linden, Canadian Tort Law, 11th ed (Toronto: LexisNexis Canada, 2018) at 69–71. If a person wishes to pursue a claim fordiscrimination in Saskatchewan, and obtain a remedy, they must follow the processes set out in the Code. However, Ms.

Yashcheshenneither asserted that such a tort exists nor included it as one of her causes of action. Instead, she sought damages under the five causes ofaction that she had pleaded in her statement of claim. [28] In examining the issue of whether Ms. Yashcheshen can pursue her claim in the manner that she has done, I am mindful of BallJ.’s comments in Lawless: [58] In

summary, by conferring authority on the court to hear complaints alleging violations of the Code, while at the same time requiringthose complaints to be made in the first instance to the [Commission], the Legislature has provided the court with statutory authority to dowhat Seneca College determined it could not do at common law. That said, the court’s jurisdiction is not an alternative to, nor a substitutefor, the process set out in the Code for addressing those complaints.

To put it another way, it does not allow those who would prefer tocircumvent the entire process mandated by the Code to do so by commencing an action by statement of claim in court. [29] I agree that a person who wishes to pursue a complaint and receive a remedy under the Code must follow the procedures setout in s. 29 to s. 35 of that Act. It is not open to a party to commence an action by statement of claim alleging a violation of the Code andseeking a remedy under that legislation. The Code does not create civil causes of action.

A person cannot file a statement of claim basedsolely on alleged infractions of a provision of the Code. In my view, these propositions are well established and not contentious: Lawlessand Forsberg v Saskatchewan, 2017 SKQB 326, 19 CPC (8th) 170. However, that is not the route that Ms. Yashcheshen sought to take.She was not claiming a violation of the Code or seeking a remedy under that Act. Ms. Yashcheshen wanted to sue LSAC in tort andcontract in an action commenced by statement of claim and receive a judgment for monetary damages under those common law causes ofaction.

The issue is whether she is permitted to do so, despite her apparent ability to pursue a different remedy under the Code through theCommission. 4. Jurisdiction of the Court of Queen’s Bench [30] Either expressly or by implication, the Legislature, subject to certain exceptions, may oust the jurisdiction of the Court ofQueen’s Bench in favour of an administrative process. In Muirhead v York Regional Police Services Board, 2014 ONSC 6817, 16 CCLT(4th) 136, Perell J. described the circumstances where this may arise:

[58] With some exceptions associated with the Superior Court’s core jurisdiction and s. 96 of the Constitution Act , the Legislature can oust the Superior Court’s jurisdiction and confer it exclusively to an arbitrator or another tribunal. The Ontario Legislature has done so with respect to certain labour relations matters. [59] The Superior Court’s jurisdiction can be ousted in favour of an administrative tribunal where: (

a) a statutory scheme provides an administrative tribunal with exclusive jurisdiction over a particular subject-matter; or (

b) the subject matter of the dispute is expressly or inferentially governed by the statutory scheme [citation omitted]. [ 31 ] The Code does not contain any explicit language that pre-empts the jurisdiction of the Court of Queen’s Bench to hear an action that is otherwise within its jurisdiction. This absence stands in stark contrast to other legislation, such as that governing labour relations, which generally appropriates such jurisdiction from the court and other administrative tribunals.

For example, as set out in s. 6 - 45 of The Saskatchewan Employment Act , SS 2013, c S-15.1 , the resolution of disputes that arise under collective agreements are to be resolved exclusively through grievance and arbitration, not the courts, the Commission or any other tribunal: Arbitration to settle disputes 6-45

(1) Subject to subsections (2) and (3), all disputes between the parties to a collective agreement or persons bound by the collective agreement or on whose behalf the collective agreement was entered into respecting its meaning, application or alleged contravention, including a question as to whether a matter is arbitrable, are to be settled by arbitration after exhausting any grievance procedure established by the collective agreement. [ 32 ] The Supreme Court recently considered a jurisdictional dispute between the Manitoba Human Rights Commission and a labour arbitrator.

In Northern Regional Health Authority v Horrocks , 2021 SCC 42 , Brown J., writing for the majority, confirmed that explicit legislative provisions can confer exclusive jurisdiction on an administrative tribunal with regard to certain disputes whose essential character falls within that decision-making body’s authority. However, the Code does not contain any provisions that do so. [ 33 ] Despite the absence of exclusivity provisions in the Code , LSAC submits that, because Ms.

Yashcheshen’s allegations in her statement of claim, as seen by an examination of its essential character, is a claim about discrimination, it is governed by that statutory scheme, and her only avenue to seek redress is through filing a complaint with the Commission.

This argument would require me to accept the proposition that exclusive jurisdiction of the Commission regarding allegations of discrimination arises inferentially under the Code . [ 34 ] In further support of this position, LSAC submits that the circumstances at hand are comparable to the situation addressed in Shinkaruk Enterprises Ltd. v Saskatoon (City) , 2018 SKQB 9 [ Shinkaruk ], aff’d 2019 SKCA 62 , 90 MPLR (5th) 24 [ Shinkaruk CA ], where Scherman J. struck the plaintiff’s statement of claim, finding that The Cities Act , SS 2002, c C-11.1 , in conjunction with a relevant bylaw, created a complete code to deal with the issues that were the subject matter of the statement of claim.

The claim in that matter was described by Scherman J. as follows: [12] The essence of the claim is found in paragraph 35 of the Claim where Enterprises and Shinkaruk say the City and other defendants “negligently and without duty of care and consent or jurisdiction, and unlawfully did not comply with the provisions of [ The Cities Act ] and Property Maintenance and Abatement Bylaw and other Acts and jurisdiction” trespassed on their property, unlawfully removed their property, disposed of it without their consent and then assessed the costs of such removal and disposal to them. [13] The entire basis for the Claim is that the City, its employees and agents were not entitled to proceed as they did under the Bylaw and [ The Cities Act ]. … … [15] The application is to strike the Claim as pled.

The Claim does not advance a claim founded in breach of contract or otherwise based on an agreement to extend the time for compliance with the [order to remedy contravention] of September 21, 2016, to a specified date. … … [31] This basis for dismissing the Claim has numerous elements. For the reasons I have outlined above the Claim does not plead a cause of action in breach of contract or agreement.

Thus, while counsel for Enterprises and Shinkaruk argued there was a reasonable cause of action in contract I have found no such cause of action has been pled, it necessarily follows that the claim cannot be maintained on the basis of a cause of action not pled. [ 35 ] The portion of the decision in Shinkaruk that relied on the complete code argument is not particularly relevant to a determination of the issue at hand because that decision was based on claims that arose directly out of alleged breaches of legislative duties and a bylaw. There was no claim for a breach of contract in the pleadings.

That issue was not engaged in Shinkaruk . It was within this context that Scherman J. determined that there was no jurisdiction for the Court of Queen’s Bench to hear the claim: [29] Based on this statutory and case authority I hold that the combination of the Act and Bylaw create a complete code for dealing with Orders to Remedy Contraventions arising under the Bylaw .

The Legislature has made it clear that the initial jurisdiction to deal with Orders to Remedy Contraventions lies with the Saskatoon Property Maintenance Appeal Board and the only jurisdiction this court has is to deal with appeals from decisions of that Board on questions of law or jurisdiction and any such appeal is to be filed within 30 days of the decision appealed from. [ 36 ] I would further note that, in the appeal to this Court from Shinkaruk , Caldwell J.A. commented as follows ( Shinkaruk CA ): [6] The Chambers judge concluded the statement of claim should be struck on three separate and alternative grounds.

I will focus only on the question of whether the claim discloses a reasonable cause of action. To be more specific, I make no comment about whether the judge was correct in finding The Cities Act , SS 2002, c C-11.1 , and the Bylaw comprise a complete code that ousts the jurisdiction of the Court of Queen’s Bench in relation to matters of the sort in issue here. This issue is best left for another day.

[37] As a final, general comment, I observe that, on an application to strike a statement of claim, the mere presence of allegations ofdiscrimination in pleadings is not sufficient to oust the jurisdiction of the Court of Queen’s Bench when an otherwise valid common lawcause of action is pleaded. Although not explicitly stated, this principle is well illustrated by the results in Madadi v Nichols, 2021 BCCA10, 455 DLR (4th) 471, and Meekis v Ontario, 2021 ONCA 534. [38] While Ms. Yashcheshen’s claim had extensive undercurrents of discrimination, it remained a claim in contract and tort.

In myview, the claims in contract and tort raised by Ms. Yashcheshen were not inferentially governed by the Code to the point that theCommission would have jurisdiction to the exclusion of the Court of Queen’s Bench. Her claim, as pleaded, did not depend on the Codefor legitimization. To illustrate this point, I will more closely examine the claim in breach of contract. [39] Ms. Yashcheshen had alleged breach of contract as one of her five causes of action. Neither party filed any evidence setting outthe actual contractual terms that governed the relationship between the parties.

As a result, the Chambers judge was left with thefollowing allegations from the statement of claim with regard to the agreement (with superfluous portions deleted to highlight one of theterms that is alleged to have been breached): Breach of Contract [53] It was an express … term or a warranty of LSAC contracts with … the Plaintiff that: … (

b) the Defendant would provide appropriate accommodations for the LSAT to even the playing field for test takers with[Ms. Yashcheshen’s disability]. [54] The Defendant … breached the … express terms of the contract or the warranties provided by the Defendant by: (a) … denying appropriate accommodations … . [40] In this part of the statement of claim, Ms. Yashcheshen was clearly alleging that LSAC had agreed to an explicit contractualterm that required it to provide appropriate accommodations to her and that it breached that contractual obligation. As a result, she wasseeking damages.

This portion of the pleadings did not describe a claim for discrimination. It set out a claim for damages for the breach ofan express term of a contract. Whether this contractual term actually exists is unknown; but, taking these facts as pleaded, this claim forbreach of contract did not fall under the exclusive jurisdiction of the Commission, and perhaps not under its jurisdiction at all. The claim incontract was within the jurisdiction of the Court of Queen’s Bench and should not have been struck under Rule 3-14. [41] The other four causes of action pleaded by Ms. Yashcheshen are more tenuous.

The Chambers judge was correct in stating thatsimply attaching a cause of action label to a claim that is based on alleged discrimination will not insulate a plaintiff from having theirstatement of claim struck. However, if the appropriate supporting facts are pleaded, Rule 3-14 will not be available to strike a claim thatalso has elements of alleged discrimination. In my view, given that the breach of contract claim cannot be struck under Rule 3-14, nouseful purpose is served in this matter by excising the other causes of action from the claim through the application of Rule 3-14.

Thisdoes not mean that all or portions of Ms. Yashcheshen’s statement of claim, or individual causes of action, might not be subsequentlystruck under Rule 7-9, but the application of Rule 3-14 does not provide an appropriate basis upon which to do so. [42] As a result of the above analysis, the order dismissing Ms. Yashcheshen’s statement of claim pursuant to Rule 3-14 must be setaside, including the order of costs. [43] The Chambers judge did not make determinations regarding LSAC’s application under Rules 7-9(2)(a), (b), (

d) and (e). Assuch, the matter must be sent back to the Court of Queen’s Bench for the remainder of the application to be adjudicated. C. Should Ms. Yashcheshen be permitted to raise a new ground of appeal byalleging the rule of audi alteram partum was violated? [44] Shortly before the hearing of the appeal, Ms. Yashcheshen filed an additional brief of law, seeking to argue that the Chambersjudge had breached the audi alteram partum rule. Given Ms.

Yashcheshen’s success on her main ground of appeal, there is no need for theCourt to consider this supplemental argument, even assuming that it has been properly raised. D. If the claim stands as dismissed, did the Chambers judge err by orderingcosts against Ms. Yashcheshen? [45] Ms. Yashcheshen argues that, as an indigent person, the Chambers judge erred by ordering costs against her. She asserts thatthe filing of a fee waiver certificate evidenced her impecuniosity; and, as a result, it was an error to award costs against her. Given theoutcome of this appeal, there is no need to address this issue.

However, I would note that this very same argument has already beenconsidered by this Court in Yashcheshen v University of Saskatchewan, 2019 SKCA 67 at paras 32–35, 62 Admin LR (6th) 15, leave toappeal to SCC refused, . VI. CONCLUSION [46] The application to adduce fresh evidence is dismissed. The appeal is allowed, and the order of the Chambers judge dismissingthe claim, including the order of costs, is set aside. The matter is remitted to the Court of Queen’s Bench to determine the remainder ofLSAC’s application under Rules 7-9(2)(a), (b), (

d) and (e).

[ 47 ] In her factum, Ms. Yashcheshen asked for an order from this Court noting the ABA in default of defence. Leaving aside the potential service issue, this Court does not have the jurisdiction, in first instance, to note the ABA in default of defence. [ 48 ] There shall be no costs for the application to adduce fresh evidence in this Court or for the appeal. Costs in the Court of Queen’s Bench shall be addressed by that court when the remainder of LSAC’s application is determined. “Tholl J.A.” Tholl J.A. I concur. “Ryan-Froslie J.A.” Ryan-Froslie J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.