Administrative law – Decisions of administrative tribunals – Human Rights Commission – Human rights complaints – Disability – Duty to accommodate – Students with special educational needs – Universities – Students – Judicial review – Procedural requirements and fairness – Failure to provide reasons
Green v. Nova Scotia (Human Rights Commission),  N.S.J. No. 350, 2010 NSSC 242, Nova Scotia Supreme Court, June 22, 2010, P. Bryson J.
The applicant, Elizabeth Green, suffers from a form of dyslexia and an attention deficit disorder that compromises her ability to respond adequately to examinations in a traditional setting. In 2006, she sat in examinations at Mount Saint Vincent University that were proctored by someone unfamiliar to her and without full understanding of her learning disabilities. The applicant appealed her examination results, and the University decided that she should be permitted to rewrite the exams with accommodations, including double time, sitting in a separate room, the provision of a reader and scribe, and a proctor that could repeat exam questions and provide neutral verbal prompts. The University was prepared to provide its disability counsellor as a proctor, but the applicant wanted her personal tutor to proctor the examinations. The applicant declined to rewrite the examinations and initiated a complaint with the Human Rights Commission. The Commission declined to refer the complaint to a Board of Inquiry. It did not issue a decision, but held that the complaint was without merit and dismissed it. The applicant applied for judicial review.
The applicant argued, first, that the duty of procedural fairness required the Commission to give reasons for its decision. This argument was rejected by the court; the decision rendered by the Human Rights Commission was a “screening decision” and thus the obligation to provide reasons was less compelling than in other cases. The court found that although the Commission’s terse decision lacked elaboration, the extensive materials before the Commission, as well as the fact that the applicant was given the opportunity to respond to materials placed before the Commission, obviated any procedural unfairness.
Secondly, the applicant argued that the Commission’s decision was not reasonable. Again, the court rejected this argument. More specifically, the court noted that whether a complaint should be referred to a Board of Inquiry depended on whether there was a reasonable basis on the evidence to take the complaint to the next level. In this case, the University was prepared to make substantial accommodations. It was open to the Commission to conclude that the University’s offer of accommodation was appropriate, that the applicant’s failure to accept the offer meant that the complaint lacked merit, and that it should not advance to inquiry. The application was dismissed.
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