Challenging the Constitutional Validity of Admission Requirements

Non-government agencies who administer examinations required for registration with a regulator are often subject to judicial review: Kabiri v The National Dental Examining Board of Canada, 2018 BCSC 1938, This can include challenges for failing to comply with the Canadian Charter of Rights and Freedoms. However, in a recent case in the Saskatchewan Court of Appeal, limits were imposed on those challenges.

In Yashcheshen v University of Saskatchewan, 2019 SKCA 67, an individual wished to enter law school. The law school required applicants to complete a law school admission test (LSAT). The applicant asked to be excused from the LSAT requirement because of her disability. The school refused. She also asked for accommodation:

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 the testing room. It appears that she also asked for permission to use marijuana during testing and breaks. The Admission Council seems to have granted Ms. Yashcheshen some accommodations in the form of extended times to write each test section and extended break times between test sections. It declined to offer her stop the clock testing or permission to use marijuana.

The Court of Appeal upheld the determination that the school was not subject to the Charter even though the LSAT was an admission requirement. The Court held that the law school was not a part of the government (even though it received significant government funding), it was not engaging in government activity and it was not implementing a specific government policy or program.

Unfortunately, for the purposes of future guidance, the Court did not comment on the appropriateness of the school refusing some of the accommodation requests.

The Court also upheld the lower court finding that there was no appearance of bias on the school’s part because the Dean may have been involved in a Law Society registration matter in which the applicant “supported” another applicant. The bias argument was “unreasonable and suspicious at best”.

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