These are some of the questions encouraged by a recent Human Rights Tribunal of Ontario case, R.L. v. Federation of Law Societies of Canada – National Committee on Accreditation.
Recent law grad R.L. brought an application to the HRTO in September 2012. R.L., who obtained his law degree at Cardiff University in Wales, claimed he was discriminated against on the basis of disability after the NCA refused to let him write Canadian equivalency exams needed to take the bar exam in Ontario.
The NCA responded saying the decision was made on the basis of its policy stating no recognition will be given to candidates whose academic performance is third class or lower. R.L. had received a third-class standing at Cardiff.
R.L.’s argument was he has a cognitive disability resulting from medical treatment he received for a childhood cancer. He said he didn’t become aware of his cognitive issues until law school.
Because of his disability, the NCA’s decision constituted discrimination on the basis of disability in the area of membership in a vocational association and was therefore contrary to the Ontario Human Rights Code, he argued.
On Sept. 25, adjudicator Brian Eyolfson dismissed R.L.’s application.
Eyolfson said while he accepted R.L. had a mild cognitive impairment that constitutes a disability within the meaning of the Code, he didn’t prove a prima facie case of discrimination. R.L. had not established his disability was a factor in the NCA denying him the opportunity to write the exams.
The adjudicator found because of accommodations R.L. received during law school, he could not attribute R.L.’s poor academic standing to his disability. There was insufficient evidence to show the NCA’s academic performance policy had a disproportionately negative effect on those with disabilities.
Lorne Sossin, dean of Osgoode Hall Law School, says Canadian law schools strive to maintain inclusive communities where all students’ needs are accommodated. However, he says the accommodations must be done in the context of “equity across the entire student body in terms of evaluation, grading, and objective measures of performance.”
He says, the commitments to accommodation and objective evaluation are not in conflict, as R.L. alleges the grading system used in the NCA process is discriminatory to law graduates with disabilities.
“I am not aware of any correlation between physical or mental health status and academic performance in the law school setting,” says Sossin. “One of the goals of the various accommodations we provide is to ensure all students can be assessed fairly.”
Some would question the objective measures of performance, however, as well as the use of the word fair.
Douglas Judson, president of the Law Students Society of Ontario, says despite shifts to practical learning and more hands-on training, the “traditional, archaic method” of measuring success — based on grades and exams — continues to dominate.
While the LSSO speaks for students enrolled in Ontario’s common law program and not for other jurisdictions’ students, Judson says sometimes the interests of both groups intersect when it comes to the organization’s focus on the licensing process for lawyers and access to justice in general.
On a macro level, there’s relevance in R.L.’s case to the LSSO’s concerns with how excellence and qualification among lawyers is assessed, says Judson.
“We need to recognize as a professional community that the systems we have been traditionally using to evaluate law students are rather flawed and outmoded,” Judson says. “It takes a tremendously gifted group of people and subjects them to a strict ranking system or evaluation where there’s always a winner and a loser.”
Judson likens the process to the old story of forcing a monkey and elephant to climb a tree and calling it a fair race to the top.
He acknowledges the need for some sort of measuring stick at some points in the process, but questions if the current, arbitrary way of assessing law students is appropriate.
“Does the examination process reflect professional competency?” he asks.
He sees a disconnect in the exam evaluation process, adding that R.L.’s employer said in the application R.L.’s performance was acceptable.
“I think, for the most part, law students are on average a pretty smart group of people and to a certain point the difference in exam scores can boil down to how fast you can type,” Judson explains. “That’s where it gets a little silly.
“The fact that academic competency is a factor to consider, I hope that those individual circumstances are being looked at as well when we are determining competency.”