On July 14, 2003, the Court of Appeal for Ontario has released its decision in the Application for Leave to Appeal in Pieters v. University of Toronto, Faculty of Law. A three member panel of the Court (Justice Jean Labrosse, Justice Michael Moldaver and Justice Eleanore Cronk) dismissed the motion for leave to appeal with costs fixed at $1000.00.
The Divisional Court dismissing the application for judicial review. The Court held that the Commission exercising its discretion under ss. 36 and 37 of Code to decline referral to board of inquiry is acting in investigative and administrative capacity and proper standard for review is patent unreasonableness. It held that the Commission did not make patently unreasonable decision having regard to all material before it related to law school use of LSAT and relationship between test performance and minority groups. It felt that the Commission was entitled to find insufficient evidence of any discrimination in circumstances and to conclude that discriminatory practices were neither sole nor contributing cause of applicant's rejection -- Applicant's undergraduate grade point average and LSAT score were below cut off point for mature students in very competitive year for applicants to law school. click here to read Divisional Court reasons
Pieters launched a Human Rights Complaints with the Ontario Human Rights Commission challenging the admission policies of University of Toronto Law School, particularly its use of the LSAT as a screening tool, the Commission investigated and released a case analysis recommending that the copmplaint not be referred to a board of inquiry File # JBAT-3UERUQ. The Commission declined to refer the matter to a Board of Inquiry File # JBAT-3UERUQ. and an Application for Judicial Review has been filed with the Ontario Superior Court.
Pieters believes that the application and administration of the rules, procedures, practices and guidelines governing the evaluation, admission, of law students to the Faculty of Law University of Toronto has had an adverse effect upon him on the basis of race in contravention of sections 1, 9, and 11 of the Human Rights Code. Pieters was twice denied admission to U of T Law School.
Further that the law school reliance of the LSAT as part of the application, evaluation and assessment process to determine who is admitted to law school has amounted to direct and systemic discrimination at the University of Toronto, Faculty of Law, on the basis of race. He believes that the law school has failed to take reasonable steps to ameliorate the condition of inequality in the admission of law students to the Faculty of Law.
In April 2001 a number of U of T Faculty of Law student groups observed that at the University of Toronto Faculty of Law the "prototypical student is young, childless, white, heterosexual, able-bodied and planning to practice corporate law." The student groups went on to note that "(t)he further a student deviates from the stereotype, the less likely it is that he or she will be able to find support be it academic, cultural, physical or otherwise at the Faculty."
At the University of Toronto Faculty of law the percentage of Black law students have been between 0% - 4% for the past 10 years. This is the same for Osgoode Hall Law School and every other law school in Canada. Professor Carol Aylward observed that "most Canadian law schools have no First Nations people or persons of colour on their faculty." How can they if enough Black and Aboriginals are not being admitted to Law School as students and further those that are admitted do not have enoung role models to (as April Burey stated) "remind them that graduate study in law is a viable choice and that legal academia is a place where they, too, belong." [Aylward, Carol. Canadian Critical Race Theory: Racism and the Law. Halifax, Nova Scotia: Fernwood, 1999; Burey, April, "An Open Letter to Dean Ronald Daniels Faculty of Law, University of Toronto from a colleague, April Burey, Re: Recent Faculty Position on Race and Gender" August 24, 1997].
Camille Nelson argues that "Blacks still constitutes a very small percentage of the associates and partners in the largest firms in Canada and the United States." She argues that out of 23 Toronto law firms, which were staffed by 3, 117 lawyers, only 20 were black. "This represents six-tenths of one percent. Further, of those 3, 117 lawyers there is only one Black partner.? [Nelson, Camille A., "Out of Sync: Reflections on the Culture of Diversity in Private Practice," (1999), 19 (1&2) Canadian Woman Studies Journal 199; Nelson, Camille A."Towards a Bridge: The Role of Legal Academics in the Culture of Private Practice" (2002), 10 Journal of Law & Policy 97 at 99-100].
Devlin, and others, observed at that ?a recent study of Canada?s appellate court judges conclusively conclude that judging is a ?human process? that ?likely? bears close relation to the backgrounds and family contexts of the judges.? They call for the judiciary to be reflective of society. Devlin observed ?the concern is that of systemic discrimination and distributive injustice; positions of power, privilege and respect are being inequitably allocated, thereby perpetuating inequality?. A proportionally representative judiciary may help challenge such practices and, therefore recognise the individual abilities of members of historically excluded groups.? [Devlin, Richard, Kim N. and MacKay, A.W., "Reducing the Democratic Deficit: Representation, Diversity and the Canadian Judiciary, or Toward a "Triple P" Judiciary" (2000) 38 Alberta L.W. 734 at 750].
There are less than five African Canadians on the Superior Court of Justice out of more than 200 Superior Court Justices in Ontario and there are no racial minorities on both the 22-seat Ontario Court of Appeal and the nine-member Supreme Court of Canada.
Pieters observes that, "like the situation in law schools and, in private practice, a critical mass of Black (and other racial minority) judges in the judiciary can change the way law and justice are conceptualized."
"We must work to ensure that law schools admit more Black students and hire more Black faculty, that more Black lawyers enter private practice and litigate race-based case, that more Black judges are appointed to the judiciary (particularly at the senior levels of the court) and finally that judicial notice of anti-Black racism is engrained within the judiciary and that contextualized judging that has emerged from McLaughlin and L?Hereux-Dube concurring judgment in R.D.S. continues the struggle of Critical Race litigators."
I am available to speak on campuses, in high schools, churches, union meetings, community gatherings, to the press, etc.
Counsel for the parties are
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