oct. 27. 2020

A breach of the Human Rights Code should be addressed through the human rights process. A Saskatchewan court said it should not be pursued through a civil action for monetary damages: Yashcheshen v Law School Admission Council Inc., 2020 SKQB 209, http://canlii.ca/t/j9jc8. In that case a candidate for the law school admission test sued the examiners for failing to accommodate her disability. The Court said:

At its core, Ms. Yashcheshen’s claim alleges that LSAC failed to properly accommodate her. There is no independent civil action for such allegations, outside a complaint filed under the Code. Ms. Yashcheshen is required to follow the procedures set out in the Code for addressing such complaints before this Court has the jurisdiction to hear them. Permitting the claim to continue constitutes an impermissible collateral attack on the process required by the Code.

The Court also indicated that rolling such a case into traditional torts was inappropriate:

The claim contains allegations of negligence, negligent misrepresentation, breach of fiduciary duty, breach of contract, and infliction of mental suffering. However, these claims are simply reiterations of the discrimination that is alleged. They cannot stand independently.

However, this decision is applicable to civil actions for monetary damages. It does not, for instance, prevent a regulator from considering discrimination as a ground for reviewing the validity of an examination result.