Who/What does the Charter apply to? Law Schools, for example?Yashcheshen v University of Saskatchewan, 2019 SKCA 67 (CanLII)
Keywords: LSAT; law school admission; Charter application; University of Saskatchewan Act, 1995, SS 195, c U-6.1
The Appellant, Alicia Yashcheshen, seeks admission to the Respondent law school without submitting the required LSAT score. She claims her Crohn’s Disease and symptoms prevent her from undertaking the LSAT test. The law school, which requires the submission of an LSAT score for all law school applications, refuses to evaluate her application. Ms. Yashcheshen files an application challenging the admissions policy, arguing a refusal to exempt her from the University’s LSAT requirement constitutes discrimination under s. 15 of the Charter.
The Chambers Judge dismisses her application, finding the Charter does not apply because the law school’s admissions policy is neither governmental in nature nor furthering a government policy or program (see Yashcheshen v University of Saskatchewan, 2018 SKQB 57 (CanLII) at para. 34). Ms. Yashcheshen appeals this finding of law.
The Saskatchewan Court of Appeal dismisses her application. Richards CJS, writing for the Court, notes that universities are not, by nature, part of government. The University of Saskatchewan Act, 1995, SS 195, c U-6.1 further stipulates this University is an “autonomous corporation” and not subject to the substantial control of the government. Finally, the Court of Appeal finds the law school’s admission policy is not subject to Charter scrutiny because it does not implement a specific governmental policy or program.
The Charter generally only applies to government entities (see Charter, s. 32(1)). However, private entities exercising governmental functions, such as “the implementation of a specific statutory scheme or a government program”, may be subject to the Charter (see Eldridge v British Columbia (Attorney General),  3 SCR 624 at para. 44). Actions having been found to fall under the jurisdiction of the Charter include:
- student discipline;
- policies prohibiting demonstrations;
- policies prohibiting littering; and
- policies prohibiting pamphleting.
On the other hand, the Charter does not apply to university decisions related to mandatory retirement ages for staff, use of physical space, or matters of academic judgment (see para. 25; see also Yashcheshen, SKQB at paras. 25-27).
Ms. Yashcheshen did not lead evidence to suggest that admission standards either derive from or further a government policy (see para. 24). The University of Saskatchewan Act gives the University exclusive power to establish admission standards. The Saskatchewan Court of Appeal has previously found that the assessment of academic performance is the exclusive domain of the University itself (see Hebron v University of Saskatchewan, 2015 SKCA 91 at para. 66). The Chambers Judge draws a clear analogy between academic performance and admission requirements, and finds that the Charter does not apply to law school admission policies.
While the University of Saskatchewan is not a part of government, might its policies governing the admission of law students be conceived as a component of the regulatory structure for lawyers? Ms. Yashcheshen does not ask this question, and neither the Chambers Judge nor the Court of Appeal offers this interpretation. Instead, both courts conceive of the admissions policy as closely related to the evaluation of academic performance, which is the exclusive domain of the University. This formulation bars the application of the Charter. Is it possible, however, to understand law school admission standards as an element of the regulation of the legal profession? From this perspective, do law school admission standards then pursue a legislated government policy, thereby rendering admission criteria subject to the Charter? Each perspective may lead to a different logical conclusion.
Counsel for the Respondent: Robert Affleck (McKercher LLP, Saskatoon)
Counsel for the Appellant: Alicia Yashcheshen (“appearing on her own behalf”)
Supreme Advocacy LLP wishes to specifically acknowledge and thank Noel Platte for his contribution to the draft.