For Information

SIMON FRASER UNIVERSITY

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S.92-15

Office of the Vice-President, Academic

MEMORANDUM

TO: ?

Senate ?

FROM:

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J.M.

Munro

Vice-President, Academic

RE: ?

International Students -

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DATE:

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January 21, 1992

Policies

The attached statement is a summary of legal opinions received

concerning the University's policies towards international students.

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International Students - legal advice

Do the University's practices toward international students constitute illegal

discrimination under federal or provincial laws?

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"International students" refers to students who are foreign nationals without

the legal right to be resident in Canada. "Domestic students" refer to students who

are or have the legal right to be residents of Canada.

Under the

University Act

the Senate has the power to "determine all

questions relating to academic and other qualifications required of applicants for

admission as students to the University." (emphasis added) And the Board of

Governors has the authority to "determine and collect fees, to determine the

number of students and make rules for limiting the admission or accommodation

of students to the number so determined." On the face of it, the University, by

virtue of Board and Senate powers, has the right to limit international student

admissions, and to require of such students both higher grade point averages and

higher fees.

What are the possible sources of a challenge to these practices, on the grounds

of discrimination? The Supreme Court of Canada has held, in effect, that the

Canadian Charter of Rights and Freedoms

does not apply to universities' practices

in the area of human rights.

The only source of challenge to the relevant University's practices is the

Human Rights Act of British Columbia,

section 3, which reads as follows:

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"No person shall

(a)

deny to a person or class of persons any accommodation, service or

facility customarily available to the public, or

(b)

discriminate against a person or class of persons with respect to any

accommodation, service or facility customarily available to the public,

because of race, colour, ancestry, place of origin, religion, marital status,

physical or mental disability or sex of that person or class of person unless the

discrimination relates, in the case of sex, to the maintenance of public decency

or, in the case of sex or physical or mental disability, to the determination of

premiums or benefits under contracts of life or health insurance."

It is clear that "place of legal residence" does not appear in the Act's list of

prohibited grounds for discrimination. However, the list is not necessarily

considered to be exhaustive. The general intent of the Act must also be taken into

account.

The object of the

Human Rights Act is

to protect persons and groups who

have been historically disadvantaged by having the opportunities, benefits, and

advantages available to other members of society either circumscribed or denied to

them. ?

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How do these considerations apply to the University's treatment of

international students? Of the prohibited grounds listed in the Act, only "place of

origin" could be construed as relevant; therefore the crucial question is whether or

not "place of residence" is synonymous with or is sufficiently close to the meaning

of "place of origin" to sustain a challenge. First of all, "non-residents of Canada"

does not describe a group of people who have been historically victims of

discrimination. The category of non-residents of Canada includes both rich and

poor; those with access to excellent educational opportunities and those with

limited educational opportunities; those who enjoy and those who are denied

political freedom. Secondly, a pertinent case explicitly recognizes a significant

distinction between place of residence and place of origin as a ground for differential

treatment. In Solin v. B.C. Amateur Hockey Association,

the Human Rights

Council held that in prohibiting a visa student from playing on a local hockey team,

the Association was applying a rule which restricted students from playing on a

team if their parents did not reside in the local community. The Council was

satisfied that the differential treatment was not based on place of origin, which

would have been prohibited, but was based on place of residence, which was

allowed. Third, all domestic students who are either naturalized Canadian citizens

or landed immigrants are originally from outside of Canada. Therefore those whose

place of origin is outside of Canada may be either domestic students or international

students. It follows that the University's differential treatment of international

students is not based on place of origin.

Since the differential treatment is based on the place-of-residence criterion

• which is not prohibited either by the letter or by the general aims of the Human

Rights Act, and since no other anti-discrimination statute applies, it may be

concluded that the University's differential treatment of international students does

not constitute illegal discrimination under any federal or provincial law.

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January 21, 1992