Nickerson v. University of British Columbia and others, 2025 BCHRT 197
Date Issued: August 15, 2025
File: CS-001741
Indexed as: Nickerson v. University of British Columbia and others, 2025 BCHRT 197
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Bradley Nickerson
COMPLAINANT
AND:
University of British Columbia and Bruce MacDougall and Karin Mickelson
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Devyn Cousineau
On their own behalf: Bradley Nickerson
Counsel for the Respondents: David J. Bell and Connie T. Do
I INTRODUCTION
[1] Bradley Nickerson was 61 years old when he applied to the Master of Laws program at the Peter A. Allard School of Law [LLM Program] at the University of British Columbia. Mr. Nickerson’s application was screened out at an early stage of the process because he did not provide any academic references. In this human rights complaint, Mr. Nickerson argues that requiring academic references discriminated against him based on age, in violation of s. 8 of the Human Rights Code.
[2] UBC and the individual respondents, Karin Mickelson and Bruce MacDougall, apply to dismiss the complaint without a hearing. They argue that Mr. Nickerson has no reasonable prospect of proving that his age was a factor in the decision to deny his admission to the LLM Program. Even if it were, they argue that they are reasonably certain to prove that the requirement of academic references is bona fide and reasonably justified given the academic and research-based nature of the LLM Program. In these circumstances, they say the complaint has no reasonable prospect of success: s. 27(1)(c).
[3] For the reasons that follow, I am persuaded that Mr. Nickerson has no reasonable prospect of proving that he experienced an age-related barrier to admission to the LLM Program. His complaint is dismissed.
II DECISION
[4] The onus is on the Respondents to persuade me that Mr. Nickerson’s complaint should be dismissed because it has no reasonable prospect of success: Code, s. 27(1)(c). To make my decision, I do not make findings of fact. Instead, I look at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. I am required to base my decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan, 2013 BCSC 942 at para. 77.
[5] To prove his complaint at a hearing, Mr. Nickerson must prove that he experienced adverse impacts in the application process for the LLM Program, and his age was a factor in those impacts: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If he did that, the burden would shift to the Respondents to establish a bona fide reasonable justification for the impact. If the impact is justified, there is no discrimination.
[6] In this case, I do not need to consider the Respondents’ justification defence because I am persuaded that Mr. Nickerson has no reasonable prospect of proving the elements of his complaint.
[7] The important facts in this complaint are undisputed.
[8] Mr. Nickerson applied for the research-based LLM Program in 2019. At that time, the LLM Program’s “Admission Requirements” required applicants to have “the academic equivalent of a four-year bachelor’s degree from UBC”, meeting certain standards for grades and academic standing. However, Mr. Nickerson emphasises the following options for people who did not meet those academic requirements:
Alternatively, applicants who do not meet the requirements stated above, but who have had other significant formal training, relevant professional experience, and/or otherwise possess demonstrable knowledge or expertise that would prepare them for successful study in a specific graduate program, may be granted admission on the recommendation of the appropriate graduate program and approval of the Dean of Graduate Studies. [emphasis added by Mr. Nickerson]
[9] Mr. Nickerson says that he has “nearly 30 years of experience and noteworthy accomplishments in legal and regulatory matters” that would qualify him for the LLM Program based on the criteria above. He characterizes this option as an “alternative path to admission”. The Respondents dispute this characterization, and say that all applicants to the LLM Program are required to meet the same baseline requirements.
[10] The Respondents say that, when Mr. Nickerson applied, applicants for the LLM Program were required to submit academic references. Ms. Mickelson, who was the Associate Dean of Graduate Studies and Professional Programs at the time, explains the rationale:
The requirement that an applicant submit academic references relates to the academic and research-based nature of the LLM Program. A large emphasis is placed on the ability of students in the program to produce a well-researched, well argued, detailed thesis at the end of the program. The two mandatory courses in the program deal with legal theory and how it can be applied in the context of the thesis, and with research methods. Prospective students must demonstrate they possess the necessary skill and experience to produce a Masters level thesis. Academic references provide specific details about an applicant, including their strengths and weakness as they relate to research and writing. Applicants must demonstrate, amongst other things, that they are in a position to succeed in a program of this nature.
[11] Mr. Nickerson takes issues with the assertion that academic references were required, noting that the information available to applicants online said that “at least 1 (and preferably 2) of the 3 [reference letters] should be from an academic referee who is able to speak to your abilities as a student” [emphasis added]. He argues that the decision to interpret “should” as equivalent to a mandatory requirement is “unreasonable, arbitrary, capricious, and discriminatory”.
[12] Regardless of how the reference to “should” is interpreted, there is no dispute at this stage that Mr. Nickerson’s application was screened out because he did not provide academic references. He chose instead to submit professional references from two lawyers and a registered psychologist with a PhD. These references attested to Mr. Nickerson’s intellect, work ethic, communication skills, and the quality of publications prepared for legal conferences and other resources.
[13] Mr. Nickerson argues that the discrimination in the LLM Program’s requirement for academic references is plain on its face. Though this argument isn’t fully developed, I understand it to be that, because older applicants are less likely to have recent academic experience, they are adversely impacted by a requirement to have academic references. In other words: an otherwise neutral policy adversely impacted him because of his age: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC) [Grismer] at para. 15. Mr. Nickerson gives the example of a distinguished professor that he took a course from when he “first attended university”. He argues that “one could hardly expect [the professor] to remember a student from over three decades ago”. He does not suggest he made any attempt to contact the professor to find out.
[14] I acknowledge that this argument raises a possibility of discrimination. If Mr. Nickerson could prove that he could not submit academic references because of his age, then this may support a finding that his age presented a barrier to his admission and require a justification from the Respondents.
[15] The difficulty with Mr. Nickerson’s argument is that it ignores the fact that he graduated from Simon Fraser University with a Bachelor of Business Administration in 2009. It is not accurate to imply that his most recent academic experience was 30 years ago. It was ten years ago. There is no evidence before me about any efforts that Mr. Nickerson made to seek academic references from his business degree, or any age-related barriers he faced in doing so. Rather, Mr. Nickerson’s evidence is that he chose to include professional references rather than academic ones, based on his own assessment that those references were stronger, and in a better position to opine on the “full flower of his abilities today”. While that may have been his assessment, it could not support a finding that he faced an age-related barrier to securing academic references. The Respondents have submitted evidence that older applicants with lengthy careers, who have been out of school for decades, are able to successfully obtain academic reference letters. There is no evidence before me about why Mr. Nickerson couldn’t.
[16] I accept that there may be other ways to evaluate a person’s suitability for a research-based program like the LLM Program. Mr. Nickerson gives the example of Osgoode Law School, which allows applicants to provide either an academic reference or a reference from “someone in a position to evaluate the applicant’s potential for success in research-intensive academic work”. If Mr. Nickerson had taken his complaint out of the realm of conjecture, this evidence could be relevant to UBC’s defence of bona fide reasonable justification. However, given my decision that Mr. Nickerson’s complaint has no reasonable prospect of success, the evidence about Osgoode’s practice is of little use.
[17] Similarly, Mr. Nickerson’s submissions about changes that UBC made to its website information about “Program Eligibility” do not assist. Mr. Nickerson argues that, whereas applicants who do not meet academic criteria were formerly invited to apply through the “alternate path”, they are now required to request prior approval. Leaving aside whether this is an accurate description of the process at the time of his application or after, Mr. Nickerson does not explain how it could support a finding of discrimination. He simply speculates that it could “discourage certain types of alternative-path applicants, including those in autumn of their years”. This type of speculation, which he does not say applied to his circumstances, could not support a finding of discrimination.
[18] I acknowledge Mr. Nickerson’s arguments that are grounded in tort law. However, this Tribunal does not adjudicate torts claims and I have not found any of the principles cited to be useful to my analysis. Likewise, his reference to decisions about a remedy granted to a medical student in a human rights case do not support his complaint: Kelly v. University of British Columbia (No. 4), 2013 BCHRT 302, upheld in 2016 BCCA 271.
[19] Finally, given my decision, I do not need to consider the Respondents’ arguments about why, aside from the lack of academic references, Mr. Nickerson was unlikely to have been admitted to the LLM Program.
III CONCLUSION
[20] Mr. Nickerson’s complaint has no reasonable prospect of success. It is dismissed under s. 27(1)(c) of the Code.
Devyn Cousineau
Vice Chair