Sotiropoulos v. York University, 2009 HRTO 2278

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Efstathia (Effie) Sotiropoulos

Applicant

-and-

York University, Gary Spraakman, Peter Cumming, Stephen Davis, Janice Anderson and Marilyn Lambert-Drache

Respondents

DECISION

Adjudicator: Mark Hart

Date: December 30, 2009

Citation: 2009 HRTO 2278

Indexed as : Sotiropoulos v. York University

APPEARANCES BY

Efstathia (Effie) Sotiropoulos, Applicant ) In writing

York University, ) Gary Spraakman, Peter Cumming, ) Risa Kirshblum, Counsel Stephen Davis, Janice Anderson and ) Marilyn Lambert-Drache, Respondents )

1This is an Application made under s. 53(3) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), dated April 16, 2009. The underlying complaint was filed with the Ontario Human Rights Commission on December 24, 2007.

2The applicant alleges that she experienced discrimination in respect of services when she was denied her petition to drop a course without academic penalty, contrary to ss. 1 and 9 of the Code.

3The Case Resolution Conference (CRC) in this matter was scheduled for November 13, 2009, to commence at 9:30 a.m. The Tribunal had sent Notice of the CRC to all parties by letter dated July 16, 2009. The applicant failed to appear at the CRC, which was attended by counsel for the respondents and several representatives from York University. When the applicant had failed to appear at the 9:30 a.m. start time, the Tribunal checked all means of communication to see if the applicant had advised as to her inability to attend. When no such communication had been found and a half-hour grace period had elapsed to allow the applicant an opportunity to appear, the CRC was suspended.

4On November 16, 2009, the Tribunal received correspondence from counsel for the respondents, stating that materials had been received from the applicant post-marked November 12, 2009. Two sets of these materials had been prepared by the applicant, one addressed to the respondents and one addressed to the Tribunal; however both sets of these materials had been sent to the respondents. The respondents forwarded these materials to the Tribunal.

5In these materials, the applicant requests that her letter be accepted in place of her presence at the hearing scheduled for November 13, 2009. Accordingly, I will accept these materials as a request from the applicant to have the Application determined in writing, and as a waiver of her right to make oral submissions. I have reviewed and considered these materials in making my Decision as set out below.

Background

6The applicant has self-identified as a person with a disability, who suffers from various physical and psychological maladies brought on by a serious automobile collision in 1998 and as having severe chronic depression and chronic pain for which she receives ongoing treatment.

7The applicant was enrolled as a student at York University. In the Fall/Winter 2002 term, she enrolled in a number of courses, including a three-credit music program. The applicant was entitled as of right and without academic penalty to withdraw from this course up to March 7, 2003, but did not do so.

8A student who believes she has grounds warranting a retroactive withdrawal from a course is entitled to petition her Faculty within 12 months of receiving the final grade in the course, on the basis that the student’s performance in the course was adversely affected by an event or misfortune beyond the student’s control.

9On October 5, 2005, which was beyond the 12-month time limit, the applicant filed a petition for the removal of the music course from her transcript. The applicant’s petition states that she was experiencing extreme personal trauma and depression at the time of the course, which caused her to neglect the course due to matters of emotional instability beyond her control to rectify. The applicant identified herself as being on file with York University’s Psychiatric Dis/Abilities Program (“PDP”), and states that medical documentation regarding her condition was on file with that program.

10On November 23, 2005, a University Petitions Officer wrote to the applicant to inform her that her petition had been denied. The University makes reference to the fact that in 2002, in response to a similar petition filed by the applicant, the applicant had been warned to take her personal and medical circumstances into consideration prior to the withdrawal deadline for a course, and to withdraw if she felt that these circumstances were interfering with her ability to successfully complete the course. The applicant had been advised that if she chose to remain enrolled in a course in spite of her circumstances, she would be expected to complete the course requirements to the best of her ability.

11The applicant also was advised that the Petitions Committee viewed her ability to successfully complete two English courses during the same academic term as evidence that she retained her ability to deal with academic matters, including the matter of academic deadlines. The University further noted that the applicant had chosen to enrol in the second part of a two-part music course, and should have had reason to assess her lack of success in this course prior to the March 7, 2003 withdrawal deadline.

12The applicant was advised that if she had any additional information or evidence relevant to her petition, she was entitled to appeal the decision within one month. On December 5, 2005, the applicant filed an appeal, stating that she believed that the severity of her mental and physical condition at the time had been overlooked. Once again, the applicant made reference to medical records in the possession of the PDP office, which she said supported her position.

13On December 19, 2005, the University wrote to the applicant to state that it had received her appeal. The University clarified that it did not have access to information from the PDP, and that if the applicant wished such information to be considered in support of her petition, it was her responsibility to obtain and submit any such information. The applicant was given a further one-month period to do so.

14When no such further information was received from the applicant, the University sent her a letter dated February 22, 2006 confirming the original decision to deny the petition. The applicant was advised of her right to apply for leave to appeal this decision to the Senate Appeals Committee within 30 days, either on the basis of new evidence that was not presented to the Petitions Committee through no fault of the student or on the basis of evidence of procedural irregularity.

15The applicant filed her request for leave to appeal by letter dated July 20, 2006. In this letter, the applicant refers to general evidence regarding her disability, including a letter from Dr. Bishop dated May 26, 2006 confirming her disability and that it pre-dates her University career. The applicant’s letter does not provide evidence to address the specific issue as to how she alleges that her disability prevented her from withdrawing from the music course by the March 7, 2003 withdrawal date and prevented her from filing her petition within the one-year period.

16By letter dated January 17, 2007, the applicant was advised that the Senate Appeals Committee had denied her application for leave to appeal, on the basis that there was no new documented evidence presented to support her request nor evidence of procedural irregularity. While acknowledging Dr. Bishop’s letter, the Senate Appeals Committee notes that the applicant still had not provided documentation to explain why she was unable to withdraw from the music course by March 7, 2003, or to explain the delay in submitting her original petition.

Analysis and Decision

17In her materials, the applicant alleges that her petition was denied because of her disability. I see no evidence to support such an allegation. In my view, this case really amounts to a request by the applicant for accommodation because of her disability, in relation specifically to her petition to have the music course removed from her transcript. In order to establish a case of this nature, the applicant must provide evidence to prove a connection between her disability and the specific accommodation that she requested. It is not enough for the applicant merely to state that she has a disability or to provide evidence as to the nature of her disability in general terms. From my review of the evidence, it does not appear to me that the University ever questioned the fact that the applicant has a disability or the general nature of that disability.

18What was missing at the time, and continues to be missing to this day, is evidence to support a connection between the applicant’s disability and her alleged inability to withdraw from the music course by the March 7, 2003 withdrawal date, and to support a connection between her disability and her failure to file her petition within the one-year period. Dr. Bishop’s letter, while providing confirmation of the applicant’s disability and a description of the general nature of her disability, does not provide evidence of these required connections.

19In her original petition dated October 5, 2005, the applicant states that she was experiencing extreme personal trauma and depression at the time of the music course, which caused her to neglect the course due to matters of emotional instability beyond her control to rectify. But she did not provide at the time she filed her petition, and has not provided at any time since, medical evidence to support this statement. In the absence of such evidence, the applicant has simply failed to prove the required connection between her disability and her failure to withdraw from the course by March 7, 2003 and her failure to file the petition within one year.

20Indeed, as noted by the University, the fact that during the same Fall/Winter 2002 term when the applicant was taking the music course, she was able to successfully complete a fall English course in which she obtained a B+ grade and a full-year English course in which she obtained a B grade provides evidence that the applicant was functioning at that time at a level where she ought to have been able to assess whether or not to withdraw from the music course by the March 7, 2003 date.

21In her materials, the applicant alleges that the University ought to have been able to access medical records from the PDP. I accept the University’s evidence and find it appropriate that medical records maintained by the PDP are confidential as between the PDP and the student, and that it is the student’s responsibility to access these records to provide evidence in support of a request for accommodation. In any event, in all of the material filed by the applicant, I still do not find any specific medical evidence to support the required connection between her disability and her inability to withdraw by the March 7, 2003 date or file her petition within the required one-year period.

22In the materials from the applicant dated November 12, 2009, the applicant relies upon certain documents from a Dr. Schwartz, who was her doctor from the time of the car accident. One of these documents is a letter dated January 16, 2004, which again provides a general history and description of the applicant’s disability and symptoms, but which does not specifically address the issue of whether the applicant’s failure to withdraw from the music course by the March 7, 2003 deadline was related to her disability. The second document is a form filled out by Dr. Schwartz for the PDP dated February 5, 2004, which describes the specific accommodations required by the applicant. These are stated as: extra time in assignments and exams and flexibility to allow for the fluctuations in performance expected. Once again, despite being prepared after the expiry of the withdrawal deadline, this document simply fails to specifically address the issue of the required connection between the applicant’s disability and her failure to withdraw from the music course by the March 7, 2003 date.

23In the absence of evidence providing support for the connection between the applicant’s disability and her failure to meet the withdrawal date or file her petition on time, the duty to accommodate under the Code is simply not engaged and there is no basis to support a violation of the Code by the respondents.

24For all of these reasons, the Application is dismissed.