HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Shirin Ouji
Applicant
- and-
APLUS Institute
Respondent
decision
Adjudicator: John Manwaring
Indexed as: Ouji v. APLUS Institute
APPEARANCES BY
Shirin Ouji, Applicant ) Tetyana Derzhak, Counsel
APLUS Institute, Respondent ) Stephen A. Bernofsky, Counsel
INTRODUCTION
1Ms. Shirin Ouji (the “applicant”) was a student enrolled in the Dental Hygienist Programme offered by APLUS Institute (the “respondent”), from March 15, 2004 until October 13, 2004, when she was dismissed from the programme because of multiple failures in both the theoretical and clinical courses taken during the first term. She applied for readmission to the Program in December 2006 but was not readmitted. On May 29, 2007 she filed a complaint of discrimination based on disability in violation of section 1 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) with the Ontario Human Rights Commission. This Application was filed under s. 53(5) of the Code on February 24, 2009.
2The applicant was diagnosed with systemic lupus erythematosus (“lupus”) in 2001. She also has a mild hand tremor which may or may not be related to her lupus. There is no dispute between the parties that a person living with lupus or with a hand tremor is a person with a disability within the meaning of the Code.
3The respondent is a private college registered under the Private Career Colleges Act, 2005, S.O. 2005, c. 28, by the Ontario Ministry of Training, Colleges and Universities. There is no dispute between the parties that an educational program of the type offered by APLUS is a service within the meaning of the Code and that, therefore, the respondent has a duty to accommodate the applicant, a person with a disability, under ss. 17(2) of the Code to the point of undue hardship.
Issues
4There are two issues which must be decided to determine if there has been discrimination in violation of the Code in this case.
a) Did the respondent violate sections 1 and 9 of the Code because it failed to accommodate Ms. Ouji as required by ss. 17(2) while she was a student enrolled in the Dental Hygienist Programme from March 15 to October 13, 2004?
b) Does the refusal to readmit Ms. Ouji to the programme amount to discrimination on the basis of disability in violation of sections 1 and 9 of the Code?
If the answer to either question is that the respondent has violated the Code, it will be necessary to determine the appropriate remedy.
5In the submissions of the parties and during oral argument, there was discussion of a complaint of professional misconduct filed by Ms. Ouji with the College of Dental Hygienists of Ontario (“CDHO”). The complaint, which was rejected by the Panel of the Complaints Committee of the CDHO, does not deal with the issues before this Tribunal. No further reference will be made to this decision.
DECISION
6For the reasons which follow, the Tribunal finds the respondent violated the Code because it discriminated against the applicant when it failed to accommodate the applicant’s disability. The Tribunal finds that the respondent did not discriminate against the applicant when it refused to readmit the applicant to the Dental Hygiene Program in December 2006.
The Failure to Accommodate
Facts
7The applicant applied for admission into the Dental Hygienist Program of the respondent in 2004 and was admitted as part of the first intake into the Program in 2004. Her Program started on March 15, 2004. During this time the respondent was going through the accreditation process with the College of Dental Hygienists of Ontario and was building the facilities necessary for offering the Program. The Dental Hygienist Program is an intensive 18 month program consisting of theoretical courses, a pre-clinic phase and a clinical phase during which students work on patients. It is a demanding and rigorous program of study.
8At the time of her registration, the applicant filled in the Dental Hygiene Student Information Sheet but left blank the section asking the student to identify any special needs. The applicant also received a copy of the respondent’s Student Orientation Manual. The Manual provides as follows:
Section 14.1 Grounds for Required Withdrawal
The occurrence a (sic) health condition that impairs essential performance required for the profession and poses a health and safety risk to the student himself to herself, other students, instructors and/or school staff in accordance with provisions of the Ontario Human Rights Code and APLUS Institute’s duty to reasonably accommodate students with special needs.
9This sentence indicates that the respondent recognizes that it has a duty to accommodate students with “special needs”. The respondent does not have a written accommodation policy other than what appears in the Student Orientation Manual. Nor is there an established procedure for submitting requests for accommodation. The onus is on the student to take the initiative.
10It quickly became obvious to the respondent’s teaching staff that the applicant was in difficulty. An e-mail exchange between Ms. Evie Jesin and Dr. Indar Maharaj reports the applicant had failed two tests (Microbiology and Psychology) and was having difficulty learning the material.
11In May 2004, the applicant met with Ms. Jesin to discuss her situation. The exact date of this meeting is not clear although Ms. Jesin refers to the meeting in her e-mail of May 27, 2004. During this meeting, the applicant informed Ms. Jesin that she had been diagnosed with lupus. The applicant did not ask for accommodation at this time although she did ask for help in learning the assigned material.
12In cross-examination, Ms. Jesin acknowledged the applicant told her of her disability and that she did not tell her that accommodation might be available to her. In response to a question from the respondent’s counsel asking her if, to her recollection the applicant ever asked her to provide her with special assistance or accommodation, Ms. Jesin replied that the applicant always asked for more help, which she received.
13It is not clear whether Ms. Jesin informed her colleagues of the fact that the applicant was living with lupus. However, the testimony of Ms. Bramnik, Ms. Jesin and Ms. Ryan establishes that the teaching staff was aware of her hand tremor. In addition, on the evaluation sheets completed by her instructors during the pre-clinic part of the program, the instructors noted that the applicant hesitated and that her hand shook.
14On July 20, 2004, the applicant was provided with a marks report showing she had failed two courses and had failing marks on her mid-term evaluations in three courses. By this stage, it was clear to faculty that the applicant was in considerable difficulty and that the successful completion of her first term was in peril. The minutes of the July 21, 2004 staff meeting identify several students, including the applicant, who were unable to master the theory and skills required for the profession of dental hygienist. There is no note of any discussion of accommodation at that meeting or at a subsequent meeting held September 1, 2004.
15The applicant was allowed to rewrite her exams in Microbiology on May 7 and Psychology in July. The respondent’s submissions and witnesses describe the permission to rewrite these examinations as “special consideration”. The applicant’s marks improved considerably after the rewrite and she passed those modules.
16The applicant began the pre-clinic component of the first term in late July 2004. The start of this component was delayed to allow for the construction of the appropriate clinical facilities. The evaluations of applicant’s performance in the pre-clinic component of the Program show that she was having difficulty performing the assigned tasks to the appropriate level. The minutes of the staff meeting held on September 1, 2004 record that the applicant was in difficulty both clinically and academically.
17There was a difference between the parties concerning the remedial assistance provided to the applicant. The applicant testified that she received very little help with only two individual remedial sessions and that such sessions were not offered on a regular basis. The witnesses for the respondent testified that the applicant received considerable help from several of her teachers, including Nancy Orschel and Rosemary Falconi.
18The difference between the testimonies may, in part, be explained by the fact that the remedial sessions were not offered solely to the applicant but to all students in trouble. Many of these sessions were not individual. On this issue, I find the testimony of the respondent’s witnesses convincing and credible and conclude that the applicant was offered remedial training both with other students and in individual sessions throughout the pre-clinic component of the Program. Ms. Bramnik testified that the applicant received the same remedial teaching as all other students in difficulty. The respondent provided the same academic support and remediation to the applicant as it did to all students in difficulty. In addition, the applicant was assigned a different clinic partner at her request.
19The applicant paid her tuition for the second term. However, her final marks report for the first term issued October 13, 2004 indicated that she had failed six of the first term courses. In an attached memorandum, Ms. Jesin informed the applicant that she was dismissed from the Program. On October 14, 2004, the applicant met with Ms. Jesin who explained to her the reasons for her dismissal – her failures and the danger that her hesitation and hand tremor represented for patients.
Accommodation
20The applicant argued that the respondent failed to accommodate her disability. Although she did not expressly ask for accommodation, she informed the school of her disability and repeatedly asked for help in learning the theory and skills. The Institute did nothing to accommodate her disability. They did not ask her if she needed accommodation. They did not ask for the medical opinion of her doctors to find out what they thought would be appropriate accommodation in the circumstances. The Institute simply treated her as a student who lacked the intellectual acumen and physical abilities required to complete the program successfully. There is no discussion of accommodation in the applicant’s file. According to the applicant, the respondent did nothing and, by doing nothing, doomed the applicant to failure.
21The respondent argued that there was no violation of the duty to accommodate for two reasons. First, the applicant did not request accommodation for her disability. The duty to accommodate imposes obligations on all the parties involved. See Central Okanagan School District No. 23 v. Renaud (1992), 1992 CanLII 81 (SCC), 95 D.L.R. (4th) 577 (SCC). In these circumstances, a student who requires accommodation has an obligation to inform the educational institution of that need. The applicant did not identify herself as have special needs on her Student Information Sheet and in her discussions with Ms. Jesin and other faculty members she did not ask for accommodation. She asked for help but insisted that she just wanted to be treated like everybody else.
22The respondent argues that this is confirmed by the applicant’s Witness Statement dated May 21, 2008 in which she responds to the following questions:
1 Your complaint states that you registered in the Dental Hygienist Program at APLUS Institute on March 15, 2004. In 2004, did you inform that administration at APLUS that you had health problems?
No, when I registered, no.
4 In 2004, did you inform the administration at APLUS that you had need related to your medical condition – lupus – that to (sic) be accommodated by the school?
Not 2004. I gave them a letter, not in 2004. I gave them a letter after the program from Dr. McDonald. Maybe 2005.
6 Did you need extra assistance from APLUS because you had lupus?
No.
23Second, the respondent argues that, if there is a duty to accommodate, it did make reasonable efforts to accommodate the applicant. It allowed her to rewrite two examinations. It allowed her to change her student partner. It arranged for peer tutoring. It provided considerable remedial training for students in difficulty including the applicant. All these responses amount to accommodation as required by ss. 17(2).
24Third, the respondent notes the duty to accommodate provided for in ss. 17(2) is limited:
No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any. (emphasis added)
25The respondent argued that health and safety considerations relating to patient safety justified the decision to dismiss Ms. Ouji from the Program without further accommodation. It would not be reasonable to require the respondent to do more because a student who hesitates and has a hand tremor represents a danger to the health and safety of patients in the clinical components of the Program and during treatment after graduation.
26The applicant did not challenge the educational standards set by the respondent. These standards were defined by the respondent in light of the requirements for accreditation established by the CDHO. They are functionally related to the tasks which a dental hygiene professional must perform. In addition, the respondent adopted the educational standards in good faith. The parties focussed their arguments outlined above on the duty to accommodate.
27However, the parties’ arguments are unsatisfactory because they do not take into consideration both components of the duty to accommodate. The case law establishes that the duty to accommodate includes a procedural and a substantive component. In Lane v. AGDA Group Consultants Inc., 2007 HRTO 34 (“Lane”), upheld on appeal (2008) 2008 CanLII 39605 (ON SCDC), 91 O.R. (3d) 649, the Tribunal analyses the procedural duty in context of the relevant Supreme Court of Canada jurisprudence and the Ontario Code jurisprudence concluding at para 156:
While this dilemma is not resolved definitely in either Meiorin, [British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (B.C.G.S.E.U.) (Meiorin Grievance) 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3]]supra or the subsequent judgment of the Supreme Court in Grismer, [British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868 (“Grismer”)] supra, nonetheless, Grismer in particular does assert (at paras. 42-44) the importance of individual assessment as part of the duty to accommodate at least in the context of rejecting the legitimacy of a blanket policy. I accept this approach and hold that the failure to meet the procedural dimensions of the duty to accommodate is a form of discrimination. It denies the affected person the benefit of what the law requires: a recognition of the obligation not to discriminate and to act in such a way as to ensure that discrimination does not take place. ... However, when the failure to conduct an appropriate assessment has its own adverse consequences, there exists discrimination for which the Complainant has an independent right to a remedy.
28This distinction between the procedural component and the substantive component is relevant in this case. The evidence presented by the applicant in this case does not establish a clear link between her disability and her need for accommodation. The applicant did not call expert evidence to establish the effects of lupus. The applicant did not explain what she experienced as the result of her lupus that the respondent should have accommodated. The applicant did not submit any evidence which would assist me in determining what needs related to her disability were not met and what forms of accommodation would have been possible.
29The hand tremor did have an impact on her performance during the skills evaluations in the pre-clinic phase of the program. The suggestion was that stress related to evaluation aggravated the hand tremor and that accommodation might have reduced the stress and therefore calmed the tremor. However, no expert evidence was submitted to support this argument. Therefore, the evidence does not establish that there was a breach of the substantive component of the duty.
30However, it remains to be determined if the respondent breached the procedural component of the duty to accommodate. It is true that the applicant did not ask for accommodation. However, she did inform Ms. Jesin of her disability. An educational institution which is aware that a student has a disability and is clearly not succeeding in its programme for reasons which may be related to that disability, has an obligation to initiate discussions of possible accommodation.
31As the respondent argued, the duty to accommodate requires cooperation from all involved. Both the educational institution and the person with the disability have an obligation to make reasonable efforts to identify needs and appropriate forms of accommodation. However, as the Supreme Court of Canada states in Renaud, supra at page 585 “More than mere negligible effort is required to satisfy the duty to accommodate.”
32In my view, the respondent did not make sufficient efforts to ensure that the applicant was aware of her right to accommodation and to inquire into her need for accommodation so as to determine what, if any, accommodation was appropriate in the circumstances. The evidence before me clearly establishes that, because respondent believed that the applicant was not capable of successfully completing the program, this belief blinded it to the possibility that some or all of her difficulties might have resulted from barriers to her performance rather than any inability to learn the relevant material. As a result, it did not undertake the individualized assessment required by the duty to accommodate.
33The respondent’s final argument invokes the limit to the ss. 17(2) duty for health and safety considerations. The respondent is correct in arguing that, if the disability of the student represents a danger to the health and safety of patients, students or staff during the clinical portion of the program or after graduation, this danger would justify a refusal to accommodate. See Council of Canadians with Disabilities v. Via Rail Canada Inc. 2007 SCC 15, [2007] 1 S.C.R. 650. However, the respondent made no inquiry into whether the applicant’s disability would represent health and safety risk absent accommodation to the point of undue hardship. The respondent cannot base its refusal to accommodate on an impressionistic belief that there is a danger even if this belief is sincerely held and based on years of professional experience. See Ontario Human Rights Commission v. Etobicoke 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202.
34In this case, the respondent assumed that there was a danger without making any effort to investigate possible forms of accommodation which might have enabled the applicant to perform the assigned tasks without danger to others. Given that during the first term of the program, the applicant was not assigned to work on patients, there was sufficient time available to conduct such an investigation without any danger to the health and safety of other students and patients. There is no evidence that such an inquiry would have created an undue hardship for the respondent because of cost or other relevant considerations. In the absence of an individualized assessment of the applicant’s accommodation needs and investigation of possible forms of accommodation, it is impossible to determine if accommodation would have represented a danger to health and safety.
35The onus to establish that it is not possible to accommodate the applicant because of the danger to health and safety is on the respondent. See Brown v. Trebas Institute Ontario Inc, 2008 HRTO 10, par. 53. The respondent has not discharged this onus.
The Refusal to Readmit
36There is little dispute about the facts concerning the applicant’s application for readmission. She had several discussions concerning her readmission with Ms. Jesin and Ms. Bramnik. In January 2005, Ms. Jesin suggested that Ms. Ouji apply to other dental hygiene programs in the Toronto area. A similar discussion took place in February 2006. In April 2006, Ms. Bramnik told the applicant that she could apply for readmission to the program for the January 2007 intake.
37The applicant contacted the respondent at the end of November 2006 in order to begin the readmission process to the Program starting on January 15, 2007. At this time, the class was already full and there was a waiting list. The orientation session for the newly accepted students took place on November 21, 2006. The applicant was informed of the status of the admissions process. On November 29, 2006, the applicant signed a form consenting to the release of information by her rheumatologist about her ability to undertake the Program. On November 30, she signed another consent form authorizing her family physician to release information about her ability to undertake the Program. The applicant signed and submitted an application for readmission dated December 1, 2006.
38The respondent argued that the application form was not properly completed and she did not pay the required deposit. Because the application was not properly filled out, the respondent argued its refusal to allow her to start the Program on January 15, 2007 is not discrimination. The respondent says it simply applied the same criteria as it would have applied to any other applicant.
39The respondent also required the applicant submit a completed medical form which would provide “us (APLUS) with information that you were physically, emotionally and psychologically ready to meet the demands of the program.” This form is not part of the standard application package. Ms. Bramnik testified that the respondent requested this medical information because it wanted medical proof from the applicant’s doctor that the programme would be good for her.
40The respondent did not reject the applicant’s request for readmission immediately in spite of the problems with her application form. She was called about the waiting list and the deposit on December 13 and 20, 2006 and again during the week of January 1-7, 2007. Finally, on January 15, 2007, Ms. Jesin wrote to the applicant stating that she was “…never refused readmission from the program.” Ms. Jesin’s letter goes on “You were required to submit a medical form from Dr. Levy and pay the appropriate fees by Dec. 9, 2006. We did not receive a letter from Dr. Levy nor were fees paid by the due date.”
Discrimination in Readmission
41Disability and the duty to accommodate do not exempt a person applying for admission into an educational program from the obligation to submit his or her application, provide the required documents (transcripts, etc.) and pay the application fees in a timely fashion. The respondent was very clear at the time the applicant contacted them to apply for readmission that the class was already full and that the most she could expect was to be placed on the waiting list. The applicant made an informed choice when she decided to apply very late in the admissions cycle. She was aware that admission was not guaranteed.
42It is true that the respondent tried to discourage her from reapplying suggesting that she apply to other dental hygiene programs. The applicant may have understood these suggestions as an indication that she would not be treated fairly. However, this does not justify her failure to provide the documents and pay the fees as required. In addition, the respondent did not reject her application immediately on December 9, 2006 but continued to communicate with the applicant to get her to pay the fees and provide the required documents.
43I was troubled by the additional requirement that the applicant provide a note from her doctor stating that she was medically fit to undertake her studies. The evidence suggests that this requirement was not part of the regular admissions requirements. However, as the Tribunal states in Lane, supra, the duty to accommodate can include an obligation to seek medical information. Therefore, I conclude that, because the applicant did not provide the required documents and pay the fees in a timely fashion and because a request for a letter from the treating doctor is reasonable when an educational institution needs information in order to identify the need for accommodation, the applicant has not established that the respondent discriminated against her when considering her application for readmission to the program in 2006.
REMEDY
44The Tribunal’s remedial powers are set out in s. 45.2 of the Code as follows:
45.2(1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
45.2(2) For greater certainty, an order under paragraph 3 of subsection (1),
(a) may direct a person to do anything with respect to future practices; and
(b) may be made even if no order under that paragraph was requested.
45The applicant has requested the following remedies:
a) a written apology from the respondent;
b) general damages in the amount of $35,000.00 for the violation of the right to be free from discrimination;
c) damages for mental anguish in the amount of $10,000.00;
d) prejudgment and postjudgment interest pursuant to the Courts of Justice Act R.S.O. 1990. c. C.43; and
e) such further and other relief as the Human Rights Tribunal of Ontario may deem just.
46The respondent argued that the Application should be dismissed because the evidence did not establish a violation of the Code and that no remedy should be granted. It did not make any arguments concerning the appropriate remedy.
47It is relevant to note that the 2008 amendments to the Code modified the terminology used for awards. In particular, the legislator eliminated the provision for damages for mental anguish.
48The applicant called two witnesses, Tina Shahed and Wendy Martin, who testified as to the impact of her dismissal from the Dental Hygienist Program in 2004 and of the decision not to readmit her in 2006. Neither of these witnesses testified as an expert witness in a professional capacity. Their knowledge of the impact of these events on the applicant is entirely based on what the applicant told them. The applicant did not provide any medical evidence in support of her claim.
49In Brown v. Trebas Institute Ontario Inc., 2008 HRTO 10, the Tribunal states that “(t)he purpose of awarding general damages is to compensate the complainant for the intrinsic value of the infringement of his rights” ( at para. 70) and “… an award of general damages should not be punitive but, rather, educate and eliminate future violations of the Code.” (par. 74)
50The applicant testified that her dismissal from the program caused her considerable anguish and despair. She was very hurt by the fact that she did not have an opportunity to successfully complete the program requirements to the best of her ability. At one point, she stopped taking her mediation and was quite distraught at the situation. She remained unhappy and frustrated at the time of the hearing.
51On the other hand, this is not a case where the respondent has behaved in a malicious or deliberately discriminatory manner. The respondent was concerned about student and patient health and safety, legitimate professional concerns. Not does this case involve particularly egregious, multiple violations of the Code. The respondent fully acknowledges its duty to accommodate.
52Given the nature of the single breach, I am satisfied that an award of monetary compensation for the loss arising out of the infringement of the Code including the injury to dignity, feelings and self-respect in the amount of $7,500.00 is appropriate. A greater amount would be punitive. Prejudgment and post judgment interest on this award shall be calculated in accordance with sections 128 and 129 of the Courts of Justice Act, R.S.O., 1990 c. C. 43, as amended
53In this case, it is appropriate to exercise the power set out in section 45.2 to require that the respondent do anything with regards to future practices. I have come to the conclusion that the respondent does not have an accommodation policy and procedure which exists in a form which can be communicated to all students at appropriate time during their studies. It is important for an educational institution to ensure that students who require accommodation are aware of their rights in the Code and understand what procedure to follow to request accommodation. Therefore, I have decided that the respondent should prepare an accommodation policy which confirms the respondent’s commitment to the Code and the duty to accommodate and sets out a process by which students can make request for accommodation. This policy should be included in the Student Orientation Manual.
Order
54Having found that the respondent violated the applicant’s right to be free from discrimination on the basis of disability contrary to sections 1 and 9 of the Code, the Tribunal orders as follows:
(1) The respondent shall pay the applicant $7,500.00 in monetary compensation for the injury to her dignity, feelings and self-respect together with prejudgement interest on this amount from October 14, 2004, the date on which the applicant was dismissed from the Dental Hygiene Program to the date of this Decision.
(2) APLUS shall prepare in a clear and accessible form an accommodation policy which sets out the grounds for accommodation in conformity with the Code and the procedure a student who requires accommodation shall follow to request such accommodation. This policy should be included in the Student Orientation Manual distributed to all students at the beginning of the Dental Hygiene Program. It should also be published as a separate document. The work on this policy should be completed within three months of this Decision.
Dated at Toronto, this 21st day of June, 2010.
“Signed by”
John Manwaring
Member