HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Caroline Fisher
Applicant
-and-
York University
Respondent
decision
Adjudicator: John Manwaring
Indexed as: Fisher v. York University
APPEARANCES BY
Caroline Fisher, Applicant ) Self-represented
York University, Respondent ) Joanna Rainbow, Counsel
INTRODUCTION
1Ms. Caroline Fisher (the “applicant”) was a visiting student enrolled at York University (the “respondent”) on the basis of a letter of permission from the University of New Mexico (“UNM”), where she had been studying towards a Bachelor of Arts degree for a number of years. The applicant has a learning disability which requires accommodation. There is no dispute between the parties that a university offers a service – education – within the meaning of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and that, therefore, the respondent cannot refuse to make all reasonable efforts to accommodate a student with a disability up to the point of undue hardship or otherwise discriminate against such a student in violation of the Code’s provisions.
Issues
2The applicant alleged that the respondent discriminated against her on two grounds – disability and citizenship. Her main argument is that the respondent did not make reasonable efforts to accommodate her up to the point of undue hardship. Her accommodation needs were communicated to the respondent in a timely fashion in the admissions process, by letter after admission and on her arrival in Toronto to start her studies, but the respondent did not provide the required accommodation – in particular, substantive content tutoring – which resulted in her failure of two language courses which, according to her, derailed her university studies. She also made a related argument to the effect that her professors in the two language courses deliberately tried to exclude her from their courses by obstructing the accommodation and treating her in a humiliating and insulting fashion because of her disability. Finally, she argued that the respondent discriminated against her on the basis of her citizenship because the criteria for the attribution of bursaries to help students with learning disabilities pay for tutoring include citizenship. Bursaries are available to Canadian students which are not available to students who are citizens of other countries.
3The Tribunal must decide the following questions:
a) Does the refusal of the respondent to provide subject-matter tutoring at its own expense to students with learning disabilities violate its obligation under the Code to make all reasonable efforts to accommodate the applicant up to the point of undue hardship?
b) Did her professors discriminate against the applicant on the basis or her disability?
c) Was the applicant subject to discrimination on the basis of citizenship in the administration of bursaries intended to help those with learning disabilities?
DECISION
4For the reasons which follow, the Tribunal finds that the respondent has met the onus to prove that it made reasonable efforts to provide accommodation for the applicant’s learning disability, that the professors did not discriminate against the applicant in violation of the Code, and that the respondent made reasonable efforts to accommodate the applicant by providing funding for subject-matter tutoring when the applicant’s applications for bursaries were rejected. The Tribunal also finds that the respondent did not violate the Code by discriminating against the applicant on the basis of citizenship on the basis of subsection 16(2) of the Code.
Evidence
5The respondent university has taken seriously its duty to accommodate students with learning or other disabilities. The evidence submitted by both parties shows that during the time when the applicant was a visiting student, York University offered many services for students who needed accommodation. The Learning Disabilities Program, in particular, provided assessment services, counselling, advocacy concerning examination and course accommodation as well as tutoring in skills required to succeed. Students with learning disabilities were accommodated in the admissions process as well as throughout their studies. While it is possible that some in the university community did not understand or support accommodation, the respondent as an institution devoted considerable resources to support for students requiring accommodation for whatever reason. The dispute in this case arises in this context.
6According to her University of New Mexico transcript, the applicant began her university studies at the University of Western New Mexico sometime prior to the spring of 1984. She first took courses at UNM as a non-degree student and then registered in a degree program, taking courses between Fall 1984 and Fall 1986. She took one language course in Spanish during this time period – Span. 101: Elementary Spanish – for which she received a B. At this point her studies were interrupted. Her marks were not outstanding. She received the majority of her marks in the C and D range with two A’s in Music Appreciation and two F’s. Between 1986 and 1992, she studied at Metro State College of Denver and Scottsdale Community College. In Spring 1992, she enrolled briefly in a Bachelors of Arts and Science program taking one course – Intermediate Spanish – from which she withdrew. She returned to her studies in the Spring of 1998 when she enrolled in three courses. From Spring 1998 until Summer 2004, she took courses continually, although never a full load.
7During this time, the following Spanish courses appear on her transcript – Span. 202, 301 and 439. She enrolled in Span. 302 but withdrew before receiving a mark. The French courses on her transcript are French 276 – Accelerated Intermediate French, for which she received an A-, and French 301: Advanced Composition and Conversation, for which she received a C+. She enrolled in French 305: French Phonology, but withdrew without receiving a mark.
8The applicant’s academic success improved after 1999. In her first attempt at university studies, she had no accommodation for her learning disability because it had not been diagnosed. However, on her return to her studies, she consulted experts who identified her learning disability and recommended accommodation. The accommodation recommended changed slightly over time but, in the final version, the recommended accommodation was:
a) a quiet testing environment free from distraction;
b) time allotted for testing three times the regular class testing time unless otherwise specified by the Director of Student Support Services with other arrangements if this time accommodation was not possible;
c) limitation of presentation of oral information to segments of three or four sentences at a time whenever speaking to the student;
d) repetition, clarification and or rephrasing of instructions as needed; and
e) the use of language proctors, approved by the Foreign Language and Literature Department, who have formally worked with the student and understand the nature of her disability.
In his memo to Dr. Monica Cyrino, Chairperson of the Foreign Languages and Literature Department setting out the above accommodation, Dr. Juan Candelaria states that the applicant had been receiving accommodation since 1999. The reports from the doctors and the various assessment services identifying the learning disability and the appropriate accommodation were provided to York University with the applicant’s application. There is no mention of substantive content tutoring in these documents but it appears that the applicant did receive such tutoring during her studies at UNM at no cost to her.
9In 2004, the applicant decided to apply for admission to York University as a visiting student studying on the basis of a letter of permission. A “letter of permission” student is enrolled as a student at her home university which, in this case, was UNM, but takes courses at the host university, in this case, York University, for which she receives credit at her home institution. The two universities signed a consortium agreement whereby the applicant was allowed to enroll in courses at York University. The consortium agreement stipulated amongst other things that the student could not receive financial aid from the host university. As the applicant acknowledged in her testimony, the home university (UNM) was responsible for identifying the courses in which the applicant would enroll and determining their equivalents in the UNM curriculum. The respondent had no role to play in the course selection. The courses taken at the respondent would be credited toward her degree from UNM and any degree conferred would be granted by the home university (UNM).
10The applicant consulted the respondent’s website to determine how to apply and decided that she should use the “Modified Application Process” which was intended for disabled students. In this process, the applicant would include transcripts and a personal statement with the application. She used the Personal Statement to discuss her disability and her need for accommodation. She specifically mentioned her expectation that “… the tutors are equipped for tutoring in the senior level courses.” She testified that this sentence meant that she expected to receive substantive content tutoring. She also included with her application the documentation which diagnosed her learning disability and described the appropriate forms of accommodation. The application was sent directly to Dr. Marc Wilchesky, Director of the Learning Disabilities Program, on February 26, 2004,
11The “Modified Application Process” is not intended for use by “letter of permission” students. The latter are not required to submit transcripts or a personal statement. The respondent does not base admission on marks and relies on the home institution to determine if the student is eligible to study at another institution. The “Modified Application Process” is aimed at students who have completed their secondary studies but would not be admissible on the basis of their marks. A student whose results do not meet admissions standards can ask for special consideration if she can show that she has a learning disability for which she did not receive accommodation and that her marks were adversely affected. This is one of the forms of accommodation which the respondent has put in place to ensure that students with disabilities have equal access to a university education.
12Because the applicant would not be admitted to a program of study offered by the respondent, she did not need to ask for special consideration in the admissions process. In her closing arguments, the applicant insisted that she had used the correct admissions procedure even though the information on the website which she put into evidence clearly and unambiguously indicates that the “Modified Application Process” is for students applying for admission into a degree program offered by the respondent whose marks would not otherwise justify their admission. The applicant did not fall into this category. As a visiting student, she remained a student at UNM and would not receive a degree from the respondent.
13The applicant was admitted as a “letter of permission” or visiting student for the academic year 2004-2005. She was informed of her admission by letter dated March 17, 2004. There is no allegation of discrimination in the admissions process. Another letter was sent to the applicant dated April 8, 2004, reminding her to book her course enrolment appointment with the Faculty and advising her that her Faculty Advisor would be informed that she had self-identified as a student with a learning disability. She was also advised to contact the Learning Disabilities Program as soon as possible to book an appointment to discuss her needs. Finally, she was advised that her psycho-educational assessment would be forwarded to Dr. Wilchesky on her behalf. This letter was signed by David Stadnicki, Assistant Director (Assessment and Evaluation).
14The applicant, after consultation with her advisors at UNM, enrolled in three courses – AK/En 3980 – Creative Writing, AS/Fr 3340 – Literature for Yong People and AS/SP 3000 – Advanced Spanish Language and Grammar. The applicant enrolled on-line on June 7, 2004. There was some e-mail communication with the Spanish Department about the appropriate course. Ellen Anderson, Coordinator of Spanish, wrote to the applicant in response to her enquiry and said that “I haven’t seen your transcript, so any evaluation of your eligibility for courses can only be approximate and non-binding.” She suggested that the applicant would probably qualify for the Advanced Spanish Language and Grammar course.
15The applicant stated that Dr. Michael Mangotta waived the Spanish Department’s placement test in her case but he says in his sworn statement that, while he has no recollection of the applicant, he would only have signed a waiver in the case of a student seeking an exemption from a compulsory course in her program because, for example, the student is a native speaker in the language and as such fluent with a knowledge of grammar which equals or exceeds what is taught in the course. He could not explain how the applicant obtained permission to enrol in the course.
16AS/Fr 3340 – Literature for Yong People, taught by Dr. Marie-Christine Pioffet in 2004-2005, was an advanced course intended for students specializing in French and/or who may become French teachers. The focus was literary analysis rather than grammar and vocabulary. The course was taught entirely in French and students were expected to participate in all class discussion, presentations and other activities in that language. The course dealt with French literature aimed at an audience of young readers from ages 6 to 19. The course description in the Department of French Studies Annuaire 2004-2005 and the course outline distributed to students state that a student who wants to take this course must have completed AS/Fr 2200 – Introduction à la literature d’expression française, or obtain the professor’s permission.
17AS/SP 3000 – Advanced Spanish Language and Grammar, taught by Dr. Anita Wagman-Iscove in 2004-2005, was a course designed, according to the course description, to help a student improve his or her command of Spanish through the writing of in-class essays, homework assignments and grammar exercises. Students worked on their oral skills through class discussion and presentations. The description states that “Classes and written work will be in Spanish.” The prerequisite for the course was AS/SP 2000 – Intermediate Spanish, Level II.
18The applicant communicated with Dr. Wilchesky on her arrival in Toronto. His reply is dated September 3, 2004. In her e-mail she again identifies her need for “tutors equipped in tutoring upper division language courses (Spanish and French).” Dr. Wilchesky replies as follows:
Unfortunately, the Learning Disabilities Program does not have tutors trained in upper division foreign language courses. Our tutors are available to assist students with more general communications difficulties as they relate to reading and writing in English. In the case of foreign language tutors, it may be best to contact the respective departments of Spanish and French to see if you can arrange private tutoring. The Student Peer Support Centre on our campus also maintains a registry of potential tutors for hire in specific subject areas.
The applicant also met with Heather Moore, Program Assistant, International Student Program, York International, who filled in a form titled “International Student Advising” with notes of their discussion. According to the applicant, they discussed the availability of funding for subject specific tutoring on September 8, 2004. As a result, she applied for financial assistance. Specifically, she applied for a bursary under the program titled Private Donors’ Funding for York Students with Disabilities 2004, administered by the Office of Financial Services. Her application was rejected by letter dated March 15, 2005.
19The procedure for the granting of accommodation begins with the Learning Disabilities Program, which must approve the request and suggests appropriate forms of accommodation. These suggestions must then be approved by the professor teaching the course or the department to ensure that the recommended accommodation does not compromise the academic standards of the course. Dr. Wilchesky met with the applicant on September 14, 2004, approved the request for accommodation, and provided a letter for presentation to her professors which identified 300% extended time on all tests and examinations as well as use of a word processor and spell checker. This recommendation was modified by a supplementary letter dated September 23, 2004, to include the audio recording of the applicant’s classes.
20The applicant presented the letters and the necessary forms for signature to her professors in a timely fashion. The applicant acknowledged when cross-examining Professor Wagman-Iscove that the latter signed the form promptly and without objection. There was some confusion about the accommodation proposed by the LDP in the “Alternate Test/Exam Accommodation Approval Form” which the applicant gave to Professor Pioffet on or about September 14, 2004. Professor Pioffet thought that the LDP wanted her to change the format of the examinations to multiple choice, to which she objected because such a change would compromise the validity of the evaluation of student learning. Professor Pioffet forwarded the form to Paul Laurendeau, Director of the French Department, who communicated with Dr. Wilchesky to clarify the situation. Dr. Wilchesky made it clear that LDP was not suggesting multiple-choice examinations. After this clarification, Paul Laurendeau signed the form. His signature is dated October 12, 2004, but, for reasons which were not clearly explained, the form was not returned to the applicant until the beginning of December, 2004. The applicant communicated with Professor Pioffet about the form at the beginning of October. Professor Pioffet replied that she had forwarded the form to Paul Laurendeau.
21Professor Wagman-Iscove rejected one form of accommodation proposed by the LDP – the use of a word processor and spell checker – because, in a language course, the mark is based in part on the student’s knowledge of vocabulary and grammar. The use of a word processor and spell checker would change the academic standards for this course. Professor Wagman-Iscove had no objection to the extended time accommodation or other forms of accommodation.
22Professor Pioffet had no objection to the accommodation proposed by the LDP except for what she understood as a suggestion that all examinations be multiple choice. She testified that the applicant also asked for other forms of accommodation not proposed by the Learning Disabilities Program which included permission to work alone rather than in a team and no questions in class. Professor Pioffet agreed to allow the applicant to work alone rather than in a team and do her oral presentation in Professor Pioffet’s office in the presence of another colleague.
23At the same time as the discussions about accommodation were going on, the professors in her language courses became concerned that the applicant was in danger of academic failure because she did not have the requisite language skills to take advanced courses. Professor Pioffet testified that she was concerned because the applicant had difficulty participating in the classes and asked other students to translate while the professor was lecturing or giving instructions. The applicant also never spoke to her in French in spite of the requirement made clear in the course outline and syllabus that the course would be entirely in French. Her perception was that the applicant did not have the required background and language skills to successfully complete her course.
24Professor Wagman-Iscove testified that she also was concerned that the applicant did not have the background in Spanish to successfully complete her course. From her point of view, the applicant was having a great deal of difficulty with the material. Very often her answers on class assignments were not correct. She met with the applicant individually to help her with the material but the following week it would appear that the applicant had not retained any of the previous lesson. She noticed that when the applicant wrote one of the tests for the course she translated the questions into English before answering them.
25The French Department used a placement test to determine the level of students so that they could be placed in the appropriate course. Professor Pioffet thought that it would be useful to have the applicant write the test to determine her level of French. She appears to have discussed this possibility with Paul Laurendeau because, in an e-mail dated September 21, 2004, Professor Pioffet stated that, after a discussion with someone she referred to as a “Psy”, she had concluded it was a good thing that she had held off on suggesting that the applicant take the French Department Placement Test to determine if she was in the appropriate course her French language skills because that test had not been adapted to take into account the applicant’s accommodation needs. She suggested that it would be a simple matter to adapt the placement test and gently convince the applicant to take it.
26The applicant testified that Paul Laurendeau waived the placement test in a meeting on or around September 14, 2004. There is nothing in writing to support this assertion. Bruna Gaspini, Paul Laurendeau’s assistant, was at the meeting but she did not recall any decision to waive the placement test. The applicant’s testimony is inconsistent with the e-mail evidence she put before me and with the testimony of Professor Pioffet, who was very clear that she wanted the applicant to write this test and that she understood that Paul Laurendeau agreed with her. Given that Mr. Laurendeau’s office adapted the test to accommodate the applicant’s learning disability, it seems unlikely that he waived the test in September.
27The applicant met Valérie Guitton, Language Links Program Coordinator of York International Department, sometime in the fall at an event organized by Ms. Guitton. The applicant approached her and asked if she would be interested in tutoring her in French and Spanish. They exchanged contact information and met to discuss the possibility of tutoring in late November 2004. Ms. Guitton testified by affidavit that she was available and willing to tutor the applicant. The applicant submitted her name to the LDP but no funds were available to pay for subject-matter tutoring. The applicant did not obtain any of the bursaries for which she applied and no tutoring took place during the fall term.
28The applicant testified that during this period she was subject to discrimination in many forms by both language professors. She stated that on September 8, 2004, Professor Wagman-Iscove told her that she should take another class. The applicant alleged that, on September 15, 2004, Professor Pioffet made derogatory remarks about her French language competency and her course selection. Further, she argued that Professor Wagman-Iscove discriminated against her when she restricted the approved accommodation. (This refers to the rejection of the use of a word processor and spell checker given the academic requirements of the course.) She also alleged that Professor Wagman-Iscove discriminated against her in the classroom by making disparaging comments regarding the doing of homework and negative remarks about her difficulties in answering questions orally and by refusing to allow additional time to prepare the oral assignment. She further alleged that, on November 25, Professor Pioffet demeaned her by suggesting that she had totally misunderstood the assignment and refusing to accept her choices of topic for the oral assignment and refusing to allow testing accommodation. Finally, she alleges that, on December 2, 2004, Professor Pioffet announced in front of the class that if the applicant was not going to take the examination scheduled for that day, she should leave the classroom.
29In her testimony, the applicant said that both professors told her that she did not belong in their class. She testified that Professor Wagman-Iscove became impatient when the applicant attempted to answer questions and told her to spit out the answer. She alleged that she was told to write faster to complete exams, that her assignment was late and that she would have to go first in the schedule of oral presentations because someone had to go first. The applicant perceived that her professors were hostile to accommodation and disparaged and humiliated her to get her to abandon their courses.
30Professors Pioffet and Wagman-Iscove vigorously denied these allegations. They testified that they were aware of the respondent’s obligations concerning accommodation and were willing to make all reasonable efforts to accommodate her. However, they were concerned that she had enrolled in the wrong courses given her language skills. Their comments were not based on her learning disability but rather her grounding in the language they were teaching. They believe that they were acting in her best interests in encouraging her to consider other options to ensure academic success. Any restriction on the forms of accommodation was based on the academic standards which all students must meet to pass the course. They both testified that they had taught students with learning disabilities in the past and had never had any problem with accommodation.
31The applicant did not write the French Department placement test even after the test had been modified to meet her accommodation requirements. She felt that the department was using the test as an excuse to get rid of her. She was told that the test was ready for her and that she could write it at her convenience. She chose not to write it. She testified that Dr. Wilchesky advised her not to write the test but, in his testimony, he stated that he recommended that she write the test.
32Professors Pioffet and Wagman-Iscove testified that the applicant ceased to attend classes at or around the middle of October. Professor Pioffet said that she did not see the applicant from October 14 to November 25. Professor Wagman-Iscove did not provide precise dates but she testified that the applicant stopped attending classes at this time. The applicant explained her absences by saying that she had to take herself out of an environment where she was treated in a disparaging and humiliating manner.
33Dr. Wilchesky stated that the applicant sought his advice at the beginning of December 2004 about the accommodation form which had not been returned. The applicant put into evidence her e-mail of October 6 requesting that Professor Pioffet return the form and she stated that she went to Paul Laurendeau’s office to try to get the form. However, she did not discuss the situation with Dr. Wilchesky until December. He stated that, if he had known there was a problem, he would have intervened much earlier. When he learned that the form had not been returned to the applicant, he immediately contacted Paul Laurendeau, whose office provided the signed form so that arrangements for accommodation could be made.
34By the end of the Fall term, the applicant was clearly in considerable difficulty. By her own choice, she was not attending classes, and she had not done the work normally required for success in a language course. She did write at least one of the Spanish tests with the appropriate accommodation. She failed this test. She said to Dr. Wilchesky that, while she received the appropriate accommodation, there were distracting noises which prevented her from concentrating and the exam proctor did not correctly understand the time allotted for her test and stopped the test early. The applicant did not write the French examination because the form had not been returned and she would not be able to write with the required accommodations. During this time, the applicant continued to apply for funding for subject content tutoring without success.
35At this time, Dr. Wilchesky suggested that she consider withdrawing from York University and returning to her home institution. If she withdrew, she could petition for a return of her tuition. He prepared a letter in support of her petition. However, the applicant was reluctant to do this because she would have to withdraw first and then file the petition for the reimbursement of tuition without any guarantee that her petition would be successful. The applicant also talked to Ross Macmillan of the Office of the Secretariat, who informed her that the new Office of the Ombudsperson would open on January 3, 2005. According to the applicant’s testimony, Mr. Macmillan advised her to postpone her withdrawal and ask the respondent’s new Ombudsperson, Fiona Crean, for assistance in resolving the situation.
36In December 2004, the applicant contacted Sylvia Shippke, Assistant Vice-President of Student Affairs, to seek help in obtaining funds to pay for tutoring. At this time, the applicant applied for a York University International Undergraduate Emergency Bursary. This application was eventually rejected by letter dated March 14, 2005. The applicant’s application for a York University Undergraduate Bursary was rejected by e-mail dated December 10, 2004. When discussing bursary availability, the applicant was told that she was not eligible for a number of bursaries because the private donor (for example, the Learning Disabilities Association of Canada) required that the applicant be a Canadian citizen or eligibility was conditional on being either a citizen or a Canadian resident residing in Ontario (OSAP-related bursaries).
37The applicant met with Ms. Shippke again at the beginning of January 2005. Ms. Shippke found $1200.00 in the budget which she made available to the applicant. According to Ms. Shippke’s testimony, she advised the applicant that the money was available and that she had to hire a tutor and have the tutor bill her office directly. The direct billing approach was used in order to ensure that the applicant was not given any financial aid that might put her in breach of the Consortium Agreement with UNM. The applicant never submitted any bills, nor did a tutor bill the office directly. These funds were never used.
38Fiona Crean and her assistant Susan Levesque called a meeting also attended by R. Drummond, Dean of the Faculty of Arts, Dr. Wilchesky, Sylvia Shippke, Paul Laurendeau and Marie-Christine Pioffet. Dr. Wagman-Iscove did not attend. The applicant was told not to attend. This meeting took place on January 14, 2005. From the notes put into evidence, those present discussed the applicant’s situation. Professors Laurendeau and Pioffet argued that the applicant did not have the requisite language skills to succeed in the French course and that the best way to determine her level was the placement test. Dr. Wilchesky presented the applicant’s request that she be allowed to convert her courses to Directed Reading courses which would be marked on a pass-fail basis. The conclusion of the meeting as explained to the applicant afterwards was that the applicant could either withdraw from her courses and petition for reimbursement of her tuition or complete the courses with the accommodations currently in place. The Directed Reading or Independent Study option was not viable because it is intended for specialist students who need credits to complete their degree. It was not appropriate in the applicant’s case because accommodation had been put in place in her course and the applicant lacked the basic proficiency required to pass the course.
39The applicant did not petition to withdraw from her language courses. She also did not attend the courses during the Winter term and did not write any of the examinations, tests or other assignments in either course. She also stopped paying her rent on her university residence and tuition. Later in the year, she sought legal advice and her representative attempted to negotiate a solution without success. The applicant successfully completed her English course and received a B+. Near the end of the academic year, she vacated her residence apartment without giving the required notice and moved back home without paying the outstanding rent.
Law
40The relevant sections of the Code are:
s. 1: Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.
s. 10(1):
“disability” means,
(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
(b) a condition of mental impairment or a developmental disability,
(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
(d) a mental disorder, or
(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; (“handicap”)
s. 11(1): A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.
s. 11(2): The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member 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.
s. 16(2): A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship or lawful admission to Canada for permanent residence is a requirement, qualification or consideration adopted for the purpose of fostering and developing participation in cultural, educational, trade union or athletic activities by Canadian citizens or persons lawfully admitted to Canada for permanent residence.
41The applicant has alleged three different forms of discrimination – first, the refusal to provide subject-matter tutoring which requires a consideration of the efforts to accommodate the applicant under section 11 of the Code. Second, she alleges direct discrimination on the part of her professors who, she alleges, engaged in a campaign of humiliating, derogatory and disparaging remarks intended to drive her from the classroom. Third, she alleges discrimination on the basis of citizenship.
42In order to determine if the respondent’s refusal to fund subject-matter tutoring as accommodation for students with learning disabilities is reasonable or bona fide in the circumstances as required by s. 11(1), it is necessary to apply the analysis set out by the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (B.C.G.S.E.U.) (“Meiorin”), 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3, and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868, at para. 20 (“Grismer”). As summarized by the Tribunal at para. 10 in Wozenilek v. Guelph (City), 2010 HRTO 1652, the respondent must show that:
(1) it adopted the standard for a purpose or goal that is rationally connected to the function being performed;
(2) it adopted the standard in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal; and
(3) the standard is reasonably necessary to accomplish its purpose or goal, in the sense that the defendant cannot accommodate persons with the characteristics of the claimant without incurring undue hardship.
The duty to accommodate includes both procedural and substantive components. The procedural component requires that the respondent undertake a reasonable investigation to understand the applicant’s learning disability and needs for accommodation. The substantive component requires that the respondent provide reasonable accommodation or demonstrate that it is impossible to accommodate the applicant without undue hardship. The respondent is not obliged to provide perfect accommodation. The onus is on the respondent to demonstrate that, procedurally and substantively, it did what was reasonable in the circumstances to accommodate the applicant up to the point of undue hardship.
43The person asking for accommodation also has obligations under the duty to accommodate. The Supreme Court of Canada held in Central Okanagan School District No. 23 v. Renaud, [1999] 2 S.C.R. 970, that the individual seeking accommodation has an obligation to cooperate in the identification and implementation of reasonable accommodation. As the Ontario Human Rights Commission puts it in its report titled Guidelines for Accessible Education, at p. 16:
At the heart of the accommodation process is the responsibility, shared by all parties, to engage in meaningful dialogue about accommodation, and to seek out expert assistance as needed. Everyone involved should co-operatively engage in the process, share information and avail themselves of potential accommodation solutions.
The Renaud case dealt with accommodation in the employment context. The duty to cooperate applies equally in the context of services for persons with disabilities and the requirements of the duty are determined contextually. The person with the disability in the least will have an obligation to disclose sufficient relevant information about her disability to permit the service provider to determine appropriate accommodation and to assist in the identification and implementation of the appropriate accommodation. If the service provider makes a reasonable proposal of a course of action intended to facilitate this process, the applicant has an obligation to participate to the extent necessary. The collaboration between the parties involved is an on-going process. The person with the disability may have to advise the service provider of difficulties which arise in order that the latter can deal with them appropriately.
44In the case of direct discrimination through individual acts in violation of s. 1 of the Code, the onus is on the applicant to establish on the balance of probabilities that the respondent acted in a discriminatory manner. If a violation of s. 1 is established, s. 11 does not apply because the violation of the Code is not the result of the application of a rule or requirement that could possibly be justified under s. 11(1)(a).
Analysis
Issue 1
Does the refusal of the respondent to provide subject-matter tutoring at its own expense to students with learning disabilities violate its obligation under the Code to make all reasonable efforts to accommodate the applicant up to the point of undue hardship?
45The first and second components of the “Meiorin” test are satisfied in this case. The respondent adopted the policy that it does not fund subject-matter tutoring because, in its view, this type of tutoring is incompatible with the maintenance of academic standards. The student must learn the material through her own efforts inside and outside of the classroom. The purpose of accommodation is to allow students with disabilities to demonstrate their ability to master the content and skills required to successfully pass the course without disadvantage because of their disability. Examination accommodation such as increased time allows students to do just that. The accommodation takes into consideration the impact of the disability on the ability to write tests and examination. The LDP will provide tutoring in skills such as language and essay writing to enable students to communicate their learning more effectively but skills tutoring does not deal with the subject matter of the course, which the student must learn on her own. Accommodation does not alter the academic standards by which success in a course is determined. Indeed, the professor who is marking the examination answer may not know that it was written in conditions which differ from those in which most of class wrote the examination. Therefore, the respondent adopted its policy for reasons rationally connected to the purpose or goal of university education.
46This respondent adopted this policy in good faith. There is no evidence to support the view that the respondent adopted this policy in order to exclude or otherwise penalize students with disabilities. The respondent has devoted considerable resources to providing support and accommodation to students who have a wide variety of disabilities. It has created programs and staffed them with well-trained professionals. It is evident that the respondent has developed policies around disability and accommodation out of a strong commitment to equal access to education for all students regardless of disability and to the creation of an equal playing field where all can learn to the best of their abilities.
47The issue here is whether the respondent has made all reasonable efforts to accommodate the applicant up to the point of undue hardship. There are two dimensions to this analysis – accommodation provided must be reasonable in terms of its substance, and of the process whereby the accommodation was determined. There is no suggestion that the accommodation sought by the applicant would endanger the health or safety of herself or her colleagues. There was no argument that the cost of tutoring was unduly burdensome.
48The respondent does not seek to justify a policy which says that subject-matter tutoring is never available as a form of accommodation for students with learning disabilities. Indeed, in this case, the respondent found money to fund the subject-matter tutoring as requested by the applicant once it was clear that the applicant could not obtain funding from other sources. The fact that the respondent eventually found money in its budget suggests that cost is not in itself an insurmountable obstacle.
49With regards to the substantive component of the duty to accommodate, I find that the respondent has satisfied the onus to establish that it provided reasonable accommodation. The respondent did exactly what the professionals at UNM recommended in their assessments which the applicant provided in support of her request for accommodation. It provided reasonable accommodation in the form of extended time for exam writing, a location to write the examinations and tests in a distraction-free environment with exam proctors who understood the needs of students with learning disabilities and the recording of classes to facilitate the processing of material taught. The applicant received everything that was required in the reports. There is no mention in these reports of subject-matter tutoring and such tutoring is not a recommended form of accommodation. In addition, the respondent’s witnesses demonstrated a willingness to go beyond what was recommended by the LDP as long as the accommodation did not compromise academic standards. Professor Pioffet testified that she decided to allow the applicant to work alone rather than in a team and to make her oral presentation in the professor’s office rather than in the classroom in front of the class. She testified that the applicant asked to do her oral presentation in English, a request that she rejected because it would compromise the academic standards of the course. Finally, the respondent provided the funds necessary to pay for subject-matter tutoring.
50The procedural component of the duty to accommodate raises more issues in this case. There are two matters of concern – the time it took to the Department of French Studies to return the required exam accommodation form to the applicant and the time it took the respondent to provide the funding for the tutoring. Overall, the respondent handled the request for accommodation in an efficient and timely manner. The request for accommodation was forwarded to the LDP in good time for consideration prior to the start of the academic year. Dr. Wilchesky met with the applicant soon after her arrival in Toronto and wrote letters explaining the accommodation recommendations by mid-September. The applicant explained her need for accommodation to the professors and provided them with the letters from the LDP in a timely fashion. Professor Wagman-Iscove signed the required form and it was returned to the LDP in time for the provision of accommodation.
51The Department of French Studies did not return the form to the student in a prompt and timely fashion. It was not returned until December and only after Dr. Wilchesky intervened to make sure that it was delivered. The LDP plays an important role in ensuring that the accommodation needs of students with learning disabilities are met. It acts as an advocate for those students when they encounter problems. In this case, the applicant did not inform the LDP of this situation until December. At that point, the LDP acted immediately. The LDP acted in good faith in this situation and did its best to ensure that the applicant received the recommended accommodation.
52One of the dimensions of the Renaud duty to cooperate is that the person seeking accommodation must advise the appropriate persons of difficulties which arise with accommodation. The applicant did not do so in this case. She was aware of the LDP’s role as she talked to Dr. Wilchesky about her dissatisfaction with the accommodated conditions in which she wrote one of her Spanish tests. He intervened with the persons concerned to ensure that they correctly understood the conditions in which she was to write her examinations. She could have done the same thing with regards to the exam accommodation form. Dr. Wilchesky could not assist her with the problem until he was aware that there was a problem. His uncontradicted testimony was that she did not inform him of the problem until the beginning of December. It is not unduly onerous to require that the person with the disability advise the appropriate authority of any problems which arise in obtaining the recommended accommodation. Without this, it would be very difficult for a large bureaucracy to remedy situations which must inevitably arise.
53The reluctance to fund subject-matter tutoring arose from the respondent’s general policy not to fund this type of tutoring. In this case, the respondent was concerned that the student would be unable to pass the course even if she received tutoring because she did not have the language skills required to successfully complete advanced courses. This concern was based on the difference in the applicant’s program of study when compared to the language education the typical Canadian student would receive. The applicant had done 9 credits in French at UNM. A typical Canadian student would have done between 18 and 24 credits prior to taking Professor Pioffet’s course, in addition to French courses taken in primary and secondary schools. The concern was also based on the professor’s perception that the applicant was struggling in class.
54It would have been fairly easy to use the placement tests to determine whether the applicant had the required language skills. The French Department tried to convince the applicant to write the test but she refused. As long as the test was not adapted to satisfy her accommodation requirements, her refusal was reasonable. However, even after the test had been adapted and she could write it in a format and timeframe which took into consideration her disability, the applicant maintained her refusal to write the test. She justified this refusal on the basis that she was advised not to write it by Dr. Wilchesky but her testimony was contradicted by Dr. Wilchesky,her own witness, when he testified that he advised her to write the test.
55I find that, because the professors had legitimate concerns about her language skills, the request to write the placement test was reasonable in the circumstances. Based on the Renaud principle, the applicant had the obligation to participate in reasonable efforts to determine the best way to ensure that she could successfully complete her courses. The applicant testified that she viewed the test as a means to get rid of her but there is no evidence that Professors Pioffet or Laurendeau were acting in bad faith or would have somehow falsified the results of the test in order to exclude her from the course. Given that it was in the best interests of the applicant to enroll in a course appropriate for her level, she should have written the test in October when she was made aware that the test had been modified in light of her accommodation requirements.
56The respondent’s process for determining accommodation was not perfect but the human rights standard is not one of perfection. In this case both parties contributed to the problems which arose. However, the respondent put into place mechanisms whereby such problems could be identified and resolved. These mechanisms required that the applicant participate in reasonable ways by advising the appropriate persons of any problems and working with the respondent to find appropriate solutions. For these reasons, I conclude that the respondent did not violate its duty to accommodate the applicant. On the contrary, the respondent made all reasonable efforts to accommodate the applicant as is required by section 11 of the Code.
Issue 2
Did the applicant’s professors discriminate against her on the basis or her disability?
57The applicant alleged that her professors discriminated against her by making humiliating and derogatory remarks intended to drive her from the classroom. These are serious allegations which, if true, would constitute a clear violation of the Code. These allegations are uncorroborated. The professors deny vigorously that they made any such comments and testified that their interactions with the applicant in and out of the classroom as well as their decisions regarding accommodation were based on concerns for the student who, in their opinion, lacked the language skills required to successfully complete advanced courses.
58The applicant alleges that both professors discriminated against her when they suggested, at the beginning of term, that she might not be in the right course for her skill level. However, it is the responsibility of the professor to ensure that students have satisfied the prerequisites for admission into their course and have the knowledge and skills necessary to do the required work. If a professor cannot ask a student if she has enrolled in the proper course for fear of allegations of discrimination, no one would be in a position to ensure that a student is enrolled in the appropriate course for her skill level. Professor Wagman-Iscove asked this question at the beginning of the course in September. She was aware that the applicant had not completed the normal prerequisites and had not done the placement test. I find that it is reasonable in these circumstances to take the initiative to ensure that the student is aware of the academic risk involved in taking a course which is too advanced for her.
59The applicant alleges that Professor Pioffet discriminated against her by asking her to do the placement test to ensure that she was in the appropriate course. The French Department requires all students to write the placement test at the outset of their studies in order to ensure that students enrol in the appropriate course unless the student’s file shows that the test is unnecessary. The applicant had not taken any courses in the French Department and had not completed the prerequisites for admission into Professor Pioffet’s advanced Littérature pour la jeunesse course. There is no evidence to suggest that only students with learning disabilities are required to write this test or that the Department discriminates in the administration of the test. The suggestion that the applicant take the placement test cannot in itself constitute discrimination on the basis of learning disability.
60The applicant alleges that Professor Wagman-Iscove discriminated against her by restricting the forms of accommodation to exclude the use of a word processor and spell checker. The LDP recommends forms of accommodation which must be approved by the professor in light of the academic requirements of the course. The LDP deals with students enrolled in a wide range of courses across all of the respondent’s programs and cannot be expected to know the academic requirements of each course. This is why the accommodation approval process includes consultation with the professor. The professor can legitimately advise the LDP that a form of accommodation is inappropriate given the course requirements. There is no evidence that Professor Wagman-Iscove was motivated by anything other than concern for the integrity of academic standards when she restricted the accommodation available to the applicant.
61The applicant alleges that Professor Pioffet discriminated against her in rejecting her choice of texts for her oral presentation. The applicant proposed to present on either Les fleurs du mal by Charles Baudelaire or the translated version of second volume of the Narnia series by C.S. Lewis. Professor Pioffet rejected these choices for valid academic reasons. In her opinion, Baudelaire’s poems would not be appropriate for the target audience used in the course – young adults up to the age of 19. The Lewis novel is aimed at young adults but it is translated from English and is not an example of French literature aimed at young adults. The explanation for her rejection of these texts is based on academic criteria relevant to the course. There is no evidence that Professor Pioffet was basing her decision on the applicant’s learning disability.
62The applicant alleges that Professor Pioffet humiliated her in front of the class by saying that she should either write the examination or leave the classroom. This took place in December when the applicant showed up for class on a day when an examination had been rescheduled. The other students were writing the examination but the applicant would not write the examination during class time because her accommodation required that she have extended time to write the examination and that she write in a room with no distractions. It would be distracting for those writing the examination to have someone in the room who was not writing the examination. The applicant is well aware of the problems which arise when there are distractions such as noise while students are doing a test. It would be unfair to the other students in the course to allow her to remain in the room while they write the examination. I find that the request that she leave the room was reasonable in the circumstances.
63The applicant made a number of other allegations concerning comments made in class. The allegations were very vague as to date and the exact nature of the comments. For example, she alleged that Professor Wagman-Iscove told her to spit out an answer during a class discussion. Professor Wagman-Iscove testified that she had no recollection of making such a comment and that its wording was not something that she normally used. She would normally speak to the students in Spanish and would not use such an expression when encouraging a student to answer a question.
64Because these allegations are uncorroborated, my conclusions must be based on an assessment of the credibility of the witnesses. The jurisprudence of the Tribunal establishes that I must apply the test set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), for the assessment of credibility of witnesses. See Habib v. University of Toronto, 2010 HRTO 1917, and Nelson v. Lakehead University, 2008 HRTO 41. The applicant and the witnesses for the respondent testified with the conviction of truth but, where their testimony was contradictory, they cannot both be right. It is necessary to examine their testimony in the context of all the evidence taking into account the burden of proof. The documentary evidence presented by both parties – e-mails and letters – shows that Professors Wagman-Iscove and Pioffet were willing to accommodate the applicant as recommended by the LDP but were very concerned that the applicant was at great risk of academic failure because of her lack of preparation. There is nothing in the documents to suggest that they wanted the applicant out of their classes because of her learning disability or that they were unwilling to accommodate her. After listening to the witnesses and assessing their testimony in light of all of the evidence presented, I conclude, on the preponderance of probabilities, that the respondent’s witnesses were credible and offered reasonable explanations of their comments and suggestions made during interactions with the applicant. I therefore conclude that the applicant has not satisfied the burden to prove on a balance of probabilities that the respondent’s employees directly discriminated against her on the basis of her learning disability.
Issue 3
Was the applicant subject to discrimination on the basis of citizenship in the administration of bursaries intended to help those with learning disabilities?
65The granting of bursaries and scholarships is in itself a service within the meaning of the Code and also an aspect of education which is also a service. The respondent offers a wide range of scholarships and bursaries to its students and their criteria of eligibility vary greatly. For example, York University Undergraduate Bursaries are only available to undergraduate students. Osgoode Hall Law School students are not eligible. However, the law faculty has its own bursaries which are not available to non-law students. York International has emergency bursaries that are only available to international students. Canadian citizens are not eligible. Bursaries for students with learning disabilities are not available for students without those disabilities. Given the range of bursaries and their differing purposes, distinctions between categories of students are inevitable.
66Some of the bursaries offered by York University are funded by the respondent out of its own budget. Therefore, it is involved directly the determination of criteria of eligibility. In such a case, if the criteria are based on citizenship, the respondent is discriminating against a category of students – non-citizens.
67Other scholarships and bursaries are not funded by the respondent and it does not determine the conditions of eligibility. This category would include government bursaries for which the criteria are set by the funding government, and private donor bursaries for which the criteria are set by the donor. International students such as the applicant are not eligible for government funding in Canada. For example, the Government of Ontario will only grant OSAP funding to citizens or permanent residents of Canada who reside in Ontario. In order to be eligible for certain bursaries aimed at those with learning disabilities, the student must be eligible for OSAP funding. As a result, students who are not Canadian citizens or permanent residents cannot receive this financial assistance. Other examples would include certain bursaries offered by the Learning Disability Association which are restricted to Canadian citizens. The respondent administers these bursaries either by facilitating the application to a third party who will accept or reject it, or handling the decision-making itself as delegate of the funder. In these circumstances, the respondent is also discriminating against a category of student – non-citizen. The fact that funds are provided by a third party does not relieve the respondent of its duties under the Code.
68The evidence establishes that many of the bursary programs administered by the respondent, whether funded by the respondent or outside sources, base eligibility in part on citizenship. This would constitute a prima facie violation of section 1 of the Code which prohibits discrimination on the basis of citizenship because bursaries which are available to Canadian citizens are not available to international students, but for subsection 16(2) which states:
(2) A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship or lawful admission to Canada for permanent residence is a requirement, qualification or consideration adopted for the purpose of fostering and developing participation in cultural, educational, trade union or athletic activities by Canadian citizens or persons lawfully admitted to Canada for permanent residence.
Neither party brought this subsection of the Code to my attention and they did not present any argument as to its interpretation. However, this section creates an exception to section 1 in cases “... where Canadian citizenship ... is a requirement adopted for the purposes of fostering and developing participation in ... educational ... activities by Canadian citizens or persons lawfully admitted to Canada for permanent residence.” It is, of course, appropriate to interpret any provision of the Code creating an exception to the protection against discrimination restrictively. See Toussaint v. Ontario (Health and Long-Term Care), 2011 HRTO 760. However, no matter how restrictively this exception is interpreted, it applies to bursaries created to facilitate the participation of Canadians with disabilities in university education. University studies are clearly educational activities and the bursaries which include citizenship in their criteria of eligibility are intended to foster participation in these activities. I hold that subsection 16(2) is a complete answer to the applicant’s claim of discrimination on the basis of citizenship. The respondent has not violated s. 1 of the Code in creating or administering bursaries and scholarships which include Canadian citizenship as a criterion of eligibility.
69For these reasons, I find that the respondent has not breached the Code by discriminating against the applicant on the basis of citizenship.
Order
70Having found that the respondent did not violate the applicant’s right to be free from discrimination on the basis of disability or of citizenship contrary to sections 1 and 11 of the Code, the Tribunal orders that the application be dismissed.
Dated at Toronto, this 28th day of June, 2011.
“Signed by”
John Manwaring
Member
