Harcourt v. Ryerson University, 2011 HRTO 872

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sondra Harcourt

Applicant

-and-

Ryerson University

Respondent

DECISION

Adjudicator: Eric Whist

Date: May 4, 2011

Citation: 2011 HRTO 872

Indexed as: Harcourt v. Ryerson University

APPEARANCES

Sondra Harcourt, Applicant ) Self-represented

Ryerson University, Respondent ) Lauri Reesor, Counsel

1This Application was filed on September 16, 2009 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"). The Application alleges discrimination in the provision of goods, facilities and services on the basis of disability. The Application alleges that the respondent failed to accommodate the applicant by allowing her to write an exam at an alternative time.

2A hearing was held on January 20, 2011. I heard testimony from the applicant and Stefanie Marinich-Lee, the manager of the respondent's Access Centre for Students with Disabilities (the "Access Centre").

EVIDENCE

3The applicant enrolled as a student in the respondent's Chang School of Continuing Education in 2007. In 2008 the applicant contacted the Access Centre to request an accommodation related to her disabilities. The Access Centre provides accommodation services and supports to students with disabilities. Based on medical documentation provided by the applicant the Access Centre agreed that the applicant would be allowed to write exams in the quiet setting of the Access Centre's Test Centre, (the Test Centre) that she would be allowed extended time to write her exams and that she would be allowed extended time to complete course assignments, if required.

4Ms. Marinich-Lee testified that the respondent's expectations are that students enrolled in a course write exams at the same time and that students will only be allowed to write at alternative times or dates with the explicit permission of their course instructor. Ms. Marinich-Lee testified that this requirement is in place in order to maintain the academic integrity of a course by ensuring that the content of an exam is not compromised or leaked.

5The respondent's Examination Policy states in its section on student accommodation that:

Requests for alternative examination times/dates on grounds other than religion will be granted in exceptional circumstances involving pre-existing health problems and/or other mitigating circumstances beyond the student's control. (Work schedules and discretionary arrangements such as travel plans are not normally considered to be acceptable grounds). Such a request must be made to the course instructor within one week of the announcement of the examination schedule. If the request is granted, it is for the instructor to determine an alternative time and date.

6Students who write exams in the Test Centre must book their exam time through the Access Centre's online booking system. Ms. Marinich-Lee testified that when a student books their exam time through the Access Centre's system their request is acknowledged and forwarded to the course instructor who has to formally approve any request for an alternative exam time.

7The Access Centre's hours are Monday to Friday from 8:30 a.m. to 4:30 p.m. The Test Centre's hours are Monday to Thursday 8:30 a.m. to 7:00 p. m. and Friday 8:30 a.m. to 5:00 p.m. Ms. Marinich-Lee testified that the Test Centre will be opened after hours in the evening or on Saturdays to allow a student to write tests or exams on those occasions on a case by case basis, depending on a student's needs. She testified that it is was not practical to provide extended hours for the Test Centre (and the Access Centre) because there is limited demand for their use after scheduled hours and because of limited staffing and financial resources.

8The Test Centre also provides services to students who are not formally registered with the Access Centre. For example, students who missed an exam for medical or other reasons will write any make up exam in the Test Centre.

9The applicant required the use of the Test Centre in order to write exams for three courses. In the 2008 Fall semester she was enrolled in a course that took place on Thursday evenings. An exam in that course was scheduled for Thursday, November 5, 2008. The applicant requested that she be allowed to write this exam in the Test Centre on Friday, November 6, 2008. On November 5, 2008 the Access Centre intervened and confirmed that the course instructor would allow applicant to write this exam on the Friday as she requested.

10In the 2009 Winter the applicant took a Saturday course. The applicant testified that she never wrote her exams for this course on the Saturday but rather on a weekday in the Test Centre. It appears the applicant negotiated these alternative dates with the permission of her course instructor. The applicant testified she was not aware she could have written her exams in the Test Centre at the same time as her class because she knew the Test Centre was closed on Saturdays.

11Ms. Marinich-Lee testified that because the Test Centre was closed on Saturdays it was the Access Centre's general practice to encourage persons who required the services of the Test Centre and who were enrolled in Saturday courses to write their exams on an alternative date. However, Ms. Marinich–Lee testified that the Access Centre would consider a student's request to write an exam in the Test Centre on a Saturday if such a request was made and the accommodation was needed. This practice was communicated to students in the Access Centre Test/Exam Booking Procedures which states:

Students taking Saturday courses may not be able to write test and exams in the Test Centre on Saturdays. Please call ext. 7932 for additional information.

12In the 2009 Spring/Summer semester the applicant was enrolled in a course held Wednesday evenings between 6 and 9 p.m. An exam was scheduled for Wednesday, May 27, 2009. The applicant booked a request to write the exam on Friday, May 29, 2009 without consultation or prior approval of her instructor. The applicant acknowledged that her request to write the exam on the Friday was related to her work schedule. She testified that she taught on Wednesdays and Thursdays and had more discretionary time on Fridays.

13On Monday, May 25, 2009 the instructor became aware of the applicant's request to write the exam on the Friday. The instructor informed the Access Centre that he had not given permission for the applicant to write her exam on Friday and that he expected her to write the exam on the Wednesday, May 27, the same day as the rest of the class.

14On May 26 the Test Centre contacted the applicant to tell her that her exam booking had been modified and changed to 4:00 p.m. on Wednesday, May 27, 2009. The applicant subsequently wrote the Access Centre to state:

I am not prepared for the exam on Wednesday. I am prepared for Friday.

Your centre has made no attempt to accommodate those of us who attend night classes. That includes those of us who have disabilities and need to write in the Test Centre as well as those who, for one reason or another, must miss the original exam and write a make-up. In each case you ask that we accommodate your Exam centre and work around your hours.

Last term I took accounting. It was on Saturday morning and so, because of my disability and because apparently opening the Test Centre to accommodate Saturday students would cause Ryerson "undue hardship" I had to always make my own arrangements. I had to take some time off work with loss of pay and write during the week and during your hours. Nobody stated then that I had to write on the same day as the rest of the class. But of course, that may have been awkward for you. It seems you just make up these rules when its convenient for you and forget them when its inconvenient,

The question here is who are you trying to accommodate?

Who would be suffering "undue hardship" if I write on Friday? Would the Test Centre suffer? Am I somehow devaluing the course? Of course not! …

15The applicant testified that she was told that she would have to write her exam at 4:00 p.m. on Wednesday, May 27, 2009 and was later told by a staff person from the Access Centre that she had to write her exam such that it overlapped at least 30 minutes with those persons writing the exam in class. It appears the exam began at 6:30 or 7:00 p.m. The applicant testified that this was not a reasonable or appropriate option for her as she worked Wednesdays and was unavailable at that time.

16Ms. Marinich–Lee testified that while the Access Centre's initial discussion with the applicant was about writing the exam at 4:00 p.m. on Wednesday the Access Centre did then agree that it would keep the Test Centre open past its normal closing hours of 7:00 p.m.

17Ms. Marinich-Lee referred to an email written to the applicant by an Access Centre staff person on May 26 stating:

Following up on the email I sent you earlier I'm writing to confirm that our test centre will be open later than usual on Wednesday to accommodate you. Feel free to contact me or the test centre directly to make arrangements.

18The applicant did not write the exam. She took the position the respondent should have allowed her to write the exam on Friday, as requested. She withdrew from the course on Wednesday, May 27, 2009. The applicant subsequently took a similar course at Humber College. She later received credit from the respondent for this course allowing her to complete the requirements for the respondent's Human Resources Certificate.

ANALYSIS

19There is no dispute in this case about the appropriateness of the accommodation the respondent was providing to the applicant in the form of allowing her extended time to write exams and prepare assignments and allowing her to write her exams in the Test Centre. The issue is whether the applicant should have allowed the applicant to write her exam on Friday, May 27, 2009.

20The undisputed evidence is that the applicant submitted a request to write her exam on Friday, May 27, 2009 without the prior permission of the course instructor and did so on the basis that the Friday was a convenient time for her. I am satisfied, based on the evidence before me, that the applicant requested this alternative date because of her past experience with the respondent. The applicant had been allowed to write exams on alternative dates for both her Thursday evening and her Saturday continuing education courses. The evidence before me was that the Access Centre also encouraged alternative dates for persons attending Saturday courses and intervened to facilitate the applicant writing on an alternative date for her Thursday evening course. I am also satisfied that the applicant was initially unaware that she had the option to write her exam on Wednesday evening at the same time as the rest of her class. The applicant credibly testified that she was unaware that the Test Centre could be opened outside its scheduled hours of operation. Under these circumstances I find it understandable and indeed reasonable that the applicant applied to write her exam on Friday, May 27, 2009, an alternative time that was convenient to her.

21However, I accept that the respondent has a legitimate interest in determining when a student should be allowed to write an exam. The respondent's examination policy makes clear that academic integrity is an issue for the respondent and that there is an expectation that all students write an exam at the same time to maintain academic integrity unless an instructor approves an alternative time or there are exceptional circumstances. It is also clear, in my view, that that the respondent does formally require instructors to approve alternative times under their Access Centre Test/Exam Booking Procedures. It is not a student's prerogative to choose the specific time they will write an exam on the basis of convenience.

22In this case the applicant provided no medical reason or other Code related reason for having to write her exam on the Friday. There is no evidence that the nature of her disability required her to write on an alternative date. Consequently, the respondent's decision to deny the applicant her request to write on Friday is not an act of discrimination.

23The applicant was told that she would have to write her exam on the Wednesday. It was acknowledged by the respondent that the applicant was initially told that she was scheduled to write her exam at 4:00 p.m. on the Wednesday. This was not the time the rest of the students in the applicant's course were scheduled to write (this would have been sometime after 6:00 p.m). However, it was a time the Test Centre was scheduled to be open. It was also a time the applicant objected to as she felt it conflicted with her work schedule. In my view this potentially raises the issue as to whether it would be discriminatory for the respondent to require the applicant to write at an alternative time that presented undue difficulties for her. Would such a requirement adversely impact the applicant because of her disability and need for accommodation?

24However, I do not need to address this issue as I am satisfied that while the respondent initially proposed that the applicant write the exam at 4:00 p.m. it agreed to keep the Test Centre open past 7:00 when the applicant indicated that writing the exam at 4:00 p.m. was problematic for her. I accept Ms. Marinich-Lee's testimony on this point, corroborated, in my view, by the email from the Access Centre to the applicant stating that Test Centre would be open later than usual on Wednesday to accommodate the applicant and inviting the applicant to contact the Access Centre or the Test Centre to make arrangements. However, the applicant withdrew from the discussions with the respondent that would have, in my view, formally confirmed that the applicant would be able to write the exam at the same time as her class. I am satisfied that the applicant's subsequent abrupt withdrawal from the course discharged the respondent from any further obligation to try to accommodate the applicant.

25This is an unfortunate situation which may have been avoided if there had been a clearer communication and understanding of the respondent's examination policies and Test Centre practices. In my view the applicant acted in a reasonable manner given that it appears that the respondent routinely allowed students to write exams on alternative days and it was not evident that the respondent clearly communicated to students that the Test Centre was available outside normal business hours. There is the further unfortunate fact that in this case the applicant only learned on Monday, May 25, 2009 that she was expected to write her exam two days later on the Wednesday, not on the Friday as she expected. The facts of this case are such that the respondent may wish to review the practices of its Access Centre and Test Centre to ensure better customer service. However, the respondent's refusal to allow the applicant to write her exam on the Friday and its subsequent efforts to arrange a time for the applicant to write her exam on the Wednesday do not constitute acts of discrimination.

26Consequently this Application is dismissed.