Gamache v. York University, 2012 HRTO 2328

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Roberta Gamache

Applicant

-and-

York University, Judy Blaney, Joan Hamilton and Karen Swartz

Respondents

DECISION

Adjudicator: Mark Hart

Date: December 12, 2012

Citation: 2012 HRTO 2328

Indexed as: Gamache v. York University

APPEARANCES

Roberta Gamache, Applicant

Self-represented

York University, Judy Blaney, Joan Hamilton and Karen Swartz, Respondents

William C. McDowell and Joanna S. Rainbow, Counsel

1This is a transitional Application dated June 29, 2009, and filed under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of disability. The underlying complaint was filed with the Ontario Human Rights Commission on March 1, 2007.

2The applicant has a visual impairment such that she is legally blind in one eye. There is no dispute that this visual impairment amounts to a disability within the meaning of the Code. The Application arises from the applicant’s enrolment in the Primary/Junior Consecutive Education Program with the Faculty of Education at York University for the 2005-06 academic year. The applicant alleges that she was denied accommodations required because of her visual impairment and that she was treated adversely and ultimately removed from the program because of her disability.

3The hearing in this matter was held on September 25 and 26 and November 17 and 18, 2011, in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53(5) applications proceed in an expeditious manner. I heard from four witnesses for the applicant and six witnesses for the respondents. As the applicant is self-represented and on consent of all parties, I questioned the applicant and her witnesses and also took a more active role in questioning the respondents’ witnesses in order to test their evidence. While I conducted initial questioning of the applicant at the outset of the hearing, cross-examination of the applicant by respondents’ counsel was deferred until after I had heard the evidence of all other witnesses. Cross-examination of all other witnesses proceeded in the normal course. The parties agreed to make their final argument by written submissions, with the applicant’s reply submissions having been received on January 20, 2012.

4I heard from the following witnesses called by the applicant:

a. Roberta Gamache, the applicant;

b. Norma Hart, an adaptive technologist at Georgian College who assisted the applicant when she studied at the College and who provided support to the applicant when she attended York University;

c. Esther Hendry, a disability specialist at Georgian College who also assisted the applicant when she studied at the College and who also provided support to the applicant when she attended York University; and

d. Jill Thompson, a friend of the applicant who attended some meetings between her and York University staff.

5I also heard from the following witnesses called by the respondents:

a. Kathy LeBlanc, who is a Professor in the Faculty of Education at York University and was the Practicum Coordinator for the Primary/Junior Consecutive Education Program;

b. Karen Swartz, who is the Director of the Office for Persons with Disabilities at York University;

c. Tina McColl, who is the Manager of Library Accessibility Services at York University;

d. Judy Blaney, who was a Course Director for the Primary/Junior Consecutive Education Program and was the Site Coordinator for the Barrie location;

e. Joan Hamilton, was also was a Course Director for the Primary/Junior Consecutive Education Program at the Barrie location; and

f. Alice Pitt, who was Associate Dean in the Faculty of Education at York University.

6Ms. Swartz, Ms. Blaney and Ms. Hamilton were named as personal respondents to the Application as filed by the applicant.

Background

7The applicant was admitted into the York University Faculty of Education for the 2005-06 academic year in the Primary/Junior Consecutive Education Program. This is a one-year program that is designed to meet Ministry of Education requirements for student teachers to become qualified to teach primary and junior level students in Ontario schools. The course involves in-class work and written assignments, and two practicum placements at host schools, where the student teacher is supervised by a host teacher and an adjunct professor at the host school. The evidence indicates that this is a very intensive and challenging program.

8The applicant applied under the Access Initiative, which is available to students who self-identify on their applications as having a disability. The University’s letter of acceptance set out the contact information for resources available to students with disabilities. In this case, the relevant resource was the Office for Persons with Disabilities (“OPD”), which assists students who have physical, sensory or medical disabilities. Students requiring assistance were encouraged to contact the appropriate support personnel to arrange a meeting as soon as possible.

9The applicant contacted Ms. Swartz at the OPD, and a meeting was arranged for May 24, 2005. The meeting was attended by Ms. Swartz, Ms. LeBlanc, the applicant and Ms. Hart, an adaptive technologist at Georgian College who had been assisting the applicant. The applicant’s needs for accommodation were discussed at this meeting. There is dispute between the parties regarding the preparation of an “accommodations letter” that would be provided to the applicant’s instructors and would set out the specific accommodations that the applicant required as a result of her visual disability. There also is a dispute between the parties regarding the application for a bursary for the applicant. Further details regarding the issues in dispute arising from this meeting will be discussed below.

10All parties are in agreement that the provision of materials in alternate format was understood as a reasonable accommodation in light of the applicant’s visual impairment. The delay in getting these materials to the applicant in accessible format is an issue that will be addressed in detail below. There is no dispute between the parties that the applicant ultimately received her required readings in accessible format by late November 2005.

11The applicant attended the Primary/Junior Consecutive Education Program at the Barrie location. The in-class portion of the program was held in space rented by York University from Georgian College. Apart from renting this space, the evidence indicates that York University did not have any arrangement with Georgian College for the College to provide other services to York University students, including services related to the accommodation of students with disabilities.

12The applicant’s first practicum placement was with a junior grade at Forest Hill Public School. This placement was not successfully completed by the applicant and was terminated by the host school on November 16, 2005. The circumstances surrounding this placement and its termination are in issue between the parties and are discussed below.

13A meeting was held on November 16, 2005, involving the applicant, Ms. Blaney and Ms. Hamilton. There is considerable dispute between the parties as to what is alleged to have been said at this meeting, which is discussed in detail below.

14An action plan was prepared under which the applicant’s first placement would take place in the second or winter term, and her second placement would be deferred until June 2006 or the following fall. The applicant was placed in her second placement at Russell Goodfellow School teaching a Grade 1 class. This placement also was not successful and ended in late February 2006. The circumstances relating to the ending of this placement are in dispute and are addressed below.

15As a result of a meeting on March 22, 2006, with Associate Dean Pitt, an arrangement was made whereby the applicant would be allowed to continue in the program and complete her course work, with her teaching placements deferred to the following academic year. The applicant was not able to successfully complete her course work and as a result received failing grades in three courses. The circumstances relating to the assessment of the applicant’s course work are in dispute and are addressed below.

16The applicant was sent a letter dated June 28, 2006 advising her that she had failed these courses and as a result would need to file a petition in order to continue in the program. The applicant did not do so, and accordingly did not successfully complete the program.

Assessment of Credibility

17There is a considerable amount of evidence which is in dispute between the parties, and which calls upon me to assess the credibility and reliability of the testimony I heard.

18In making this assessment, I have been guided by the principles established in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), and particularly the following comments at pp. 356-357:

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

19I also have been assisted by the observations on credibility assessment made recently in R. v. Taylor, 2010 ONCJ 396, as follows (at paras. 58 to 60):

“Credibility” is omnibus shorthand for a broad range of factors bearing on an assessment of the testimonial trustworthiness of witnesses. It has two generally distinct aspects or dimensions: honesty (sometimes, if confusingly, itself called “credibility”) and reliability. The first, honesty, speaks to a witness’ sincerity, candour and truthfulness in the witness box. The second, reliability, refers to a complex admixture of cognitive, psychological, developmental, cultural, temporal and environmental factors that impact on the accuracy of a witness’ perception, memory and, ultimately, testimonial recitation. The evidence of even an honest witness may still be of dubious reliability.

All of this has been said many times before, including by Doherty J.A. for the Court of Appeal in R. v. Morrissey 1995 CanLII 3498 (ON C.A.), (1995), 97 C.C.C. (3d) 193, at 205:

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.

Depending on the circumstances, some portions of a witness’ testimony may be more credible or worthy of belief than other portions. Accordingly, I can, with good reason, accept all, some or none of any witness’ evidence: see R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65.

20Applying these considerations, I have significant concerns about the reliability and credibility of the applicant’s evidence for the following reasons.

21First, I am concerned about the differences between the allegations raised in the applicant’s complaint regarding the March 22, 2006 meeting with Associate Dean Pitt and what is actually stated on the audio recording of that meeting. It is rare to have an audio recording of an event with which to compare a party’s evidence. In her complaint, the applicant alleges that at the March 22, 2006 meeting, Associate Dean Pitt accused her “of being able to get any doctor to write [her] a note of excuse for [her] behaviour”. Having reviewed the audio recording, Associate Dean Pitt said no such thing. Rather, in the context of a letter from the applicant’s doctor dated January 17, 2006 which states that the applicant suffers from anxiety and depression and that “a lot of her reaction/illness is in response to the frustration she is experiencing in dealing with the teaching program at York University and their lack of support for her with her visual disability”, Associate Dean Pitt expressed her view that the doctor as a general practitioner was out of line for making that kind of assessment and that the doctor was not a good judge of whether the applicant could be successful in the program.

22In her complaint, the applicant also alleges that Associate Dean Pitt said that a bursary “was never going to happen” and that “Georgian College was never going to be paid for these services [preparing reading materials in accessible format] by York”. While there was some discussion of a bursary at the March 22, 2006 meeting, Associate Dean Pitt did not say the things attributed to her by the applicant.

23In her complaint, the applicant further alleges that Associate Dean Pitt asked her if she was confused about which school she was in and did she not realize she was at York. In fact, in the context of addressing the fact that the applicant had sent letters and communications to administrators at Georgian College and the applicant’s statement that she was following the “chain of command”, Associate Dean Pitt stated that it was not a matter of the chain of command, it was a matter of knowing what University she was going to.

24When I asked the applicant about these discrepancies, they were not disputed by her. Rather, she stated that she had not reviewed the audio recording for the purpose of preparing her complaint because she had not wanted to re-live the experience she had gone through with York University.

25While that may be, to me these discrepancies reveal that there is a difference between what a person, namely Associate Dean Pitt, actually said in a meeting with the applicant as opposed to the applicant’s perception and memory of what was said. This is not uncommon and is understandable, as people’s memories are filtered through their own individual perceptions and experiences. But the fact that I have an audio recording which proves that the applicant’s perception of what was said by Associate Dean Pitt in the March 22, 2006 meeting differs from what was actually said, in what I regard to be material and significant ways, casts doubt on the reliability and credibility of the applicant’s evidence, particularly regarding what she alleges was said to her at other meetings for which there is no audio recording, such as the November 16, 2005 meeting with Ms. Blaney and Ms. Hamilton.

26Second, in her testimony before me, the applicant was asked to address a situation from November 2005 when she was participating in a group assignment that required her to interview her host teacher to obtain responses to a series of questions. The applicant’s evidence is that she made numerous efforts to arrange such an interview, with no success. Ultimately, the applicant sent an e-mail to the host teacher setting out the questions that needed to be addressed. The applicant was adamant in her evidence that she never intended the host teacher to answer these questions for her, but merely wanted to provide the questions in advance so that the host teacher would be prepared for the interview. This is directly contradicted by the documentary evidence before me.

27On November 7, 2005, the applicant sent an e-mail to the host teacher stating that she needed to have the teacher’s answers to the questions and gather the answers with the other student teachers to hand in to the adjunct professor at the host school. The applicant then stated in her e-mail: “If you answer and return to me I will forward to the coordinator of the project”. The host teacher responded by saying that they could meet at lunch, during planning time or after school the next day to talk about the questions. The applicant then replied by saying that tomorrow sounded good, “put it on your usb stick and we can just transfer to [the group leader] for her collation”. The host teacher responded by saying that she is sure that the intention of the assignment was not for her to do the written work for the student teacher, but that she would be glad to discuss these items with the applicant the next day. It is only at this point that the applicant replied and said that she did not want the host teacher “to do any of this at all”.

28In my view, this e-mail exchange makes it abundantly clear that the applicant’s initial intention when she first wrote to the host teacher was for the teacher to prepare written answers to the questions that the applicant would then copy and submit as part of the assignment. This was repeated twice by the applicant. It is only after the host teacher objected to this approach that the applicant changed course and said that she did not want the host teacher to do this. In my view, the fact that, in her evidence before me, the applicant was not prepared to acknowledge what is clearly stated in the documents provides further cause for concern as to the reliability and credibility of her evidence.

29Third, I am concerned about the inconsistencies in the applicant’s evidence regarding the group assignment that was handed in to her adjunct professor in November 2005. While this was a group project, each student teacher was to interview their host teacher to obtain answers to a set of questions, which would then be compiled and handed in. The applicant did not meet with her host teacher to interview her to obtain answers to the questions. Rather, the applicant asked another student teacher to share with her a copy of the answers provided to him by his host teacher, and the applicant then copied this other student’s answers and submitted them as her own. Given the way the assignment was compiled by the group leader, with the input from each student teacher set out under each relevant question, it was apparent that the applicant’s answers were identical to the answers of the other student teacher and applied to his host teacher and not hers. This was regarded by the adjunct professor and Ms. Blaney as plagiarism, and was one of the reasons that the applicant’s first practicum placement was terminated.

30The evidence of Ms. Blaney and Ms. Hamilton, who met with the applicant on November 16, 2005, to discuss this issue, is that the applicant refused to take responsibility for what she had done or acknowledge that this was plagiarism, contending that this was a collaborative assignment and it was not inappropriate for her to rely on another student teacher’s interview. When I questioned the applicant about this issue at the hearing, the applicant agreed with me that it would have been better if she had indicated when the assignment was handed in that she had been unable to interview her own host teacher and so had relied on another student teacher’s interview. The applicant also stated in response to my questioning that she understood why there was a concern about what she had done. Ms. Blaney, in her testimony before me, stated that this was the first time that she had heard the applicant take responsibility for what she had done. However, in cross-examination, the applicant refused to acknowledge that what she had done amounted to plagiarism and again insisted that it was a collaborative assignment, though she subsequently admitted that submitting another student teacher’s work as her own was morally wrong and amounted to a breach of trust.

31Fourth, I am concerned about the inconsistencies in the evidence relating to a math lesson that the applicant taught on February 14, 2006, as part of her second practicum placement. Ms. Hamilton observed this lesson and wrote a detailed report about the lesson on the same day. In this report, Ms. Hamilton noted a “fatal flaw” in the applicant’s presentation of the lesson, which involved linear measurement, in that the applicant had prepared a chart mislabelling the shorter side of a rectangle as “length” and the longer side as “width”. Ms. Hamilton notes in her report that this problem also was seen by the host teacher, and was raised with the applicant in a meeting to de-brief about the lesson. Ms. Hamilton’s report, which was shared with the applicant at the time, states that the applicant did not recognize her mistake until it was pointed out to her after the lesson had been completed and that the applicant was “distressed by the length/width error in her lesson today”. There is no documentation or other evidence to indicate that the applicant took any issue with this at the time.

32However, in her evidence before me, the applicant insisted that she had never made any such error and had correctly labelled “length” and “width” on her chart. I simply do not find this evidence to be credible. The error was documented by Ms. Hamilton in a report that was prepared at the time and not only shared with the applicant but also with the host teacher who was present when the lesson was taught. It makes no sense to me that Ms. Hamilton would invent such an error to include in her report, when this would have been apparent to the host teacher who received the report. It also makes no sense to me that the applicant would not have expressed concern about such a significant issue at any time prior to giving her evidence at the hearing.

33Fifth, I have concerns about the difference between the allegations raised in the applicant’s complaint regarding what is alleged to have been said to her by Ms. Blaney and Ms. Hamilton at the November 16, 2005 meeting as compared to what is set out in a letter prepared by the applicant at the time and submitted to her lawyer (the applicant’s letter was intended to be included with a letter dated January 6, 2006 sent to Ms. Blaney by a lawyer retained by the applicant and was disclosed to Ms. Blaney at the time at her request, so no issue of solicitor-client privilege arises).

34In her complaint dated March 1, 2007, the applicant alleges that Ms. Blaney and Ms. Hamilton made the following statements at the November 16, 2005 meeting: “Shut up and sit down and start accepting responsibility for this mess. How can you be a teacher? You’re a liar and a cheat. You’re not a teacher! You just taught some computer classes. How will you ever be able to complete this year? You use your disability as an excuse for bad work. Are you sure you completed university? Do you have a learning disability? You have made a lot of mistakes. Don’t you see what you are doing? You’re a cheater and Forest Hill School does not want you because of this. You have to be better than a teacher with no disability because you will not get hired. Principals do not want a teacher with a disability because they would have to carry you. You will be unemployable, as all schools talk and know each other. The word gets around, we all talk to each other.”

35In the letter prepared for her lawyer, which would have to have been prepared sometime between November 16, 2005 and January 6, 2006, the applicant states that Ms. Blaney and Ms. Hamilton: accused her of using her disability as an excuse for what they deemed less than satisfactory work; said they have no comprehension as to how the applicant can become a teacher; ordered her to be silent and accept all responsibility; charged her with plagiarism related to a collaborative assignment; and accused her of using her disability and for not following through or not being prepared.

36Significantly, in my view, the letter prepared for her lawyer much closer to the time of the November 16, 2005 meeting does not include such serious allegations as Ms. Blaney and Ms. Hamilton calling the applicant a “liar” and a “cheat”, that Principals do not want to hire a teacher with a disability, or that the applicant will be unemployable because schools talk to each other and the word will get around. In addition, the letter for the lawyer states that the applicant was told to “be silent” while the complaint alleges that the applicant was told to “shut up”. Once again, these differences, as with the audio recording of the March 22, 2006 meeting, suggest to me that the applicant’s evidence relates more to her subjective impression or perception of what was said at the November 16, 2005 meeting as opposed to what actually was said, and that this subjective impression and perception became amplified or exaggerated with the passage of time.

37Sixth, I detected in the applicant a tendency to overstate, amplify or exaggerate her allegations. For example, in her complaint, the applicant alleges: “I was constantly asking professors for notes or overheads that were supposed to be in my mail box before each class. When I would ask the professors, they would roll their eyes or say I will get them to you later.” As discussed below, the actual evidence indicates that the applicant had a meeting with Ms. Blaney on the first day of classes about her need for lecture notes and power point presentations in advance or in electronic format, and these were provided to her. This was acknowledged by the applicant in her testimony. It is only with regard to Ms. Hamilton that the applicant testified she had to ask for lecture notes or presentations, and it is only Ms. Hamilton who the applicant testified would roll her eyes or say she would get them to the applicant later. No issue of this nature was raised in the applicant’s testimony in relation to any other professor.

38Similarly, the applicant alleges in her complaint that she was “constantly harassed for errors on papers or assignments”. When questioned about this at the hearing, the applicant confirmed that she was referring to the feedback she received when her papers or assignments were graded. As I find below, this is not “harassment” but represents an instructor properly discharging her duties and responsibilities in reviewing a student’s work.

39Seventh, an issue arose at the hearing regarding a letter submitted to the Tribunal that purportedly was from the applicant’s psychiatrist. This letter is dated June 16, 2010, and forms part of materials submitted by the applicant to the Tribunal on July 14, 2010. The letter contained in these materials is eight pages in length. Subsequently, on August 12, 2010, the applicant’s psychiatrist wrote to the Tribunal to state that she had been advised that an incorrect letter was sent out to the Tribunal under her name. The psychiatrist enclosed the actual letter that she wrote and signed on June 16, 2010, which is slightly more than two pages in length and does not include a lot of the factual detail contained in the eight-page version.

40When questioned about this in cross-examination, the applicant testified that she and her psychiatrist had been exchanging drafts of this letter by e-mail, which they would then discuss at the applicant’s appointments. The applicant’s evidence is that she ran up against the deadline for submitting documents to the Tribunal and had been advised not to miss any deadlines, so she submitted the version of the letter that she had at that time.

41The problem with this evidence is twofold. First, the applicant did not just submit a draft letter from her psychiatrist. Rather, she submitted a letter that appeared to be signed by the psychiatrist with a signature that somewhat resembles the psychiatrist’s signature. When asked to explain this, the applicant stated that she had just scribbled above the psychiatrist’s name to indicate that this was a draft letter. This explanation is completely lacking in credibility. If the applicant wanted to signify that the letter was still in draft form and not in a version that had yet been approved by the psychiatrist, she could have marked the letter as “draft” or indicated above the psychiatrist’s name that this was a draft or had not yet been approved. Instead, the applicant made a mark that looks like a signature with no indication whatsoever that the letter was only an unapproved draft.

42Second, the psychiatrist’s letter dated August 12, 2010 states that the authorized shorter version of the letter had been written and signed on June 16, 2010. If that is the case, it is entirely unclear to me why the approved letter could not have been included in the materials filed by the applicant on July 14, 2010, almost one month later.

43The problem here is not that the applicant ran up against a deadline and felt that she needed to file a draft letter from her psychiatrist. The problem is that, instead of being transparent about this at the time she filed the draft letter, the applicant acted in a manner that would lead a reasonable person to conclude that this was an actual medical report signed by the treating psychiatrist. And then to compound matters, when confronted about this on cross-examination, the applicant was not prepared to acknowledge that she had done anything improper and instead suggested that her scribble above the psychiatrist’s name was somehow supposed to convey that this was an unapproved draft. This issue gives me grave concern about the credibility of the applicant’s evidence.

44Finally, the evidence before me is replete with references to problems with the applicant’s memory. In evidence before me are notes made by Ms. Hendry, a disability specialist at Georgian College, from a meeting with the applicant on April 28, 2005 which state “short term memory poor”. Also in evidence is an e-mail dated April 17, 2006 from the applicant to a staff member in Access Services at Georgian College in which she states that her friend Ms. Thompson is attending all meetings with her “because I forget and can’t remember things”. Further, there is a letter dated May 30, 2006 from the applicant to the manager of Access Services at Georgian College in which the applicant states she was advised not to be alone in meetings “due to my health condition which led me not to be able to remember or recall exact details of the conversations”. This too gives me pause about the reliability of the applicant’s evidence.

45As a result, in light of my concerns about the reliability and credibility of the applicant’s evidence, I am not prepared to rely upon the applicant’s evidence where it is in conflict with the evidence of the respondents or other witnesses.

Issues and Findings

46At the conclusion of the hearing of the evidence in this matter, I asked the parties for written submissions to address the following issues:

1. Whether the respondents’ failure to provide the applicant with an accommodations letter amounts to discrimination because of the applicant’s disability in violation of her rights under the Code?

2. Whether the failure to file a bursary application in a more timely manner amounts to discrimination by the respondents against the applicant because of her disability in violation of the Code?

3. Whether the failure to provide the applicant with textbooks and course materials in accessible format in a more timely manner amounts to discrimination by the respondents against the applicant because of her disability in violation of the Code?

4. Whether the respondents failed to accommodate the applicant’s needs arising from her disability in relation to her first school placement in violation of the Code?

5. Whether the alleged conduct of Ms. Blaney and/or Ms. Hamilton at the November 16, 2005 meeting amounts to discrimination against the applicant because of her disability in violation of the Code?

6. Whether the events leading to the ultimate discontinuation by the applicant in the program amount to discrimination by the respondents against the applicant because of her disability in violation of the Code?

47In the ensuing sections of this Decision, I will address the evidence in relation to each of these issues and make my factual and legal findings.

1) Accommodations letter

48The first issue relates to the failure by York University to provide an accommodations letter to inform the applicant’s course instructors of the accommodations required for the applicant’s visual disability.

49There is no dispute that at the meeting on May 24, 2005, the need for an accommodations letter was identified. This is confirmed in Ms. Swartz’s notes from the meeting.

50There also is no dispute that at the May 24, 2005 meeting, the accommodations that had been afforded to the applicant by Georgian College were discussed. There is a dispute about whether the applicant actually provided a copy of the accommodations letter that had been prepared by Georgian College. At the hearing, the applicant identified a sample accommodations letter dated January 12, 2006 as the letter she provided to York University at this meeting. This is not supported by the evidence of Ms. Hendry, who prepared the sample accommodations letter. Her evidence is that she would not have dated such a sample letter as January 12, 2006 if it had been requested to be used for a meeting in May 2005. The records from Georgian College indicate that this sample accommodations letter was provided to the applicant by Ms. Hendry on January 16, 2006.

51The evidence indicates, however, that there was an actual accommodations letter prepared by Georgian College and dated January 28, 2005 which had been used by the applicant for her studies with Laurentian University at the Georgian College campus, which sets out the same accommodations as indicated in the January 12, 2006 sample letter. When I asked the applicant whether this was the accommodations letter she had provided to York University at the May 24, 2005 meeting, the applicant was unsure.

52In my view, it makes little difference in this case whether or not an accommodations letter from Georgian College was actually provided to York University at the May 24, 2005 meeting, as the accommodations provided to the applicant at Georgian College were clearly discussed at this meeting. These included: extra time on tests or exams (although Ms. Leblanc indicated that it was doubtful there would be any tests or exams in the consecutive education program); that readings be provided ahead of time to afford an opportunity to be scanned into an accessible format; and preferential seating.

53Ms. Swartz’s evidence is that the process at York University for obtaining an accommodations letter is for there to be an initial intake meeting, at which the nature of the student’s disability and need for accommodation is discussed. Then, once the names of the specific course instructors are known, the student is to get back in touch with Ms. Swartz’s office, the OPD, and arrange a meeting at which accommodations letters addressed to each individual course instructor would be prepared, setting out the specific accommodations required. Once the accommodations letters had been prepared, it is then the student’s responsibility to provide these letters to each course instructor.

54Ms. Swartz states that she has a standard routine whereby she identifies this process to the student at the initial intake meeting. She believes that she would have given her standard statement at the May 24, 2005 meeting, but she has no specific recollection of doing so. There is no indication in Ms. Swartz’s notes that anything further was required from the applicant in order for the accommodations letters to be prepared. In particular, there is no statement in the notes that the onus was on the applicant to get back in touch with Ms. Swartz to provide the names of the course instructors and to make arrangements for the accommodations letters to be prepared.

55All parties are in agreement that the applicant was being proactive in setting up the May 24, 2005 meeting, in identifying the nature of her disability and needs for accommodation, and in bringing along Ms. Hart to discuss the support that had been provided to the applicant by Georgian College.

56At the hearing, I questioned Ms. Swartz as to why, since the applicant had been so proactive in setting up the May 24, 2005 meeting, no subsequent initiative was taken by the OPD to contact the applicant to follow up regarding the need for accommodations letters. Ms. Swartz’s response was two-fold. First, from a practical perspective, Ms. Swartz indicated that the OPD at that time was experiencing a significant staffing shortage and simply did not have the resources to track individual students and follow up with them. Second, from a philosophical perspective, the OPD was concerned about not being paternalistic with students with disabilities and felt it was more appropriate for the responsibility to be placed on the student to follow up to obtain the OPD’s services.

57Having considered all of the evidence before me, it seems to me that there was a misunderstanding arising from the May 24, 2005 meeting as to what was required in order for the applicant to obtain accommodations letters from York University. I am not satisfied on the evidence before me that Ms. Swartz made it sufficiently clear to the applicant that further action was required on her part to obtain these letters. It also appears to me that, from her experience at Georgian College, the applicant was used to disability support persons at post-secondary institutions taking a more active role in following up with her and ensuring that things like accommodations letters were prepared. It also may be that the applicant did not understand that it was her responsibility not only to follow up with Ms. Swartz and the OPD to obtain the accommodations letters, but also to provide these letters to the course instructors. The applicant may have assumed that, by arranging the May 24, 2005 meeting, she had done what was required of her and that the accommodations letters were provided directly to the course instructors by the OPD.

58At the same time, it seems to me that there was an onus on the applicant to take steps to inform herself about the processes at York University for obtaining required accommodations. There is material before me from York University, which would have been accessible to the applicant, which clearly indicates that it is the student’s responsibility to inform course instructors about required accommodations. I must say that it is surprising to me that, after meeting with Ms. Swartz and Ms. LeBlanc on May 24, 2005, the applicant did not follow up again with them at any time prior to the commencement of the program in late August 2005 to enquire as to the status of the accommodations letters. When I asked her about this, the applicant was unable to provide any satisfactory explanation as to why she did not do so. It seems to me that had the applicant contacted Ms. Swartz during this time period, any confusion or misunderstanding about the accommodations letters would have been quickly resolved. Accordingly, in my view, there is a shared responsibility between the parties for the failure of these accommodations letters to be prepared.

59However, at the end of the day, an accommodations letter is merely a tool to assist a student in obtaining, and a course instructor in providing, required accommodations. It is not, in my view, a required accommodation in and of itself, at least in the circumstances of this case. It merely sets out the shared expectation as between the student and the post-secondary institution as to what accommodations are to be provided.

60The real issue, in my view, is whether or not the respondents failed to provide the actual accommodations identified by the applicant and which the evidence supports were required by her visual disability. Accordingly, I will review the various accommodations afforded to the applicant by Georgian College and discuss the evidence as to whether these accommodations were or were not provided to the applicant by York University and/or whether they were required by the applicant’s visual disability.

61The first accommodation set out in the Georgian College letter relates to extra time for tests and exams. As previously noted, Ms. LeBlanc indicated at the May 24, 2005 meeting that it was doubtful that tests or exams would form part of the consecutive education program. There is no evidence before me to indicate that any tests or exams were administered to the applicant as part of this program. Rather, she was assessed on the basis of her practicums, written assignments and class participation. As a result, this was not an accommodation required for this particular program.

62The next accommodation is for copies of lecture notes/overheads and power point presentations to be given to the applicant. The evidence indicates that this was raised by the applicant with her course instructors, and that this in large part was done. The applicant’s evidence is that this was most consistently done by Ms. Blaney. No specific allegation was raised by the applicant in her evidence regarding any failure by Ms. Blaney to provide this accommodation. This is consistent with Ms. Blaney’s evidence that this accommodation was provided by her to the applicant.

63The applicant’s primary issue in relation to this accommodation relates to Ms. Hamilton. The applicant’s evidence is that Ms. Hamilton often did not provide these materials in advance. She cannot recall Ms. Hamilton giving her the opportunity to download lecture notes or power point presentations onto a USB key. All the applicant can remember is that she would ask Ms. Hamilton for these materials, and Ms. Hamilton would say that she would get them to the applicant later. The applicant’s evidence is that, most often, Ms. Hamilton did not do so. The applicant states that, when she was asking Ms. Hamilton for these materials, she made it clear that she wanted the notes and Ms. Hamilton would say that she would get them to the applicant, but the applicant would look in her mailbox and they would not be there.

64The applicant’s evidence is that Ms. Hamilton would roll her eyes when the applicant requested these materials, indicating that the request was inappropriate or unnecessary.

65The applicant’s evidence is that, when she spoke to Ms. Hamilton, she would just say that the notes were not in her mailbox for that day’s lecture, and did not say specifically that she needed these materials as an accommodation for her disability. The applicant also does not remember whether she had a meeting with Ms. Hamilton to describe her needs arising out of her visual disability.

66The applicant’s evidence is that, after her lawyer sent a letter about an alleged failure to accommodate her needs in the program, she had a meeting with Ms. Blaney and Ms. Hamilton to review what materials she had and to ensure that she had everything. The applicant’s evidence is that things changed after this, and she did not indicate that she experienced any further issues about getting these materials. According to the applicant’s evidence, this meeting with Ms. Blaney and Ms. Hamilton would have occurred sometime after February 7, 2006.

67Ms. Hamilton’s evidence is that on the first day of her class in the second week of September 2005, the applicant came up at the end of class and said that she had a visual disability, and Ms. Hamilton asked what accommodations would work for her. Ms. Hamilton states that the applicant said that she needed preferential seating, and indicated that she wanted a seat at the back of the room near the window where there was an outlet for her computer. Ms. Hamilton states that the applicant also asked for a copy of any of Ms. Hamilton’s power point presentations. Ms. Hamilton states that she told the applicant to bring in a data stick and she would transfer any power point presentations onto this stick. Ms. Hamilton states that sometimes the applicant would do this, and sometimes not. Ms. Hamilton states that the applicant asked for 16-point font in handouts. Ms. Hamilton recalls one time when she forgot to do this, and made an enlarged copy for the applicant. Ms. Hamilton states that the applicant also stated that she could best see power point presentations in contrasting colours, and Ms. Hamilton adjusted her power point presentations to accommodate this. Ms. Hamilton states that she provided the accommodations requested, and denies rolling her eyes at the applicant’s requests.

68For the reasons stated above, I do not find the applicant’s evidence to be reliable and prefer the evidence of Ms. Hamilton. I also note that the applicant’s evidence about Ms. Hamilton’s failure to provide her with materials and rolling her eyes at her requests was very vague and lacking in specificity. I also note that Ms. Hamilton had been a special education resource teacher for 22 years from 1978 to 2000 and a special education teacher for several years prior to that, and was qualified as a special education specialist, and so I find it unlikely that she would have regarded the applicant’s requests for accommodation as either inappropriate or unnecessary or that she would have rolled her eyes at the applicant’s requests.

69The applicant did not provide evidence that any other course instructor failed to accommodate her needs by providing copies of lecture notes or power point presentations.

70As a result, I find that this accommodation was provided by the respondents.

71The next accommodation set out on the Georgian College letter is for provision of alternative format materials, computer scanning equipment, large print, audiotapes or electronic files. The issue relating to course texts and reading materials will be addressed below. This accommodation also calls for provision of alternative format (14 to 16-point Bold font) to be used on assignments and papers. I have seen copies of some of the applicant’s assignments, and it appears that large font was used. No issue was taken by the applicant in her complaint or at the hearing regarding this aspect of the accommodation.

72The next accommodation is for preferential seating to optimize listening and proximity to an electrical outlet, so that the applicant could use a laptop for note taking. In her evidence, the applicant acknowledged that she was given her preferred seating in both Ms. Blaney’s and Ms. Hamilton’s classes, and no issue was raised with regard to any of her other courses.

73The next accommodation set out in the Georgian College letter is for tape recording of lectures using a digital tape recorder and microphone to be used by the professors. There is no evidence before me to indicate that the applicant requested this of Ms. Blaney, Ms. Hamilton or any of her other instructors, and no issue was raised in the complaint or at the hearing regarding this accommodation.

74The next accommodation refers to “peer tutoring”. It is unclear to me what this accommodation refers to or how it is related to the applicant’s visual disability. I heard evidence that at Georgian College, the applicant had access to something called the Write On Centre, where she was able to gain access to proofreading of and other assistance with her assignments. While York University offers a similar service at its main campus, it did not offer such a service in Barrie. There is evidence before me to indicate that Ms. Blaney offered to proof read and assist the applicant with her writing, particularly in regard to lesson plans. While the applicant pointed to one occasion where she sent a lesson plan to Ms. Blaney for review and Ms. Blaney returned it and asked the applicant to do a more thorough edit, I do not regard this as unreasonable. There also is evidence that at least as of February 2006, the T.A. attached to the Barrie program was assigned to assist students with proofreading and editing and was to give the applicant first priority.

75The difficulty I have with this accommodation is that there is no specific medical or other evidence before me to connect the applicant’s need for this type of assistance to her visual disability. This was acknowledged by the applicant when I put this question directly to her. The most that could be said is that the applicant states that her eyes get tired when she is working for long periods on the computer, and as a result she says that at these times she is unable to identify spelling mistakes or grammatical errors. That may be. But I do not accept that as an accommodation for the applicant’s visual disability, this means that the responsibility is to be shifted to someone else to correct such errors or that such errors simply should be excused. Indeed, as addressed below, no such allowance for spelling or grammatical errors is indicated as an accommodation that was provided at Georgian College. Rather, allowance was to be made for punctuation errors, which may be below the applicant’s vision threshold.

76In her complaint, the applicant alleges that she was “constantly harassed for errors on papers or assignments”. At the hearing, I asked the applicant about this, and she stated that what she was referring to was the feedback given by Ms. Blaney and Ms. Hamilton on her written work. Several examples of the applicant’s written work as graded by Ms. Blaney and Ms. Hamilton are before me in evidence, and I certainly can see where spelling and grammatical errors have been pointed out. This is not “harassment”. Rather, this is an instructor performing her role in reviewing and grading written work. I do not accept that this is discrimination because of disability or a failure to accommodate the applicant’s needs.

77Accordingly, I find that the evidence before me does not support that “peer tutoring” or proofreading or editing assistance with written work is an accommodation required as a result of the applicant’s visual disability. Further, I find that this type of support was in fact provided to the applicant in the consecutive education program, though perhaps not in the form or to the extent she was used to from Georgian College.

78The next accommodation set out in the Georgian College letter is for allowances to be made for punctuation, which may be below the vision threshold. I do not have any evidence before me to indicate that punctuation errors, as opposed to spelling or grammatical errors, played any significant role in the assessment of the applicant’s performance in the program.

79Finally, the last accommodation set out in the Georgian College letter is for extended time to hand in assignments to professors, which is to be negotiated with the professor prior to the assignment’s due date. The evidence before me indicates that, where the applicant requested a reasonable extension from her instructors prior to the assignment due date, such extensions were granted.

80There are several assignments in evidence before me where it is noted that the applicant was late, although with one exception (the “portfolio” assignment) these assignments nonetheless were accepted and graded and it is unclear whether the late submission of any of these assignments resulted in the applicant receiving a lower grade than merited. The evidence does not support that the applicant always negotiated extensions in advance with her professors, as set out in the Georgian College accommodations letter, or that she complied with extensions that were granted.

81One example is the Literature Store Front assignment, which is dated February 20, 2006 and was for Ms. Hamilton’s course. In her remarks on the assignment, Ms. Hamilton notes that the paper was late twice: the applicant’s paper and presentation were not submitted on the original due date; and on the second due date, the presentation was made but the paper was submitted late. There is no evidence before me that the applicant had requested or been granted an extension for this paper prior to the due date. Further, having reviewed the assignment and Ms. Hamilton’s comments on the substance of the assignment, I am satisfied that the applicant’s disability was not a factor in the grade awarded by Ms. Hamilton.

82While the applicant refers to an e-mail dated February 8, 2006 that she had sent to Ms. Hamilton requesting an extension for two assignments (which are not identified), the extension request was only for the following week’s class, which was on February 15, 2006. This request was granted. However, the evidence indicates that this request does not refer to the Literature Store Front assignment, which is dated February 20, 2006, but to the applicant’s Oral Reading Analysis and Writing Analysis assignment, both of which are dated February 15, 2006. The evidence before me indicates that these latter two assignments were submitted late. In a report prepared by Ms. Hamilton dated March 4, 2006, it is indicated that the Oral Reading Analysis assignment was submitted three weeks late and the Writing Analysis assignment was submitted two weeks late. Ms. Hamilton’s report states that the applicant had not requested an extension prior to the deadlines for submission of these assignments, and only requested an extension when Ms. Hamilton brought the matter to the applicant’s attention after the due dates for these assignments. At that point, the applicant requested an extension until February 15, 2006, which was granted. Once again, having reviewed the assignments and Ms. Hamilton’s comments on the substance of the assignments, I am satisfied that the applicant’s disability was not a factor in the grades awarded by Ms. Hamilton. These assignments will be discussed in more detail below.

83Another issue raised by the applicant relates to her portfolio assignment. The first portion of this assignment was presented by the applicant in the fall term, and she was given a grade of D by Ms. Blaney. Ms. Blaney prepared a full-page, typewritten, detailed analysis of the applicant’s work and identified the specific deficiencies in the applicant’s work. The applicant was advised by Ms. Blaney that her next portfolio submission was due in April 2006 and would reflect a considerable portion of her grade in the upcoming Teaching and Curriculum course. The applicant was told that in order to meet the requirements of this assignment and pass the Teaching and Curriculum course, she would need to redo the work that she had submitted in the fall term and complete the remaining work on this assignment in a manner that reflects the university required academic standards. Ms. Blaney indicated that she was willing to meet with the applicant at any time to review the assignment requirements and discuss any support that she may require to be successful in this component of her course work.

84There is no doubt that the applicant subsequently was diagnosed with anxiety and depression, and so had to withdraw from her practicum. However, as a modification to the program, she was still expected to complete her course work, with her practicum deferred to the following academic year. The evidence before me indicates that the applicant e-mailed Ms. Blaney on May 30, 2006 to say that she wanted to drop off her portfolio. Ms. Blaney responded on June 8, 2006 to indicate that her final grades had already been submitted, and therefore she was not accepting re-submitted assignments at that time. The course outline for the Teaching and Curriculum course states that the due date for presentation of the portfolio was April 26, 2006. There is no evidence before me to indicate that the applicant requested or was granted an extension to complete this assignment.

85As a result, and notwithstanding I have found that there was a shared responsibility for the failure to issue the accommodations letters, I find that the accommodations sought by the applicant for her visual disability in fact were afforded to her by the respondents (subject to my discussion below regarding the provision of texts and reading materials in alternate format). As a result, I find that no violation of the Code arises from the University’s failure to provide the applicant with accommodations letters.

2) Bursary application

86At the meeting on May 24, 2005, there was discussion about an application for a bursary. The context in which the topic of applying for a bursary arose was in relation to the scanning of texts and reading materials for the program. The issue was raised at the meeting that this work could be done by Georgian College, but the College may want a fee to perform this work. The applicant was advised that York University provided the same service to its students, but the applicant indicated that in her view it was more practical to have this done by the College. As a result of this discussion, Ms. Swartz raised the possibility that the applicant might be able to access the Bursaries for Students with Disabilities (“BSWD”) program in order to cover the cost of the College performing this service. Ms. Swartz’s notes indicate that the BSWD could cover the cost of items such as: flat screen monitor; tutoring (to review papers); testing services, if required; scanning services through the College; and a portable scanning machine.

87There is no doubt that there was considerable confusion about the bursary issue in the minds of the parties following this meeting. The applicant believed that this bursary would be provided through private funding accessible through York University, and that Ms. Swartz would be applying for this bursary on her behalf. This is not supported by the evidence of Ms. Hart, who attended the meeting with the applicant and who understood that Ms. Swartz was referring to the BSWD, which is government-funded.

88There also appears to have been confusion about what steps needed to be taken to apply for this funding, and who would be taking them. The applicant apparently believed that she did not need to take any steps, until she discovered differently much later in the fall term. At Georgian College, as with the accommodations letters, it appears that the disability office takes a more active role in following up with students and assisting them in the preparation of bursary applications. In contrast, at York University, the responsibility resides principally with the student to obtain and complete her portion of the application form and then submit the form with supporting materials to the OPD. The OPD will then review the application and supporting materials, and forward it to the University’s financial office.

89As a result of this confusion, the bursary application did not in fact get completed by the applicant until October 16, 2005. This application was supported by a memo from Ms. Hart at Georgian College in which she lists the equipment she believes should be covered by the bursary. The evidence is unclear as to when this bursary application was submitted to the OPD. The application form itself is signed by Ms. Swartz on November 18, 2005. Ms. Swartz’s evidence, however, is that she would have reviewed and signed this application shortly after she received it, and would not have sat on it for over a month.

90The bursary application was not successful. There appear to be two main reasons for this. First, there is a restricted pool of funds made available by the government through the BSWD program for each post-secondary institution, and once this pool of funds is exhausted, no more bursaries are provided. As a result, it is important for BSWD applications to be submitted at the earliest possible time. Ms. Swartz’s evidence, which was supported by the evidence of the Georgian College witnesses, is that the applicant’s BSWD application was submitted too late to have any realistic prospect of success.

91Second, and perhaps more significantly, the BSWD application was deficient in failing to provide medical support linking the applicant’s disability to her need for the equipment sought. Ms. Hart is an adaptive technologist with the Centre for Access at Georgian College, and she provided the list of equipment sought. However, the sum total of the information provided to support the applicant’s need for this equipment is Ms. Hart’s statement, as follows:

This is a technological assessment only and should not be considered a medical or psychological assessment or diagnosis.

Having met with [the applicant], and indeed worked with her during her Georgian College and Laurentian University studies, I believe I have an in-depth understanding of her needs for support while at York.

She should be provided with Bursary funding for the following equipment and software: [Ms. Hart goes on to list the equipment sought]

92At the hearing, Ms. Swartz testified that she was concerned about the lack of medical support linking the need for this equipment to the applicant’s visual disability. Her evidence is that successful BSWD applications generally are supported by a doctor’s letter that identifies the specific nature of the student’s disability and explains why the equipment for which funding is sought is required due to that specific disability. This was lacking in the applicant’s application materials. However, given the late date at which the BSWD application was prepared and submitted, Ms. Swartz testified that she did not want to hold up the application any longer and forwarded it to the University’s financial office.

93I find I am encountering the same problem as is identified by Ms. Swartz. The issue for me to determine is whether there are needs arising from the applicant’s visual disability that the respondents failed to properly accommodate. Here, as with the accommodations letters, the BWSD application is a tool by which a student can seek government funding for certain equipment or perhaps other expenses. But in order to amount to a violation of the Code, there needs to be evidence before me to establish that the equipment sought by the applicant in her BWSD application relates to a need arising from her visual disability. I simply do not have the evidence before me to support such a conclusion. The list of equipment compiled by Ms. Hart essentially provides for a full desktop computer system with software, wireless printer/scanner, pocket PC, USB jump drive, and other items. I can certainly see how such equipment would be of benefit to the applicant. I have a more difficult time understanding how these items represent a “need” required by the nature of the applicant’s visual disability. The applicant already had a laptop computer, she had access to a scanner, and she had a USB data storage device. There may be some reason why the applicant’s equipment was deficient and why the equipment requested in the BSWD application was required in place of the applicant’s own equipment as a need arising from the applicant’s disability, but the evidence before me is far from sufficient to establish this.

94As a result, while there clearly was confusion around the nature of the bursary and who was responsible for following up on this issue, I find that the evidence before me is insufficient to establish that as a result of the denial of the applicant’s BSWD application, the applicant was denied any required accommodation in violation of the Code.

3) Textbooks and course materials

95At the meeting on May 24, 2005, the issue of the applicant’s need for textbooks and course materials in alternative format was discussed. At that time, it was understood by York University that the applicant would require the course readings ahead of time so that there would be ample opportunity for these materials to be scanned into an accessible format.

96At the time of the May 24, 2005 meeting, it was understood by York University that the applicant would be making arrangements for the course readings to be scanned at Georgian College. Ms. Swartz’s notes of the meeting indicate that the applicant was informed that York University offered the same service in terms of scanning course materials, but that the applicant thought that it was more practical for Georgian College to continue providing this service as it had done in past years when the applicant was attending Laurentian University through courses offered at the Georgian College campus.

97Unlike Laurentian University, York University merely rented space from Georgian College and did not have any broader administrative arrangement with the College to provide services to York University students. As a result, at the May 24, 2005 meeting, it was discussed that the College would probably want a fee for scanning materials for the applicant. It was suggested by Ms. Swartz that perhaps the fee for this service could be covered by a bursary, the BSWD discussed above. Ms. Swartz’s notes indicate that the applicant agreed with this arrangement. As discussed above, there was considerable confusion about the nature of this bursary and who was responsible for applying for it.

98The evidence indicates that following the May 24, 2005 meeting, Ms. Swartz discussed the applicant’s need for accessible materials with Ms. McColl, the Assistant Manager of Library Accessibility Services. This prompted Ms. McColl to send an e-mail to the applicant on June 6, 2005 stating that she had been advised by Ms. Swartz that the applicant’s alternate format materials were going to be supplied by Access Services at Georgian College and that the cost would be covered by a bursary. Ms. McColl advised the applicant that York University was “quite willing to assist with this process whether it be advising Georgian what the readings are, purchasing the texts to be scanned or even being responsible for the entire process at this end”. Ms. McColl indicated to the applicant that “the choice is yours”. Ms. McColl’s e-mail states that York University would begin the process of determining the required readings and contacting Georgian College to confirm exactly where they wanted the material shipped.

99The applicant responded shortly thereafter to say that she would be happy to use the services at York University “especially for material that has already been produced”. She stated that she was presently waiting for a copy of the book list for the fall. The applicant stated that she would use the office at Georgian College for any books that were new in order to expedite the process. Ms. McColl responded by stating that material already available would be supplied by the W. Ross MacDonald School, and she would investigate if they could ship these materials directly to Georgian College for the applicant.

100It appears from the evidence that the applicant attended at Ms. McColl’s office on the main campus on or around September 19, 2005, but Ms. McColl was unavailable to meet with her. Ms. McColl followed up by e-mail on September 19, 2005 stating that she had received the information provided by the applicant and would review it the following morning.

101When the applicant still had not received course materials in accessible format by late September 2005, she raised the issue with Ms. Blaney, as the Barrie Site Coordinator for the program. Ms. Blaney sent an e-mail to Ms. McColl on September 28, 2005 indicating that the applicant required textbooks modified for her vision needs. Ms. Blaney stated that the titles of the required readings were submitted in the summer and early September 2005. Ms. Blaney stated that the applicant had not received any information about these texts and “we are concerned that she needs them to complete her readings”. Ms. Blaney indicated that she was new to the position and wondered if there was a step that she had not taken in order for the applicant to obtain these materials. Ms. Blaney asked Ms. McColl to contact her to let her know about the situation and what needed to be done to ensure that the applicant received the support she required.

102When Ms. Blaney did not receive a response from Ms. McColl, she sent a further e-mail on September 30, 2005, indicating that the Barrie Site Course Directors continued to be “very concerned on behalf of [the applicant] as she has not yet received her texts in PDF format”. Ms. Blaney stated that the applicant “is beginning to feel very overwhelmed by the readings she has not been able to complete independently”. Ms. Blaney asked Ms. McColl to advise what could be done to ensure that the applicant received this material as soon as possible. Ms. Blaney stated her understanding that “the arrangement was made that texts would be formatted through York and day to day material through Georgian College”. Ms. Blaney offered to do whatever needed to be done to expedite this process.

103By separate e-mail, Ms. Blaney offered to make arrangements with the applicant to do some reading with her one day the following week in preparation for upcoming classes. It does not appear that the applicant took Ms. Blaney up on this offer.

104The evidence indicates that on October 1, 2005, the applicant sent in a copy of the text list for the program with ISBN numbers, which Ms. Blaney forwarded to Ms. McColl later that same day. Ms. Blaney’s e-mail to Ms. McColl states that “these are all the text names that have been submitted to Disability Services”.

105Ms. McColl corresponded with the applicant on October 4, 2005, “to apologize for the very long delay in responding to [the applicant’s] inquiries regarding [her] transcription requests”. Ms. McColl indicated that in that particular year, her office “has been absolutely overwhelmed by the number of requests for alternate format material” and was “struggling with a record number” of requests. Ms. McColl stated that she does “recognize this struggle has impacted the level of service [the applicant has] received – or more accurately, the service [she has] not received”. Ms. McColl indicated that measures were being taken to adjust her department’s resources to more accurately reflect the demand for service, and apologized for the stress the delays must be causing the applicant. Ms. McColl stated that she had received one text (“Theories of Development”) from the publisher the previous day, and would forward it in accessible format to the applicant that morning. The applicant’s evidence is that this text was not useable by her, as it was in the wrong format.

106On October 12, 2005, Ms. Blaney sent an e-mail to Ms. LeBlanc, who was heading up the program. Ms. Blaney stated that she had spoken with the applicant, and the applicant still had not received any accessible materials from York University. Ms. Blaney stated that the applicant was “pretty discouraged” and inquired about getting the “go ahead” to take these materials to Georgian College to be scanned. Ms. LeBlanc responded that same day to tell Ms. Blaney not to do that, but that Ms. Swartz would be calling Ms. McColl that day to try to get a priority put on the applicant’s materials, failing which she would call Georgian College to see what arrangements could be made. Ms. LeBlanc expressed her belief that “this will be done quickly at this point”.

107One week later, on October 19, 2005, the applicant wrote to Ms. Blaney to indicate that she had heard nothing further. She stated that she was borrowing books and coming in on the weekend to scan documents by hand. She indicated that if she had any delays, she may need to ask for extensions. She stated “so far so good but it is hard keeping up”. She indicated that she had been at Georgian College scanning materials until 10:30 p.m. that night and 12:30 a.m. the previous night.

108Ms. Blaney responded on October 20, 2005, to state that she understood the applicant’s situation and would support the applicant in any way she could, including an offer to help the applicant edit some of her written work. Ms. Blaney stated that she would keep pushing York University and expected that they would “hear something soon”.

109However, it was not until November 20, 2005, that all of the required course materials were finally delivered to the applicant in accessible format.

110At the applicant’s request, Ms. McColl wrote a letter dated July 24, 2006 to set out the reasons for the delay in getting course readings to the applicant in alternate format. There are two versions of this letter in the evidence before me, both with the same date. No explanation was provided in evidence before me to account for these two versions. While they are not inconsistent with each other, one is a lengthier version that provides more detail. I regard the more detailed letter as setting out Ms. McColl’s view more fully.

111In the lengthier version of the July 24, 2006 letter, Ms. McColl acknowledges that the applicant was registered with York University’s Office for Persons with Disabilities and had requested that her textbooks be transcribed into accessible format, specifically PDF files. Ms. McColl states her understanding that accessing alternative formats was essential to the applicant’s academic success.

112After explaining the complexity of the transcription process, Ms. McColl notes that the applicant first contacted Library Accessibility Services in the spring of 2005 to make her needs known. Ms. McColl then states that “repeated requests for meetings to discuss the details of [the applicant’s] accommodation during the summer did not yield the desired result”. Later in this letter, Ms. McColl states that the applicant “did not respond to repeated requests for more information from this office”. While acknowledging that “record demands for service” contributed to the delay in getting accessible materials to the applicant, Ms. McColl also attributes the delay to “the student’s lack of communication”. This is consistent with the evidence given by Ms. McColl before me.

113I do not accept this evidence. The evidentiary record before me, despite containing multiple e-mails exchanged between Ms. McColl and the applicant, does not indicate any request for further information from the applicant or that transcription was being delayed due to any lack of information or communication from the applicant. The only specific request for information is contained in an e-mail from Ms. McColl from the latter part of November 2005, in which a request is made for a copy of the course outlines. The applicant’s evidence is that these had previously been supplied by her. In any event, the record before me includes Ms. Blaney’s statement that course readings had been supplied in the summer and early September 2005 and a list of required texts with ISBN numbers was sent on October 1, 2005. There is no indication in the record before me that these materials were lacking at any earlier time or were required from the applicant in order for the accessible format materials to be prepared.

114While there was some initial confusion as to the scope of the services that were expected to be provided by Georgian College, it is clear that as early as June 2005 the applicant made a request of York University at least to supply her with material that already had been converted to accessible format. If something more was required from the applicant in order for this material to be prepared, then it seems to me that it was incumbent upon York University to communicate to the applicant what was required. I see no record of this having been done.

115I also appreciate that there came a point at which Georgian College no longer was prepared to provide services to the applicant in the absence of any arrangement for payment by York University for these services. At this point, at least by the time of Ms. Blaney’s e-mail of September 30, 2005, I find that it was clear to York University that the applicant was looking to it to provide all required texts in accessible format and a list of all of these texts was provided the following day. Yet the required texts were still not provided to the applicant in accessible format until late November 2005, almost two months later and nearing the end of the first term.

116In making these findings, I do not intend to be personally critical of Ms. McColl. I appreciate her evidence that at the material time, her department was experiencing a record volume of requests for transcription services and did not have the resources to keep up with the demand in a timely fashion. At the same time, the requirement to provide accommodation for students with disabilities is not the responsibility solely of Ms. McColl’s department and whatever resources had been allocated to that department for the relevant academic year. Rather, the responsibility rests with York University as a whole. There is no evidence before me to indicate that it would have caused undue hardship to York University as a whole to allocate sufficient resources to ensure that students with visual disabilities, and the applicant in particular, who required alternate format transcription as an accommodation received their required course readings in a timely manner.

117I also am well aware of the case law which indicates that “perfect” accommodation is not required, but that the onus is on the respondents to demonstrate that they did what was reasonable in the circumstances to accommodate the applicant up to the point of undue hardship: see Fisher v. York University, 2011 HRTO 1229 at para. 42. However, I do not regard it as a requirement for “perfect” accommodation to expect that a student with a visual disability such as the applicant would receive her required reading materials in alternate format at a much earlier point in the academic year than late November, or that, if any further information was required in order for such materials to be prepared, that such requirement would be clearly communicated to the student. In my view, neither happened in the circumstances of this case.

118The respondents take the position in their final submissions that the delay in providing these materials to the applicant did not have any adverse impact on her. I do not accept this submission. While it may be true that the courses offered in the consecutive education program were more focused on the in-class work and the practicums than they were on textbook readings, these readings were set out in the course outlines as required for these courses. Given this, I do not believe that the respondents can fairly assert that the applicant not having these readings in a timely manner had no impact upon her. This also is belied by Ms. Blaney’s e-mails, which support the applicant being stressed and overwhelmed at not having these readings, and the applicant’s own evidence, as supported by her e-mail, that she was spending a considerable amount of time and effort scanning these materials herself.

119Having said that, I also do not accept the applicant’s position that the readings were of no use to her by the time they arrived. While the applicant clearly did not have the texts in accessible format for her fall term courses, I note that she was nonetheless able to pass these courses. In addition, she had the use of these texts both for her full year and winter term courses and was able to seek and obtain extensions to complete her written work. At the end of the day, I find that the delay in receiving her textual materials in accessible format did not materially contribute to the applicant’s inability to successfully complete the program, which was attributable to her failure to successfully complete either of her practicums and her failure of two full-year and one winter term courses.

120Nonetheless, I find that the delay in providing the applicant with textual materials in accessible format amounts to discrimination against the applicant because of her visual disability, in violation of s. 1 of the Code. As this matter has been bifurcated such that I am only making findings of liability at this stage of the proceeding, I will at the conclusion of this Decision set out a process to determine an appropriate remedy for this violation.

4) The first practicum

121The applicant was placed in a junior grade (Grade 4) at Forest Hill Public School for her first practicum in the fall of 2005. The applicant alleges that her needs for accommodation due to her visual disability were not properly met for the purpose of this practicum.

122The first accommodation issue raised by the applicant relates to a lack of disabled parking close to the portable where she was teaching. It appears that in the early part of her practicum, the applicant was told that parking spots close to the school were reserved for parents and visitors, and that she and the other student teachers were required to park down at the bottom of a hill. This presented a difficulty for the applicant, as she needed to carry a significant amount of equipment required due to her visual disability.

123However, the evidence does not support that the applicant identified a need for a disabled parking spot prior to the commencement of her practicum. Further, once this need was identified, the applicant was permitted to park closer to the school. In addition, access to a disabled parking spot was arranged for her second practicum. Accordingly, I find that the evidence does not support that the applicant was denied a required accommodation in violation of the Code.

124The second accommodation issue raised by the applicant relates to her need for a table near an outlet in the classroom where she could set up and access her computer. The evidence indicates that this need was identified by the applicant, and was met. However, the applicant states that the host teacher allowed her students to place juice boxes on the table, such that she became concerned about potential damage to her computer. As a result, the applicant states that she left her computer closed in the classroom to avoid potential damage, and was denied access to this accommodation. However, I am not satisfied on the evidence before me that the applicant raised an issue with either her host teacher or Ms. Blaney about the children’s juice boxes interfering with a required accommodation. Accordingly, I find that the evidence does not support that the applicant was denied a required accommodation in violation of the Code.

125The applicant was not successful in her first practicum placement. Based upon my review of the evidence before me, I find that the applicant’s visual disability was not a factor in this lack of success. Rather, I find that the reason for the applicant’s lack of success was twofold.

126First, the applicant was assessed by the host teacher, the host school’s adjunct professor and Ms. Blaney as not meeting expectations in terms of her teaching. The evidence before me includes a detailed memo to the applicant from Ms. Blaney dated November 15, 2005, which sets out the applicant’s shortcomings in relation to her teaching. These include: that her lesson planning was dependent on considerable input from the host teacher, adjunct professor and/or course director; that some materials were not prepared before the lesson; that sequencing of learning experiences required considerable host teacher support; that the organization of lesson plans, lesson delivery and learning materials required further attention; that the pacing of lessons was problematic; that frequent spelling errors were displayed in board notes, lesson plans and student handouts; that directions and explanations of procedures ranged from somewhat clear to unclear; and that host teacher suggestions regarding lesson content, sequencing and pacing were often not reflected in revised lesson plans.

127Ms. Blaney and the adjunct professor had met with the applicant on November 10, 2005, to discuss these concerns. It was indicated to the applicant at that time that her lesson plans needed to be thorough and reflect each teaching decision within the lessons, such as learning tasks, groupings, questions, sequencing and assessment format. The applicant was advised to edit her written work carefully and to lessen her dependence on the host teacher. A plan was made for the applicant to meet with Ms. Blaney to plan the first day of her practicum lesson, after which Ms. Blaney would attend to observe the lesson. While an issue also was raised about the applicant arriving late to the classroom and leaving early, I find that this issue was addressed by the applicant and did not materially contribute to her lack of success in her first practicum.

128Ms. Blaney attended the applicant’s class on November 14, 2005 to observe the teaching of the lesson the applicant had prepared. One aspect of the lesson related to letter writing. Ms. Blaney observed that, while the lesson plan related to final draft copies of a letter, it did not include an opportunity for students to share, revise and/or edit their letters as had been requested by the host teacher. Rather, students simply copied out their final drafts directly from their first draft. Ms. Blaney also was concerned that there was no evidence of assessment in the lesson. The applicant also had made a spelling error that was evident on the board at the start of the lesson – she had written “letter wrighting” instead of “letter writing” – and two additional spelling errors were pointed out by the students during the lesson. While there was some effort in the applicant’s evidence before me to link these spelling errors to her visual disability, I find that I do not have a sufficient basis in the evidence before me to establish such a connection. A second aspect of the lesson related to a poem. In her notes about this aspect of the lesson, Ms. Blaney expressed concern that the applicant had not made any connection between the mental set of “what is your favourite place in Canada?” and the poem itself.

129Ms. Blaney noted that the applicant reported feeling overwhelmed by the expectation of planning and delivering a 60-minute language lesson per day, which was considerably less that the requirement for the first practicum that student teachers would teach 50% of the class (or 150 minutes of class time). Ms. Blaney expressed concern that the applicant was not yet able to plan and deliver effective lessons somewhat independently of her host teacher, adjunct professor or course director. Ms. Blaney noted that the applicant was losing confidence in her abilities and reported that she was feeling increasingly stressed. Ms. Blaney concluded that the applicant would not be able to successfully fulfil the expectations of the first practicum and was at risk of failing the program. While Ms. Blaney noted that the applicant had not received the required texts in accessible format by this point, she expressed her view that the lack of these resources was not the reason for the applicant’s practicum difficulties. I agree.

130The second reason for the applicant’s lack of success in her first practicum placement relates to the group assignment that she submitted on November 15, 2005 (as discussed above), in which material presented as the applicant’s work had been copied from another student teacher. As a result of this, the host teacher and adjunct professor felt that the applicant had been dishonest, and expressed to Ms. Blaney that they could no longer continue to work with the applicant. The host school requested that the applicant’s placement be terminated as a result of this incident and due to the applicant’s ongoing teaching difficulties. There is no evidence before me to indicate that the applicant’s visual disability played any role in her copying this work from another student teacher.

131Accordingly, I find that the evidence does not support that the applicant was denied necessary accommodations during her first practicum placement, and I further find that her visual disability was not a factor in the termination of this placement.

5) The November 16, 2005 meeting

132There is no dispute that Ms. Blaney was contacted by the host school and informed that it wanted to terminate the applicant’s placement there. As a result, Ms. Blaney requested that the applicant return to the Barrie site to meet with her. Ms. Blaney asked Ms. Hamilton to attend this meeting as an observer, given that she expected that it would be a difficult meeting. Ms. Hamilton had played no role in the assessment of the applicant’s first practicum.

133The applicant alleges that she entered the room crying, and was told to “shut up and sit down and start accepting responsibility for this mess”. The applicant alleges that Ms. Blaney was yelling at her. She alleges that Ms. Blaney and Ms. Hamilton took turns questioning her and making the statements as set out in para. 34 above.

134Ms. Blaney and Ms. Hamilton deny making the statements attributed to them. Ms. Blaney’s evidence is that it was a tense and difficult meeting due to the issues that she needed to address with the applicant and she acknowledges that the applicant cried during the course of the meeting, but she states that she dealt with the applicant in a professional and caring manner and did not yell at her. Ms. Blaney particularly points to the fact that she took the time to prepare a detailed plan of action to try to assist the applicant to complete the program notwithstanding that she had failed her first placement. This plan included the applicant re-doing her first placement in the winter term in a primary grade at a new school, and being given the opportunity to complete her second placement in June or fall 2006 after the program otherwise would have been completed. Ms. Blaney also points to a series of e-mail communications with the applicant following this meeting, which in my view are supportive in tone and content and do not display the kind of negative attitude towards the applicant that is alleged.

135Ms. Hamilton similarly denies that she made the statements attributed to her. In particular, she states that she was only in the meeting as an observer, having played no role in assessing the applicant’s first practicum. Her evidence is that she only spoke to reinforce points that Ms. Blaney was trying to make with the applicant, which the applicant did not seem to be understanding. For example, she recalls intervening to echo Ms. Blaney’s concerns about the gravity of the situation where the applicant had copied another student’s work with the result that the host school did not want the applicant to return. Ms. Hamilton also supports Ms. Blaney’s evidence that she did not make discriminatory or derogatory comments to the applicant in this meeting.

136As discussed above, I have found that the applicant’s evidence is not reliable or credible and accordingly I am not prepared to accept the applicant’s allegations about this meeting where her evidence conflicts with the evidence of Ms. Blaney and Ms. Hamilton.

137In her submissions, the applicant urges me to find that Ms. Blaney made the statements as alleged on the basis that, in a subsequent meeting on February 7, 2006, the applicant made reference to Ms. Blaney having yelled at her and made discriminatory comments at the November 16, 2005 meeting and this was not denied by Ms. Blaney. The applicant also relies upon the evidence of herself and her friend Ms. Thompson that, at a meeting with Associate Dean Pitt on March 22, 2006, the fact that Ms. Blaney had not denied this conduct was raised and Ms. LeBlanc made a nod with her head to indicate that this was correct.

138I am far from satisfied that this provides any proper basis to support the applicant’s allegations. With regard to the February 7, 2006 meeting, I am aware that this meeting took place shortly after Ms. Blaney had received the letter from the lawyer retained by the applicant alleging discrimination, during a period of time when Ms. Blaney was caring for her terminally ill father. Ms. Blaney’s evidence is that she was not paying particular attention to what was being said in the February 7, 2006 meeting, apart from personally expressing her dismay at having been sent a lawyer’s letter despite feeling that she had been very supportive of the applicant and stating that she would no longer be able to function as the applicant’s practicum supervisor.

139In any event, I am not prepared to rely upon the mere fact that Ms. Blaney did not immediately deny the applicant’s allegations at the February 7, 2006 meeting as proof that these alleged statements were made, particularly given my concerns about the reliability of the applicant’s evidence, the surrounding contextual evidence indicating that Ms. Blaney continued to be supportive of the applicant following the November 16, 2005 meeting, and Ms. Hamilton’s evidence that supports Ms. Blaney’s version of events.

140With regard to what occurred at the March 22, 2006 meeting, I have the benefit of an audio tape and a transcript of this meeting, both of which I have reviewed with care. Obviously, Ms. LeBlanc’s “nod” is not caught on the audio tape. At the March 22, 2006 meeting, the applicant stated that she was called into a meeting with Ms. Blaney and Ms. Hamilton, and when the applicant tried to talk, she was told to shut up and sit down and accept responsibility when she was crying. Associate Dean Pitt’s initial response is to say that she didn’t think that language would have been used by either Ms. Blaney or Ms. Hamilton, as both of them are very professional. The applicant then stated that she mentioned this conversation at the last meeting (referring to the February 7, 2006 meeting) and Ms. Blaney did not deny it. At this point, Associate Dean Pitt pauses and says, “Ya. Boy I can’t see that but be that as it may, it would be kind of inappropriate and I mean I’ll accept that”. While neither Associate Dean Pitt nor Ms. LeBlanc can recall a “nod” from Ms. LeBlanc, it seems reasonable to assume that something happened at this point in the meeting which caused Associate Dean Pitt to move away from her statement that she did not believe the applicant’s allegation, to a statement suggesting that this may have occurred.

141However, even if Ms. LeBlanc nodded to confirm that at the February 7, 2006 meeting the applicant had alleged that Ms. Blaney told her to shut up and sit down when she was crying and Ms. Blaney had not denied it, this is a long way from affirmative evidence to prove that this is what in fact occurred at the November 16, 2005 meeting. Ms. LeBlanc was not present at the November 16, 2005 meeting and so cannot provide any evidence as to what Ms. Blaney did or did not say at that meeting. The most she could do is confirm that this allegation had been raised by the applicant at the February 7, 2006 meeting, and had not been denied by Ms. Blaney. For the reasons already stated above, I do not find that evidence to be particularly compelling or supportive of an affirmative finding that Ms. Blaney said what is alleged of her.

142I also note that Ms. LeBlanc was not pleased with the manner in which Ms. Blaney addressed the issue of the lawyer’s letter at the February 7, 2006 meeting, and may simply have been conveying to Associate Dean Pitt that Ms. Blaney did not always conduct herself in as professional a manner as might be expected or hoped. But once again, in my view, this is a far cry from proving that Ms. Blaney made the comments attributed to her by the applicant.

143Accordingly, based upon my review and consideration of the totality of the evidence and my assessment of the credibility of the witnesses who appeared before me, I find that the evidence does not support the applicant’s allegation that Ms. Blaney or Ms. Hamilton yelled at her and made discriminatory comments towards her at the November 16, 2005 meeting.

6) The applicant’s discontinuance in the program

144Following the termination of her placement in the first practicum and her meeting with Ms. Blaney and Ms. Hamilton on November 16, 2005, the applicant consulted a lawyer who wrote a letter to Ms. Blaney dated January 5, 2006 requesting that the applicant be provided with “the proper level of support and services, recognizing her visual impairment and handicap”. The letter stated that if this was not done, the applicant may accrue further damages and bring an action against Ms. Blaney for discrimination and other human rights violations. The letter made reference to an enclosed letter from the applicant outlining her grievances in chronological order, however it appears that the applicant’s letter was not included with the copy of the lawyer’s letter that eventually made its way to Ms. Blaney.

145The lawyer’s letter was addressed to Ms. Blaney as Course Director in the Faculty of Education at York University, but was sent to the address of Georgian College. This resulted in a significant delay in the letter actually reaching Ms. Blaney. Ms. Blaney’s evidence is that the letter did not reach her until sometime in early February 2006 and was in an envelope that had been opened by the time it reached her. As indicated, the letter from the applicant that was supposed to have been included with the lawyer’s letter was not in the envelope that reached Ms. Blaney. Ms. Blaney states that she contacted the lawyer’s office and was sent a copy of the applicant’s letter. In this letter, the applicant outlines some of the allegations that have been addressed above and requests, among other things, that Ms. Blaney and Ms. Hamilton not speak with her without a witness or advocate in the room with the applicant.

146In the meantime, on January 9, 2006, Ms. Blaney sent an e-mail to Ms. LeBlanc, Associate Dean Pitt and others to express concern about the applicant’s lack of success in the program and to request a meeting to seek guidance. In this e-mail, Ms. Blaney stated that most of the Barrie course directors had expressed concerns about the applicant’s lack of academic achievement on assignments submitted prior to the December break, although Ms. Blaney noted that the applicant’s difficulties were not related to a lack of initiative or effort.

147Ms. LeBlanc met with Ms. Blaney on January 12, 2006 to discuss the applicant’s lack of success. As a result, it was decided that a meeting with the applicant would be arranged, to be attended by Ms. LeBlanc and Ms. Blaney. An invitation also was extended to Ms. Swartz from the University’s OPD. This meeting ultimately occurred on February 7, 2006. The applicant attended this meeting with her friend, Ms. Thompson.

148By the time of the February 7, 2006 meeting, the lawyer’s letter had been received by Ms. Blaney. As noted above, this letter was very upsetting to Ms. Blaney, as she believed that she had tried to support and advocate for the applicant and also because at the time she received it she was caring for her terminally ill father. At the February 7, 2006 meeting, Ms. Blaney expressed her dismay at receiving this letter and stated that, in light of the request made by the applicant that Ms. Blaney not speak with her without a witness or advocate present, she felt that she could no longer effectively supervise the applicant’s practicum placement.

149While reprisal for claiming a right under the Code has not specifically been alleged in the applicant’s complaint, I have considered whether Ms. Blaney’s action in withdrawing from a supervisory role in relation to the applicant’s practicum placement amounts to reprisal in violation of s. 8 of the Code. In my view, the applicant’s specific request that Ms. Blaney not speak with her without a witness or advocate present made Ms. Blaney’s continued supervision of the applicant’s practicum placement impractical. In these circumstances, it is my view that Ms. Blaney was not withdrawing a service because the applicant had made a human rights claim against her, but rather was withdrawing from a supervisory role that had been rendered impractical as a result of the applicant’s request. Accordingly, I find that Ms. Blaney’s actions did not amount to reprisal in violation of the Code.

150Prior to the February 7, 2006 meeting, a decision had been made that Ms. Hamilton would take over from Ms. Blaney to supervise the applicant’s practicum placement. The evidence indicates that at the February 7, 2006 meeting, the applicant expressed some level of discomfort with Ms. Hamilton being her practicum supervisor. However, in light of my findings above, I find that it was not contrary to the Code for York University to have assigned this responsibility to Ms. Hamilton.

151The February 7, 2006 meeting also addressed the applicant’s needs for accommodation in relation to the remaining components of the program. No specific issue is raised by the applicant in this proceeding regarding an alleged lack of accommodation in relation to her involvement in the winter term of the program and her second practicum placement. Rather, her allegation is that she was unfairly assessed and graded by Ms. Blaney and Ms. Hamilton in relation to her work in the winter term which resulted in her inability to continue in the program, and that her disability was a factor in the unfair assessment of her work. In my view, this allegation is not supported by the evidence.

152Ms. Hamilton observed the applicant teach a math lesson on linear measurement on the morning of February 7, 2006, and prepared a detailed report that was provided to the applicant outlining Ms. Hamilton’s concerns. Ms. Hamilton identified a need for the applicant to improve her questioning skills, and particularly to value the answers of each child regardless of whether they were the desired answers. Ms. Hamilton also was critical of the applicant’s demonstration of “shortest” and “tallest” by comparing only two heights, rather than more than two. The main part of the lesson involved measuring body lengths using non-standard units of measurement. The applicant had the children measure her while she was lying on the floor rather than using one of the children for this exercise, which limited her ability to control the situation and provide further instruction. Ms. Hamilton noted that when the children were divided into small groups to continue work on their own, most of the groups were not able to proceed with the exercise without further instruction.

153At this time, the applicant was teaching lessons directly from a textbook called Nelson Math. Ms. Hamilton noted that the applicant did not do any original planning in order to teach this lesson, but also missed important points that were supposed to be taught, including having the students estimate their answers and record their answers in a particular way for comparison. The lesson also was not completed within the allotted time, and the applicant had to be reminded by the host teacher to stop for recess.

154After the lesson, Ms. Hamilton met with the applicant for a considerable period of time in order to review expectations for the upcoming teaching block. Ms. Hamilton also provided the applicant with specific suggestions and guidance in terms of how to improve her preparation of lesson plans and her teaching practice. Ms. Hamilton also met with the host teacher and the adjunct professor at the host school in order to review expectations and areas for improvement for the applicant.

155In her evidence before me, the applicant was suspicious that Ms. Hamilton attended her class to assess her teaching performance on the morning when she was expected to travel to York University to attend a meeting with Ms. LeBlanc, Ms. Blaney and others that afternoon. The applicant states that she was stressed out about the afternoon meeting, and so was unable to perform up to expectations. That may be. But I do not find that there is any link between the applicant’s visual disability and the assessment of her teaching on this date. Rather, with Ms. Hamilton just having been assigned to supervise the applicant’s practicum placement, it makes sense to me that Ms. Hamilton would want to take this opportunity to observe the applicant’s teaching and provide constructive criticism and guidance as to how the applicant could improve. That is what I see being reflected in Ms. Hamilton’s detailed report of her observation of the applicant on February 7, 2006.

156Ms. Hamilton informed the applicant that she would return in one week in order to observe the applicant’s teaching. This occurred on February 14, 2006. Ms. Hamilton noted that the applicant had improved her vocabulary and questioning from the previous lesson, although she cited one specific example where the applicant had asked an unclear question of the children which resulted in a child not providing the desired answer. Ms. Hamilton noted that while the lesson followed the outline from Nelson Math, there was one “fatal flaw” in the teaching of this lesson, namely that the applicant had mislabelled a chart by showing “length” as the shorter side of a rectangle and “width” as the longer side. This resulted in the children reporting length as the lesser of the two measured numbers when they did their own work, and resulted in a need to re-teach this fundamental of measurement. Ms. Hamilton noted that the applicant did not notice her mistake until it was pointed out to her following completion of the lesson.

157Ms. Hamilton noted that the applicant did try to explain to the children what she wanted done as part of the lesson, but still was not completely successful in doing so. She noted that the children were unclear on what they were supposed to do, and had trouble when given a piece of Bristol board and told to go measure their “carpets”. Ms. Hamilton noted that the association between the general discussion, which involved measuring a carpet, and the actual student activity, which involved measuring a piece of Bristol board, had not been clearly explained. Ms. Hamilton further noted that other suggestions that had been made from her last observation had not been implemented by the applicant.

158Ms. Hamilton noted that the written lesson plan prepared by the applicant was very difficult to follow, did not directly correspond to what transpired in class, and contained numerous grammatical and spelling errors. Ms. Hamilton noted that the host teacher also reported that she found it difficult to understand the applicant’s written lesson plans. A specific requirement from the previous observation had been that lesson plans be submitted to the host teacher either the day before or by e-mail by 9 p.m. on the evening before the lesson was to be taught, so that the host teacher could review the plans to determine if they were in accordance with class requirements. The host teacher reported to Ms. Hamilton that this requirement had not been met by the applicant thus far.

159The host teacher also reported to Ms. Hamilton about a gym lesson that the applicant was to teach on the prior Monday. On the way to gym with the class, the host teacher commented to the applicant that the lesson plan called for music, to which the applicant responded that she had “meant to ask about that”. The host teacher then had to scramble to arrange for equipment to play the music.

160Ms. Hamilton met with the applicant to discuss her observations of the applicant’s teaching. Ms. Hamilton noted that the applicant said that she had been very nervous teaching the lesson, felt she was trying very hard, and was distressed by the length/width error in the lesson. In her report, Ms. Hamilton commended the applicant’s efforts and desire to succeed, but expressed that at that point, the evidence was lacking to demonstrate that the applicant would be successful in her practicum placement.

161Following her meeting her meeting with the applicant, Ms. Hamilton also met separately with the host teacher. While the host teacher expressed that the applicant’s math lesson was more organized than her previous effort, the host teacher felt that the applicant still needed improvement. The host teacher expressed concerns about the applicant's lesson plans and her failure to meet submission deadlines. The host teacher also expressed concern with the applicant’s organizational skills and general understanding of the requirements of classroom teaching that had been displayed by the applicant up to that point. Ms. Hamilton then met with the adjunct professor at the host school, who had similar concerns.

162Ms. Hamilton concluded in her report that, although some improvement was seen in some areas, the overall practicum performance by the applicant remained below acceptable standards. A copy of Ms. Hamilton’s detailed report was provided to the applicant.

163The applicant points to a letter dated February 13, 2006 from a fellow student teacher that sets out a more positive assessment of the applicant’s teaching skills. I do not place much weight on this letter for several reasons. First, it is not clear to me that this student teacher observed the same lesson as was assessed by Ms. Hamilton. The letter relates to a math lesson taught on February 13, 2006, while Ms. Hamilton assessed a math lesson taught on February 14, 2006. The student teacher’s letter also makes reference to the use of a roll of adding machine tape to measure the applicant’s own height, which was a feature of the February 7, 2006 lesson but is not noted as a feature of the February 14, 2006 lesson. Second, there is an obvious difference between an observation by a fellow student and an observation by a supervisor, who has a better sense of the requirements of the program and how the applicant compares to other student teachers. Third, the student teacher was not called as a witness to testify about her observations, which makes her letter hearsay evidence. While hearsay evidence is admissible before this Tribunal, if it goes to a material issue, it typically will be given little weight as compared to oral evidence from a witness.

164On February 26, 2006, the host teacher sent an e-mail to Ms. Hamilton to report that the applicant would not be teaching the following day (Monday, February 27, 2006), as the applicant had not attended a scheduled meeting on Friday, February 24, 2006 to discuss her teaching block and therefore did not have any direction or resources for the teaching that she was supposed to do on the Monday. The host teacher reported that the applicant had called the school and left a message during last recess on Friday, February 24, 2006, but the host teacher was not aware as to why the scheduled meeting that day had been cancelled. In her e-mail, the host teacher stated that she wanted to discuss “the viability of continuing this placement as soon as possible, and what would be best for all parties involved”.

165Ms. Hamilton spoke to the host teacher and adjunct professor at the host school at length on Monday, February 27, 2006. A report prepared by Ms. Hamilton dated March 4, 2006 records that both the host teacher and adjunct professor were very upset about the situation and felt that the applicant’s teaching attempts were having a detrimental effect on the class. At this time, they requested that the applicant’s placement at the host school be terminated for the following reasons: inability to demonstrate understanding of concepts and knowledge required for teaching; inability to plan or write up coherent lesson plans; inability to teach a successful lesson; missed meetings; and being completely unprepared for the March teaching block.

166As a result, Ms. Hamilton sent an e-mail to the applicant on February 27, 2006, informing her that the host school had requested the termination of her placement. The applicant was advised that the Faculty of Education would contact her to arrange a meeting to discuss her situation. In the meantime, the applicant was directed not to attend her practicum placement.

167The applicant disputes that the host school requested that her placement be terminated, on the basis of the host teacher’s e-mail stating only that she wanted to discuss the “viability” of continuing the placement. I accept Ms. Hamilton’s evidence that the host school did request termination of the placement for the reasons indicated. There is no evidence to contradict Ms. Hamilton’s evidence that the host school requested termination of the placement, and this is supported both by Ms. Hamilton’s e-mail dated February 27, 2006 and her report dated March 4, 2006 which are in evidence before me. Further, there is nothing inconsistent between the host teacher’s desire to discuss the “viability” of continuing the placement and the host school’s decision to terminate the applicant’s placement. Indeed, it makes sense to me that the host school would not communicate a decision to terminate the applicant’s placement without first discussing the matter with Ms. Hamilton as the applicant’s placement supervisor.

168Unknown to Ms. Hamilton or the host school, the applicant had provided a doctor’s letter to Ms. LeBlanc on Friday, February 24, 2006, stating that the applicant was to discontinue the placement/in class teaching aspect of her educational program effective immediately due to medical reasons. This was to remain in effect until June 2006, at which time the applicant would be re-evaluated. While the applicant submitted her doctor’s letter with a cover letter asking Ms. LeBlanc to share this information with “all those involved”, there is no evidence that either Ms. Hamilton or the host school was aware of the doctor’s letter at the time the decision was made to terminate the applicant’s placement. In any event, on the basis of the doctor’s letter, it is clear that the applicant was unable to successfully complete this placement, which was a requirement for successful completion of the consecutive education program.

169A meeting subsequently was held on March 22, 2006 to discuss the applicant’s status in the program. This meeting was attended by Associate Dean Pitt, Ms. LeBlanc, Ms. Swartz, the applicant and Ms. Thompson, and was tape recorded on consent of all parties. I have listened to this tape carefully, and my overall impression is that the York University representatives at this meeting conducted themselves in a professional and supportive manner, and tried to find a way to allow the applicant to continue in and successfully complete the program. The ultimate decision reached at this meeting was that the requirement for the applicant to complete her teaching practicums would be deferred, pending her successful completion of the course work component of the program.

170In the end, the applicant did not successfully complete the course work component of the consecutive education program. As discussed above, the applicant did not turn in her completed portfolio assignment until after Ms. Blaney already had submitted the final marks. This was a major component of the applicant’s course work.

171The applicant also did not successfully complete two major assignments in Ms. Hamilton’s “Teaching Language” course. One assignment was an Oral Reading Analysis, which involved a detailed tracking of a student’s reading word by word using a tool called a “running record” and then analyzing the student’s reading difficulties and proposing potential ways to improve the student’s reading. Ms. Hamilton’s evidence is that one of the running records submitted by the applicant was not in the applicant’s handwriting, and that she confirmed with a teacher at the host school that most of the writing on this record was the teacher’s own. This is disputed by the applicant. In any event, entirely apart from the issue of whether the applicant submitted a teacher’s work as her own, the evidence indicates that Ms. Hamilton gave this assignment a D grade (which is a failing grade in the consecutive education program) prior to discovering any issue about the applicant’s reliance on the teacher’s work. Having reviewed this assignment as graded by Ms. Hamilton, I am satisfied that the applicant’s disability was not a factor in the grade awarded. The paper fails to analyze the student’s reading errors, which was the major focus of the assignment, and contains numerous grammatical errors.

172At the hearing, the applicant gave evidence that creating running records was taught in class by a guest lecturer, who used a presentation that was very difficult for her to read due to her visual disability. This is not an allegation that was raised in the applicant’s complaint, and therefore is not within the proper scope of this proceeding: DeFreitas v. Ontario Public Services Employees Union, 2010 HRTO 281. In any event, this does not account for the deficiencies in the applicant’s assignment as noted by Ms. Hamilton.

173The second assignment was a Writing Analysis of a student’s work, which also received a D grade. Once again, having reviewed this assignment as graded by Ms. Hamilton, I am satisfied that the applicant’s disability was not a factor in the grade awarded. Ms. Hamilton noted two major flaws with the assignment. First, it is confusing to understand and the quality of writing falls far below university standards. I concur with this assessment. Second, the applicant merely quoted all of the major teaching emphases and strategies from the text, when the point of the assignment was to focus on what specific emphases and strategies were appropriate for this particular student.

174Due to the applicant’s failure to successfully complete her course work, the applicant received a letter dated June 28, 2006 from Associate Dean Pitt regarding her status in the program. In this letter, it was noted that the applicant had not successfully completed her course work and had failed three courses in the program. As a result, in order to continue in the program, the applicant would need to petition her results in these three courses. In addition, as the applicant’s practicum placements had been deferred pending successful completion of her course work by the end of that academic year and as the applicant had not successfully completed her course work, the applicant also would need to include in her petition a request to complete her practicum requirements. A petition form and instructions were included with the letter.

175While the applicant had some initial meetings and discussions about filing a petition, she ultimately did not do so. As a result, the applicant was not able to continue in the program.

176Having considered all of the evidence before me, I am not satisfied that the applicant’s visual disability was a factor either in her failure to successfully complete her second practicum placement or in the assessment of her course work. In my view, the respondents have provided rational and non-discriminatory explanations to support the applicant’s inability to continue in the consecutive education program. Accordingly, I find no violation of the Code in relation to the assessment of the applicant’s teaching in the second practicum placement and termination of that placement, in the assessment of the applicant’s course work, or in the applicant’s inability to continue in the consecutive education program.

Next Steps

177As indicated above, I have found a violation of the Code in relation to the failure of York University to provide reading materials to the applicant in accessible format in a timely manner. As I have made no finding of personal liability in relation to the actions of Ms. Blaney, Ms. Hamilton or Ms. Swartz, these individuals are removed as parties to this proceeding for the purpose of considering the issue of remedy.

178This matter has been bifurcated such that I have only made a determination as to liability under the Code in this Decision. As such, I need to establish a process in order to determine an appropriate remedy for the violation of the Code I have found.

179As I have made clear in my Decision, it is my view that the failure to provide the applicant with course reading materials in a timely manner violated her rights under the Code, but this failure did not materially affect her inability to successfully complete her practicum placements or course work in the program. Accordingly, any personal remedy sought arising from the violation I have found would not include such things as reinstating the applicant to the consecutive education program or granting her any degree or advanced standing in that program (even if such things were within my remedial authority, about which I make no finding). Rather, in my view, any personal remedy would be limited to some amount of compensation for injury to dignity, feelings and self-respect arising specifically from the delay in receiving accessible reading materials. Any other remedy sought, including any remedy in relation to future practices, also would need to flow directly from the specific violation I have found.

180In these circumstances, it is my view that I can receive written submissions from the parties on the issue of remedy and make a determination based on those submissions. If any party believes that an oral hearing is required on the remedy issue, they shall so indicate in their written submissions and state the reason why they believe an oral hearing is required. I will consider those submissions and determine whether I can proceed in writing or whether an oral hearing needs to be scheduled.

181The parties are directed to file their written submissions on remedy and on whether they believe an oral hearing is required in accordance with the following schedule:

a. The applicant shall file her written submissions by January 11, 2013;

b. The respondent shall file its written submissions by January 25, 2013; and

c. The applicant shall file any written submissions in reply by February 1, 2013.