HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lisa Worthington
Applicant
-and-
Algonquin College of Applied Arts and Technology
Respondent
DECISION
Adjudicator: Pamela Chapman
Indexed as: Worthington v. Algonquin College of Applied Arts and Technology
APPEARANCES
) Lisa Worthington, Applicant ) James Kafieh, Counsel
Algonquin College, Respondent ) Douglas Smyth, Counsel
) Chris Rutherford, Counsel
INTRODUCTION
1This Application was filed November 2, 2008, under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission on July 16, 2007, and abandoned upon filing this Application with the Tribunal.
2The applicant, Lisa Worthington (“Worthington”) has several physical conditions which affect her ability to use her left hand, and which she says impeded her success as a student enrolled at Algonquin College (“Algonquin” or “the College”) between August 2005 and July 2006. The applicant alleges that the College discriminated against her in the provision of services on the basis of disability, by failing to properly accommodate her needs and restrictions during the period of her enrollment, resulting in her getting poor grades in some courses, failing others, and eventually withdrawing from the program before completion.
3The respondent denies the allegations of discrimination. It submits that it provided her with various assistive devices, at the College’s expense, and that it adapted both classroom work and evaluation in order to accommodate the applicant’s disability. While it does not dispute that the applicant struggled in the program and eventually withdrew, it denies that either her academic difficulties or her decision to quit were caused by a failure to accommodate.
LEGAL ISSUES & PRINCIPLES
4The issues to be determined in this Decision are:
i. Does the applicant have a “disability” within the meaning of the Code?
ii. Has the applicant demonstrated a prima facie case of discrimination in the provision of a service?
iii. If so, did the respondent accommodate the applicant’s disability to the point of undue hardship?
5“Disability” is defined in section 10 of the Code to include “any degree of physical disability, infirmity, malformation or disfigurement that is caused by ... illness”. There was no dispute in the present case that the various conditions that affect the Applicant’s use of her left hand constitute a “disability” within the meaning of the Code.
6The duty to accommodate includes both procedural and substantive obligations: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union, 1999 CanLII 652 (S.C.C.), [1999] 3 S.C.R. 3 (“Meiorin”), at paras. 62-68. The procedural component requires that the respondent take steps to understand the individual’s disability-related needs and undertake an individualized investigation of potential accommodation measures to address those needs. The substantive component of the analysis considers the reasonableness of the accommodation offered or the respondent's reasons for not providing accommodation. It is the respondent that bears the onus of demonstrating what considerations, assessments, and steps were undertaken to accommodate the individual to the point of undue hardship, see Meiorin.
CONCLUSION
7For the reasons set out below, I find that the respondent fulfilled its procedural accommodation obligations and made significant efforts to accommodate the restrictions created by the Applicant’s disability, providing her with a wide range of assistive devices, arranging for the costs of those devices to be covered, modifying and adapting classroom work and evaluation, and tolerating significant absences from the program. The accommodation that was offered was reasonable, and appropriate to meet the Applicant’s restrictions. Therefore, I conclude that there has been no breach of the duty to accommodate to the point of undue hardship, and, consequently, there has been no violation of the Code.
SUMMARY OF EVIDENCE AND FINDINGS
Background
8The applicant learned about the Office Administration - Executive program (“the program”) taught at the Perth, Ontario campus of Algonquin College from one of the teachers in the program, Sandra Marchant, who was an acquaintance. This program is a 48-week condensed program, which runs in three consecutive terms, and provides a diploma equivalent to the two-year program. Worthington believed that successful completion of the program would “guarantee” her a good job in an office. This was important to her as she would have to borrow money to enroll, and needed to work in order to contribute to the support of her family.
9The applicant has a history of tumours and excema on her left hand. At the time she enrolled in the program she had a new mass growing on the place on her hand where she had had a tumour removed in 2002, and was also suffering from carpal tunnel syndrome. She discussed the program with her doctor, who was optimistic that she could perform the work required, although he also cautioned that they needed to “keep in mind that they didn’t know what would happen with the hand”. The doctor’s note she provided to the College in September 2005 states that “Lisa may not be able to met (sic) the requirements for typing due to a medical condition. She should be exempted from this part of her program but should be able to met (sic) all other requirements.”
10The applicant started school on August 27, 2005. Very early in the first term, on September 2, 2005, the applicant met with Alison West-Armstrong, a counsellor at the Centre for Students with Disabilities (“CSD”), and with Professor Monique Cochrane, the head of the program, to discuss her need for accommodation arising from her disabled hand. The applicant testified that she was asked numerous questions about her hand and about how she was handling this disability emotionally, with the meeting lasting close to an hour. Ms. West-Armstrong completed an Individual Student Plan (“ISP”) for the applicant, which set out various accommodations to which she would be entitled. The College provided the applicant with a laptop, headset, wheeled case, and various software, including a voice recognition program, through a Bursary for Students with Disabilities, and arranged for her to be trained on this equipment.
11All parties agree that Worthington did quite well in her first semester as a student in the program. She used the college-provided computer in all of her classes and to do homework, utilizing the voice-recognition software which she trained to recognize her voice. She agreed that she became very proficient with this software, and that it worked well, permitting her to “type” as quickly and accurately as other students. The applicant acknowledged that her weakness was math, which was not a large component of the program in the first term; she testified that she was worried about taking accounting in the second semester in advance of starting that course. The applicant points to her successes in the first semester at the College as proof that “she could work at the level required to succeed in her program of study”. The College responds that the applicant’s success in the first term reflects only that she was not facing as many challenges at that time – both in terms of the course of study, and in terms of her health – and also demonstrates that the accommodations provided by the College were succeeding.
12Beginning in the late fall of 2005, the applicant’s hand started to become much more painful. The mass on her hand continued to grow and the carpal tunnel syndrome was worsening, requiring her to schedule two surgeries for early 2006. She knew by the end of the first term that these surgeries would be required, and she expressed worry about the time she would miss because of them, as well as their likely outcome. She discussed the need for these procedures with two professors, Sandra Marchant and Monique Cochrane, as well as Alison West-Armstrong. They all expressed concern about the amount of time she would miss, along with the impact her rehabilitation would have on her ability to keep up with the program. Cochrane went so far as to suggest that she might want to withdraw from the program and then apply for readmission after she had recovered, as she was concerned about the impact these events would have on the applicant’s performance and therefore her academic record.
13In her direct evidence the applicant suggested that Sandra Marchant, and to some extent West-Armstrong, encouraged her to stay in school despite the upcoming surgeries and told her that she didn’t have “to worry about that at all, accommodations will be made”, although she did say that Professor Cochrane was concerned about her missing so much time and “wasn’t quite receptive”. I do not find that the College made any specific representation to the applicant that she did not have to worry in any way about the effect that these surgeries, and her resulting absences, would have on her performance in the program, or that absolutely any problem could be accommodated; rather, her instructors and the disability officer, while continuing to offer to explore appropriate accommodations, expressed some concern about these developments, and in particular about the effect that missing a considerable amount of instructional time might have on her performance in the program.
14At the beginning of the second term, on January 6, 2006, Ms. West-Armstrong assisted the applicant to apply for and receive a second bursary, which provided funds to purchase a digital recorder, and paid for 46 hours of peer tutoring in accounting, and for 36 hours of scribing. These additional accommodations were provided due to the applicant’s advice that her medical condition was worsening, although the applicant was not required to provide additional medical evidence. They were reflected on a revised ISP.
15The applicant had two surgeries in February 2006: the first surgery, to treat the carpal tunnel syndrome, was on February 5, and seemed to immediately relieve the symptoms related to that problem. The second surgery to remove a tumour on her right hand was done on February 22, but was not as successful, as there was some nerve damage to the hand, and it continued to be painful.
16Faculty at the College were part of a province-wide community college strike beginning in early March 2006. The applicant alleges that the effect of the strike had a disparate impact upon her as it was harder for her to keep up after classes began in late March. While students were able to go in to the school to work in the computer labs and library, they were unable to get help from faculty, which the applicant said was a particular problem for her. Then, when classes began again, the remainder of the term was compressed in order to permit it to finish on time. According to the applicant, that was worse for her as she was already having a hard time keeping up.
17Many of the allegations made by the applicant relate to Professor Monique Cochrane, who taught her Applications II and Accounting in the second semester, and who was the head of the program. She claims that Professor Cochrane’s attitude towards her deteriorated in the second semester, and that she felt her professor found her to be a “nuisance that complicated her life” and “was not interested in any accommodation that required effort on her part”.
18The specific allegations relating to Professor Cochrane include the following: (1) she refused to accept voice files from the applicant for accounting assignments; (2) she required the applicant to leave the classroom and instead work in the library during timed typing tests; and (3) she failed to provide any accommodation when the applicant’s computer broke down just prior to a final exam.
19That latter allegation is also brought against the Dean of the program, Joan MacCartney, from whom the applicant sought assistance after speaking to Professor Cochrane about the computer breakdown.
20There were several smaller allegations made more generally against the College – in the sense that it is not clear who is alleged to have refused the accommodations sought: (1) the applicant was provided a scribe to assist with work but was on one occasion not provided promptly with a scribe to do manual filing for an exam; and (2) the applicant did not receive the Wordperfect software she required for a course in the second semester in a timely fashion.
21More generally, it is alleged that these actions on the part of the College and its employees prevented the applicant from succeeding in the program, resulting in her withdrawing from one course, failing another, otherwise getting poor grades, and eventually withdrawing entirely from the program prior to the end of the third term.
22Each of these allegations will be considered in turn.
Requirement To Do Timed Typing Tests Outside Of The Classroom
23During the first semester the applicant, along with all other students in the Applications I class, was required to do timed typing tests. She would use her voice recognition software to do these tests, speaking quietly into her microphone in order to produce the required text. Professor Cochrane reorganized the seating in the classroom so that the applicant was sitting at the back and side, as far away as possible from other students, and there is no claim that this procedure was disruptive of other students or of the learning environment.
24At some point during the second semester, two other students in the Applications II class began using voice recognition software. According to Professor Cochrane, this resulted in several other students complaining that the sound of their classmates speaking into their microphones was disruptive during timed typing tests. This resulted in her asking all students using voice recognition software, including the applicant, to do their tests in the library. The applicant first testified that she was asked to leave the classroom beginning after the end of the strike in March 2006; she later said that it was after her surgeries but before the strike. She also disagreed that the other two students were asked to leave at the same time, and said that one student was never asked to leave, although she at other points in her testimony (and in the application) suggested that the request from Professor Cochrane was triggered by other students beginning to use voice recognition software.
25The applicant disputes that there was any problem with noise in the classroom caused by the use of voice recognition software, or at least that any noise was caused by her. She also disputes the claim of Professor Cochrane that other students complained about noise, although she admits that she does not know for certain that no one did. Two witnesses called to testify by the applicant, who were classmates at this time, did not recall there being any problem with noise, and were also not aware of any complaints having been made.
26The applicant also disputed that the requirement that she work in the library was only during timed typing tests. In a statement of additional facts filed with the Tribunal, the applicant states that “at first Ms. Worthington was made to leave only during timed typing tests, but this time away from the classroom soon increased”. In direct examination she said that the Professor asked her to leave the classroom whenever she used voice recognition software, which, according to her description of how she used that software, would have been much of the time – indeed, at one point in her testimony she said that it “got up to the point that I would miss whole classes”. Professor Cochrane denies having instructed Worthington to leave the classroom for any reason other than during the timed typing tests.
27Finally, there was a dispute about whether there was another, quieter location to which the applicant and other students using voice recognition software could have been sent during timed typing tests. Much evidence was heard about a small room adjacent to the classroom used for this class, which was described as a “computer lab” or as “room 10”. According to the applicant, this would have been a much better location for the completion of these tests: it was closer, smaller and quieter, and more private. However, Professor Cochrane, and other staff of the College, testified that the lab was not available generally for such a use, as it was supposed to be kept free for students to access to work on assignments, etc. As well, the lab would in their view have been less suitable for the completion of tests than the library, as students working in the lab are not required to work quietly as they are in the library, and may often be working collaboratively. The applicant did say that she was told that this room had to be booked in advance when she asked about it.
28The applicant complains about the decision of Professor Cochrane to require her to take timed typing tests in the library, claiming that it was discriminatory. She says that it took her a long time to pack up her computer and accessories, walk to the library, set up again, and then do her test. The applicant also says that it was noisy in the library, and that this problem did not improve even after she complained to the librarian and then to Professor Cochrane. She asserts that the noise was so bad that it would sometimes shut down her voice recognition program, requiring her to restart a test. By the time she finished her tests and then returned to class, she felt that she had been gone from the classroom a long time and had missed a lot of instruction time. She also felt singled out and mistreated by having to absent herself from the classroom.
29It is not disputed that the applicant did very well on the timed typing tests – during the second semester as well as the first semester when she was doing them in the classroom – so this complaint does not relate to her performance on this component of the course. While much evidence was heard about conditions in the library and whether it was really as noisy and distracting as the applicant complained, her performance on the tests confirms that, whatever impact the noise had, it did not affect her grades on these tasks. It is also not clear what instructional time the applicant missed as a result of the trips to the library – she was very unclear about this claim, and her evidence was different at different points in the case.
30It is also not clear that the applicant ever advised Professor Cochrane of her concerns about the library, or asked to be able to use the lab instead, other than one complaint about noise, which the teacher referred to the librarian, and a question about the use of the lab. Certainly she at no time advised Professor Cochrane or her counselor in CSD that the provision of voice recognition software by the College was being compromised by this arrangement, and that it was thus not a suitable or adequate accommodation to meet her needs.
31The applicant claims that her mark in Applications II, which was an F, was caused by the loss of instructional time which she attributed to the requirement that she go to the library. This claim is really not made out on the evidence. First, the applicant continued to get very good marks on timed typing tests even after being directed to do them in the library. Secondly, the applicant missed a great deal more time in the second term from the absences due to her surgeries than she did from any time spent in the library during the daily timed typing tests; she was absent for several days in January and virtually all of February. I find that the requirement to go to the library was an appropriate and reasonable part of the accommodation being provided to the applicant and, in particular, that it did not interfere with her equal opportunity to attain the same level of performance as others in Applications II.
Refusal To Accept Voice Files For Accounting Assignments
32The applicant testified that she had increasing difficulty in completing assignments in the accounting class which began in the second semester, as she could not use her voice recognition software to complete the ledger entries and other calculations she needed to record that work. She said that using a pen or pencil to write out these assignments became increasingly painful, and would take her an extremely long time because of the pain and the need to take frequent breaks. The applicant suggested that she was not allowed to have someone else write down the journal entries, as that would be considered “cheating”, and testified that the scribe she worked with at school told her that she was only permitted to work with her at school and could not therefore assist her with assignments completed at home. However, she admitted that she had not asked anyone for clarification of either of these presumed limitations, and in particular whether that was the kind of work the scribe hired to assist her might be assigned to do.
33The evidence about the applicant’s request for accommodation on the accounting assignments was confusing. At the beginning of the term she discussed her increasing problems with her hand with Alison West-Armstrong, and both peer tutoring and scribing were provided, in large part for accounting. The applicant did not follow up with Ms. West-Armstrong to report any difficulties with those arrangements or to request additional or different accommodations. When she missed a scheduled appointment at the CSD on March 31, 2006, West-Armstrong followed up with her by e-mail. The applicant responded that she would not be using her scribe anymore in accounting, as she had decided to drop the course. She wrote that her hand was deteriorating, advising that it was not healing well at all, that she was doing physiotherapy to “try and get my hand back”, and that “the doctors did not realize the damage done to my hand and I’m worried I may never fully get it back”.
34The first accounting assignment in this class was completed in March 2006, after the applicant’s surgeries in February. The applicant testified that she did not have any trouble with the concepts required to complete this work, despite her difficulties doing math, and asserted that she would not have had any difficulties in the accounting class had it not been for the problems with her hand.
35Jacqueline Ramsay was a classmate and friend of the applicant’s who worked with her on homework prior to being hired as a peer tutor at the beginning of 2006, which permitted her to be paid for the assistance she provided to the applicant, particularly in accounting. She testified that the applicant struggled with the concepts and the work in accounting, and that her assistance was important in permitting her to proceed in the course. However, she also expressed concern about the pain the applicant experienced doing journal entries manually, and felt that this made it much more difficult for her to succeed in the work. Ramsay was so worried about this that, in late March 2006, when the two classmates submitted their first accounting assignment, she wrote out a letter indicating that the applicant had a lot of pain when she did the accounting work and attached it when submitting her assignment to Professor Cochrane.
36The applicant also testified about the letter written by Ramsay, which she recalled came back with her assignment, with a check mark on it, presumably placed there by Professor Cochrane. She was not able to produce this document, saying that she could not find it.
37In addition to this advice to the professor that she was having trouble doing the work manually, the applicant testified that, after she struggled with the first accounting assignment, she asked Professor Cochrane, at the end of March, before the second assignment was distributed, whether she could record her accounting work on a voice recorder and submit the voice files. According to the applicant, the professor’s response was to say that she did not understand how that would work, and that she couldn’t do that, shrugging her shoulders. Ramsay testified that she witnessed the applicant asking her to accept voice files, and that this request was refused with no other option being suggested.
38Professor Cochrane did not dispute that she was approached by the applicant about the possibility of submitting accounting assignments by way of voice files, or that her response to this suggestion was a negative one. She acknowledged that she did not see how this could work, and that she told Worthington that. Cochrane explained how difficult it would be for the accounting work to be recorded orally, without items being placed on an appropriate form, and how difficult it would be to evaluate work done in that way.
39The applicant testified that, after the end of the strike, she realized that she would not be able to keep up in accounting given how long it had taken her to do the first assignment, and so she withdrew from the accounting course on April 3, 2006. She claimed that, when she told Professor Cochrane of her decision, she said that she thought the applicant had “bitten off more than [she] could chew”.
40The applicant now claims that Professor Cochrane’s refusal to accept voice files was the cause of her difficulties in accounting, and of her decision to withdraw from the course. As with the claim about the impact of Professor Cochrane’s request that she do timed typing tests in the library, this was not made out on the evidence, which established other reasons for her problems in the course. First, the applicant struggled in the introductory math course in the first term, acknowledged that she was apprehensive about taking accounting in the second, and her friend and peer tutor admitted that the concepts and work were difficult for her. Secondly, Worthington missed a great deal of time in the course due to her surgeries, which I find impacted on her performance given that the course was difficult for her; she acknowledged the impact of her absences in her e-mail to Alison West-Armstrong advising that she was withdrawing from the course on April 3, 2006. Given the nature of the request, and the way in which it was made, I find her professor’s rejection of the suggestion that she provide work in a voice file was appropriate and reasonable, and did not interfere with her equal opportunity to attain the same level of performance as others in accounting. The issue of whether or not Professor Cochrane’s refusal to allow the applicant to submit voice files amounted to either a procedural or substantive violation of the respondent’s duty to accommodate is addressed in more detail in the analysis section, below.
Failure To Accommodate Computer Breakdown Prior To Exam
41The applicant testified that the day before a final exam in April 2006, her laptop computer crashed. In the statement of additional facts the applicant claimed that “her file records that were critical to her voice recognition software working properly were corrupted and lost. Ms. Worthington ended up with an “F” in Applications 2.” In direct testimony the applicant claimed that the computer crash had come before the exam for Executive Administration I, but it appears from various documents, and following cross-examination of Worthington, that the exam in question was in neither of these courses, but in Document Production II.
42The applicant spoke to a number of College officials about this problem, and was referred to the information technology department at the College main campus in Ottawa. She was provided with assistance over the phone, but was unable to fix the problem. The applicant was told she would have to send the computer in to be repaired, which would take weeks.
43The applicant was very concerned about the loss of her laptop, as it contained her voice recognition software, and in particular the voice files which she had created in order to train the software to recognize her voice.
44When she was unable to get her computer fixed while at school that day, the applicant went to speak to Professor Marchant. According to the applicant, Professor Marchant told her to go see Professor Cochrane, and Cochrane said that “it was not her problem” and that she should go to see the Dean.
45However, later in her testimony the applicant said that Professor Cochrane had said that she could use a computer in another room that had voice recognition software on it. She explained in her testimony that she did not think that would work very well, as the software would not have her voice files on it and would therefore not recognize her voice. While she could have worked on another computer with voice recognition software, both to prepare for and to do the exam, this would have required her to retrain that computer. There was a dispute over how long this would take. A different version of this conversation was presented by the applicant in the witness statement for Jacqueline Ramsay, which says that “when she raised the problem with Professor Cochrane she was told to get a scribe…all scribes were already booked up. No other suggestions were made….” In her testimony Ramsay did not repeat this claim and instead echoed Worthington’s claim that Cochrane had nothing to offer.
46The applicant then went to speak to the Dean of the program, Joan MacCartney. She was given an immediate appointment, and told her about the problem with her computer. According to the applicant, the Dean’s “only response was that Ms. Worthington could start the exam scheduled for 9 a.m. the next morning 30 minutes later than anyone else”. Ramsay corroborated that claim, saying that she had attended at the Dean’s office with Worthington and heard this response, although there were inconsistencies between her and the applicant’s recollection of the meeting, including how they came to meet with the Dean, who was in the room, and other details.
47The Dean disputed this version of events. She testified that, when the applicant came to see her about her computer crashing, she advised that the College’s computer technician would look at the computer and try to assist. The Dean also claimed that she told the applicant that, if the computer could not be fixed, the College would make appropriate arrangements to reschedule her writing the exam. The Dean did not recall any other student being present during this conversation. She testified that she did not hear further from the applicant, but later inquired of Professor Cochrane about what had happened and was told that the applicant’s laptop was working and she had been able to complete the exam.
48The evidence of the applicant and the respondent in terms of the accommodation offered with respect to the applicant’s computer failure is contradictory. I must determine, on the balance of probabilities, which version of events is more credible. In assessing credibility, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:
(…) 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 demeanor 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. [Emphasis added]
49The respondent’s witness, Ms. MacCartney, provided testimony that was forthright, straightforward, and consistent. I have no reason to doubt its credibility. The College had provided various forms of accommodation to meet the applicant’s needs, including delaying evaluation tasks. The Dean’s testimony that she presented two options to the applicant to resolve, or if need be accommodate, the applicant’s problem with her computer is consistent with the extent to which the College had previously been willing to provide accommodations. It is also consistent with what the applicant ultimately admitted was the response of Professor Cochrane to her problem with the computer, which was to offer an accommodation (the use of another computer with voice-recognition software).
50By contrast, I had concerns with the applicant’s evidence and the evidence of her witness. Particularly with respect to the alleged discussions with Professor Cochrane, I found there to be inconsistencies and shifting submissions by the applicant and her witness. In my view these inconsistencies undermine the credibility of the applicant’s version of events relating to the computer failure.
51As well, the applicant failed to establish on the evidence that the difficulties with her computer were a factor in her failure in Document Production II. The applicant testified that she stayed up much of the night and managed to get her computer system working. She attended at the exam, wrote it, and passed it, with a mark just over 50%. Worthington admitted that she found this course challenging, and struggled with the software students were required to use, and with relevant concepts. She testified that she thought that her mark went down after the exam, which was worth 30%, but wasn’t sure; in fact, the applicant had failed all of the assignments completed prior to the exam (with marks of 5.8/15, 4.75/15 and 5.5/15), so her performance on the exam was much better than her previous efforts. And, as with the complaints reviewed above, the applicant expressed to her professor as early as February 1, 2006 that she was struggling with learning in the class due to the medication she was taking for her hand, and she was then absent for much of February.
52Regardless of the impact, on a balance of probabilities I find that the College did meet its obligation to provide accommodation to the point of undue hardship with respect to accommodating the applicant’s disability related needs arising from the temporary failure of her assistive computer. I have no doubt that the applicant felt that she was under considerable pressure to resolve the problem with her computer prior to her examination, and she made good faith efforts to do so. She admits that the College assisted her by providing technical support, and that Professor Cochrane also offered the use of another computer. On a balance of probabilities I think it is more likely than not that the Dean also offered to reschedule the examination should none of these efforts resolve the problem. In my view, it is more likely than not that the applicant made the good faith decision to write her examination after she was able to restore her computer. Although she may have subsequently regretted that decision, and whether or not the outcome of that decision ultimately affected her lack of success in the program, I find that the College did present her with options sufficient to meet its duty to accommodate.
Limited Provision Of Scribes
53The applicant was granted 36 hours of scribe assistance at the beginning of the second term. Alison West-Armstrong testified that she helped the applicant get a bursary to pay for this additional accommodation, as the applicant had advised her that her hand was increasingly painful and that she was having trouble writing in courses where she could not use the voice recognition software.
54The applicant complained in her testimony that she was told by Professor Cochrane that she would not be permitted to use a scribe to do manual filing for part of an exam in April 2006. In an e-mail to Alison West-Armstrong on April 27, 2006 the applicant discussed the filing test and indicated that she understood that she would be provided with a scribe to do the filing; her concern was that it would take time for her to explain to the scribe what needed to be done. West-Armstrong acted as a scribe for her during the test. On the basis of these facts, this allegation was not made out.
Failure To Provide Software In A Timely Fashion
55In the third semester, that began on May 1, 2006, the applicant was enrolled in a course called Executive Administration I. During this course the students began working on Wordperfect, in addition to Word which had been used throughout first term.
56The applicant claims to have spoken to her professor for that course, Sandra Marchant, on a weekly basis, to inquire about when this software would arrive. The statement of additional facts states that “the special software for her computer did not arrive until at least five weeks had passed out of a 12 week course. When the software did arrive she was buried in paper work to catch-up.” The applicant testified that she could not really do the work required for the course without this software.
57Alison West-Armstrong testified that she received an e-mail request for the Wordperfect software from the applicant on May 9, and that she completed a bursary application to pay for this software on May 10. This was approved and the software ordered on May 12, 2006. The software was received at the computer store at the College’s Ottawa campus 8 business days later, and sent to the Perth campus, arriving May 25, 2006.
58On May 26 Professor Marchant e-mailed Ms. West-Armstrong asking when the software would arrive, and asking whether there were other options available to the instructors. Ms. West-Armstrong testified that she did not otherwise hear from the applicant about this software, after her initial request. The applicant admitted in cross-examination that the software was indeed received at the end of May.
59On the basis of the evidence above I find that the applicant’s allegations of a five week delay in receiving assistive software are not made out. Further, I find that the respondents acted with due diligence in making arrangements to accommodate the applicant through the acquisition of the assistive software and that their actions fulfilled their duty to accommodate.
Applicant’s Withdrawal From The College
60The applicant stopped attending classes altogether as of June 27, 2006. At that time she was passing all of the courses in which she was enrolled for the third term. She did not withdraw formally from the program until July 2006, and did not appeal any of her grades from the second semester.
61Alison West-Armstrong testified that she first learned that the applicant had concerns about how she was being accommodated by the College, and in particular about her treatment by Professor Cochrane, on June 16, 2006, when the applicant e-mailed her. West-Armstrong sent several e-mails to Professor Cochrane about those concerns. The applicant withdrew from the program before she was able to follow up further.
62Professor Cochrane testified that she attempted to contact the applicant a number of times after receiving the e-mail from West-Armstrong about Worthington’s concerns, and was unable to reach her. She reported on these efforts to West-Armstrong, in an e-mail dated June 26, 2006.
63The applicant contacted West-Armstrong to ask about OSAP loan forgiveness a number of times in June and July, 2006, and then again in September 2006. In an e-mail dated July 28 the applicant advised that she was withdrawing from school, stating that she “hurt all the time”.
ANALYSIS & DECISION
The Duty to Accommodate
64The Supreme Court of Canada in Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (S.C.C.), [1992] 2 S.C.R. 970, explained, at para. 19, that “[w]hat constitutes reasonable measures with respect to the duty to accommodate is a question of fact and will vary with the circumstances of the case.”
65The respondent is not obliged to provide perfect accommodation. The onus is on the respondent to establish that it discharged its duty to accommodate the applicant to the point of undue hardship. I find that the Respondent has met that onus.
66The evidence establishes that the respondent met the procedural component of the duty to accommodate in that the respondent was aware of and actively pursued its obligations to the applicant. An experienced counselor met with the applicant to review her restrictions and needs immediately upon her enrollment in the program, and an individual education plan was devised to ensure that appropriate accommodation was delivered. The College also assisted the applicant to pursue the various benefits available to her, so that she would not incur any costs arising from the use of assistive devices. The counselor attempted to maintain contact with the applicant, and processed further requests for accommodation for her at the beginning of each of the 16-week terms. The applicant was well aware of how to contact her counselor, and understood the scope of her responsibilities. I find that the respondent had a fulsome and well-equipped program in place to meet its obligations to accommodate students with disabilities, and in the applicant’s case it diligently undertook its responsibility.
67The substantive component of the duty to accommodate requires me to assess the sufficiency of the respondent’s accommodation efforts and, if accommodation was not achieved, whether there were reasonable and valid reasons why those efforts failed to yield appropriate accommodation.
68With regards to the substantive component of the duty to accommodate, I find that the respondent has satisfied the onus to establish that it provided reasonable accommodation. First, it is clear that the College devotes considerable resources to providing support and accommodation to students with disabilities, by creating programs and staffing them with well-trained professionals. It demonstrates a strong commitment to equal access to education for all students regardless of disability and to the creation of an equal playing field where all can learn to the best of their abilities. The applicant was given full access to the many services provided by the College, including the support of a trained counselor whom she testified was extremely helpful. At several points during her time at the College the applicant wrote e-mails to her counselor and to her professors thanking them for their efforts to accommodate her and expressing satisfaction with the accommodations provided.
69Secondly, the College met, and indeed exceeded, the request for accommodation provided by the applicant’s physician. The only note ever provided by the applicant in support of her need for accommodation was a one-sentence statement by her family physician that she “may not be able to met (sic) the requirements for typing due to a medical condition. She should be exempted from this part of her program but should be able to met (sic) all other requirements.” It is important to note that the College did exactly what the applicant’s doctor recommended, by providing the applicant with assistive devices that would permit her to do no typing at all, through the use of voice recognition software. However, in addition to this accommodation, the College also provided other assistive devices, including a voice recorder, peer tutoring, scribing, and evaluation accommodations of various sorts. The College also tolerated a full month of absences when the applicant had surgery, and adjusted various expectations placed on other students during this period. The evidence established clearly that the College was prepared to go beyond what had been recommended by the applicant’s doctor, as long as the accommodation did not compromise academic standards. It also fully funded the assistance provided to Worthington, which included relatively expensive computer and other technical equipment.
70Thirdly, the very few limits that were imposed by the College on the requests that were made by the applicant, without supporting medical documentation, were justified. One of the applicant’s professors did require her to do timed typing tests outside of the main classroom. I cannot conclude that this decision was unreasonable, as I accept that it was based on concerns about the impact of noise on other students, and find that all students using voice-recognition software were treated the same. In addition, there is simply no clear evidence that the requirement to do timed typing in the library had a negative impact on Worthington’s performance in the class: certainly it did not compromise her success in timed typing, in which she excelled.
71Her professor also said that she would not accept accounting assignments through voice files. I accept the evidence of the College’s witnesses that it would have been very difficult for the accounting work to be properly recorded and evaluated through a voice file, and I conclude that this particular request was sufficiently unworkable that it would have amounted to undue hardship. However, the larger problem is that the applicant failed to take appropriate steps to raise with the College the problems she says that she was having in accounting, in order that possible accommodations could have been explored. Her request was not made formally, through the CSD, and she did not provide any details of exactly what problem she was facing with the accounting work and what exactly she was unable to do. She did not follow up when her brief suggestion, made in passing, was rejected by her professor. Worthington presumed, without asking, that she could not use a scribe to assist with the written work required to complete the accounting assignments, and she dropped the course almost immediately after submitting her first work, without explaining to anyone that she felt that she had to do so because of a lack of accommodation. Indeed, her only communication was to advise her counselor that she no longer needed scribing assistance as she had decided to drop accounting.
72The applicant’s response to the challenges she was facing in accounting is an example of another problem with her claim that the College failed to reasonably accommodate her. A person asking for accommodation also has obligations under the duty to accommodate. The Supreme Court of Canada held in Central Okanagan School District No. 23 v. Renaud, [1999] 2 S.C.R. 970, that the individual seeking accommodation has an obligation to cooperate in the identification and implementation of reasonable accommodation. In the case of Fisher v. York University, 2011 HRTO 1229, the Tribunal discusses the application of this obligation in a case alleging discrimination in the provision of services:
The duty to cooperate applies equally in the context of services for persons with disabilities and the requirements of the duty are determined contextually. The person with the disability in the least will have an obligation to disclose sufficient relevant information about her disability to permit the service provider to determine appropriate accommodation and to assist in the identification and implementation of the appropriate accommodation. If the service provider makes a reasonable proposal of a course of action intended to facilitate this process, the applicant has an obligation to participate to the extent necessary. The collaboration between the parties involved is an on-going process. The person with the disability may have to advise the service provider of difficulties which arise in order that the latter can deal with them appropriately.
73In the present case, the applicant failed in a number of important respects to treat the accommodation process as a collaborative one in which she was required to actively participate. When her hand deteriorated after only a few months in the program, resulting in the need for two surgical interventions and causing her additional problems, she did not get an updated medical note from her doctor, or seek his recommendations as to how her further restrictions might be accommodated (or whether his predication about her ability to succeed in the program was still valid). She also took no real steps to deal with the inevitable impact her lengthy absences to undergo surgery, and the period of rehabilitation which would follow, would have on her work in the program. One of her professors suggested that it might be a better idea for her to delay her continued work in the program given the significance of the health problems and interventions she was facing, but she chose instead to bear the consequences of the absences, which clearly had an impact on her performance. And, most significantly, she failed to stay in touch with her counselor from CSD when things started to go really wrong in the second term, in order to explore with her alternative or additional accommodations, or to complain to her about the alleged problems with her professors’ efforts. She also failed to deal promptly with her complaints through other channels, by appealing the grades she later claimed were a result of discrimination, or even by withdrawing in a timely fashion from courses she was struggling with. Ultimately she quit the program without making any effort to protect her investment in the program to date, exacerbating her losses and frustrating the possibility of any further accommodation.
74The problems which may be created where an applicant fails to remain in contact with those responsible for the process of accommodation, and with the authority to mandate reasonable accommodation, were highlighted in the Fisher v. York University case, supra at para. 52:
One of the dimensions of the Renaud duty to cooperate is that the person seeking accommodation must advise the appropriate persons of difficulties which arise with accommodation. The applicant did not do so in this case. She was aware of the LDP’s role as she talked to Dr. Wilchesky about her dissatisfaction with the accommodated conditions in which she wrote one of her Spanish tests. He intervened with the persons concerned to ensure that they correctly understood the conditions in which she was to write her examinations. She could have done the same thing with regards to the exam accommodation form. Dr. Wilchesky could not assist her with the problem until he was aware that there was a problem. His uncontradicted testimony was that she did not inform him of the problem until the beginning of December. It is not unduly onerous to require that the person with the disability advise the appropriate authority of any problems which arise in obtaining the recommended accommodation. Without this, it would be very difficult for a large bureaucracy to remedy situations which must inevitably arise.
75It is clear that a very similar problem was created in the present case by the applicant’s failure to contact her counselor in CSD when she felt that her professors were not adequately accommodating her, or to discuss her declining condition and increasing challenges in meeting the program requirements. It is possible that the CSD staff could have made helpful and appropriate suggestions, which might have met the applicant’s needs without compromising the academic and other concerns of her professors (which would have gone to whether or not some of her specific requests could have been provided without constituting undue hardship). The failure to do that in the present case seriously compromised the College’s ability to adjust the accommodations being provided to the applicant as her condition changed and she became aware of new challenges.
76In these circumstances, I find that the respondent did not violate the substantive aspect of the duty to accommodate under the Code.
77It was apparent from her testimony that the applicant firmly believes that she has been discriminated against because the respondent did not ensure that she succeeded in the Office Administration – Executive diploma program. The applicant’s frustration at her failure to complete the program is understandable, as she made a significant decision in attempting to retrain for a new career at that stage in her life, and her choice had a serious impact on her financial situation and her family responsibilities. The applicant’s success was compromised by various factors, many of which – like the deteriorating condition of her hand, the amount of time she had to take off to recover from two surgeries, and a labour disruption that was badly timed for her given those absences – she had no control over. However, the issue before me is not whether the applicant was successful in her program but whether the respondents discriminated against the applicant by failing to meet their duty to accommodate her disability related needs. The facts simply do not establish discriminatory conduct on the part of the College.
78The obligation of a service provider like the College is not to provide the perfect accommodation, but only reasonable ones. The measure of whether or not reasonable accommodation was provided cannot be the applicant’s success or failure in the program, as that would be to suggest that an educational institution must not just take reasonable steps to establish a level playing field for students with disabilities, in order to ensure their access to educational opportunities, but to ensure their ultimate success. That is too high a standard, and would ignore the other factors which contribute to, and detract from, student success.
CONCLUSION
79While I am sympathetic to the distress that the applicant understandably experienced as a result of her deteriorating physical condition during the period of her enrollment at the College, and her failure to complete the program, my examination of the evidence does not support a finding of a Code contravention by the College. Based on the totality of the evidence, I find that the respondent discharged its duty to accommodate the applicant to the point of undue hardship during the period from August 2005, when she enrolled at the College, to her withdrawal from the program in July 2006.
80The Application is dismissed.
Dated at Ottawa, this 10^th^ day of April, 2012.
“Signed by”
Pamela Chapman
Member