Liu v. Carleton University, 2013 HRTO 118

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Louise Liu Applicant

-and-

Carleton University Respondent

INTERIM DECISION

Adjudicator: Leslie Reaume Date: January 23, 2013 Citation: 2013 HRTO 118 Indexed as: Liu v. Carleton University

APPEARANCES

Louise Liu, Applicant Kate Sellar, Counsel

Carleton University, Respondent John Paul Zubec, Counsel

Introduction

1This is an Application filed under section 34 of Part IV 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.

2By Case Assessment Direction (“CAD”) dated June 19, 2012, the Tribunal granted the respondent’s Request and scheduled this matter for a Summary Hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure. The hearing took place by telephone on September 27, 2012.

3The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure. The issue in a summary hearing is whether the Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

4In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-10, the Tribunal observed that in some cases, the focus of the summary hearing will be on the legal analysis and whether the allegations could reasonably be considered to amount to a Code violation. In other cases, the focus will be on the applicant’s ability to point to evidence which is reasonably available which would demonstrate a link between the actions of the respondent and the prohibited grounds alleged by the applicant. The Tribunal also emphasized the importance of being attentive to the fact that in some cases of alleged discrimination, the respondent may be in possession of most or all of the evidence related to the applicant’s allegations and it may be appropriate to give the applicant the opportunity to acquire that evidence through disclosure and cross-examination of the respondent’s witnesses.

5As the Tribunal noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17, the Tribunal does not have the power to deal with general allegations of unfairness and that there must be a basis for the allegations beyond mere speculation.

ANALYSIS

6The applicant was given an opportunity to make submissions to assist the Tribunal in determining whether the Application should proceed. Counsel for the applicant assisted in making the allegations more clear than they initially appeared in the Application. Counsel for the respondent also made helpful submissions in support of dismissing the Application.

7The applicant was a student in the respondent’s Masters in Architectural Studies Program effective the fall of 2006. During her studies the applicant made several requests to extend the time for completing the academic requirements associated with her program. The requests were approved, the last of which required her to complete her program requirements by August 2010. The applicant did not complete her requirements by this date.

8On or about August 31, 2010, the applicant made her final request for an extension. The respondent requested a report on the progress of the applicant’s thesis by November 2, 2010 in order to consider her request. The applicant did not provide the report and on November 12, 2010, the respondent advised the applicant that she had exceeded the time limit for completing the program requirements and was ineligible to register in future terms. The letter also indicated that the applicant could appeal the decision in the event that there were extenuating circumstances which might explain her inability to meet the deadlines she had agreed to.

9The parties agree that to this point, the applicant had not advised the respondent that she was experiencing a disability.

10On December 15, 2010, the applicant wrote to the respondent seeking a review of the loss of her status which was set out in the letter of November 12, 2010. She asked for special consideration, in part because of health issues including a tumour in her thyroid for which she was seeking medical attention. On December 21, 2010, the applicant was advised that the original decision not to provide her with any further extensions would not be overturned and that she would be withdrawn from her program in good standing.

11The applicant alleges that once the respondent was provided with notice of her disability, which occurred on December 15, 2010, the respondent had an obligation to engage in a dialogue with her and provide her with suitable accommodation to complete her studies. Instead, the applicant alleges, she was formally withdrawn from her program.

12The applicant argues that it is irrelevant whether she has proof that she was suffering from a disability that affected her ability to meet the August 2010 deadline for completion of her program requirements. The respondent takes the opposite position, that the applicant must prove that she was suffering from a disability in August 2010 in order to advance a claim for accommodation against the respondent.

13The dispute in this case is whether and at what point the duty to accommodate arose. The applicant argues that she was not withdrawn from her program until December 21, 2010, after she indicated that she was suffering from a disability. She argues that it is irrelevant whether or not there is a link between her disability and her failure to meet the requirements of her final extension in August 2010. She argues that once she disclosed her disability, the respondent had a duty to engage in an accommodation dialogue, inquire about her needs and assist her in completing her studies.

14The respondent argues that the relationship between the applicant and the respondent was effectively severed at the point at which she failed to meet the academic requirements in August 2010. The respondent agrees that if, in the course of her appeal, the applicant had provided medical evidence to substantiate a link between her disability and her failure to meet the academic requirements in August 2010, the respondent’s duty to accommodate would be triggered notwithstanding that the disclosure of the disability occurred after August 2010. In other words, the respondent would have had a responsibility to take the applicant’s disability into consideration as part of the review process.

15However, the respondent argues that the applicant did not make such a link, and therefore, there was no obligation to inquire further into the issue of the applicant’s disability in the appeal process.

16Having reviewed the materials and considered the oral submissions of the parties I have concluded that this matter should move forward to a hearing where the presiding adjudicator can dispose of the Application on a final basis with the benefit of evidence. If I accept the applicant’s allegations, which I am required to do at this stage in the proceeding, that her relationship with the respondent was not finally severed until after she disclosed her disability, I cannot determine that the Application has no prospect of success. Accordingly, the Application will move on to the next stage in the hearing process.

17Pursuant to Rule 19A.6, I do not consider it necessary to provide further reasons for this Decision. This Interim Decision is not a final determination of the question whether the application has no reasonable prospect of success. That question may be raised by the respondent or the Tribunal itself if it is appropriate to do so at another stage in the proceeding.

Directions

18During the course of submissions the applicant was asked and declined to answer whether she has proof that she was suffering from a disability which she believes affected her ability to meet her August 2010 deadline. While the applicant regards this issue as irrelevant, it is relevant to respondent’s position and therefore subject to disclosure. The information is solely within the applicant’s knowledge and therefore the applicant is directed to provide particulars in relation to this issue within 15 days of the date of this Interim Decision.

19The parties have 14 days from the date of this Interim Decision to indicate to the Registrar whether or not they wish to participate in mediation. If the parties decline to participate in mediation, the matter will be scheduled for a hearing.

20I am not seized.