Gamache v. York University, 2013 HRTO 693

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Roberta Gamache

Applicant

-and-

York University

Respondent

DECISION ON REMEDY

Adjudicator: Mark Hart

Date: April 25, 2013

Citation: 2013 HRTO 693

Indexed as: Gamache v. York University

WRITTEN SUBMISSIONS

Roberta Gamache, Applicant

Self-represented

York University, Respondent

William C. McDowell and Joanna S. Rainbow, Counsel

1This is a Decision on Remedy further to the Tribunal’s Decision in this matter dated December 12, 2012 (2012 HRTO 2328).

2In the Decision, I 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. However, I further found that this failure did not materially affect her inability to successfully complete her practicum placements or course work in the program. Accordingly, I expressed my view that any personal remedy sought arising from the violation I 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 made no finding). Rather, I expressed my view that 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. I also indicated that any other remedy sought, including any remedy in relation to future practices, also would need to flow directly from the specific violation I had found.

3The parties were invited to make written submissions on the issue of remedy and to indicate whether any party believed that an oral hearing was required on the remedy issue, and if so to state their reasons for why they believe an oral hearing was required. No party has requested an oral hearing on the issue of remedy. Accordingly, I will proceed to make my determination based upon the party’s written submissions.

4In her submissions on remedy, the applicant has made a request for certain categories of specific compensation. First, she requests compensation for the cost of the York University program that she attended in the total amount of $16,481.00, plus interest on this amount. As I already have found that the respondent’s failure to provide reading materials to the applicant in accessible format in a timely manner did not materially affect her inability to successfully complete her practicum placements or course work in the program, such an award does not flow from the specific violation I found. In other words, my finding is that, even if the applicant had been provided with accessible reading materials in a timely manner, she still would not have been successful in completing the program due to her inability to successfully complete her practicum placements and course work, and so would have incurred the cost of the program in any event and would nonetheless have been unsuccessful. Accordingly, this request for specific compensation is denied.

5Second, the applicant requests specific compensation for the cost of a one-year Bachelor of Education consecutive program offered by Lakehead University at its Orillia campus, in the amount of $6,622.28, and her travel costs to attend this program, in the amount of $3,500.00. While this is framed by the applicant as a remedy as to future practices, this is not the type of remedy that properly would fall within the ambit of s. 45.2(1).3 of the Code, which is directed towards orders to promote compliance with the Code. Rather, it seems to me that this request for remedy is more properly framed as a request for monetary compensation for loss arising from the infringement pursuant to s. 45.2(1).1 of the Code.

6While not explicitly stated in the applicant’s submissions, my understanding of the basis for this request is that, as the applicant was unable to successfully complete the respondent’s Bachelor of Education program, the respondent should be required to pay to her the cost of her obtaining this degree from another post-secondary institution. Once again, for the same reasons as already stated above, this is not a remedy that flows from the violation of the Code I have found, given my finding that the applicant would have been unsuccessful in the program in any event.

7Finally, the applicant claims her medical expenses for medication in the amount of $140 per month for a period of six years, which presumably dates back to the time that she attended the York University program in the 2005/06 academic year. While the applicant has submitted some receipts regarding her medication costs in January 2013, she has not submitted a medical report supporting that these medication costs are specifically attributable to the respondent’s failure to provide her with reading materials in accessible format in a timely manner in the fall of 2005.

8The medical evidence before me includes a letter from Dr. Dickson dated January 17, 2006 stating that the applicant had been recently diagnosed with anxiety and depression and had been receiving treatment for this since November 25, 2005. Dr. Dickson states in this letter 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”. I note that the date of November 25, 2005 is after the point at which reading materials had been provided to the applicant in accessible format. More proximate to the date when Dr. Dickson states that the applicant began receiving treatment for anxiety and depression is the applicant’s removal from her first practicum on November 16, 2005, which I have found was not in violation of the Code.

9The medical evidence also includes a letter from the applicant’s psychiatrist, who began seeing her in November 2006 for the treatment of depression and anxiety. In this letter, Dr. Duff states that: “These symptoms emerged following her traumatic experience during her Teacher’s College training at York University, Georgian Barrie Campus in the academic year 2005/6. She felt discriminated against particularly by [J.H.] and [J.B.] who were the two senior instructors for the program. They failed to provide adequate accommodation for her visual impairment.” I note that I did not make any findings as against the two instructors identified by Dr. Duff, and specifically did not find that either of them discriminated against the applicant or failed to provide appropriate accommodation for her. Dr. Duff’s letter goes on to outline her understanding of the applicant’s experience in the program as told to her by the applicant, much of which formed the basis of the allegations before me that I found to be unsubstantiated. While Dr. Duff’s letter does make passing reference to the failure of the applicant to receive her reading materials in an accessible format in a timely manner, this is a relatively minor part of the applicant’s narrative as set out by Dr. Duff and is not specifically identified as an independent or even significant or material cause of the depression and anxiety for which the applicant was being treated.

10Accordingly, based on the medical evidence before me, I find that this evidence does not support that the applicant’s failure to receive her reading materials in a timely fashion was a significant or material cause of her depression and anxiety, as opposed to other issues such as the general stress of the program, her removal from the first practicum, and her perception of how she was being treated by her instructors. As a result, I find that there is insufficient evidence before me to establish a sufficient link between the specific finding of a Code violation that I have made and the applicant’s depression and anxiety so as to support her claim for her medication expenses. This claim is denied.

11This leaves the applicant’s claim for compensation for injury to dignity, feelings and self-respect. The applicant did not seek a specific amount of compensation for injury to dignity, feelings and self-respect in her submissions on remedy, though in her Application she claimed total financial compensation of $100,000 which was inclusive of a claim arising from “lack of equal services”. Subject to its submission that the applicant’s conduct in relation to the hearing of this matter should disentitle her to any award of compensation, which is addressed below, the respondent’s position is that an award of compensation for injury to dignity, feelings and self-respect in the amount of $2,500 would be appropriate in the circumstances.

12The Tribunal’s jurisprudence primarily applies two criteria in evaluating the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination. The first criterion recognizes that injury to dignity, feelings, and self-respect is generally more serious depending, objectively, upon what occurred. The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious: see Arunachalam v. Best Buy Canada, 2010 HRTO 1880.

13As I found in the Decision, the evidence before me, as supported by e-mails sent by J.B. at the relevant time, indicates that the applicant was feeling stressed and overwhelmed at not having her required readings in a timely manner. As a result, the applicant was spending a considerable amount of time and effort scanning these materials herself, which required being at the Georgian College facilities until such hours as 10:30 p.m. or 12:30 a.m. While I have found that the delay in receiving materials in accessible format did not materially contribute to the applicant’s inability to successfully complete the program, it is nonetheless clear from the evidence that this delay imposed significant additional and unnecessary stress on the applicant in what the respondent has acknowledged is already a particularly stressful program.

14The respondent submits that any award of compensation for injury to dignity, feelings and self-respect should be tempered by the fact that the delay in providing accessible materials was of limited duration, and in respect of a limited amount of material in the overall context of the program. The respondent further submits that the delay’s seriousness is mitigated by the unique factual circumstances in which the delay occurred, as well as the reality that the delay did not have a material impact on the applicant’s ability to successfully complete the program.

15I do not accept the respondent’s submission that the delay was of limited duration, particularly in the context of a one-year program. The applicant had met with respondent representatives in late May 2005 to identify her needs, including her need for materials in alternate format. While there was some initial confusion about who would be responsible for providing these materials, by as early as June 2005 it was clear that the applicant was looking to the respondent at least to provide material that already was in accessible format. Matters reached a crisis point by late September 2005, when Ms. Blaney intervened directly to express that she was very concerned that the applicant had not received her materials in accessible format and that the applicant was beginning to feel very overwhelmed. And yet even from that point forward, a further two months elapsed before the applicant finally received the required materials.

16In addition, while the applicant did receive other day-to-day readings in accessible format, I also do not accept the respondent’s submission that the delay related to only a limited amount of material in the overall context of the program. As stated in the Decision, these readings were set out in the respondent’s own course outlines as being required reading for these courses.

17With regard to the respondent’s submission about the unique factual circumstances in which the delay occurred, this submission appears to rest on two main points: first, that there was confusion as to the services that the applicant was looking to York University to provide; and second, that the respondent’s Library Accessibility Services was overwhelmed that year by requests for materials in alternate format. The former point already has been addressed above in the context of the respondent’s submissions about the limited duration of the delay. With regard to the latter point, and as already stated in the Decision, the responsibility rests with York University as a whole to ensure that required accommodations are provided to its students, and it is no answer to point to limited resources that were allocated by the University to a particular service it provided. As stated in the Decision, 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, received the accommodations they needed in a timely manner.

18I have reviewed the Tribunal’s case law as it relates to the assessment of compensation for injury to dignity, feelings and self-respect arising from a failure to accommodate the needs of a student with a disability by a post-secondary institution. In Brown v. Trebas Institute Ontario Inc., 2008 HRTO 10, the complainant was both legally and clinically blind. He sought to enrol in the MBA program offered by the respondent Institute. As a result of his disability, the complainant required specially outfitted computer equipment and written course materials in alternate format. The Tribunal found that the respondent in this case violated the Code by failing to take the appropriate steps to put the required accommodations in place in time for the complainant to enrol in the MBA program and by denying his request to defer his enrolment date in order to provide additional time to arrange this accommodation. The Tribunal awarded $12,500 as compensation to the complainant for the intrinsic value of the infringement of his rights.

19I appreciate that there is a significant distinction to be made here, in that as a result of the denial of appropriate accommodation, the complainant in the Brown case was denied the opportunity to attend the MBA program at all, whereas in the instant case, the lack of timely accommodation did not prevent the applicant from attending the program and, I have found, did not materially impact her failure to successfully complete the program. Further, in the Brown case, the required accommodations were not provided at all, whereas in the instant case, the reading materials were eventually provided to the applicant.

20At the same time, in my view, the amount of compensation awarded in the Brown case needs to be considered by me as at least a guideline or benchmark for assessing this form of compensation, given that it relates directly to a failure by a post-secondary institution to accommodate the needs of a student with a visual impairment. Having considered the factors set out in Arunachalam, supra, the evidence before me and the factual circumstances and award made in the Brown case, it is my view that an appropriate award of compensation to the applicant for injury to her dignity, feelings and self-respect is $5,000.

21The respondent submits that the applicant should be denied an award of compensation for dignity, feelings and self-respect, or at least have this award reduced, on the basis that she engaged in misconduct in relation to the Tribunal’s hearing process. The respondent notes in its submissions on remedy that the kind of misconduct that has been found to disentitle an applicant to this type of damages includes fabricating witness statements, lying to the Tribunal, and other deliberate attempts to mislead the Tribunal: See Giguere v. Popeye Restaurant, 2008 HRTO 2; Nyonzima v. Idewyld Manor, 2011 HRTO 1517.

22The respondent further notes that these types of damages have been reduced in cases where false information had been submitted in an applicant’s pleadings: see Quattroci v. Boz Electric Supply, 2009 HRTO 1082. Further, the respondent submits that these damages must be assessed on the basis of the actual impact on the applicant, and not on the basis of exaggerated evidence regarding the extent of the offensive conduct and its impact on the applicant: See Koroll v. Automodular, 2011 HRTO 774.

23I do not find that the applicant engaged in the kind of conduct that would warrant the extreme sanction of denying her any compensation for the violation of her rights under the Code. The applicant did not fabricate witness statements or try to bribe a witness to provide false testimony, as the complainant had done in Giguere. What she did was submit a doctor’s report that appears to have been based on an earlier draft under discussion between herself and her psychiatrist, and scribbled on the signature line in a way that would indicate to a reasonable person that this was a final report. This was rectified by a letter from the applicant’s psychiatrist, who wrote to the Tribunal to indicate that the previous draft was not authorized by her and to provide a corrected version of the report. While I found that this conduct by the applicant, and her failure to acknowledge what she had done in cross-examination, was one of the factors that caused me to negatively assess her overall credibility, I do not find that it rises to the level of the circumstances in cases where the Tribunal has denied compensation due to applicant misconduct.

24Nonetheless, it is my view that the applicant’s conduct is worthy of at least some sanction. In Quattroci, above, an award of compensation for injury to dignity, feelings and self-respect was reduced by $1,500 on the basis that the applicant had submitted false information in his pleadings. The Tribunal held that the misconduct in that case was less serious than in Giguere, but more serious than a negative credibility finding. I find the same here. The applicant did attempt to mislead the Tribunal and the respondent about the psychiatrist’s report, and was not prepared to acknowledge or own up to her misconduct at the hearing. In my view, this is worthy of sanction, and I find that a reduction in the award in the amount of $1,500 is appropriate in the circumstances. As a result, the award of compensation for injury to dignity, feelings and self-respect is reduced from $5,000 to $3,500.

25Finally, with regard to the respondent’s submission that I need to assess compensation on the basis of the actual harm to the applicant, as opposed to exaggerated claims of impact, while I generally found that the applicant had a tendency to overstate, amplify or exaggerate her allegations and made an overall negative finding of credibility against her, the difference in the context of my assessment of the impact of the violation I have found is that the applicant’s evidence is supported by the contemporaneous e-mails from Ms. Blaney, which refer to the applicant being stressed and overwhelmed and express serious concern about the delay.

26Before concluding this Decision, I note that the applicant in her submissions on remedy has not requested an order to promote compliance with the Code pursuant to s. 45.2(1).3 of the Code. Nonetheless, I have considered whether such an order is appropriate in the circumstances, in accordance with my authority under s. 45.2(2)(b). The respondent is a sophisticated post-secondary institution, which has extensive policies and programs to assist students with disabilities. I was impressed particularly by the commitment and dedication to this task that was displayed by Ms. Schwartz in her evidence. I also heard evidence, which was not disputed, that the respondent’s Library Accessibility Services is currently much better equipped to handle the requests it receives, both in terms of staff resources and systems for the delivery of alternate format materials. Accordingly, in light of the fact that the violation of the Code that I found in this proceeding dates back some seven and a half years at this point, it is my view that no such order is required or appropriate in the circumstances.

ORDER

27For all of the above reasons, I make the following order:

a. The respondent shall pay to the applicant the sum of $3,500 as compensation for injury to dignity, feelings and self-respect, with post-judgment interest at a rate of 3.0% annually on any amount unpaid more than 30 days from the date of this Decision.