Jason Tang v. McMaster University, 2014 HRTO 92

Human Rights Tribunal of Ontario

B E T W E E N:

Jason Tang

Applicant

-and-

McMaster University;

Faculty of Health Sciences, McMaster University;

Centre for Student Development, McMaster University;

Medical Sciences Graduate Program, McMaster University

Respondents

DECISION

Adjudicator: Ruth Carey

Date: January 22, 2014

Citation: 2014 HRTO 92

Indexed as: Tang v. McMaster University

APPEARANCES

Jason Tang, Applicant

Laurie Letherin and Kerri Joffe, Counsel

McMaster University; Faculty of Health Sciences, McMaster University; Centre for Student Development, McMaster University; Medical Sciences Graduate Program, McMaster University, Respondents

George Avraam and Cherrine Chow, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services and facilities, and employment because of disability.

2The applicant was a graduate student at the respondent university. While enrolled in a Ph.D. program he suffered an injury which led to post-concussive syndrome. The Application alleges that the respondents breached the Code by failing to provide the applicant with appropriate accommodations for his disability, and by failing to ask for additional information in support of the applicant’s request for accommodation or inquire adequately into how they could meet his disability-related needs.

3The hearing of this application commenced on July 12, 2013, and continued on July 19, July 26, November 8, and November 29, 2013. After the applicant’s case was completed on November 29, 2013, the respondents requested that the Application be dismissed on the basis that there is no reasonable prospect of its success. This request was made on notice to both the Tribunal and the applicant. Both parties provided oral submissions and case law in support of their positions.

4Having considered the evidence of the applicant, the arguments of the parties and the authorities presented, I find that the Application has no reasonable prospect of success and it shall be dismissed accordingly. My reasons for coming to this conclusion are set out below.

FACTUAL BACKGROUND

5What follows is a summary of the factual allegations that support the basis of the applicant’s Application. I am cognizant of the fact that the Tribunal has heard no testimony from the respondents’ witnesses; this summary is based solely on the applicant’s testimony and that of his witness, and the documentary evidence filed by both parties. Therefore, the factual summary here may not be entirely accurate; but in the context of the respondents’ request that the Application be dismissed as having no reasonable prospect of success, it is necessary and appropriate to accept the applicant’s version of events as accurate without actually finding that to be the case.

6In September of 2000, the applicant started studying at the respondent university. He earned an honours bachelor degree and a master degree in science in kinesiology. In September of 2006, he entered the doctoral program in kinesiology. His supervisor was Dr. Stuart Phillips, who along with the applicant, testified at the hearing before me. After a year the applicant transferred to the Medical Sciences Graduate Program. Although that meant a change in faculty, the applicant’s supervisor and area of research did not change.

7The applicant enjoyed a sterling academic career and reputation. Dr. Phillips described him as being in the top 2% of students he had ever worked with. Until the summer of 2008 the only difficulty the applicant encountered was a period of clinical depression. He was successfully treated with medication for the depression and was slowly being tapered off of it when he experienced a sports-related injury.

8On July 15, 2008, the applicant was playing softball on campus when he was hit in the side of his head by a batted ball. Paramedics attended the field and initially suggested he did not need to go to the hospital but when the applicant stood up he felt dizzy so he was transported to the hospital. He was discharged shortly after, diagnosed with a concussion, prescribed over the counter pain relief, and told to take it easy for a few days. Over the months that followed the applicant was diagnosed with post-concussion syndrome, and then with mild traumatic acquired brain injury (“ABI”). The applicant states that the initial symptoms associated with his injury include dizziness, light headedness, nausea, light and noise sensitivity, and chronic migraines. He also states his symptoms worsen with stress and prolonged efforts requiring concentration. According to the applicant, most if not all of these symptoms continue to persist. In addition, the injury has led to a decrease in his ability to process and acquire new information and hold it in his working memory.

9At the time of the injury the applicant had completed the course work requirements for his doctoral degree and a significant portion of the research and writing for his thesis. To complete the degree he needed to do additional writing for his thesis, orally defend that thesis, and pass something called the comprehensive exam. The comprehensive exam lies at the heart of the dispute between the parties and the allegations in the Application.

10According to the evidence before me, it would appear that in the normal course of events doctoral students in the Medical Sciences Graduate Program start and complete the comprehensive exam in their second year of studies. It is supposed to be done no later than 24 months after a student starts their doctoral program. For the applicant this means that his comprehensive exam should have been completed by September, 2008.

11According to the applicant the start date for commencing his comprehensive exam was delayed for two reasons: the Medical Sciences Graduate Program was in the middle of switching formats for the exam so students were encouraged to delay starting it until the new format was in place; and the applicant had experiments in progress that could not be interrupted. As a result, the applicant’s plan, with the consent of his advisory committee, was to begin the comprehensive exam on August 11, 2008.

12Instead, on August 11, 2008, the applicant submitted a petition for special consideration asking for an extension of time with respect to the comprehensive examination. The petition was accompanied by a letter from a doctor with the respondent university’s Health Centre saying that because of the applicant’s concussion he is unable to write the comprehensive exam. The letter also indicates it is unclear how long the problem will last. The respondent Faculty of Health Sciences granted the applicant’s petition.

13In October of 2008 the applicant asked to be excused from his duties as a teaching assistant due to his ongoing medical issues and that request was granted. (In his role as a teaching assistant the applicant was an employee of the respondent university.)

14On March 27, 2009, the applicant filed a second petition for special consideration asking for a leave of absence from his studies so that he could focus on his recovery. This second petition was also granted and as a result the applicant did not pursue his studies for the period April 1, 2009, to August 30, 2009. The applicant returned to school in September of 2009.

15Also in September of 2009 the applicant underwent a two-day neuropsychological assessment that resulted in a report dated September 28, 2009. The report is important because it is the most comprehensive medical document that the applicant provided to the respondents about his disability and his disability-related needs. The section entitled Summary and Conclusions states in part:

Chief among [the applicant’s] complaints are diminished attentional and memory function, increased sensitivity to noise and light, recurrent emetic responses to environmental stimulation [nausea], significant loss of energy and stamina, as well as emotional regulation difficulties… [The applicant’s] current level of intellectual ability is within the Superior range… [He] demonstrated relative weaknesses in his cognitive profile consistent with subjective cognitive complaints… Specifically, initial acquisition of information presented verbally was lower than expected… Consistent with his superior intellect, most of his attentional abilities are up to par with the exception of sustained auditory attention. Particularly, under specific conditions where he is required to hold his attention while making mental manipulations/calculations in working memory, [the applicant] is disadvantaged over time. His information processing speed was also affected… In spite of these relative weaknesses, [the applicant] displays solid performance in areas of higher order reasoning abilities such as conceptual thinking, deductive and abstract reasoning. When in a non-competitive environment, these cognitive abilities serve him well. Overall, [the applicant’s] neuropsychological profile is impressive and likely reflects a combination of his innate capacity and the supportive nature of this type of assessment. In a more naturalistic setting, however, such as at school or at home, where multiple competing demands are present, his cognitive abilities will suffer and his ability to meet these challenges will be significantly affected.

16The Summary and Conclusions section then goes on to discuss the applicant’s psychological and emotional functioning and says he demonstrates significant depressive and somatic symptoms that are sequelae of the head injury, meaning a secondary consequence or result of it. The section then says:

From a neuropsychological perspective, his depressive symptoms have, in part, delayed recovery of any residual physical and cognitive symptoms [the applicant] is experiencing with respect to his concussive head injury. Personality features may also be contributory. Overall, the evidence presented here would support a significant alteration in [the applicant’s] life and likely represents a pervasive post concessional syndrome (PCS).

17The report ends with a series of six recommendations of which only two are relevant here. They read in part as follows:

[The applicant] would benefit from using specific compensatory cognitive techniques that draw on his strengths/intact abilities to compensate for his relative weaknesses. Moreover, in addition to reassurance and monitoring during the ongoing recovery process, emphasis on pacing and regulating activities in keeping with the degree of cognitive difficulty as well as promoting a gradual return to pre-morbid activities and preventing any factors (e.g., anxiety or worry) that could contribute to a vicious cycle of increased stress and PCS symptoms is advised.

[The applicant] would benefit from assistance in completing his graduate studies. As such, specific accommodations including extending time-lines for written assignments, allowing for written and hands-on research to be completed in chunks as opposed to all at one time may be of assistance to him…

18In August of 2009 the applicant registered for services from the Centre for Student Development (“CSD”). CSD assists students with disabilities to request accommodations for disability-related needs. It also provides the following to eligible disabled students: note takers; bursaries; assistive technology; and coaching in learning strategies. The applicant’s purpose in seeking services at the time was to assist him in dealing with the changes in his cognitive abilities. During the fall term of 2009 and early in the winter of 2010 the applicant received helpful coaching in learning strategies and mapping software. He continued the work which he had been doing after his injury but prior to his leave of absence; namely, preparing manuscripts for publication. The applicant did not need any accommodations to do this work as his supervisor was content to let him work at his own pace, so the applicant did not request assistance from CSD with respect to accommodation of his disability at this time.

19In February of 2010, the Office of the Associate Dean of Graduate Studies in Health Sciences started inquiring about a timeline for the applicant to complete his comprehensive exam. The applicant spoke with his supervisor, Dr. Phillips, who in turn discussed the matter with Dr. Martin Stampfli, then the Assistant Dean of the Medical Sciences Graduate Program. Following a meeting between them on February 18, 2010, Dr. Stampfli wrote to Dr. Phillips. His e-mail says the applicant is strongly encouraged to contact CSD for advice on how to proceed and should submit another petition for special consideration to further extend the deadline for completion of the comprehensive examination. He concludes by acknowledging that the exam procedures might have to be customized based on recommendations from CSD and/or the applicant’s doctors.

20As a result, on March 12, 2010, the applicant filed a third petition for special consideration again asking that the comprehensive exam be delayed due to ongoing cognitive difficulties related to his post-concussion syndrome. This third petition was also granted. In support of this petition the applicant released to the Medical Sciences Graduate Program the September 28, 2009 neuropsychological report discussed above. He also had his doctor from the Head Injury Clinic at St. Michael’s Hospital in Toronto write to Dr. Stampfli directly. That letter is dated March 1, 2010, and says:

The following would greatly facilitate [the applicant’s] return to school and assist him in his recovery and rehabilitative process:

• Extra time to complete assignments

• Extra time to write exams

• Exams should be written separately from other students in a quiet room

• Access to classmate’s or teacher’s notes or a notetaker

• Frequent contact with teacher during planning stages of assignments to ensure that instructions are understood

• Written and hands on research should be completed in chunks as opposed to all at one time

• Access to any guidance or extra help services offered at the MacMaster [sic] Centre for Student Development.

It is important that [the applicant] be given the opportunity to gradually resume his normal activities, including schoolwork. Because of the physical and cognitive sequale [sic] associated with traumatic brain injury, I recommend that he be given the option of a part time course load and should it become necessary, be granted further permission to delay his comprehensive exams or drop courses as needed without financial or academic penalty.

21The applicant also had one of the authors of the September 28, 2009 neuropsychological report write directly to the Office of the Associate Dean of Graduate Studies in Health Sciences. His letter, dated March 5, 2010, notes some of the content of the report quoted above and says:

… a finer analysis of these findings supported additional burden on [the applicant’s] ability to sustain the same level of performance over time; that is, either he requires more effort to maintain the same level of ability or under prolonged engagement in a task/activity his performance deteriorates faster than expected.

… there are suggestions of lingering cognitive difficulties in the area of attention, which in more naturalistic conditions (e.g., home, school) is likely to impede his ability to sustain expected level of performance over prolonged period or he may require more effort/time to achieve the same outcome. Naturally, this will have an impact on his psychological well-being. A number of recommendations are made in the neuropsychological report that support academic accommodations, ongoing psychotherapeutic support, implementation of cognitive compensatory strategies, and abstaining from contact sports until he feels fully recovered.

22On March 17, 2010, the Office of the Associate Dean of Graduate Studies in Health Sciences informed the applicant the third petition for special consideration had been received and would be signed shortly. The e-mail was copied to Drs. Phillips and Stampfli and says:

One thing we may need to revise on the form… is that there is no expected date for completion of Comps exams. I think we need a date even if this then needs extending again later. I’ll let you know.

I also noticed that your doctor from St. Michael’s gives some other recommendations. Make sure you keep us and CSD in the loop if you need any additional help.

23In response to this e-mail Dr. Phillips wrote back on March 18, 2010, to the Office of the Associate Dean of Graduate Studies in Health Sciences saying:

We can add a date right now IF you NEED to have one, but it’s a guess at best. I will speak with [Dr. Stampfli] on his return on this topic, but I think we need to run [the applicant’s] case as something that is not the normal nuclear case and my impression is that CSD is not going to be much more than a rubber stamp on what any other professional recommends. So we can involve them or not, but they are not providing any insight here, just doing what they’re told!

24At this point in time the applicant did not seek assistance from CSD with respect to requesting accommodation. Rather, Drs. Phillips and Stampfli started discussing between themselves what accommodations might be put in place. On April 22, 2010, Dr. Phillips wrote an e-mail to Dr. Stampfli saying:

Coming up with a comp timeline for [the applicant] is like chasing a moving target. [The applicant’s] recovery from this injury is so unpredictable that to set any kind of deadline/timeline at this point is somewhat meaningless. Moreover, what if we do set a timeline and then don’t make it? [The applicant’s] condition is unpredictable and not showing any trend toward a progressive change/improvement so I am not sure how a timeline can be established? I have spoken with [the applicant] and talked about CSD, but even an accommodation would not, at least at this point, be helpful/useful since he can have 2 good days followed by 1 or 4 bad days. How does CSD predict that and what can they say? In short, without a consistent pattern of recovery at this point setting a timeline for comps is not possible.

25In reply, on April 23, 2010, Dr. Stampfli wrote to Dr. Phillips:

Taking your concerns into account, could you please design a COMP process that is doable for [the applicant]. This may include extra time, breaking the COMPs down in smaller manageable parts, additional faculty support, specific assigned reading etc. Take into account that [the applicant] may has [sic] 2 good days followed by a number of bad days as you outlined below. We can discuss this proposal in our next meeting.

26This e-mail from Dr. Stampfli was forwarded to the applicant who wrote to Dr. Phillips about it on April 26, 2010, saying:

… I don’t understand what Dr. Stampfli means in terms of “design a COMP process”… I feel like we would need some more guidance… Without better understanding of what is expected (e.g. key objectives of the exams) I don’t think we can design something that I can complete that would satisfy the degree requirements.

The current MedSci comp format, as well a[s] the ones used in Kin[esiology], are not things I feel I can accomplish at this time. The timed nature of the exercise coupled with the high cognitive demands of the task are not a recipe for success in my current condition…

27After discussing and exploring the issue further the applicant then suggested, with the support of Dr. Phillips, that the format of the comprehensive exam be changed. At that point in time the format adopted for the comprehensive exam in the Medical Sciences Graduate Program required students to produce a written manuscript in the format of a Canadian Institutes of Health Research (“CIHR”) style grant within five weeks, followed by an oral examination. The applicant and Dr. Phillips suggested to Dr. Stampfli that an appropriate way to accommodate the applicant’s disability was to use a different format for the exam; they specifically proposed the one then used in the biochemistry department as a starting point. The biochemistry format does not include a written component; the student presents an oral seminar that is followed by two rounds of oral questioning. Dr. Stampfli supported this suggestion and forwarded it to the Associate Dean of the Medical Sciences Graduate Program, Dr. Catherine Hayward.

28Through a series of e-mails and at least one meeting, Dr. Hayward conveyed to Dr. Stampfli that the format of the applicant’s comprehensive exam should remain as close as possible to the one in use in the Medical Sciences Graduate Program, and that accommodations in the form of alterations in timing and processing should be explored. This reply was a disappointment to the applicant and to Drs. Phillips and Stampfli. In response, the applicant decided to return to CSD to ask for help negotiating accommodations for his comprehensive exam, which he did in June of 2010.

29On June 23, 2010, CSD sent an e-mail to Drs. Stampfli and Phillips, copied to Dr. Hayward and the applicant asking for a meeting to discuss possible accommodations for the applicant taking the comprehensive exam. The e-mail says in part:

[The applicant] will require extra time to complete the comprehensive portion of the program as a disability-related accommodation; however, due to the nature of his disability, it is difficult to predict exactly how much time is needed. I am wondering if we could come up with a plan that would include specific reviews of his progress while doing his comprehensive, but would also allow him the time he needs?

30The applicant and CSD then exchanged a series of e-mails back and forth, the relevant portions of which read as follows:

CSD: My role is to ensure that the accommodations you need are identified in reference to your disability-related documentation, and it is the Faculty’s responsibility to implement the accommodations. For you, this is basically extra time… It would be helpful to understand why with extra time you could not meet the same requirements of the Medical Science Comprehensive exam.

The applicant: I agree that extra time would help me to meet the Medical sciences comprehensive exam requirements. However, there are two outstanding issues in my mind. First, exactly to what degree can a soft deadline be in place, with appropriate progress updates? ... Given the unpredictable nature of my recovery I simply cannot predict how long it would take to complete the assignment…

Second, what accommodations can be made to the oral examination component? Cognitive fatigue and difficulty with sustained attention are issues that I continue to find challenging, which concerns me as far as the prospects of a prolonged (i.e. several hours) oral examination. Can a time limit be placed on this portion of the exercise.

CSD: It is hard to speak to the flexibility of a soft deadline in the same way that it is heard to determine how much time you will need. That is why I suggested regular scheduled meetings with your Supervisor to review your progress. Usually, the Faculty tends to be flexible as long as they can see that the student is working diligently and progress is being made. Also breaking work into smaller chunks was one of the recommendations in your assessment. Perhaps the oral part can be broken-up to address fatigue as well.

The applicant: I appreciate what you are saying. My concern is that I do not want to initiate the comprehensive exams without a clear understanding of what has been agreed to.

CSD: Programs do have an end date by which everything must be completed. The process is to generate a contract… Even if we were able to negotiate unlimited time to do your comprehensive exam, there will be a date that the department specifies by which your program must be completed. We can specify breaks during the oral defense to deal with fatigue…

31In August of 2010 CSD provided the applicant with a first draft of language for an accommodation contract. The applicant suggested two changes to the draft:

… I don’t think we can put specific submission dates (such as April 30^th) that assume a September 1^st start date; instead, I think we should put down the number of weeks required (e.g. 32 weeks)…

Secondly, in regards to the oral exam, the program currently specifies for a period of 2 hours and 15 minutes for that component. I think I would be able to meet with all 3 examiners taking turns questioning in rounds (as is typical). I would propose however, that 15-30 minute rest breaks be permitted every 30-45 minutes to allow for fatigue.

32CSD incorporated these suggestions into the draft accommodation contract that was sent to the Medical Sciences Graduate Program on August 26, 2010, for comment and approval. Its e-mail says:

… these accommodations have been determined to best meet his disability related requirements to complete the Comprehensive Exam. There is documentation on file to support the granting of these conditions.

1. A Grant Proposal completion period of 32 weeks, with further extensions to be negotiated should [the applicant’s] progress be impeded by unforeseen health restrictions. Medical documentation to be provided upon request. Regular contact will be maintained by [the applicant] with his Supervisor… to permit monitoring of his progress.

2. Oral Exam: Given the nature of his disability, frequent breaks are required. It is recommended that a 15-30 minute break be provided every 30-45 minutes during the Oral exam.

[The applicant] will remain in regular contact with our Centre to follow up as necessary or to assist with any issues should they arise.

33On October 4, 2010, CSD informed the applicant that all of the affected parties had agreed to the draft contract terms. CSD delivered the formal contract to the applicant for signing by all parties. When the applicant did not return the signed agreement as expected, CSD wrote to him on November 8, 2010, asking him to do so. On November 9, 2010, the applicant wrote back as follows:

Sorry for the delay, I have been having a lot of health difficulties over the last month in relation to my acquired brain injury and have actually had to re-evaluate my academic situation.

… My health remains unpredictable day-to-day, and what has slowly become apparent to me is that the significant attentional and cognitive demands involved in PhD level work (even for only an hour or two at a time) causes me to experience disproportionate negative health consequences for several hours or even days afterwards.

The Medical Sciences Program states that the purpose of the comprehensive exams is to establish “that the doctoral student has acquired the intellectual skills and abilities appropriate for an individual embarking on a career as an independent scientist.” While I am extremely grateful for your time and effort in helping to find an approved accommodation for my comprehensive exam process, I feel that additional time ineffectively accommodates my disabilities and for that reason I will not be able to go forward with the exams at this time. This is very disappointing to me given my body of graduate work and current belief that I have the skills and abilities required to complete a PhD, although my capacity to [do] so in the manner “normally” prescribed has been uniquely hampered by my injury.

Perhaps even more disappointing, however, is that the program/faculty/ university was only willing to consider an accommodation of additional time rather than explore other ways in which the aims of the exam could be achieved. Indeed, after my meeting with Assistant Dean Stampfli, I was given the impression that some other evaluation process could be used to achieve the purpose of the comprehensive exam while actually supporting my rehabilitation and recovery – this was clearly not the case.

I have a meeting later this week with my advisor… to discuss the situation. Unfortunately, given the limited accommodation options it appears that I will have to petition for an extended leave of absence or withdrawal from the program.

34CSD wrote back encouraging the applicant not to give up on the accommodation process, suggesting further discussion, which the applicant agreed to. In an e-mail dated November 10, 2010, to CSD the applicant clarifies his concerns as follows:

I want to clarify that my health has not been getting worse…

… while additional time would certainly help with respect to my reduced work efficiency post-injury, additional time does not address the negative fallout that results from the substantial attentional and cognitive demands of PhD level writing such as the grant proposal for the comprehensive exams. I am certain that there would be some negative impact to my health regardless of the comp process/format; however, there is considerable difference in the health impact of an exercise that occurs over several hours vs. several weeks/months.

35CSD then wrote to Dr. Hayward suggesting that the two of them meet initially in private “to explore the limits of possible accommodations” to rule out unrealistic concessions without the applicant being present. It would appear that this suggested meeting did not take place. On the same date CSD sent out a second e-mail, this time to the applicant, Dr. Phillips, and to Dr. James Mahoney, who replaced Dr. Stampfli as Assistant Dean. The second e-mail stated the applicant has come to realise the accommodations in the draft contract are not sufficient; and asks for a meeting in order to discuss the essential components of the program as that would assist in exploring other options for accommodation.

36The materials produced by the parties include a number of e-mails between various faculty members exchanged during the latter part of November, 2010, the period during which CSD was attempting to arrange face-to-face discussions. Dr. Phillips’ e-mails explain his understanding of the applicant’s disability-related symptoms and needs and express his belief that changing the format of the comprehensive exam was not only a reasonable accommodation but a necessary one. On November 24, 2010, he wrote:

… a generous time extension would be much like asking someone with a spinal cord injury to climb a flight of stairs as being the absolute test to pass. Giving them more time to do it MIGHT allow them to do it, to drag themselves up the stairs, to bloody themselves doing it, and possibly to cause some serious harm in the process, but they might do it, they might not. Would we ask Stephen Hawking to defend a paper he had written by standing at the board and giving a lecture with a well amplified microphone?

37Dr. Hayward’s e-mails indicate that it was her position that the essential requirements of the comprehensive examination could not be waived, a suggestion to which Dr. Phillips took exception as the applicant had never suggested any of the requirements be waived, merely the format. Dr. Hayward suggested one alternative might be to use the format formerly used by Medical Sciences Graduate Program, which involved two shorter literature reviews done sequentially followed by oral examinations based on those reviews. She also suggested that the topics for the literature reviews be carefully selected so the number of publications the applicant would have to review would be reduced. She was also open to the idea that if the applicant felt he could not physically do the comprehensive exam with accommodations, or attempted it and failed, the respondents could award a master degree from the Medical Sciences Graduate Program based on the work he had done to date. CSD suggested speech to text software could be made available to the applicant.

38On November 25, 2010, CSD wrote to Dr. Hayward in response to the suggestion that the former format used by the Medical Sciences Graduate Program might be appropriate as follows:

It sounds like a realistic and acceptable accommodation… I feel the best way to move forward from this point would be for me to meet with [Dr. Phillips] to explore the requirements of the old process in light of [the applicant’s] abilities.

39On November 30, 2010, a meeting was held between CSD, Drs. Phillips and Mahoney, and Dr. Marc Hatton, who was attending in the place of Dr. Hayward. Dr. Phillips reported to the applicant afterwards that the meeting was a positive one but testified before me that he felt not much was accomplished in terms of persuading others that there was a problem with the format of the comprehensive exam.

40CSD continued to try and arrange a face-to-face meeting with all interested parties and eventually managed to do so on December 20, 2010. Prior to this meeting CSD also asked the applicant about the nature of his disability-related needs. In an e-mail dated December 13, 2010, CSD wrote:

My confusion regarding accommodations is arising from how best to meet your needs. I had thought I had a good understanding of how you were able to demonstrate your knowledge but I have found I had misunderstood. I had thought that while writing was difficult, it was still the preferred method… You will be expected to demonstrate your knowledge in some way so… how do you want to demonstrate your knowledge? ... Perhaps you could videotape your presentation…Should we discuss speech to text software? ...

As you can see I am wanting to explore all sorts of different options so that when we meet with [Dr.] Hayward, I can be viewing the essential requirements through the lens of accommodations and stating right from the start whether something is possible given your needs.

41On December 15, 2010, the applicant wrote back. His e-mail confirms that identifying his needs is a challenge, and states that while some of CSD’s suggestions would be useful in certain instances, without knowing the context of the examination he could not provide definitive answers. CSD replied saying as the applicant’s condition was still in transition, accommodation needs were evolving.

42At no time during this period did CSD ask for additional medical documentation nor did the applicant offer to or provide any.

43During the meeting of December 20, 2010, the applicant was definitively told the Medical Sciences Graduate Program was not prepared to change the requirement that the comprehensive exam consist of both a written and oral component, although the applicant was free to choose between the current CIHR style grant proposal format and the former one of two sequential literary reviews. The applicant was also told he could opt to take a master degree or request another leave of absence which would extend the deadline for completion of the comprehensive examination.

44Minutes of the meeting were provided by the parties. Both the applicant and his witness state the minutes are not accurate in that there are omissions and the tone of the meeting is not accurately conveyed. However, neither state that the options or accommodations discussed in the minutes were never offered to the applicant. The applicant was given the option of doing the comprehensive examination in either the current format or the former one. Possible accommodations include: additional time and/or break periods, splitting the exam into more manageable chunks and/or timeframes, allowing minor errors and/or removal of the page restriction, making accommodations to the timeline (for instance, adding breaks), breaking the written exam into smaller chunks, transcription of the written portion, and utilization of a scribe.

45The applicant was told that he had to decide what course of action he was going to take by January 7, 2011. He was also told that if he opted to begin the comprehensive exam with the accommodations discussed he needed to file another petition for special consideration to extend the deadline further and register and begin the exam on the regular commencement date of January 24, 2011.

46The applicant chose to do the comprehensive exam in the current format. On January 6, 2011, the applicant submitted another petition for special consideration indicating he was planning to do the comprehensive exam starting January 24, 2011. He then collected the additional signatures that were missing from the original accommodation contract that CSD had drafted in the fall of 2010 (as set out in paragraph 32 above) and returned the contract to CSD. He did not ask for the contract to be altered to include any of the additional types of accommodations discussed at the meeting held on December 20, 2010.

47On February 14, 2011, the applicant wrote his exam supervisor and CSD to update them on his progress with the written component of the comprehensive exam. His e-mail states that in three weeks he had only been able to review three publications, and that he found it very hard to sustain the work without exacerbating his post-concussion symptoms. CSD responded with suggestions such as reading out loud and tape recording, using cue cards, and creating a visual map. The applicant’s exam supervisor did not respond.

48On March 2, 2011, the applicant wrote to CSD saying:

I have been feeling very sick. My health status has gotten much worse with trying to do my comprehensive exam requirements. Continuing forward with this work is not sustainable with my long-term health in mind.

49On March 8, 2011, CSD responded offering additional support.

50The applicant did not ask for additional supports, an extension of the 32 weeks allotted for the written component of the comprehensive exam, or a leave of absence. He did not provide additional information. Rather, on March 14, 2011, the applicant submitted a request to withdraw from the respondent university. His request to withdraw states:

The academic accommodations I was granted for my comprehensive exams have not been effective for my CSD documented disability. As a result, I have struggled and endured significant distress and negative effects on my health while attempting to complete my comprehensive exams. Unfortunately, the impact this is having on my health has been so detrimental that I cannot continue. Having already spent 11 months (Feb.-Dec. 2010) attempting to obtain appropriate and effective accommodations that would mitigate the impact of the process on my health with little success, I believe that the only option remaining for me is to withdraw from my PhD studies.

51During his cross-examination the applicant made reference to his current medical condition. As a result, the respondents asked for additional disclosure of medical records which the applicant did not object to. Subsequently, the respondent filed some of the additional medical records with the Tribunal. None of those additional medical records relate to the late fall of 2010 or early 2011.

ANALYSIS

Mid-Hearing Requests re: “No Reasonable Prospect of Success”

52The Tribunal has a mandate to resolve claims of discrimination and harassment brought under the Code in a way that is fair, just and expeditious. Section 40 of the Code says:

The Tribunal shall dispose of applications made under this Part by adopting the procedures and practices provided for in its rules or otherwise available to the Tribunal which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications.

53As I explained at the hearing, in pursuit of this mandate the Tribunal will sometimes entertain or invite requests to dismiss an Application mid-way through the hearing of the evidence if it appears that there may be no reasonable prospect the Application will succeed. (See: Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 at para. 20.)

54The stage of the hearing at which this inquiry occurs can vary widely. In Pellerin, above, the Tribunal and the parties had agreed in advance that the respondent would testify first. This was because the primary evidentiary issue in dispute was whether or not the respondent’s non-discriminatory explanation for its actions was credible. After hearing the respondent’s evidence and canvassing the applicant for a full description of the evidence and arguments he intended to lead, the Tribunal directed the parties to make argument on the issue of whether or not the application had a reasonable prospect of success. In Bethune v. K.A.S. Personnel Services Inc., 2013 HRTO 1681, the issue was addressed at the beginning of the hearing. As is the case here, in Shajari v. Powerline Plus Ltd., 2012 HRTO 1934, and Marshall v. Dufferin-Peel Catholic District School Board, 2013 HRTO 256, the inquiry occurred after the applicant’s case was heard in full.

55The reason this issue of timing is important is because it is common in human rights cases for some of the evidence supporting the applicant’s claim to come from the respondent’s witnesses. For example, in cases like Pellerin, above, where a key issue is whether or not the applicant can establish his or her membership in a protected group is a factor in the conduct complained of, it may be premature to entertain the question of reasonable prospect of success without hearing the respondent’s evidence in full.

56This concern is addressed in Dabic v. Windsor Police Service, 2010 HRTO 1994 at para. 10, as follows:

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

57In the context of this Application the applicant argues dismissing the Application without hearing the respondents’ evidence is premature because the respondents’ witnesses are expected to provide evidence that may assist the applicant in establishing a breach of the Code occurred. This argument is addressed more fully below.

Allegations of Breach of the Code

58This Application relies on sections 1, 5(1), and 9 of the Code as follows:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of … disability.

Every person has a right to equal treatment with respect to employment without discrimination because of … disability.

No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

The Application with Respect to Employment

59The applicant’s part-time employment with the respondent university was as a tutor and a research assistant. There is no dispute between the parties that in the fall of 2008 the applicant asked to be excused from his duties as a teaching assistant, a request that was granted. There is also no dispute that after that the applicant worked as a research assistant for Dr. Phillips. The documentary record indicates that the applicant was also granted permission to exceed the normally allotted number of working hours as a research assistant and worked in the faculty of Nursing for a short period.

60No argument was made by the applicant at the hearing that the respondents breached the Code with respect to his employment. The only differential treatment in employment he experienced was at his own request; the only evidence before the Tribunal with respect to those requests is that the respondents granted them. Given that and the applicant’s failure to argue a breach of s. 5(1) at the hearing before me, I am satisfied that with respect to the allegation that the respondents discriminated against the applicant in employment, the Application has no reasonable prospect of success.

The Application with Respect to Educational Services

61There is no dispute that the educational programs delivered to the applicant by the respondents are services within the meaning of section 1 of the Code and that the applicant has a disability as defined in s. 10(1).

62Rather, the dispute between the parties involves whether or not the respondents breached the applicant’s right to access educational services without discrimination. The parties articulate this somewhat differently; namely, whether the respondents breached both the substantive and procedural component of the duty to accommodate by failing to provide the applicant with appropriate accommodations for his disability that would enable him to complete the comprehensive exam, and by failing to ask for additional information in support of the applicant’s request for accommodation or inquire adequately into how they could meet his disability-related needs.

63The starting point in the analysis with respect to questions concerning the duty to accommodate, however, is to identify the discriminatory conduct or impact complained of. I say this because under the Code the duty to accommodate is not a free standing right. (See for example: Baber v. York Region District School Board, 2011 HRTO 213; Matthews v. Chrysler Canada Inc., 2011 HRTO 1939; Preddie v. Saint Elizabeth Health Care, 2011 HRTO 2098; and J.O. v. London District Catholic School Board, 2012 HRTO 732.)

64The duty to accommodate arises solely in the context of discrimination, whether it occurs by differential treatment or adverse impact. (See: Baber, supra, at para. 90.) More specifically, it arises through the interpretation and application of ss. 11(2), 17(2) or 24(2) of the Code. (See: A.J.J. v. Toronto District School Board, 2013 HRTO 1189 at para. 18.)

65Although the applicant did not explicitly state in his submissions which of these three Code provisions he was relying on, by default I believe it to be s. 11. I say this because s. 24 is limited to special employment situations unlike the situation here, and s. 17 would apply only if the respondents were taking the position that the applicant’s disability means that he is incapable of fulfilling the essential requirements of the comprehensive exam, a position that they are not taking.

66Section 11 says:

11. (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

(3) The Tribunal or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship.

67The applicant alleges that the Medical Sciences Graduate Program’s requirement that he undertake and pass the comprehensive exam without all of the alterations in format and process that he requested results in a restriction or exclusion of persons like himself with post-concussion syndrome. Although he does not use the language of the Code, essentially he is asserting the requirement “excludes” him from successfully completing the comprehensive exam.

68The fundamental difficulty with the applicant’s proposition is the lack of objective evidence indicating that persons with post-concussion syndrome similar to his suffer adverse impacts related to their disability when undergoing something like the comprehensive exam with the accommodations provided but without the ones the applicant wanted.

69The respondents argue that the alterations in format and process of the comprehensive exam that the applicant wanted as accommodations are not justifiable based on the applicant’s disability-related symptoms and needs as documented in his medical records. This is a challenge to the applicant’s allegation of discrimination as it constitutes an assertion that there is no link between the applicant’s disability as described by his health professionals and the impacts he claims to have experienced while attempting the comprehensive exam.

70It is important to point out that everything that happened up to January 24, 2011, is not alleged to be a series of acts of discrimination. The process which the applicant and the respondents undertook was one designed to prevent discrimination from occurring when the applicant started his comprehensive exam. The key period here – with respect to the question did discrimination occur – is what happened from January 24, 2011, onwards.

71To be specific, the accommodations that the applicant appears to have wanted but did not receive are: the replacement of the written component of the exam with an oral one; in the scenario where a written component was required, no deadline with respect to completion of it; and, at least in his e-mail of November 10, 2010, to CSD, a process that would take place over hours rather than weeks or months.

72With respect to the written component of the exam, the respondents point out that nowhere in the medical records that were available to them at the time does it say that the applicant cannot produce a written manuscript or that doing written work will exacerbate his symptoms or otherwise cause him harm. The applicant does not dispute this. None of the applicant’s doctors testified or were proposed as witnesses and no medical reports written after the events in question were offered in support of that proposition.

73The September 28, 2009 neuropsychological report identifies difficulties the applicant experiences with processing auditory information, but not processing written information. It did however note a decrease in overall information processing speed that would apply to written work and difficulties maintaining attention while holding or manipulating information in working memory. But, and as the report recommended, the former deficit can be accommodated with additional time; the latter, compensated for by using different information acquiring and learning techniques. These were all provided to the applicant by the respondents. In fact all of the relevant accommodations identified in the applicant’s medical documents were offered or provided. The respondents also offered accommodations that were not justified by the medical documentation; namely, a scribe and speech to text software.

74Moreover, the applicant conceded in cross-examination that the work he had been doing after his injury towards his doctorate involved the production of manuscripts, and given unlimited time he could do the written component of the exam.

75This problem of lack of evidence connecting the applicant’s disability with the accommodations for the comprehensive exam process he sought is also true of the request that there be no deadline whatsoever to complete the written component of the exam and the desire that the exam take place over a few hours rather than weeks or months.

76In an Application such as this, the onus is on the applicant to lead evidence that establishes it is more likely than not that attempting the comprehensive exam with the accommodations provided had a negative impact on him as a result of his disability.

77Certainly there is ample evidence that the applicant and Dr. Phillips anticipated that was exactly what would happen. There is also evidence the applicant self-reported to CSD that his health was suffering in response to attempting the exam. I have no doubt that the applicant is sincere when he says attempting the exam worsened his health; as the question here is whether there is sufficient evidence to establish the Application has a reasonable prospect of success, I am prepared to accept for the purposes of this Decision that the applicant experienced the impacts he says he did despite the absence of corroborating medical evidence.

78The problem is that there is no evidence that the impact described by the applicant is related to his post-concussion syndrome except the applicant’s and Dr. Phillips’ sincerely held but subjective belief. Given the medical documentation submitted this is not a trivial evidentiary concern. The documentation clearly lists all of the accommodations the applicant’s doctors identified as being necessary to address his post-concussion syndrome. All of those accommodations were offered to the applicant. Therefore, it is logical to doubt that there is a link between the impacts the applicant describes and his post-concussion syndrome. I would also observe that the documentation points to the presence of other conditions, including concurrent depression and an anxiety disorder. The applicant did not request accommodation with respect to those other health conditions.

79In the context of summary hearings, the Tribunal routinely observes that an applicant’s subjective belief that there is a link between the behaviour complained of and the grounds set out in an application is not sufficient. An applicant must be able to point to some other evidence in support of the existence of the link. Given the medical evidence and the fact that all of the accommodations identified by the health professionals were provided to the applicant, I am satisfied that the applicant here is unable to establish that there is a link between the negative impact he says he experienced in attempting the comprehensive exam and his disability of post-concussion syndrome. Therefore, there is no reasonable prospect of success with respect to the allegation that the respondents breached the substantive duty to accommodate.

80I would also observe that during the crucial period after January 24, 2011, the applicant did not ask for any supports or accommodations. He did not request additional time, ask that the time limit of 32 weeks be removed, or petition for a leave of absence. He simply gave up and withdrew. In that context it cannot be said that the respondents failed to accommodate the applicant as he did not ask for accommodation; rather, when he reported adverse impacts on his health of attempting the comprehensive exam, CSD offered additional supports.

81The applicant also argues that the respondents breached their procedural duty to accommodate by failing to request additional documentation from the applicant or investigate his needs further.

82As stated by the Divisional Court in ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC) at paras. 107-108:

The procedural duty to accommodate involves obtaining all relevant information about the employee's disability, at least where it is readily available. It could include information about the employee's current medical condition, prognosis for recovery, ability to perform job duties and capabilities for alternate work. The term undue hardship requires respondents in human rights cases to seriously consider how complainants could be accommodated. A failure to give any thought or consideration to the issue of accommodation, including what, if any, steps could be taken constitutes a failure to satisfy the "procedural" duty to accommodate…

In assessing whether the employer has met the duty, the employer's efforts must be assessed at the time of the alleged discrimination. An employer may not use after-acquired evidence to support its view that an employee could not be accommodated. After-acquired information is only relevant to remedy…

83Assuming without finding that the respondents did not seriously consider how the applicant could be accommodated, the difficulty the applicant faces with respect to this argument about the procedural duty to accommodate is that no evidence was presented in support of the proposition that individuals with post-concussion syndrome may need the academic accommodations the applicant wanted and did not receive. In other words the applicant has led no evidence that indicates asking for additional medical documentation would have changed the situation. I would also observe that the applicant conceded in cross-examination he was aware that any accommodations offered to him would be based on the medical documentation he provided; he testified he was also aware it was his responsibility to provide medical documentation if his health or accommodation needs changed.

84The applicant also argues that accommodation requests should be dealt with in a timely manner. I took this to mean that failing to respond to accommodation requests in a timely manner can be a breach of the duty to accommodate because in some circumstances the passage of time means that excessive delay can be the equivalent of a denial. Assuming without finding that this principle is correct, it does not assist the applicant. Rather the facts summarised above indicate that the applicant was directed by the respondents to go to CSD to assist in negotiating accommodations for the comprehensive exam but he did not do so until June of 2010. An accommodation contract was drafted and consents obtained through CSD by October of 2010. Any delay that occurred after that was as a result of the applicant’s position that the accommodations were not adequate. Although I would agree that delay in addressing accommodation needs is undesirable, absent evidence in support of the proposition that the delay attributable to the respondents in this instance had the practical effect of denying accommodation to the applicant or otherwise prejudiced him, the delay is not relevant to the legal analysis.

85As stated above, the applicant also argued that dismissing the Application prior to hearing the respondents’ evidence is premature because the respondents’ witnesses’ evidence might support his allegations. The applicant specifically stated the witnesses would testify as to: their understanding of how flexible the 32-week deadline for completing the written component of the comprehensive exam was; why the respondents did not request additional medical documentation; whether or not CSD considered consulting with outside experts; and to what extent does CSD rely on the medical documents provided when determining what accommodations are needed. As can be seen from the analysis stated above, the key evidence that is missing in the applicant’s case is medical in nature and that evidence is exclusively within the applicant’s control. None of the respondent’s proposed witnesses have provided medical treatment or testing to the applicant nor are any offered as experts with respect to post-concussion syndrome. As a result, I do not agree with the proposition that considering the request to dismiss the Application on the basis of no reasonable prospect of success is premature prior to hearing the respondents’ evidence.

86Given all of the above, I am satisfied that the Application has no reasonable prospect of success and should be dismissed on that basis.

DECISION

87The Application is dismissed.

88All future scheduled hearing dates are cancelled.