Tang v. McMaster University, 2015 HRTO 551

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

-and-

Ontario Human Rights Commission

Intervenor

Adjudicator: Jo-Anne Pickel

Date: May 1, 2015

Citation: 2015 HRTO 551

Indexed as: Tang v. McMaster University

Jason Tang, Applicant

Laurie Letheren 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, Counsel

Ontario Human Rights Commission, Intervenor

Sunil Gurmukh, Counsel

Introduction

1The applicant seeks reconsideration of the Decision, 2014 HRTO 92, dismissing his Application.

2For the reasons set out below, I find that the applicant has not established the existence of any of the criteria in Rule 26.5 of the Tribunal’s Rules of Procedure (“Rules”) that would cause me to reconsider the Tribunal’s Decision. Having said this, I have found it appropriate to contextualize and clarify certain portions of the Decision below to respond to the concerns raised by the applicant and the Commission.

Applicable Principles

3Under section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), the Tribunal may reconsider a final decision in accordance with its Rules. Reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open and reconsider its own decisions, it is not obliged to do so.

4In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 (“Sigrist”), the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties to an application have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.

5Rule 26.5 provides that a Request for Reconsideration will not be granted unless the Tribunal is satisfied that:

a. there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

b. the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

c. the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

d. other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

6As a result, I need to determine whether the material filed by the applicant and the Ontario Human Rights Commission (“Commission”) in support of the Request for Reconsideration satisfies the criteria set out in Rule 26.5. As set out below, all of the submissions made by the applicant and the Commission were made under subparagraph (c) of Rule 26.5. Therefore, I must determine whether the Decision is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance.

7As stated by the Tribunal in Sigrist, where a party alleges a conflict with established jurisprudence or procedure, they must show a conflict with jurisprudence or procedure that is “established” in the sense that there is a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules (para. 54). In addition, assertions of a “conflict” must be analyzed with due regard to the reality that each decision on apparently similar issues is made within its own factual, legislative and policy context: Sigrist at para. 57.

THE DECISION BEING CHALLENGED

8In the Decision being challenged, the adjudicator granted the respondents’ request that the Tribunal dismiss the Application on the basis that it had no reasonable prospect of success. As noted in the Decision, in pursuit of its mandate to dispose of applications in a way that is fair, just and expeditious, the Tribunal will sometimes entertain requests to dismiss applications mid-way through a hearing of the evidence. (paras. 52-56) That is what happened in this case. The respondents made their request during the merits hearing after the applicant’s evidence was heard in full.

9Although the applicant had framed the issue in the case around the duty to accommodate, the adjudicator held that the starting point in the analysis with respect to questions concerning the duty to accommodate is to identify the discriminatory conduct or impact being challenged. Citing prior Tribunal case law, she noted that, under the Code, the duty to accommodate is not a free-standing right but rather arises solely in the context of discrimination, whether it takes the form of direct or adverse impact discrimination. (paras. 63-64)

10The applicant alleged that his university program’s requirement that he undertake and pass a comprehensive exam without all of the alterations in format and process that he requested was discriminatory. As noted in the Decision, the primary accommodations that the applicant requested, but did not receive, were (1) the replacement of the written component of the exam with an oral one, or (2) if a written component was required, no deadline with respect to completion of it. (para. 71)

11The adjudicator found that a fundamental difficulty with the applicant’s case was the lack of medical evidence demonstrating that the alterations in exam format and process that he requested were in fact required by his post-concussion syndrome: see paras. 68, 72-73, 75, 78, 83 and 85. I will return to this lack of sufficient medical evidence further below.

12The adjudicator held that the applicant had not met his onus to lead sufficient evidence to establish that it was more likely than not that attempting the comprehensive exam in the format required had a negative impact on him as a result of his disability. (para. 76) The adjudicator accepted the applicant’s evidence that attempting the exam worsened his health. However, she found that there was no evidence that the impact on his health that he described was linked to his post-concussion syndrome other than evidence of subjectively held beliefs on the part of the applicant and his supervisor.

13She held as follows:

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. (para. 79)

14Finally, the adjudicator disagreed with the applicant’s submissions that it was premature to dismiss the Application on the basis of no reasonable prospect of success prior to hearing the respondents’ evidence. The main reason for this was the adjudicator’s determination that the the key evidence that was missing in the applicant’s case was medical in nature and that evidence was exclusively within the applicant’s control. (para. 85)

15For these reasons, the adjudicator was satisfied that the Application had no reasonable prospect of success and should be dismissed on that basis.

parties’ submissions

Applicant

16The applicant submitted that the Tribunal ought to reconsider its Decision for the following reasons:

a. The decision is in conflict with established jurisprudence regarding the test for no reasonable prospect of success;

b. The decision is in conflict with established jurisprudence regarding the procedural duty to accommodate; and

c. The decision is in conflict with the proper analysis of s. 11 of the Code.

17The applicant submitted that all of the above issues are matters of general or public importance that justify reconsidering the Decision.

Respondents

18The respondents submitted that the Tribunal should not grant reconsideration for the following reasons, among others:

a. The applicant failed to call the necessary medical or expert evidence to show that the comprehensive exam with the accommodations provided to him had an adverse effect on him or other individuals with post-concussion syndrome;

b. The applicant’s submissions regarding the respondents’ procedural duty to accommodate are an attempt to re-argue the case and/or a disagreement with the adjudicator’s factual findings; and

c. The applicant has not established that any alleged conflicts with established jurisprudence are a matter of general or public importance.

Ontario Human Rights Commission

19The Commission supported the applicant’s Request that the Tribunal reconsider the Decision for the following reasons:

a. The adjudicator’s Decision departs from its jurisprudence on the reasonable prospect of success test by weighing and assessing evidence in the case;

b. The adjudicator’s finding that there was no link between the adverse impact and the applicant’s disability was contrary to established jurisprudence; and

c. The adjudicator erred by conflating the procedural and substantive duties to accommodate and diminished the respondents’ obligation to react to medical information that was provided by the applicant.

analysis

20At the outset, it is worth pointing out that the test applied in motions such as the one brought by the respondent in this case is the no reasonable prospect of success test. The relationship between that test and the prima facie case test was discussed by the Tribunal in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 at paras. 19-32 (“Pellerin”). At the hearing and in his Request for Reconsideration, the applicant framed many of his submissions using the prima facie case test which is incorporated into the no reasonable prospect of success test. In the sections that follow, I have framed the analysis using the form of the test used by the applicant and Commission in their arguments on the Request for Reconsideration.

Is the decision in conflict with the proper analysis of [s. 11](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html) of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)?

21The applicant argued that, before dismissing the Application, the adjudicator needed to hear evidence that was relevant to each step of the s. 11 analysis. In particular, he argued that the adjudicator needed to determine whether the format of the exam required by the respondents and the requirement that the applicant complete the exam in a fixed time frame were requirements that were reasonable and bona fide in the circumstances. Although the applicant raised this argument at the end of his submissions, I will address it first since I believe that addressing this submission at the outset may provide a useful foundation for understanding the adjudicator’s analysis in the impugned Decision.

22 Section 11 of the Code states in its relevant part as follows:

(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.

23Section 11 appears in Part II of the Code, which sets out provisions relating to the interpretation and application of the Code. Section 11 is the legislative expression of at least two principles found in human rights case law. First, s. 11 is the legislative expression of the well-established principle that discrimination may arise where an apparently neutral requirement, qualification or factor has an adverse impact/effect on an individual because of a protected ground of discrimination. See Ont. Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 SCR 536 (“O’Malley”)

24Second, s. 11 is the legislative expression of what is commonly referred to as the bona fide occupational requirement (“BFOR”) defence under the Code. See Entrop v. Imperial Oil Limited (2000), 2000 CanLII 16800 (ON CA), 50 OR (3d) 18 at para. 67-85. In other words, s. 11 sets out the principles relating to the BFOR defence, including the duty to accommodate, that were analyzed by the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 SCR 3 (“Meiorin”). Since a BFOR is a defence under the Code, an analysis as to whether a requirement is reasonable and bona fide is only carried out after an applicant makes out a prima facie case of discrimination.

25In this case, the adjudicator was not persuaded that the applicant had made out a prima facie case of discrimination. Therefore, it was not a departure from established jurisprudence for her not to go further and hear evidence from the respondent in relation to the BFOR defence. It is only after the applicant has made out a prima facie case of discrimination that the onus shifts to the respondent to provide a non-discriminatory explanation or justification for the conduct in question. See, for example, Moore v. British Columbia (Education), 2012 SCC 61 (“Moore”), and Walton Enterprises v. Lombardi, 2013 ONSC 4218 at para. 52 (“Walton Enterprises”).

26In my view, much of the confusion surrounding the adjudicator’s findings in her Decision appears to have arisen because she did not clearly state the apparently neutral requirement, qualification or factor that was alleged to have an adverse impact/effect on the applicant in this case. As discussed further below, the allegedly discriminatory requirement in this case was the requirement that the applicant pass a written comprehensive exam with a fixed deadline. As discussed below, the adjudicator was not persuaded that the applicant had led sufficient evidence to show that this requirement had an adverse impact on him that was linked to his disability. Therefore, she found that the applicant had not made out a prima facie case of discrimination and there was no need for her to consider evidence in relation to a BFOR defence.

27For the above reasons, the adjudicator’s Decision is not in conflict with established jurisprudence under s. 11 of the Code.

Is the decision in conflict with established jurisprudence regarding the test for no reasonable prospect of success?

Did the adjudicator rely upon the respondents’ defences to analyze whether the applicant had met the threshold of a prima facie case?

28The applicant submitted that, contrary to established jurisprudence, the adjudicator considered the respondents’ defence or justification rather than ending the analysis after finding that the applicant met the elements of a prima facie case. According to the applicant, the adjudicator relied on the respondents’ defence to determine that the Application did not have a reasonable prospect of success.

29As I read her Decision, the adjudicator did not rely upon the respondents’ defences. Instead, she accepted the respondents’ submission that the applicant had failed to provide sufficient evidence to establish that the additional alterations in format and process of the comprehensive exam that he had requested were indeed required by his disability. This was not a defence or justification. It was a submission that the applicant had failed to satisfy his onus of making out a prima facie case of discrimination. What the adjudicator found was that the applicant had failed to advance sufficient evidence to show that the requirement that the applicant pass a written comprehensive exam with a fixed deadline had an adverse impact him that was linked to his disability.

30In my view, in considering whether the adjudicator’s approach in this case was in conflict with established jurisprudence, it is useful to compare it to the situation in Moore, above, a case that also deals with educational services. In Moore, the Supreme Court held that the respondent school district discriminated against a student based on disability when it failed to provide the intensive remediation he required as a result of his learning disability. In Moore, as in this case, the respondents had provided some accommodations for the applicant’s disability but the British Columbia Human Rights Tribunal (“BCHRT”) and the Supreme Court found these accommodations to be far from adequate for providing the applicant with equal access to meaningful education services.

31The Supreme Court described a prima facie case of discrimination as follows:

... to demonstrate prima facie discrimination, applicants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. (para. 33)

32Applying this test, the Supreme Court upheld the BCHRT’s finding that the applicant had made out a prima facie case of discrimination as follows:

It was therefore the combination of the clear recognition by the [school] District, its employees and the experts that Jeffrey required intensive remediation in order to have meaningful access to education, the closing of the Diagnostic Centre, and the fact that the Moores were told that these services could not otherwise be provided by the District, that justified the Tribunal’s conclusion that the failure of the District to meet Jeffrey’s educational needs constituted prima facie discrimination. In my view, this conclusion is amply supported by the record. (paras. 48)

33Having found that the applicant had made out a prima facie case of discrimination, the Court went on to consider whether the school district’s conduct was justified within the framework of defences available under human rights legislation.

34The key difference between Moore and this case is that there was extensive evidence in Moore that the applicant required intensive remediation as a result of his disability. In other words, the Court accepted that the requirement that he continue his education without intensive remediation had an adverse impact on him because of his disability. The Court accepted that there was a link between the applicant’s disability and the alleged discrimination. Unlike in Moore, the adjudicator in this case was not satisfied that the applicant had demonstrated that, due to his disability, he required the alterations to the comprehensive exam that he had requested. In other words, she was not satisfied that the applicant had provided sufficient evidence to establish that the requirement that he pass a written comprehensive exam with a fixed deadline had an adverse impact on him that was linked to his disability.

35In my view, there is some lack of precision in the Request for Reconsideration between what the applicant “requested” and what he “required” because of his disability. It appears that this same lack of precision was present at the hearing of the case. Although, as the adjudicator noted, the applicant had requested certain additional alterations to the exam, the key to her Decision is her finding that he had not demonstrated that he required these additional alterations because of his disability. In other words, she was not persuaded that the applicant had led sufficient evidence to show that any adverse impact arising from the requirement that he pass a written comprehensive exam with a fixed deadline was linked to his disability. See paras. 68, 72-73, 75, 78, 83 and 85 of the Decision.

36I find that I cannot agree with the applicant’s submission that the adjudicator accepted the respondents’ argument as “fact”. The adjudicator had before her the relevant medical evidence. When she referred in her Decision to “the fact that all of the accommodations identified by the health professionals were provided to the applicant”, she was referring to the evidence of the accommodations identified by the applicant’s treating physicians that were set out in the evidence before her: see generally para. 15 to 21 of the Decision. This medical evidence was produced by the applicant in response to a Case Assessment Direction issued by the adjudicator following a request from the respondents that the Tribunal direct the applicant to disclose his medical records.

37It was not an error for the adjudicator to make this finding of fact without having regard to the respondent’s evidence. The issue the adjudicator was deciding was whether the applicant had satisfied her that any adverse impact he experienced was linked to his disability. She found that he had not. There would have been nothing in the respondents’ evidence that could reasonably have been expected to establish the link between the applicant’s disability and the adverse impact experienced by the applicant.

38I agree with the applicant that, in some cases, the Tribunal must hear evidence from the respondent before determining whether there is a reasonable prospect that the applicant can satisfy their onus of making out a prima facie case. This arises in cases where relevant evidence is likely to be within the knowledge or possession of a respondent.

39As the Court of Appeal noted in Peel Law Association v. Pieters, 2013 ONCA 396 at para. 72 (“Pieters”):

Respondents are uniquely positioned to know why they refused an application for a job or asked a person for identification. In race cases especially, the outcome depends on the respondents’ state of mind, which cannot be directly observed and must almost always be inferred from circumstantial evidence. The respondents’ evidence is often essential to accurately determining what happened and what the reasons for a decision or action were.

Is the adjudicator’s Decision in conflict with established jurisprudence because she focused on the adverse impact suffered rather than adverse treatment by the respondents?

42The applicant submitted that the adjudicator’s Decision is in conflict with established jurisprudence because it focused on the adverse impact suffered by the applicant when he tried to write the comprehensive exam rather than on the adverse treatment he experienced from the respondents.

43I do agree with the applicant that some confusion arises in the Decision around the use of the word “impact”. However, this confusion appears to have arisen, at least in part, from the way the case was argued by the parties. For example, I note that the applicant’s Request for Reconsideration at several points refers to the adverse impact experienced by the applicant when he attempted to write the comprehensive exam in the format required by the respondents with a fixed deadline.

44Moreover, even the applicable case law uses the terms “adverse impact” and “adverse treatment” interchangeably. As noted above, in Moore, the Supreme Court stated that to make out a prima facie case of discrimination, an applicant must demonstrate, among other things, that “they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact.” (para. 33) [emphasis added] Meanwhile, even though the Court of Appeal in Pieters adopted the Supreme Court’s analysis from Moore, the Court of Appeal stated that in order to make out a prima facie case of discrimination an applicant must demonstrate a connection between “the adverse treatment and the ground of discrimination”: see para. 59 [emphasis added].

45In my view, the interchangeable usage of these terms in the jurisprudence arises from the conventional approach to discrimination which accepted that discriminatory treatment may take one of two forms: direct discrimination or adverse impact/effects discrimination (also referred to as constructive discrimination in s. 11 of the Code). Although this distinction is less relevant following the unified approach to discrimination adopted by the Supreme Court of Canada in Meiorin, the distinction is still commonly used. It appears that the term “adverse treatment” tends to be used in cases involving alleged direct discrimination (like Pieters) whereas “adverse impact” is used in cases involving alleged adverse impact/effects discrimination (like Moore). In my view, instead of referring to adverse treatment or adverse impact, it is clearer to refer to the alleged discrimination. There must be a link between an applicant’s disability and the alleged discrimination (whether direct or adverse impact discrimination).

46In his Request for Reconsideration, the applicant referred to an example of a concert goer in a wheelchair in an attempt to demonstrate the flaws in the adjudicator’s analysis. The example involved a person with quadriplegia who uses a wheelchair and who wants to access a concert hall that refuses to provide a ramp or accessible seating. As noted by the applicant, this example would meet the test for prima facie discrimination since the person has a disability, he or she has experienced adverse treatment by being refused access, and this adverse treatment is clearly linked to his or her disability. The applicant noted that the person may experience harm to dignity, economic loss, stigma and other forms of negative impact as a result of the adverse treatment. The applicant argued that, using the adjudicator’s approach, the concert goer’s claim would fail unless he or she could provide medical evidence to demonstrate that the negative impact upon him or her after being denied access to the concert hall was linked to his or her disability.

47In my view, there are key distinctions between this scenario and the situation in this case. First, in the concert goer scenario, it could reasonably be inferred, even in the absence of medical evidence, that the person with quadriplegia in a wheelchair required a ramp to access the concert hall because of his or her disability. In other words, the link between the disability and the alleged discrimination could reasonably be inferred.

48By contrast, such an inference is not so readily made in this case. While the applicant requested additional alterations to the comprehensive exam, it was not clear that these additional alterations were required as a result of his post-concussion syndrome. In other words, it was not clear that there was a link between the applicant’s disability and the alleged discrimination that might arise from the requirement that the applicant pass a written comprehensive exam with a fixed deadline. Additional medical evidence was necessary to establish this link. As the concert goer example referred to by the applicant demonstrates, in some cases, a link between a disability and an allegedly discriminatory requirement may be inferred in the absence of medical evidence. In other cases, such as the present, a deeper inquiry is necessary to properly assess whether there is a link between the applicant’s disability and the alleged discrimination.

49The second distinction between the concert goer scenario and this case is that, at the hearing, the parties themselves focused on the adverse impact the applicant experienced as a result of attempting to write the comprehensive exam. This same focus can be found in the applicant’s Request for Reconsideration, in which he refers at several points to the adverse/negative impact he experienced as a result of attempting the comprehensive exam without the accommodations he had requested (for example paras. 46, 53 and 55 of the applicant’s Request for Reconsideration). In short, it appears that the adjudicator’s focus on the adverse/negative impact experienced by the applicant of having attempted the exam without the accommodations he had requested flowed from the way the case was presented to her by the parties.

50In my view, neither the applicant nor the adjudicator can be faulted for referring to the adverse/negative impact experienced by the applicant, given the particular facts of this case. The applicant’s claim in this case was that the requirement that he pass a written comprehensive exam with a fixed deadline was discriminatory because it had an adverse effect/impact on him that was linked to his disability. Some of the evidence that the applicant advanced to demonstrate the adverse effect/impact on him of the requirement was the negative impact (e.g. the increased stress and exacerbation of his post-concussion symptoms) he experienced as a result of attempting the exam without the additional accommodations he had requested. This evidence of what I have called “negative impact” appears to have been led to demonstrate that the requirement that the applicant pass a written comprehensive exam with a fixed deadline, although apparently neutral, had an adverse impact on him because of his disability.

51The way the case was argued by the parties led the adjudicator to a consideration of whether she was satisfied that this negative impact was linked to the applicant’s disability. Given these circumstances, the adjudicator’s focus on the negative impact on the applicant rather than the adverse treatment by the respondents (or the alleged discriminatory requirement imposed by the respondents) was understandable. It may have been clearer for the adjudicator to have clarified the chain of reasoning that connected the negative impact on the applicant to the alleged discriminatory requirement imposed in this case. However, I do not agree that her reference to the negative impact on the applicant puts her decision in conflict with established jurisprudence.

52The applicant argued that, if the adjudicator had focused on adverse treatment rather than adverse impact, she could not have dismissed the Application as having no reasonable prospect of success. The applicant submitted that this is the case because he had demonstrated, and the adjudicator had found, that there was indeed a link between his disability and the adverse treatment he experienced when he was required to take the comprehensive exam in written form with a fixed deadline.

53I cannot agree with this submission. As noted above, the adjudicator was not satisfied that the applicant had advanced sufficient evidence to establish a link between his disability and the adverse impact arising from the impugned requirement in this case. This is because there was insufficient medical evidence to show that the requirement that the applicant pass a written comprehensive exam with a fixed deadline had an adverse impact on him that was linked to his disability. Therefore, in my view, the adjudicator would not have arrived at a different conclusion if she had focused on the alleged adverse treatment by the respondent rather than the alleged adverse impact experienced by the applicant.

54For the reasons set out above, although I find that the applicant has raised important points regarding the usage of the terms “adverse impact” and “adverse treatment”, I do not agree that the analysis used by the adjudicator is in conflict with established jurisprudence.

Is the adjudicator’s Decision in conflict with established jurisprudence because she imposed a high and exacting standard for demonstrating a prima facie case/reasonable prospect of success?

55The applicant submitted that the adjudicator erred in finding that the applicant had failed to lead evidence that established that attempting the comprehensive exam without the additional accommodations he requested had a negative impact on him as a result of his disability. The applicant submitted that he led substantial medical evidence

from which it would have been reasonable to conclude that the negative impact he experienced was caused by the unpredictable nature of his disability, the increased stress caused by having to meet the deadline that McMaster set, and the way in which this increased stress exacerbated his post-concussion symptoms.

56Similarly, the Commission submitted that the absence of references in the applicant’s medical records to the specific additional accommodations he sought, or the difficulties he would experience in writing the exam, was not a basis to conclude that there was no link between his disability and the adverse impact he experienced when writing the exam.

57In my view, these submissions are not submissions that the adjudicator’s decision was in conflict with established jurisprudence. Instead, the applicant and Commission are disagreeing with the adjudicator’s assessment of the evidence and her findings based on the evidence she heard.

58It may well have been possible for the adjudicator to draw a different conclusion than she did. However, in order for her to reach a different conclusion she would have had to be persuaded to infer, from the medical evidence that was advanced by the applicant and/or the applicant’s testimony, that there was indeed a link between his disability and the alleged discrimination in this case. It is clear from the Decision that the adjudicator was not persuaded that the evidence advanced by the applicant justified an inference that writing the comprehensive exam in the format required had an adverse impact on him due to his post-concussion syndrome. In my view, having heard the evidence in this case, the adjudicator was in the best position to assess this evidence and make a determination on the issues before her.

59I should note that, although the adjudicator stated in her Decision that there was “no” evidence that the negative impact described by the applicant was related to his disability, she also refers to the lack of “sufficient” evidence advanced by the applicant to meet his onus (paras. 77 and 79). Read as a whole, it is clear that the adjudicator acknowledged and considered the medical evidence that the applicant did provide but found that the evidence was insufficient to satisfy the applicant’s onus to make out a prima facie case of discrimination.

60The Commission submitted that the adjudicator required the applicant’s disability be more than a factor in the adverse impact he allegedly experienced as a result of writing the comprehensive exam in this case. I cannot agree with this submission. The adjudicator did not require that the applicant’s disability be more than a factor. She did, however, require it to be a factor. For the reasons set out above relating to the absence of sufficient supporting medical evidence, the adjudicator was not persuaded that the applicant’s disability was a factor in the adverse impact he claimed to have experienced in this case.

61The Commission also argued that the adjudicator erred by requiring the applicant to establish that others with post-concussion syndrome would experience similar barriers as those faced by the applicant. The portion of the Decision referred to by the Commission is one in which the adjudicator stated:

The 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. (para. 68) [emphasis added]

62The Commission submitted that this type of analysis raises the potential dangers of comparator group analysis that the Supreme Court cautioned against in Withler v. Canada (Attorney General), 2011 SCC 12, and Moore, above.

63I believe that the Commission has misinterpreted the adjudicator’s reference to others with post-concussion syndrome. In referring to “persons with post-concussion syndrome similar to his”, the adjudicator was not carrying out a comparator group analysis. The adjudicator was paraphrasing the wording of s. 11(1) of the Code which states that discrimination may exist where a requirement results in the exclusion, restriction, or preference of a “group of persons who are identified by a prohibited ground of discrimination of whom the person is a member”.

64I note that, s. 11(1) of the Code was drafted before the Supreme Court of Canada’s decision in O’Malley, above. In O’Malley, the Supreme Court defined constructive/adverse effects discrimination as follows:

[adverse effects discrimination] arises where an employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force. (para. 18) [emphasis added]

65As a result, an argument could be made that the adjudicator’s reference to “persons with post-concussion syndrome similar to his” is inconsistent with the Supreme Court’s definition of adverse effects discrimination in O’Malley. However, I do not believe this to be the case if one reads the adjudicator’s Decision as a whole.

66The adjudicator made the reference to “persons with post-concussion syndrome similar to his” as part of her finding that the applicant had failed to provide sufficient medical evidence to demonstrate that the additional accommodations he had requested were required by his post-concussion syndrome. The adjudicator was not satisfied that the applicant had advanced sufficient evidence to establish this link between his disability and the alleged discrimination. This is clear from a passage later in her Decision where she stated that there was insufficient evidence “that the impact described by the applicant is related to his post-concussion syndrome” (para. 78) [emphasis added].

67For these reasons, I am not persuaded that the adjudicator’s reference to “persons with post-concussion syndrome similar to his” was in conflict with established jurisprudence under the Code.

68Finally, I am not persuaded that the adjudicator’s Decision is in conflict with established jurisprudence because she overlooked the principle that the ground of disability includes perceived disabilities, as claimed by the Commission. There is no reference anywhere in the Decision, nor in the applicant’s Request for Reconsideration, to any argument being made to the adjudicator based on perceived disability. It is clear from the Decision that it was not disputed that the applicant had a disability within the meaning of the Code. The issue of perceived disability did not arise. The issue in this case was the lack of sufficient evidence at the hearing linking the alleged discrimination to the applicant’s disability.

69For all these reasons, I am not persuaded that the adjudicator departed from established jurisprudence by applying a more exacting standard than the one found in established case law.

Is the adjudicator’s Decision in conflict with established jurisprudence because she weighed and assessed evidence when she analyzed whether there was no reasonable prospect of success?

70The Commission submitted that the adjudicator departed from established jurisprudence by weighing and assessing evidence. In support of its submission, it relied upon case law involving summary hearings carried out at a preliminary stage of proceedings prior to the scheduling of a hearing on the merits.

71The Tribunal has stated in several decisions that, in a summary hearing, the Tribunal is not called upon to weigh and assess evidence. However, this statement is made in cases where the Tribunal conducts a summary hearing at a preliminary stage of proceedings – that is, before the parties have made any disclosure and before any evidence has been heard. In such a summary hearing, the Tribunal does not hear evidence, per se, but instead it requires applicants to provide information regarding what evidence they would lead in a merits hearing to make out their onus of proving discrimination. In issuing decisions following this type of summary hearing, it is not appropriate for the Tribunal to weigh evidence because it has heard no evidence.

72The situation is different in a case where the Tribunal assesses whether an Application has a reasonable prospect of success mid-way through a hearing on the merits – that is, after having heard some evidence. In such a case, it is perfectly appropriate and, in fact necessary, for the Tribunal to weigh and assess the evidence that it has heard in the case.

73For example, in Pellerin, above, the Tribunal weighed and assessed the evidence before it. It considered the documents filed by the parties, evidence it had heard from the respondent’s witness as well as the applicant’s proposed evidence prior to concluding that the Application had no reasonable prospect of success (see paras. 30 and 35). Pellerin was the first decision in which the Tribunal dismissed an Application on the basis that it had no reasonable prospect of success mid-way through a merits hearing. It continues to be the most cited Tribunal decision relating to mid-hearing motions for dismissal on the basis of no reasonable prospect of success.

74For these reasons, I find that the adjudicator’s weighing and assessment of evidence was consistent with established jurisprudence and Tribunal procedure.

Is the decision in conflict with established jurisprudence regarding the procedural duty to accommodate?

75The applicant and the Commission both submitted that the adjudicator’s Decision was in conflict with established jurisprudence relating to the procedural duty to accommodate.

76As pointed out by the applicant and Commission, under the Code, respondents have a duty to take appropriate steps to assess an applicant’s disability-related needs. See ADGA Group Consultants Inc. v. Lane (2008), 2008 CanLII 39605 (ON SCDC), 91 OR (3d) 649 (Div.Ct.). Notwithstanding general agreement on this principle, different approaches have been taken in the case law as to whether rights to certain procedural steps arise as part of the duty to accommodate or whether they arise under the anti-discrimination provisions in Part I of the Code (that is, ss. 1-6 of the Code). See for example: Lee v. Kawartha Pine Ridge District School Board, 2014 HRTO 1212 at para. 95 (“Lee”).

77At the hearing, the applicant framed his procedural rights as arising from the duty to accommodate. The adjudicator adopted this form of analysis. She addressed his submissions in relation to the procedural duty to accommodate in para. 83 of her Decision where she stated:

Assuming 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.

78If one takes the view that certain procedural rights arise as part of the duty to accommodate, then there could be no finding of a breach of the procedural duty to accommodate in this case because the applicant had failed to make out a prima facie case of a violation of the Code. As noted above, the duty to accommodate arises in the context of a defence to discrimination. See s. 11 of the Code. See also, for example, Meiorin, above, Walton Enterprises, above and Baber v. York Region District School Board, 2011 HRTO 213 at paras. 88-95. Since the adjudicator held that the applicant had not established a prima facie case of discrimination, any procedural failures on the part of the respondents could not be found to breach the duty to accommodate in the circumstances of this case.

79Alternatively, if one were to follow the approach taken in Lee, above, and read certain procedural rights into ss. 1-6 of the Code, the applicant in this case still would have failed to make out a prima facie violation of such procedural rights due to the adjudicator’s observations at the end of para. 83. That is, even if one were to accept that a respondent university may violate s. 1 of the Code by failing to take appropriate steps to assess a student’s disability-related needs, it is clear from the adjudicator’s decision that she was not persuaded that there was any such breach in this case. The adjudicator found that the respondents had provided the applicant with all of the accommodations justified by the medical documentation he had provided. She also noted that the applicant had conceded in cross-examination that he was aware that any accommodations offered to him would be based on the medical documentation he provided and that he was aware of his responsibility to provide medical documentation if his health or accommodation needs changed. It was in light of this evidence that the adjudicator found no violation of any procedural rights.

80For the reasons set out above, I am not persuaded that the adjudicator’s Decision is inconsistent with the procedural duty to accommodate or any broader procedural rights under the Code.

Was the Decision in conflict with established jurisprudence by requiring the applicant to make repeated requests for accommodation?

81Finally, I do not agree with the applicant that the Decision conflicts with established jurisprudence by requiring persons with disabilities to make numerous and repeated requests for accommodation and to continue making such requests even after an education service provider has denied certain accommodations. The applicant was referring to the portion of the Decision in which the adjudicator observed that, after the applicant started the comprehensive exam, he did not ask for any additional supports or accommodations. The adjudicator noted that he did not ask for additional time, ask that the time limit of 32 weeks be removed, or petition for a leave of absence. Instead, he withdrew from his program.

82This portion of the adjudicator’s Decision must be read in light of her finding that the parties had discussed possible accommodations at a meeting in December 2010, one of which would have been additional time. (see para. 44 of the Decision) It also appears to be a reference to the fact that the accommodation contract drawn up by the respondents referred to a completion period of 32 weeks “with further extensions to be negotiated should [the applicant’s] progress be impeded by unforeseen health restrictions.” (para. 32) It was in this context that the adjudicator’s observations about the applicant’s withdrawal from his program should be read. Read in this context, I find that the adjudicator’s Decision cannot reasonably be read as requiring the applicant to make numerous and repeated requests for accommodation and to continue making such requests even after the respondents had denied his requests for additional accommodation.

order

83For all the reasons set out above, the applicant’s Request for Reconsideration is denied.

Dated at Toronto, this 1st day of May, 2015.

“Signed by”

Jo-Anne Pickel

Vice-chair