HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Shauna Kelly
Applicant
-and-
St. Lawrence College of Applied Arts and Technology
Respondent
INTERIM DECISION
Adjudicator: Jennifer Scott
Indexed as: Kelly v. St. Lawrence College of Applied Arts and Technology
WRITTEN SUBMISSIONS
St. Lawrence College of Applied Arts and Technology, Respondent
Daniel Michaluk, Counsel
Introduction
1This Application alleges discrimination with respect to services because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that she was discriminated against when she was denied admission to the respondent’s Veterinary Assistant program in 2015.
2The Application is proceeding to a hearing on February 29 and March 1, 2016, in Kingston, Ontario.
3On December 14, 2015, the respondent filed a Request for Order During Proceedings (“Request”) seeking production of the records, documents and communications between the applicant and her high school principal, educational assistants, student success personnel and/or similar “accommodation professionals” which relate to the accommodations that the applicant received in high school. Although the production request is broadly worded, it appears that the respondent is limiting its request to accommodation documents for grades 11 and 12.
4The applicant did not respond to this production request.
analysis
5The basic principle in determining a production request is whether the requested documents are “arguably relevant”. The respondent has the burden of demonstrating a nexus between the information or documents sought and the issues in dispute before the Tribunal.
6The respondent submits the documents requested are arguably relevant to the issues in this case. It asserts that its ranking of the applicant based on her prior academic performance is not discriminatory. In particular, the respondent argues that it did not breach the applicant’s rights under the Code when it assessed her academic performance, based on the grades that she received in high school with accommodation, in its admissions process. As such, the respondent argues that any documentation relating to the applicant’s accommodations in high school are highly relevant to the dispute.
7In my view, the documents requested by the respondent are not are arguably relevant. This case concerns the respondent’s admissions process and its reliance on grades in determining which students will be admitted to the Veterinary Assistant program. The applicant argues reliance on grades for admission is discriminatory because she cannot achieve those grades as a student with a disability. The applicant asserts admission to the Veterinary Assistant program should be on a first come, first serve basis, and not on a grades-basis. The applicant does not argue that the grades she received in high school are not reflective of her academic ability because she was not accommodated.
8If I accepted the respondent’s argument that the documents sought are arguably relevant, unnecessary hearing time would be spent on whether the applicant was properly accommodated in high school. This is not the issue before me. I would also note that the school board for the applicant’s high school is not a party in this proceeding.
9In addition, to accept this argument would mean that in every case where a student with a disability is alleging discrimination relating to a grades-based admission process by a post-secondary institution, the Tribunal would be required to determine whether the student was properly accommodated in his or her previous academic program. I cannot see how a determination of that issue is helpful in determining whether an admissions process is discriminatory. I therefore disagree with the Tribunal’s approach in R.L. v. Federation of Law Societies of Canada – National Committee on Accreditation, 2014 HRTO 1433.
order
10For these reasons, the respondent’s production request is denied.
Dated at Toronto, this 11th day of January, 2016.
“signed by”
Jennifer Scott
Vice-chair