Longueépée v. University of Waterloo, 2016 HRTO 686

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Roch Longueépée

Applicant

-and-

University of Waterloo

Respondent

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: May 19, 2016

Citation: 2016 HRTO 686

Indexed as: Longueépée v. University of Waterloo

WRITTEN SUBMISSIONS

Roch Longueépée, Applicant

David Baker, Counsel

University of Waterloo, Respondent

Sian Williams, Counsel

Introduction

1This Application concerns the respondent’s decision to deny the applicant’s application for admission to an academic program.

2By Interim Decision dated July 30, 2015 (2015 HRTO 1016), I ordered the respondent to produce all documents from or to the members of the Admissions Committee in relation to the applicant’s application for admission.

3On August 24, 2015, the respondent provided further documents in response to the July 30, 2015 order.

4On February 19, 2016, the applicant filed two Requests for Orders During Proceedings (“RFOP”).

Production of Documents

5In the first RFOP, the applicant seeks production of the following documents:

a. The attachment referred to in Samantha Murray’s August 16, 2013 email;

b. The minutes of the committee meeting that formed the basis for the summary referred to in the August 16, 2013 email;

c. The responses of all committee members to Ms. Murray’s August 16, 2013 email;

d. The responses of all committee members to Ms. Murray’s August 20, 2013 email; and

e. The notes, records and data pertaining to the phone calls between the applicant and the respondent.

6The respondent states it has no further documents to disclose and has complied with the July 30, 2015 order.

7It is difficult to determine whether there are documents that have not been disclosed by the respondent given the content of the documents produced in response to the July 30, 2015 order. I would therefore ask the respondent to confirm the following:

a. Is the document at tab 5 of Exhibit 55 the summary attached to Ms. Murray’s email of August 16, 2013?

b. Are there committee minutes that formed the basis of the summary attached to Ms. Murray’s email of August 16, 2013?

c. Have all of the responses from the Committee members to the August 16 and 20, 2013 emails from Ms. Murray been produced, including any notes of Ms. Murray recording responses?

d. Have all of the documents recording phone calls between the applicant and the respondent been produced?

If there are documents that exist that have not been disclosed, they must be produced pursuant to the July 30, 2015 production order. It is not necessary to make a further production order.

Medical Evidence

8The applicant seeks an order allowing him to call Dr. Warriner as a witness and a further order that Drs. Warriner and Ouchterlony be permitted to give their evidence by telephone. The respondent objects to the evidence of Dr. Warriner and to the request that medical evidence be provided over the telephone.

Dr. Ouchterlony

9Rule 3.5 of the Tribunal’s Rules provides that the Tribunal may conduct hearings in person, in writing, by telephone, or by other electronic means, as it considers appropriate.

10The Tribunal has allowed witnesses to testify by telephone conference in certain circumstances depending on the nature and extent of the evidence. Generally, the Tribunal has not allowed testimony by teleconference where the credibility of the witness is a significant issue or where the witness’ evidence is extensive or key to the proceeding. See, for example, Zeividavi v. Catholic Immigration Services, 2011 HRTO 406.

11In reviewing the witness statement for Dr. Ouchterlony, it appears that her evidence is important to the issues in this case. The applicant’s capacity to attend university is a key issue in this case and the respondent has the right to cross-examine Dr. Ouchterlony in person on this issue. Further, documents will likely be put to Dr. Ouchterlony, which cannot be done over the telephone, particularly during cross-examination. Her evidence may be extensive and complex, and not well-suited to being given over the phone. As such, I am not prepared to allow Dr. Ouchterlony to testify by teleconference. I am however prepared to have her testify at a specific time to limit any inconvenience that she may experience attending the hearing in person.

Dr. Warriner

12The applicant was denied admission to the respondent on August 16, 2013. On June 25, 2015, Dr. Warriner completed a neuropsychological assessment on the applicant. The purpose of the assessment was to help the applicant better understand the extent and nature of the cognitive difficulties that he has experienced and the accommodations that would be helpful to facilitate his academic pursuits.

13The applicant submits Dr. Warriner’s report is relevant for the following reasons:

a. It confirms the applicant does have a disability;

b. It affirms that the applicant has the potential to go back to university and how to succeed in doing so;

c. It discusses how the lack of implementing recommendations (accommodations) can have a severe impact on a disabled student’s potential;

d. It is probative to the issue of whether the respondent could have accommodated the applicant without incurring undue hardship; and

e. It speaks to the impact of the respondent’s decision to deny admission on the applicant.

14The issue in this case is whether the respondent discriminated against the applicant when it assessed his application for admission and when it made the decision to deny him admission in 2013.

15The respondent did not have Dr. Warriner’s 2015 report before it when it made its admissions decision. As such, it did not have the information contained in the report, including all of the accommodations that Dr. Warriner believes would be essential to support the applicant’s post-secondary pursuits. If this information was not available to the respondent when it conducted its assessment of the applicant’s application and when it made its decision, the report is not relevant. For this reason, the applicant’s request to call Dr. Warriner is denied.

16Dr. Ouchterlony can speak to the applicant’s disability.

ORDER

17Within two weeks of the date of this Interim Decision, the respondent is directed to provide answers to the following questions:

a. Is the document at tab 5 of Exhibit 55, the summary attached to Ms. Murray’s email of August 16, 2013?

b. Are there committee minutes that formed the basis of the summary attached to Ms. Murray’s email of August 16, 2013?

c. Have all of the responses from the Committee members to the August 16 and 20, 2013 emails from Ms. Murray been produced, including any notes of Ms. Murray recording responses?

d. Have all of the documents recording phone calls between the applicant and the respondent been produced?

18The applicant’s request to have Dr. Ouchterlony testify by telephone is denied.

19The applicant’s request to call Dr. Warriner is denied.

20The Tribunal will contact the parties to schedule continuation dates in this matter.