Roch Longueépée v. University of Waterloo, 2017 HRTO 1698

Human Rights Tribunal of Ontario

BETWEEN:

Roch Longueépée Applicant

-and-

University of Waterloo Respondent

RECONSIDERATION DECISION

Adjudicator: Jennifer Scott Date: December 22, 2017 Citation: 2017 HRTO 1698 Indexed as: Longueépée v. University of Waterloo

Written Submissions

Roch Longueépée, Applicant David Baker and Kimberly Srivastava, Counsel

University of Waterloo, Respondent Sian Williams and Darrell Hawreliak, Counsel

Introduction

1This Decision addresses the applicant’s Request for Reconsideration of the Tribunal’s decision, 2017 HRTO 575 (the “Decision”), which dismissed the Application.

Analysis

Test for Reconsideration

2Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

3The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance on the Tribunal’s exercise of its reconsideration powers. Rule 26 of the Tribunal’s Rules of Procedure states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within 30 days from the date of the decision.

26.5 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.

4The Tribunal’s Practice Direction on Reconsideration states reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. It affirms that reconsideration is not an appeal or an opportunity for a party to change the way he or she presented their case.

Grounds for Reconsideration

5The applicant asserts the Decision is in conflict with established case law and the proposed reconsideration involves a matter of general or public importance. The applicant alleges that I failed to properly analyze the procedural duty to accommodate because I failed to identify its components and failed to analyze whether the procedural duty to accommodate was met by the respondent in this case.

6I addressed the procedural duty to accommodate in the Decision and held the respondent met that duty. It is clear that the applicant disagrees with this finding and sets out the basis for his disagreement in the Request for Reconsideration. However, the Tribunal’s Rules of Procedure and case law are clear: reconsideration cannot be used to appeal a decision.

7That said, I will address the applicant’s arguments briefly.

8The applicant argues the respondent breached its procedural duty to accommodate by not involving Accessibility Services in the admissions process. He submits the Admissions Committee did not have the necessary expertise to evaluate the applicant’s application for admission and that it should have involved Accessibility Services in order to determine the applicant’s disability-related needs and need for accommodation.

9In my view, this argument conflates the respondent’s duty to accommodate in the admissions process and its duty to accommodate once a student is admitted. It also ignores the purpose of the Admissions Committee. The role of the Admissions Committee is to determine whether a student can be successful in the program to which he or she has applied. While the Admissions Committee must take into account the fact that a student will need accommodation to be successful, it is not required to undertake an in-depth assessment of what the accommodations will be once the student is admitted. The Admissions Committee is entitled to rely upon the accommodations that a student says he or she requires when assessing his/her potential for academic success. In this case, the applicant stated that he needed Teaching Assistant (“TA”) support.

10The failure to involve Accessibility Services in the admissions process was addressed in the Decision. I held there was no evidence that the involvement of Accessibility Services would have had any impact on the assessment of the applicant’s application for admission and that it was speculative to suggest otherwise. While I addressed the failure to involve Accessibility Services as an alleged breach of the substantive duty to accommodate, the same finding would be made for the procedural duty to accommodate. It is not sufficient for the applicant to suggest that with a different process, the admissions decision would have been different. He must point to specific information that would have been obtained in a different process, which would have impacted the admissions decision. He has not done so in this case.

11As stated earlier, the applicant is using the Request for Reconsideration to appeal findings in the Decision. He disagrees with my finding that the respondent met its procedural duty to accommodate the applicant. He disagrees with my finding that the Admissions Committee was entitled to assess the application for admission made by the applicant and was not required to assess an application that could have been made by the applicant. He disagrees with my finding that there was no evidence the involvement of Accessibility Services would have changed the decision of the Admissions Committee. He disagrees with my finding that the Admissions Committee was entitled to disregard reference letters and volunteer work as indicators of potential academic success.

12All of the arguments put forward by the applicant on the Request for Reconsideration were addressed in the Decision. The fact that they were addressed as part of the substantive duty to accommodate as opposed to the procedural duty to accommodate does not change their outcome. There was no evidence that had the respondent engaged in a different process it would have obtained information which would have changed the admissions decision. The applicant suggests Dr. Ochterlony provided this evidence. I disagree. Dr. Ouchterlony had no involvement in the applicant’s application for admission and was not qualified as an expert in university admissions processes.

13On the Request for Reconsideration, the applicant appears to argue that a failure to satisfy the procedural duty to accommodate can itself result in discrimination. This argument was not made during the hearing and it cannot be made for the first time on Reconsideration.

14The applicant argues the Request for Reconsideration involves a matter of general or public importance. He submits the Decision creates a “Catch-22” situation for students with disabilities who are applying for post-secondary education relying on grades achieved while they were unaccommodated. The applicant states the Decision permits a university to refuse to accommodate the applicant and other students like him, shifting the accommodation responsibility solely to the applicant.

15The Decision, like all decisions, is based on the facts of this particular case. The applicant applied for admission to the respondent. He did not meet the academic standard required. He did not have a Grade 12 English credit and he was ten percent below the required grade cut-off. Although he did not meet the required academic standard, his application was considered because his grades were obtained at a time when his disabilities were unknown and unaccommodated.

16The applicant, like all students, was required to show that he could be successful in university. Potential for academic success could not be presumed because the applicant was not previously accommodated in school 13 years before. The Admissions Committee was not satisfied that the applicant would be successful in university on the sole basis of volunteer work and reference letters. It was concerned about the significant gap between the applicant’s grades and the admissions standard. In its view, the gap was too large. It is not a “Catch-22” to require students with disabilities, like all students, to establish their potential for academic success.

17To accept the applicant’s argument would have the effect of requiring universities to complete an in-depth assessment of every application by every student with a disability regardless of the extent of the gap between the admissions standard for the particular program and the individual student’s grades. All the student would have to say is “I am a student with a disability and my grades are not an accurate reflection of my ability to succeed, either because I was not accommodated at all or was not appropriately accommodated”.

18This would mean universities would be obligated to involve accessibility services in every application for admission by a student with a disability in order to decide whether the student could be successful in meeting the academic requirements of the program. It would require accessibility services to conduct some form of investigation into the student’s previous grades and the accommodations the student received or did not receive when obtaining those grades, in order to determine whether they are an accurate indicator of potential to succeed in university. It is unclear to me how accessibility services could make that determination especially when the previous grades were obtained, as is the case here, in another university. Put simply, how can one university sit in review of how another university accommodated a student? In my view, the procedural duty to accommodate does not require a university to undertake this evaluation.

19In summary, I disagree with the applicant’s assertion that the Decision places the sole responsibility for the accommodation process on the applicant. The Decision recognized the respondent was responsible for accommodating the applicant in the admissions process. The respondent met its procedural duty to accommodate by conducting an individualized assessment of the applicant’s application for admission. It met its substantive duty to accommodate by recognizing the applicant’s previous grades were obtained at a time when his disabilities were unknown and unaccommodated, and accepted the fact that he would need support if admitted. The Admissions Committee was familiar with the supports provided by Accessibility Services and was aware the applicant believed the only support he required was TA support. However taking all of this into account, the respondent was not satisfied the applicant would be successful in university. There is no evidence before me that the respondent was wrong in its assessment. The respondent did not breach its duty to accommodate the applicant because it took a different view of the applicant’s potential for academic success.

20For these reasons, I am not satisfied that the applicant’s Request for Reconsideration is in conflict with established jurisprudence or articulates other factors that outweigh the public interest in the finality of Tribunal decisions. The applicant’s Request for Reconsideration is denied.

Order

21The applicant has failed to meet the test for reconsideration and as such, his Request for Reconsideration is denied.