In a recent decision, the Court of Appeal for Ontario found that the University of Waterloo (the “University”) discriminated against a student applicant on the basis of disability in refusing admission. The decision provides helpful insight into how educational institutions can meet the substantive and procedural aspects of the duty to accommodate in their student admission processes.
Roch Longueépée, the Respondent, brought an application to the Human Rights Tribunal of Ontario alleging discrimination under the Ontario Human Rights Code. The application alleged that the University had discriminated against him on the basis of disability in refusing him admission to the Faculty of Arts. The Respondent was a survivor of institutional child abuse and suffered severe physical, psychological, and sexual trauma during his childhood.
The Respondent attended Dalhousie University several years before he applied for admission to the University. At Dalhousie, the Respondent achieved grades that were below the University’s minimum admission requirements for transfer students. Accepting that the Respondent achieved his grades at a time when he had undiagnosed and unaccommodated disabilities, the University’s Admissions Committee considered the Respondent’s application. The Respondent’s application package consisted of academic transcripts, information about his volunteer work, and reference letters. After considering the application, the Admissions Committee concluded that the application did not demonstrate that the Respondent had the ability to succeed at the University, and he was refused admission.
The Tribunal’s Decision
The Tribunal accepted that the University’s grades-based admission standard had a discriminatory effect on the Respondent. However, having established a prima facie case of discrimination, the Tribunal identified the issue to be determined as whether the University had accommodated the Respondent in the admissions process, up to the point of undue hardship.
Ultimately, the Tribunal dismissed the Respondent’s application, finding that the University met both the procedural and substantive components of its duty to accommodate. The Tribunal found that the University met the procedural component of its duty by conducting an individualized assessment that considered the Respondent’s application, despite it being submitted late and after all the student positions in the Faculty had been filled.
Regarding the substantive component, the Tribunal concluded the University met its obligation by assessing whether the Respondent could be successful in his academic studies. The Tribunal found that the Admissions Committee, which undertook the assessment, was entitled to rely on the Respondent’s past academic grades despite those grades being achieved at a time when the Respondent had undiagnosed and unaccommodated disabilities.
Judicial Review: Divisional Court
On judicial review, the Divisional Court concluded that the Tribunal erred in finding that the University reasonably accommodated the Respondent. The Divisional Court applied the three-step test prescribed by the Supreme Court of Canada in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights),  3 S.C.R 868 (“Grismer”), to determine whether a prima facie discriminatory requirement is reasonable and bona fide. Under the Grismer test, the University had to establish:
- that the grades standard for transfer students was adopted for a purpose or goal rationally connected to the function being performed;
- that it adopted the grades standard in good faith in the belief that it was necessary for the fulfillment of that purpose or goal; and
- that the standard was reasonably necessary to accomplish its purpose, in the sense that the University could not accommodate persons with the Respondent’s characteristics.
The court found that the University met the first two steps of the test. However, with respect to the third step, the court found that the University failed to accommodate the Respondent as the Admissions Committee had based its decision solely on the Respondent’s Dalhousie grades. Because the grades were achieved when the Respondent’s disabilities were undiagnosed and unaccommodated, the Admissions Committee had to assess the application in its entirety, or establish undue hardship. The Divisional Court remitted the matter back to the Admissions Committee with directions.
The Court of Appeal
On appeal, the University raised a number of arguments, one of which was that the Divisional Court erred in its application of the reasonableness standard of review. In the alternative, the University submitted that the Divisional Court erred in remitting the matter to the Admissions Committee rather than to the Tribunal. The Tribunal, as a respondent to the appeal, took the position that the courts, post-Vavilov [Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”)], should give effect to the “patently unreasonable” standard of review as set out in section 45.8 of the Code.
The Court of Appeal considered the following issues:
- Did the Divisional Court appropriately identify “reasonableness” as the standard of review, or is the standard post-Vavilov “patent unreasonableness”?
- Did the Divisional Court correctly apply the standard of review? And if the standard of review was “reasonableness”, does a post-Vavilov approach lead to a different result?
- If the Tribunal’s decision was properly set aside, did the Divisional Court err in its remedy in sending the matter back to the Admissions Committee rather than to the Tribunal?
Regarding the first issue, the Court of Appeal declined to address the Tribunal’s submission that its decisions should be reviewed under the “patent unreasonableness” standard. The Court of Appeal reasoned that this examination was unnecessary and the analysis was better left to a case where the standard of review would have made a difference to the outcome.
Regarding the second issue, the Court of Appeal found that a review based on reasonableness focuses on the decision actually made, while considering the rationale for the decision and the outcome to which it led. As was held in Vavilov, the Court of Appeal stated that a “reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker”.
Turning to the reasonableness of the Tribunal’s decision, the Court of Appeal found that the Tribunal’s decision was unreasonable. Similar to the Divisional Court, the Court of Appeal applied the three-step test set out by the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. BCGSEU,  3 S.C.R. 3 (“Meiorin”). Based on the Meiorin/Grismer tests, the Court of Appeal found that the University had fulfilled the first two components of the test. The University’s grades-based system for transfer students was rationally connected to the admissions process as a predictor of the ability to succeed at university. Further, the standard was adopted with an honest belief that it was necessary to ensure that admitted students would have the ability to succeed. However, the Court of Appeal found that the relevant issue before the Tribunal was whether the University had accommodated the Respondent in its admissions process.
The Court of Appeal emphasized the need to fulfill both the procedural and substantive components of the duty to accommodate, highlighting that the procedural component typically involves the identification of the process or procedure to be adopted in providing the accommodation. Because this component requires an understanding of the person’s needs, and requires that person to provide information, the procedural component is often referred to as the “accommodation dialogue”.
With respect to the substantive component, the Court of Appeal emphasized that it involves the consideration of possible accommodations that could be used to address the person’s needs, including the option of undertaking an individualized assessment in the case of a discriminatory standard. The substantive component also refers to steps taken to implement the accommodation, up to the point of undue hardship.
With respect to the matter at hand, the Court of Appeal noted that there was no indication that the University engaged in an “accommodation dialogue” with the Respondent or undertook any other measures to assess how his disabilities might impact his ability to meet the University’s grade standard. Instead, the University decided that the Respondent’s application would be assessed by the Admissions Committee to determine his ability to succeed in university.
Regarding the fulfillment of the substantive component, the Court of Appeal held that there was no indication that the Admissions Committee made any effort to understand how the Respondent’s disabilities might have affected his Dalhousie grades, or to analyze whether his grades, interpreted in light of his disabilities, might assist in showing his ability to succeed at the University. Additionally, the fact that the Admissions Committee considered only the Respondent’s unaccommodated grades was inconsistent with the “holistic” and “individualized” process that had been described by the University’s witnesses. Furthermore, there was no evidence that the Admissions Committee had considered the additional materials provided in the Respondent’s application package.
The Court held as follows at para. 81:
 The core issue before the Vice Chair was the following: if the Admissions Committee only considered Mr. Longueépée’s unaccommodated grades to be relevant to his ability to succeed in university, and considered irrelevant the other materials that it had undertaken to review, how could the University demonstrate that it had reasonably accommodated Mr. Longueépée in the admissions process?
The Court of Appeal found that the Tribunal had failed to grapple with this core issue. Since the University had only considered the Respondent’s unaccommodated grades, it could not establish reasonable accommodation.
Based on the above, the Court of Appeal held that the Tribunal’s decision had the effect of failing to recognize that the University, although it embarked on a process to provide accommodation, had not carried through with the process to accommodate the Respondent. An additional shortcoming identified was the fact that the Tribunal recognized an undue hardship defence, even though the University did not argue or present evidence on undue hardship. Ultimately, the Court of Appeal found that the Tribunal had effectively bypassed the third step of the Meiorin/Grismer test.
Finally, the Court of Appeal examined the third issue regarding whether the Divisional Court erred by remitting the issue back to the Admissions Committee rather than the Tribunal. On this issue, the Court of Appeal relied on Vavilov. In Vavilov, the Supreme Court of Canada held that where a decision is reviewed by applying the reasonableness standard and the decision cannot be upheld, it is most often appropriate to remit the matter to the decision maker for reconsideration. However, the Court of Appeal noted that it may be appropriate to decline this avenue where there is evidence that a particular outcome is inevitable and remittance would not be useful.
Based on foregoing, the Court of Appeal allowed the appeal to the extent of setting aside the remedy imposed by the Divisional Court, and substituting an order declaring that the University discriminated against the Respondent. Furthermore, the Court of Appeal referred the question of remedy back to the Tribunal for determination.
This decision appears to impose an onerous standard on educational institutions to accommodate disabled applicants.
In rejecting the Respondent’s request for reconsideration, the Tribunal stated that to accept his 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”. In a future case, it may be open to a university to argue that such individualized assessments would amount to undue hardship; however, the Court would not allow it in this case because the University had not argued or presented evidence of undue hardship before the Tribunal.
For the same reason, this decision did not consider the extent to which admitting applicants who fall short of admission standards may present undue hardship for universities. Admissions standards are particularly important for some professional programs that receive many applications for each student admitted into the program.
We expect that future cases will further explore how admissions standards can be reconciled with the duty to accommodate.
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