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Queen's University
 

Gerd’son v University of Victoria, 2011 BCHRT 129

Facts

The complainant in this case is a male continuing studies student called Alkis Gerd’son. Mr. Gerd’son has PSTD, OCD, and allergies. He feels very safe in residences and lived there for 15 years before being evicted by the University in 2010.  Over the years, Mr. Gerd’son received two degrees (B.A. (1993) and a B.ED (1997)) as well as a certificate in Public Relations (from Continuing Studies).  At the time of the eviction, he was intending to complete a certificate in Business Administration.

The University first tried to remove Mr. Gerd’son from residence in 2003; he had spent the past three years living in residence while taking no courses at all.  With the support of the Human Rights Office, Mr. Gerd’son stayed with a “recovery plan” designed to get him back to the classroom so that he could complete his certificate in Public Relations.  In 2007, his apartment was inundated with water due to a broken pipe on another floor.  The flood caused him great anxiety, due to his disabilities, and he ended up losing an academic year and failing two courses.  The University accommodated him by housing him in another residence apartment and continued to try to get him to leave residence.  He was encouraged to seek outside medical help and to seek subsidized housing. In 2008 he received an eviction notice which was overturned in court, which determined that the university had entered into a month-to-month residency agreement with Gerd’son. In 2010, he was finally evicted.

Gerd’son alleges that the University Policy used to evict him was arbitrary (it arbitrarily excludes students in continuing studies) and discriminatory (against persons with disabilities).  The policy holds that only students in degree-granting programs and doing a minimum number of courses are eligible for residency.

Issue

Did the University discriminate against the student by enforcing its tenancy policy?

Decision

No

Reasons

The Tribunal asked itself the following questions.

1)      Is the University’s tenancy policy arbitrary?

No: UVic’s mandate is to grant undergraduate, graduate and post-graduate degrees and […] the University’s Policy was that residence housing was made available to students in degree-granting programs” in order to fulfill this mandate. It is therefore not arbitrary.

2)      Is Mr. Gerd’son part of the public to which residence housing is available?

No:  “I find that the public to which residence housing is available is a sub-group of students at the University, i.e. students who are enrolled in degree-granting programs.” (182) “I find that Mr. Gerd’son was not a member of the public to whom housing was available, and that housing was not customarily available to students who did not meet the requirements of the Policy, I find that the University did not discriminate against him contrary to the Code when it decided to deny him the right to remain in his apartment and began proceedings to evict him” (185)

3)      Did Mr. Gerd’son establish prima facie discrimination?

No – due to lack of medical documentation: “It is not in dispute that Mr. Gerd’son suffers from OCD and PTSD. Throughout his evidence, he testified about the symptoms, effects and consequences of his disabilities. In particular, with respect to his eviction, he stated that, because of his disabilities, he needed the stability of remaining on campus until he completed his academic goals, or more time to make the move off campus. However, other than the medical letters in 2003, he provided no medical evidence to support any link between his stated needs and his disabilities. Mr. Gerd’son seemed to rely on the fact that, since 2003, the University had not asked him to provide any documentation. That fact, however, has nothing to do with the nous on him, in the context of proving his complaint, to satisfy me that, because of the nature and scope of his disabilities, the University’s actions, beginning in 2008, were discriminatory and, more particularly, that the University’s actions had an adverse effect on him because of his disabilities.  Mr. Gerd’son bore the burden of satisfying me that he was medically required to remain in residence, or to be provided with an indeterminate longer notice period regarding his eviction. His self-assessment and self-reporting in this regard are not sufficient.  In the absence of any supporting medical documentation, I find that Mr. Gerd’son has not met the onus on him to establish a link between his disabilities and the alleged adverse impact on him. Accordingly, I would dismiss Mr. Gerd’son’s complaint on this basis.

4)      Has the University established a bona fide and reasonable justification?

Yes

1)      The policy is rationally linked to the mandate of granting degrees.

2)      The policy was adopted in good faith

3)      The University accommodated Mr Gerd’son to the point of undue hardship.

  1. He was provided accommodation from 2000 to 2003, even though he took no classes at all due to disability.
  2. The University accommodated him when it refrained from following through in evicting the complainant in 2003 when the human rights department got involved. It agreed to allow him to stay for up to three more years while he completed a certificate in PR from Continuing Studies
  3. It accommodated him again when it allowed him to stay for two more years until 2008
  4. After the flood, it accommodated him by providing him with alternative housing, and by offering to compensate him for damaged goods if he provided an itemized list (he refused).
  5. In 2008, the complainant told the University that he required three more years of residency to diploma a certificate in Business Administration. In 2010, he testified at the hearing that he required another three years to obtain the diploma and to take other desired courses.  This pattern of requesting more and more time to do more and more courses amounts to a request for “accommodation in the form of an open-ended right to remain in residence”.  While this would have been a perfect accommodation for Mr. Gerd’son, the University is not required to provide him with a perfect accommodation.
  6. “Viewed globally in light of their entire history, I find that the University had fulfilled its legal obligation to accommodate Mr. Gerd’son in Sept 2008 , when it began proceedings to evict him. The accommodation sought by Mr. Gerd’son – to stay in residence until he completed an evolving academic plan  - was unreasonable” (213)
  7. The University continued to accommodate Mr. Gerd’son after its eviction proceedings began

                                                               i.      By offering to work in partnership with him to find off-campus housing

                                                             ii.      By negotiating with him; if he would agree to get medical support off-campus, the University would help him with the move

                                                            iii.      By offering to accommodate him in a hotel for a month and to pay for a psychologist to work with him to draw up a transition plan (it was not obligated to pay for a full-fledged psychological assessment as requested by Gerd’son.

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000