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Queen's University
 

Gerd’son obo others v University of Victoria and another, 2011 BCHRT 235

What happens with an individual files a representative complaint (on behalf of students with disabilities) that attacks every aspect of a University’s policies on academic accommodation? 

Facts

This is a representative complaint, brought forth by an individual complainant, Alkis Gerd’son, on behalf of students with disabilities at the University of Victoria.   Gerd’son, who has PSTD and OCD, received two degrees (B.A. (1993) and his B.ED (1997)) from UVic.  From 2003 to 2010 he took continuing studies courses on a part-time basis.  He lived in residence from 2000 to 2010, when he was evicted by the University.  The University had been attempting to evict him since 2008 on the basis that residence was for students in a degree-granting program doing a minimum number of courses.   

The university’s eviction attempts prompted Gerd’son to file an individual complaint with the BC Tribunal alleging that the University’s standard for eligibility for tenancy was arbitrary and discriminatory.  This complaint was dismissed by the tribunal in 2011, which ruled that the standard was a Bone Fide Occupational Requirement.  He subsequently filed a second complaint alleging retaliation for having filed a complaint. It was not accepting for filing by the tribunal.

The representative complaint is described by the Tribunal as  “…”.  Leaning heavily on two reports on equity and accommodation services commissioned by the University, the Bujara Report (2003) and the Wolforth Report (2008), Gerd’son outlined 14 distinct allegations ranging from the indignity of placing students with disabilities in the most esthetically unpleasing building on campus during exam period to the failure of tenancy agreements to offer consideration for students with disabilities. The Tribunal noted that “[t]he allegations made in the complaint are extensive and wide-ranging involving substantially every aspect of the policies and procedures relating to the academic accommodation of those with disabilities”

Gerd’son claimed to have secured the support of Access UVic (the Student Union advocacy group for students with disabilities) and outlined a communications plan to “to assist in informing the Class of the complaint through the media”.  

University applied to dismiss the complaint on the basis that the complaint would not further the purposes of the Code.

Issue

Would Gerd’son’s complaint further the purposes of the Code?

Decision

No

Reasons

The law provides for the admission of class complaints that “identify and eliminate persistent patterns of inequality associated with discrimination prohibited by the code” ((72) (d). However, case law has determined that “it may not further the purposes of the Cod to proceed with a complaint where to do so would

1)      “result in the unnecessary duplication of […] resources” (Williamson v Mount Seymour Park Housing Co-Operative, 2005 BCHRT 334)

2)      be unfair to the respondent by accepting a complaint by a complainant who has failed to comply with Tribunal rules and regulations (Williamson v Mount Seymour Park Housing Co-Operative, 2005 BCHRT 334)

3)      be unfair to the respondent because the underlying dispute has already been settled or that the respondent has taken appropriate action to remedy the problem (Williamson v Mount Seymour Park Housing Co-Operative, 2005 BCHRT 334) and

4)      would amount to a waste of time and money by the Tribunal (Bell and others v. WCB (No2) 2010 BCHRT 119.

It dismissed Gerd’son’s complaint for the following reasons

1)      Three parts of the complaint dealt with University policies and procedures pertaining to tenancy standards at issue in the complainant’s previous complaint.  The chair found “[…]that it would not further the purposes of the Code to allow a party to bring an individual complaint relating to a particular issue and then to allow that same individual to bring a similar but somewhat broader issue, framed in systemic and representative terms, before the Tribunal.  This would be duplicative and inefficient. (reasons 1 and 4)

2)       The remainder of the complaint was found to be at odds with furthering the purpose of the code for the following reasons

  1. Gerd’son does not have the authority to act on behalf of the class, has had difficulty coordinating with the Class, and has not received the support of Access UVic.
  2. There have been no “systemic and wide-spread attempts to communicate with the Class” through means outlines in the complaint.
  3. The complaint was too big to deal with in a hearing.  “It would be extremely difficult to address all of the issues raised in the Representative Complaint in a single complaint or hearing process”. Some of the issues were general, any one of which “could form the basis of a systemic complaint”.  Others issues quite specific, many of which are currently before the Tribunal, and some of which include systemic issues. (para 27).  “Taken together, they create a complaint which is unwieldy and impossible to fully address in the course of a single hearing, especially a single hearing where the representative complaint is being coordinated by a single member of the Class, without the assistance of a broader group and without legal representation.” (93). “It does not further the purposes of the code to proceed with a complaint that may, at the end of the day, be impossible to efficiently hear and decide.” (94)
  4. The Class was too diverse.  “Fourth, the extremely broad nature of the Representative Complaint raises the issue of whether the alleged contravention would be similar for all members of the class. The Representative Complaint relates to a Class that has varied disabilities that will require a variety of accommodations, which may well not be the same or similar for all members of the Class.”
  5. Dismissing the complaint would not “leave the Class without a means of redress. “”The issues raised in the complaint are largely ongoing, and to the extent that concerns remain, individuals or groups may file complaints with respect to those concerns.”

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000