Meeting 30: Academic Accommodations

Summary

Longueépée v. University of Waterloo, 2020 ONCA 830

The Applicant, Roch Longueépée, attended Dalhousie University for two terms, withdrawing after receiving a D grade in both terms, several years before applying for admission to the University of Waterloo. He had achieved grades that were well below the University’s minimum admission requirements for transfer students. The applicant was a survivor of institutional child abuse. He suffered severe physical, psychological and sexual trauma during his childhood. Mr. Longueépée had completed a high school equivalency and attended Dalhousie before being diagnosed with moderate traumatic brain injury and post-traumatic stress disorder.

Accepting that the applicant had previously undiagnosed and unaccommodated disabilities, University the University convened an admissions committee to consider his application, consisting of academic transcripts, information about his volunteer work, and reference letters. Because of his prior studies at Dalhousie, the University considered Mr. Longueépée to be a transfer student, rather than a mature student, in the admissions process. He did not meet the minimum admission requirements, and the Admissions Committee concluded that Mr. Longueépée’s application did not demonstrate the ability to succeed at University, and he was refused admission.

The Ontario Human rights tribunal dismissed his application alleging discrimination on basis of disabilities. It also denied the request for reconsideration, asserting that even though the University’s grades-based admissions standard had a discriminatory effect on Mr. Longueépée because he had unidentified and unaccommodated disabilities when he obtained the relevant grades. Therefore, the University had reasonably accommodated Mr. Longueépée’s disabilities in its admissions process. The Court concluded that the University met its procedural duty to accommodate Mr. Longueépée by considering his application for admission, although submitted late and not through the normal OUAC process. The Vice Chair also concluded that the University met its substantive duty to accommodate and referred to the significant gap between the University’s admission requirements and Mr. Longueépée’s past academic performance and his failure to take any university courses after his diagnosis. The Vice Chair noted that the failure to involve Accessibility Services was part of the procedural duty to accommodate and did not mean that the University failed in its duty to substantively accommodate Mr. Longueépée.

The Divisional Court allowed Mr. Longueépée’s judicial review application, concluding that the University failed in its duty to accommodate his disabilities in its admissions process. The Court noted that the Admissions Committee had professed an “accommodation dialogue”, but the dialogue was “firmly anchored to the very grades which [the Admissions Committee] implicitly, if not expressly, recognized as not being reflective of Mr. Longueépée’s abilities” (p. 41).

The Divisional Court concluded that because the University acknowledged that it could not interpret Mr. Longueépée’s grades free from their discriminatory effect, it either had to: (1) assess Mr. Longueépée’s candidacy without recourse to his marks; or (2) establish that it would result in undue hardship for it to do so: at para. 57. It failed to do either of these things: at para. 58. The University did not consider an approach that placed no reliance on prior marks, and so it could not now establish that no such approaches are available or would cause it undue hardship: at para. 60. (para. 42)

The Divisional Court then remitted the matter to the Admissions Committee with directions, and the University appealed.

Questions to be determined and Findings

Did the Divisional Court appropriately identify “reasonableness” as the standard of review or is the standard post-Vavilov “patent unreasonableness”? (YES)
Did the Divisional Court correctly apply the standard of review? (YES)
And, if the standard was “reasonableness”, does a post-Vavilov approach lead to a different result? (YES)
If the Vice Chair’s decisions were properly set aside, did the Divisional Court err in its remedy, in sending the matter back to the Admissions Committee rather than to the HRTO? (YES)

Reasoning

1. The University and Mr. Longueépée agree that the reasonableness standard of review applies to the judicial review of a decision of the HRTO, although they accept that the framework and approach to determining whether a decision is reasonable had been modified by the Supreme Court’s decision in Vavilov.

The Appeal Court further states:

In my view, it is both unwise and unnecessary for the proper disposition of this appeal, to embark on the analysis that the HRTO asks this Court to undertake: that is, to determine whether post-Vavilov the statutory standard of review in s. 45.8 of the Code should be given effect, and if so, whether a court’s review of an administrative decision for “patent unreasonableness” would be different from a review for “reasonableness”. It is unwise to do so because these issues should be decided in a case where the standard of review makes a difference to the outcome, and where the parties with a stake in the dispute have joined issue on the point. It is unnecessary in this case because the result would be the same under both standards of review. Even assuming that “patent unreasonableness” can be given a pre-Dunsmuir meaning as proposed by the HRTO, for the same reasons that I find that the decisions of the Vice Chair were unreasonable, I also find that the decisions were patently unreasonable. The reasoning and logical errors are immediate and obvious, such that the decisions are “clearly irrational” and “evidently not in accordance with reason”. (para. 56)

2. The Appeal Court reviewed the thought process of the Divisional Court when considering the appeal; therefore the focus was on the reasoning in the Vice Chair’s decisions and their result.

The Appeal Court sided with Mr. Longueépée, who asserted that the Vice Chair’s decisions were unreasonable, because her reasons contained a logical error: “once she concluded that the 65% grade standard for transfer students was discriminatory, she could not rationally conclude that the application of that standard to him constituted reasonable accommodation of his disabilities.” (para. 61)

The Divisional Court referred to the three-part test in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 (“Grismer”), at para. 20, that applies when a requirement or standard has been shown to be prima facie discriminatory. The responding party must prove on a balance of probabilities that:

1) it adopted the standard for a purpose or goal that is rationally connected to the function being performed;

2) it adopted the standard in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal; and

3) the standard is reasonably necessary to accomplish its purpose or goal, in the sense that the defendant. (para. 39)

The Appeal Court asserted that University’s grades-based admission standard for transfer students was rationally connected to the admissions process as a predictor of the ability to succeed at University, and that the standard was adopted in good faith to ensure that admitted students would have the ability to succeed. The issue before the HRTO was whether the University accommodated Mr. Longueépée in its admissions process to the point of undue hardship, and the Appeal Court determined its decision to be unreasonable.

In this case, there was no indication that the University engaged in an “accommodation dialogue” with Mr. Longueépée or undertook any other measures to assess how his disabilities might impact his ability to meet the University’s grade standard. Additionally, the Admissions Committee did not consider whether Mr. Longueépée’s supplementary materials demonstrated an ability to succeed at University.

3. In the Appeal Court’s view, the Divisional Court did not explain why, having allowed the application for judicial review, it was sending the matter back to the Admissions Committee with directions on how to assess Mr. Longueépée’s application, and not to the HRTO to determine the appropriate remedy.

Remedy

The Court allowed the appeal but with the following modifications to the order of the Divisional Court:

(1) setting aside the decision and reconsideration decision of the HRTO, (2) declaring that the University, contrary to the Code, discriminated against Mr. Longueépée when it failed to reasonably accommodate his disabilities in its admissions process in the 2013-14 academic year, and (3) remitting the matter back to a different member of the HRTO to determine, with such directions respecting additional evidence and/or submissions as may be required, the appropriate remedy under the Code. (para. 95)