Making the grade or failing to accommodate: a case study
In the recent decision of Longueépée v University of Waterloo, 2020 ONCA 830, the Ontario Court of Appeal found the University of Waterloo discriminated against a prospective student when it rejected his admission application on the basis of previous grades received during a time the applicant’s disabilities had not been accommodated.
Application for admission and denial
The chronicle begins when Roch Longueépée applied for admission to the University of Waterloo’s Faculty of Arts for the fall of 2013. Mr. Longueépée’s application was filed late and accompanied by transcripts of a GED and grades from two terms of study at Dalhousie University – both of which were below the academic standards required for admission to the University of Waterloo.
Recognizing his grades did not meet the University’s standards, Mr. Longueépée advised the University his grades were impacted by the fact that, during his previous studies, Mr. Longueépée had undiagnosed and unaccommodated disabilities. It was not until years after completing his GED and attending Dalhousie University that Mr. Longueépée was diagnosed with a moderate traumatic brain injury and post-traumatic stress disorder stemming from institutional child abuse he suffered early in his life. Accordingly, during his previous studies, Mr. Longueépée had not sought accommodation. In his application package to the University of Waterloo, he included an outline of his experience and volunteer activities, reference letters and testimonials, writing samples and medical information.
The University of Waterloo considered Mr. Longueépée to be a transfer student, which imposed academic standards of 65% for university courses and 70% in Grade 12 English. The University’s policies provided that if an applicant did not meet these criteria but identified extenuating circumstances, the Faculty’s Admissions Committee could evaluate the application and grant or deny admission.
Recognizing Mr. Longueépée presented extenuating circumstances, the Committee was convened. In considering his application, the Committee accepted that Mr. Longueépée had undiagnosed disabilities and that these disabilities impacted his previous academic performance; however, in August of 2013, the Committee advised Mr. Longueépée that he did not meet the minimum admission requirements and so he would not be admitted.
Human rights complaint and lower court decision
In November of 2013, Mr. Longueépée filed an application with the Human Rights Tribunal of Ontario alleging that the denial of admission based on his previous grades was discriminatory. He sought various remedies including monetary compensation, the option of admission to the University and that the University develop more flexible assessment criteria for situations where past academic results may not reliably predict future academic success.
The Vice Chair of the Human Rights Tribunal accepted Mr. Longueépée’s disabilities and found he was adversely impacted by the admissions standard because of them, resulting in a finding of a prima facie case of disability discrimination. The Vice Chair went on to find that the University had a duty to accommodate Mr. Longueépée but that it had met its duty by convening the Committee to assess his application. Mr. Longueépée argued that the University’s accessibility services department ought to have been involved in the assessment of his application but the Vice Chair rejected this argument, finding there was no evidence such a consultation would have had any impact on the decision.
The Vice Chair concluded there was no information before the Committee that demonstrated that Mr. Longueépée could succeed at university, stating that in an academic setting, there is no measure to evaluate success other than grades. The Vice Chair dismissed the application and Mr. Longueépée’s request for a reconsideration was denied by the Vice Chair in a subsequent decision.
Mr. Longueépée filed an application for judicial review that was allowed by the Ontario Divisional Court, which found the University of Waterloo had failed to accommodate Mr. Longueépée’s disabilities in its admissions process. The Court stated the University was required to prove that:
- it adopted the standard for a purpose or goal that is rationally connected to the function being performed;
- it adopted the standard in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal; and
- the standard is reasonably necessary to accomplish its purpose or goal, in the sense that it cannot accommodate persons with the characteristics of the claimant without incurring undue hardship.
The Divisional Court found the University had met the first two requirements but fell short at the third stage when it failed to consider information other than Mr. Longueépée’s grades.
The Divisional Court acknowledged the University did not have to presume that Mr. Longueépée would be successful simply because his previous grades were unaccommodated, but it did have to prove that it accommodated him by either (1) assessing his candidacy without recourse to his grades; or (2) establishing that it would result in undue hardship for the University to do so.
The Divisional Court set aside the Vice Chair’s decisions and remitted the matter back to the University’s Committee for reconsideration.
Court of Appeal
The Ontario Court of Appeal upheld the Divisional Court’s finding that the Vice Chair’s decisions were unreasonable, and found they were also patently unreasonable, noting that the Vice Chair had ultimately failed to grapple with the core issue of whether the University had accommodated Mr. Longueépée to the point of undue hardship – a defence which had not actually been raised by the University.
Justice van Rensburg of the Court of Appeal noted there was no indication the Committee had made any effort: to understand how Mr. Longueépée’s disabilities might have affected his previous grades; to analyze whether his grades, interpreted in light of his disabilities, might assist in showing his ability to succeed at university; or to consider whether the supplementary materials filed by Mr. Longueépée demonstrated an ability to succeed at university.
Justice van Rensburg noted that if the University was to simply apply the discriminatory grade standard to Mr. Longueépée’s application, it needed to establish undue hardship, which it had not relied upon and had not lead any evidence on.
Rather than remitting the matter back to the Committee, the Court of Appeal sent the matter back to the Ontario Human Rights Tribunal for reconsideration by a different person.
At the end of its reasons, the Court of Appeal noted that nothing in its decision should be taken to discourage or disparage grades-based admission standards. This note was expanded upon in a concurring decision by Justice Lauwers, who found it important to reflect on the unique position of universities.
Justice Lauwers acknowledged that while universities are not completely insulated from public scrutiny (including review of their compliance with human rights legislation), our courts do recognize that universities enjoy a measure of autonomy and the admissions process is a core feature of that autonomy. Justice Lauwers went on to note that university admission is not a right and an applicant’s obligation to demonstrate the cognitive capacities and other competencies required to succeed is not entirely displaced by the duty to accommodate under human rights legislation, noting at paragraph 105, “The difficult reality is that certain claimants will still fall short of the standards that universities have set, even with accommodation.”
This decision should not be taken to mean that grades are not important for universities in considering admission standards. It should be taken as a warning that human rights legislation imposes very real obligations on universities, even with respect to prospective students. Convoluted and lengthy litigation is a material risk universities face if proper steps are not taken to ensure those obligations are met and properly documented.
What does this mean for you?
The complaint in this matter was filed in November of 2013 – it took more than eight years for the matter to weave its way through the judicial system before this decision from the Ontario Court of Appeal was issued. The decision ultimately resulted in the complaint being remitted back to the Ontario Human Rights Tribunal and so the matter carries on.
Human rights complaints are serious matters and Stewart McKelvey has the experience and expertise to help you navigate the complaint process. As with many problems though, an ounce of prevention is worth a pound of cure. We can provide you with advice in dealing with accommodation issues when they arise in order to help ensure all parties are treated fairly and you are protected if you face legal challenges down the line.
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