Charter Cases Affecting Canadian Schools

Systemic Remedy: University to Implement Admissions Pilot Project for Students with Disabilities

Editor’s Note: The following case involves a lengthy, 11-year judicial history. As such, it was not possible for the legal system to restore the Student to the position that he may have been in, had discrimination against him in the University admissions process not occurred. Instead, the Human Rights Tribunal of Ontario ordered a unique Systemic Remedy – a mandated admissions pilot project for students with disabilities – with implications for the Postsecondary admissions landscape in Ontario and elsewhere.

Facts

Roch Longueépée (the Student) attended the University of Prince Edward Island in 1990, but was unable to complete his studies. He subsequently attended Dalhousie University in 1999 and completed two courses. At the time, he was not aware that he had potentially identifiable disabilities, creating a barrier and for which he had no access to accommodations.

After the Student’s disabilities were identified, he recognized certain rights to accommodations, and decided to apply to university in Ontario. He was accepted into York University in 2012 but was ultimately unable to accept the offer due to the high cost of living in Toronto. Instead, he applied to the University of Waterloo (the University) for 2013 but was not admitted.

The Student filed a complaint with the Human Right Tribunal of Ontario (HRTO) in 2013, alleging discrimination with respect to educational services because of disability, contrary to the Human Rights Code, R.S.O 1990, c. H.19, as amended (the Code). The Student alleged that the University discriminated against him and breached his Code rights by relying upon his past grades in the admissions process. His grades were obtained before the identification of his disabilities (his marks were obtained without any accommodation or recognition of his significant disabilities). The Student submitted that the University did not consider other relevant information, including previous experience, achievements or letters of reference.

The HRTO dismissed the complaint (Longueépée v. University of Waterloo, 2017 HRTO 575) as well as a subsequent request for reconsideration (Longueépée v. University of Waterloo, 2017 HRTO 1698).

On judicial review, the Ontario Superior Court (Divisional Court) allowed the Student’s application, concluding that the University failed in its duty to accommodate the Student by not considering a potential approach that placed less reliance on prior grades. Setting aside the decision, the Court held that the HRTO erred in finding that the University had accommodated the Student. The matter was referred back to the University’s Admissions Committee (Longueépée v. University of Waterloo, 2019 ONSC 5465). The Court’s analysis considered whether the HRTO decision was reasonable, but did not address how the University could have demonstrated a reasonable accommodation as required by the Code.

The University appealed the ONSC decision to the Ontario Court of Appeal (Longueépée v. University of Waterloo, 2020 ONCA 830), which allowed the appeal in part. The University argued that the Divisional Court inappropriately bypassed the HRTO in referring the matter back to the University Admissions Committee.

While the Court of Appeal agreed with the Divisional Court that the HRTO erred in accepting the University’s position that the Student could not be successful at university, it found that the remedy of referring the matter back to the Admissions Committee was not appropriate. The matter should instead have been returned to the HRTO for a remedy in compliance with the Code. The Court of Appeal also held that the Student was entitled to a declaration that the University discriminated against him when it failed to reasonably accommodate his disabilities in the admission process.

Cause of Action

The Court of Appeal referred the matter back to the HRTO, directing that a different HRTO member determine an appropriate remedy in accordance with the Code. The ONCA urged the HRTO to be aware of and consider certain key issues and facts relating to universities in Ontario.

There was no agreement between the parties regarding a remedy that both found acceptable. A Court-directed remedies hearing occurred on multiple dates between October 2023 and February 2024. Given the passage of time, the Student was not seeking admission to the University. Instead, he sought systemic change, such that others in similar circumstances could rely upon an enabling admissions process with accommodations if needed.

Legal Issue

The Student’s disabilities were not in dispute. Given that the University’s liability for a breach of the Code in its admissions process was confirmed by the Divisional Court and the Court of Appeal, the matter before the HRTO focussed entirely on the appropriate remedy. 

Decision

Systemic Remedy

The HRTO ordered the University to initiate, implement and evaluate an admissions pilot project for the purposes of facilitating the potential admission of students with disabilities, creating a process to evaluate the effectiveness of an admissions process for students who may not be admitted on the basis of the University’s admission and evaluation process. The University was directed to ensure that the pilot project results were considered in an appropriate equity review process (as a further step in the University’s 2023 Admissions Process Review Project, which led to certain admission and accommodation changes for Indigenous students). The University was further directed to notify the HRTO of its compliance with the order, and to make its pilot project results public in a timely manner, such that other universities could be made aware of the results.

Damages Award

The University was directed to pay the Student $35,000.00 in general damages, with Pre- and Post-Judgment interest in accordance with ss. 128-129 of the Courts of Justice Act, RSO 1990, c C.43, within 30 days of the decision.

Reasons

Updated University Admissions Process

The HRTO heard from witnesses regarding recent changes to the University’s process for admissions accommodations, addressing student applications requesting special consideration. Following the court decisions in this case, the University admissions process was thoroughly reviewed in consultation with other large Ontario universities. The updated process reflected the University’s efforts to ensure that students with special circumstances relating to a disability have access to sufficient admissions process information, including potential supports and accommodations for students whose marks do not reflect their potential to be successful in post-secondary education.

It was clear that the University’s process for accommodating students with disabilities was significantly changed from the time when the Student attempted to enroll. The University’s updated admissions processes aimed to meet Code-related accommodation requirements to ensure that applicants could be appropriately accommodated and not denied access to post-secondary education due to unaccommodated disabilities.

Remedy

The question before the HRTO was the appropriate remedy for the confirmed breach of the Student’s Code protected rights by the University. The purpose of compensation under the Code is to restore an individual (as far as reasonably possible) to the position that he or she would have been in, had the discrimination not occurred (Piazza v. Airport Taxicab (Malton) Assn., 1989 CanLII 4071 (ONCA)). Due to the length of time between the breach and the remedy decision in this case, the HRTO could not direct the University to restore the Student to the position he might have been in had the breach not occurred (ie: had he been able to pursue his desired University degree program).

The goal was not to create whole scale systemic change by eliminating consideration of grades, but to determine the appropriate remedy in this case. The HRTO found that the most appropriate action for the University was to initiate a timely admissions pilot project for students with disabilities, and to ensure that the pilot project results were considered in an equity review process. The pilot project results would be made public, so that other universities would be aware of (and benefit from) the results, to facilitate the potential admission of students with disabilities and accommodation needs. The University was directed to notify the HRTO of its compliance with the order.

Longueépée v. University of Waterloo, 2024 HRTO 707 (Human Rights Tribunal of Ontario).

Authored by Anna Zadunayski LLB, MSc.

Implications and Applications

It is somewhat extraordinary for a tribunal to mandate a systemic remedy – imposing a complex, costly, resources-intensive burden of implementing and evaluating a timely admissions pilot project, the results of which are to be made publicly available. 

In its decision, the Court of Appeal acknowledged that universities enjoy a measure of autonomy in the pursuit of their mission that must be understood and respected (Longueépée v. University of Waterloo, 2020 ONCA 830 at para 98). Courts have historically treated universities with some caution, being reluctant to interfere in core academic functions. 

The admissions process is a core feature of university autonomy and, as a result, attracts a degree of deference (Ibid, at para 101). The Court stated that university admission is not a right or entitlement, with the competencies required to succeed not entirely displaced by the duty to accommodate cast under the Code (Ibid, at para 103). The decision issued a caution however, that the deference owed to universities did not completely insulate academic decisions from tribunal or judicial scrutiny (Ibid, para 106).

The case – and its novel remedy – serves as a reminder of the careful balance between university autonomy and judicial oversight.

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