Human Rights Office

Human Rights Office
Human Rights Office

Gamache v. York University, 2013 HRTO 693 (CanLII)

Summary

The applicant has a visual impairment such that she is legally blind in one eye. The applicant alleges that she was denied accommodations required because of her visual impairment and that she was treated adversely and ultimately removed from the program because of her disability.

The applicant was admitted into the York University Faculty of Education for the 2005-06 academic year in the Primary/Junior Consecutive Education Program. The course involved in-class work and written assignments, and two practicum placements at host schools, where the student teacher is supervised by a host teacher and an adjunct professor at the host school.

The Applicant applied under the Access Initiative, which is available to students who self-identify on their applications as having a disability. The University suggested her to contact the Office for Persons with Disabilities (OPD) that could provide her with the support she needed. The Applicant arranged a meeting with Karen Swartz, Director of the Office for Persons with Disabilities at York University, and Kathy LeBlanc, Practicum Coordinator for the Primary/Junior Consecutive Education Program. During this meeting, the parties discussed the accommodations needed and the possibility of a bursary. They all agreed with providing the applicant with the course materials in an alternative format.

The applicant took his coursework in a space rented by York University from Georgian College. However, the two institutions did not have an agreement regarding the services provided to students. The applicant’s first practicum placement was with a junior grade at Forest Hill Public School. This placement was not successfully completed by the applicant and was terminated by the host school on November 16, 2005. The applicant was placed in her second placement at Russell Goodfellow School teaching a Grade 1 class. This placement was not successful either and ended in late February 2006.

The applicant was not able to complete her coursework and as a result, received failing grades in three courses. The applicant was sent a letter dated June 28, 2006, advising her that she had failed these courses and as a result would need to file a petition to continue in the program. The applicant did not do so, and accordingly did not successfully complete the program.
 

Questions to be Determined and Findings

1. Did the respondents’ failure to provide the applicant with an accommodations letter amounts to discrimination because of the applicant’s disability in violation of her rights under the Code? (NO)

2. Did the failure to file a bursary application in a more timely manner amount to discrimination? (NO)

3. Did the failure to provide the applicant with textbooks and course materials in an accessible format in a more timely manner amounts to discrimination by the respondents against the applicant? (YES)

4. Did the events leading to the ultimate discontinuation by the applicant in the program amount to discrimination? (NO)
 

Reasoning

1. Regarding the assessment of credibility, the Tribunal detected in the applicant a tendency to overstate, amplify or exaggerate her allegations. The evidence pointed to problems with the applicant’s memory, and a plagiarism incident. Therefore, the applicant was meant as a non-credible witness when there was a conflict with the evidence of the respondents or other witnesses.

During the first meeting between the applicant and representatives from York University, the need for an accommodations letter was identified. The letter should have presented the following requests: extra time on tests or exams; that readings be provided ahead of time to in an accessible format; and preferential seating.

“Ms. Swartz’s evidence is that the process at York University for obtaining an accommodations letter is for there to be an initial intake meeting, at which the nature of the student’s disability and need for accommodation is discussed. Then, once the names of the specific course instructors are known, the student is to get back in touch with Ms. Swartz’s office, the OPD, and arrange a meeting at which accommodations letters addressed to each course instructor would be prepared, setting out the specific accommodations required. Once the accommodations letters had been prepared, it is then the student’s responsibility to provide these letters to each course instructor.” (p. 54)

The applicant did not know that she had the onus of ensuring that the accommodation letters were created and delivered, and relied on the PDO to do so.  The Tribunal considered the incident as a misunderstanding, given the fact that the accommodation letter is simply a tool to ensure that accommodation is provided when needed. The tribunal found that most of the accommodation requests were fulfilled regardless of having the letter.

2. At the meeting on May 24, 2005, there was a discussion about an application for a bursary to pay for the cost of scanning the materials, since Georgian College was charging a fee for doing it. There was also confusion about what steps needed to be taken to apply for this funding, and who would be taking them. The applicant believed that she did not need to take any steps until she discovered differently much later in the fall term. Whereas, the PDO always wait for applicants to take the lead in these processes.

When the application was submitted, it was done outside of the regular schedule and lacked medical evidence linking the applicant’s disability to her need for the equipment sought. Therefore, the bursary application was not successful.

To amount to a violation of the Code, there needs to be evidence to establish that the equipment sought in the bursary application relates to a need arising from her visual disability, and the Tribunal did not have sufficient evidence to support such a conclusion.

3. Since the first meeting, it was understood by York University that the applicant would require the course readings ahead of time in an accessible format.

“The evidence indicates that following the May 24, 2005 meeting, Ms. Swartz discussed the applicant’s need for accessible materials with Ms. McColl, the Assistant Manager of Library Accessibility Services. This prompted Ms. McColl to send an e-mail to the applicant on June 6, 2005, stating that she had been advised by Ms. Swartz that the applicant’s alternate format materials were going to be supplied by Access Services at Georgian College and that the cost would be covered by a bursary.” (p. 98)

As discussed previously, there was considerable confusion about the nature of this bursary and who was responsible for applying for it, which resulted in the delayed for the applicant to receive the material in an accessible format.

The applicant raised the concern when she still had not received course materials in accessible format by late September 2005, and Ms. Judy Blaney, Course Director for the Primary/Junior Consecutive Education Program, followed up with Tina McColl, who is the Manager of Library Accessibility Services at York University, to determine if there was any step missed in the process.

“Ms. McColl corresponded with the applicant on October 4, 2005, ‘to apologize for the very long delay in responding to [the applicant’s] inquiries regarding [her] transcription requests.’ Ms. McColl indicated that in that particular year, her office ‘has been absolutely overwhelmed by the number of requests for alternate format material and was ‘struggling with a record number” of requests.” (p. 105)

However, it still took a month a half for York University to deliver the material in an accessible format, on November 20, 2005. Therefore, the Tribunal found that the delay in providing the applicant with textual materials in accessible format amounts to discrimination against the applicant because of her visual disability, in violation of s. 1 of the Code.

4. During the course of the Applicant’s academic year, Ms. Blaney sent several e-mails to Ms. LeBlanc, Associate Dean Pitt, and others to express concern about the applicant’s lack of success in the program and to request a meeting to seek guidance.

The applicant alleges that she was unfairly assessed and graded by Ms. Blaney and Ms. Hamilton about her work in the winter term which resulted in her inability to continue in the program and that her disability was a factor in the unfair assessment of her work. The Tribunal determined that this allegation was unfounded.

“Ms. Hamilton met with the applicant for a considerable period of time in order to review expectations for the upcoming teaching block. Ms. Hamilton also provided the applicant with specific suggestions and guidance in terms of how to improve her preparation of lesson plans and her teaching practice. Ms. Hamilton also met with the host teacher and the adjunct professor at the host school in order to review expectations and areas for improvement for the applicant.” (p. 154)

The applicant also made several critical mistakes regarding lesson plans, spelling and grammatical, and failure to meet deadlines. Then, the respondent requested that the applicant’s placement at the host school be terminated for the following reasons:

“Inability to demonstrate an understanding of concepts and knowledge required for teaching; inability to plan or write up coherent lesson plans; inability to teach a successful lesson; missed meetings; and being completely unprepared for the March teaching block.” (p. 165)

The Tribunal considered that respondents had provided rational and non-discriminatory explanations to support the applicant’s inability to continue in the consecutive education program, accordingly, it found no violation of the Code.
 

Remedy

Due to the violation of the Code in relation to the failure of York University to provide reading materials to the applicant in an accessible format promptly, the Tribunal directed the parties to file their written submissions on the remedy.