Human Rights and Equity Office

Human Rights and Equity Office
Human Rights and Equity Office

Meeting 11: Accommodation Roundup

Guest Speakers

Disability

  • What legal test does a tribunal need to use when assessing whether another body reasonably considered human rights issue? Trozzi
  • Under what circumstances can a student sue a University for breach of contract (in its failure to accommodate)?  Jaffer
  • What must a medical school prove before dismissing a resident with a disability as "unsuitable"? Kelly
  • What is the difference between accommodating a disability and tolerating eccentric behaviour? Senadheera
  • How far do Admissions need to accommodate students with disabilities who do not qualify ? Carlisle
  • Is it discriminatory to deny access to university residence to students who are not enrolled in a degree-granting program due to disability? Gerdson
  • When is a systemic claim just too big to handle by a Tribunal?  Gerd'son (group claim) Can a professor bring a dean to court over the latter's overriding the department's accommodations of a student? Lukas

Transgender Issues

  • Can an employer refuse to accommodate a transgender woman employee who wishes not to change with in the men's change room? (Vanderputten)

Childcare (Family Status)

  • Does an employer have an obligation to accommodate its employee's childcare requirements?(Johnstone)

Eldercare

  • Does an employer have an obligation to accommodate eldercare requirements of its employees?(Devaney)

Cases

Gender Neutral Washrooms

Gender specific washrooms and change rooms, facilities that are designated for use by a single gender only, often fail to accommodate gender variant members of the Queen’s University community. Both the Ontario Human Rights Commission policy and human rights decisions are clear that people in the process of transitioning have a right to use the facilities designed for members of their felt gender, so on the face of it, one may wonder what is the problem. There are two problems. One is that, as our understanding of gender grows and changes, there are increasing numbers of individuals who actually do not accept or identify in the gender binary—that is, they do not identify as being male or female, man or woman. The legal system is only just beginning to catch up with that issue, but there is another, more practical issue at work as well: gender specific washrooms can result in instances of harassment and violence towards those perceived by others as not being of the specified gender. Without the existence of gender neutral facilities, these individuals have no choice but to use gender specific washrooms – an experience that can be uncomfortable, embarrassing, hurtful, frightening, and dangerous.

 A sub-committee of the Positive Space Program, called the Transgender/Transsexual Policy Group, researched this question, looking at how other campuses have responded to it and at the availability of gender-neutral washrooms at Queen’s. With support from The Council on Employment Equity and the Senate Educational Equity Committee, they developed a policy which the Human Rights Office brought forward.  It states:

 The University shall ensure the existence of at least one gender neutral washroom (or change room with shower, where appropriate, as in residences and athletic facilities) on every floor (where washrooms exist) of every newly constructed or significantly renovated building on campus. Further, the University shall repurpose all single-user, gender specific washrooms into gender neutral facilities as funding becomes available.

All such facilities must include signage that makes it absolutely clear that they are not restricted by gender.

 We are happy to note that at its meeting on October 15, 2012, The Vice Principals’ Operations Committee approved the policy (Record of Decision 2012 – 044).

 Getting it implemented, of course, will take a bit longer….

Cultural Competency

  “Cultural competency” within one’s professional practice means having the skills to support clientele of all ethnicities, genders, sexual/gender identities, of all cultural and socio-economic backgrounds, abilities and beliefs.

 The theory is, of course, that understanding how your client may differ from you in terms of any of these areas makes it possible for you to serve that client better. Recognizing that you live your own life out of various sets of cultural assumptions, and holding those assumptions up so that you can become conscious of them, is always a part of developing your cultural competency, as is learning about other people’s sets of cultural assumptions.

 As recently as 2003, an abstract of an article on a cultural competency program at Wake Forrest medical school began this way: “Although literature suggests that providing culturally sensitive care promotes positive health outcomes for patients, undergraduate medical education currently does not provide adequate cultural competency training. At most schools, cultural competency, as a formal, integrated, and longitudinal thread within the overall curriculum, is still in its infancy.” That was in 2003. A decade later, many more schools have undertaken to offer some sort of training in cultural competency to those who will be practicing medicine.

 This fall, Queen’s became one of them, when the department of psychiatry decided to pilot a cultural competency module as part of the training required of its residents in psychiatry.

 The cultural competency module was developed by Dr. Sarosh Khalid-Khan (the Associate Professor who is Deputy Head of the Department) and Dr. Margo Rivera (the Director of Psychotherapy Training for Psychiatry Residents and the Clinical Leader for the Personality Disorders Service at Providence Care). Together, they created and presented a two-hour introductory segment in the fall. That was followed by a segment on Cultural Competency regarding sexual and gender diversity (which is where I come in); this winter, another segment on cultural competency with regard to ethnicity and race will complete the series.

 In developing and presenting the segment on sexual and gender diversity, I had the privilege of working with Dr. Julie Darke, who is a psychotherapist with the Personality Disorders Service at Providence Care and, as some of you will know, who was also my predecessor in the Human Rights Office as an advisor specializing in the area of sexual and gender diversity.

 Together, we offered two three-hour seminars for the residents in psychiatry.

 We asked them to look at their own experience of cultural norms in the area of sexual and gender diversity and how that may impact their practice.

  • We asked them to consider the cultural norms of the patients they see.
  • We asked them to gain awareness of how the patients they see may choose to identify themselves in terms of sexual orientation and gender identity and what mental health issues may be particularly important to be aware of in treating such patients.
  • We asked them to gain some understanding of human rights law in Canada and what their legal obligations may be in this area if they practice here.  This is important for all practitioners, of course, but may be of particular concern where, as in our department of psychiatry at Queen’s, many of the residents are not from Canada, but are planning to practice here.

 The seminars were a mix of lecture and discussion, liberally sprinkled with vignettes and case studies.

 We began by asking people to share in conversation something about the beliefs and attitudes concerning sexual and gender diversity with which they had grown up, at home or in their larger communities. We also provided an opportunity for each resident to use modified, short-form gender-mapping and sexual orientation tools to explore their own identities in this area.

 Then we looked at what the law in Canada has to say about discrimination and harassment as well as the impact of discrimination and harassment on psychological functioning and made use of several vignettes illustrating some of the ways that patients might present.

 We did a segment on queer communities in North America, the nature and history of these sub-communities, and the sometimes radically different communities that have formed in non-western cultures. We looked at the criminalization and then decriminalization of diverse sexual and gender behaviors in western history and at the contemporary legal status of these behaviors around the world.  There was also a segment on the medicalization and pathologizing of various behaviors and how that has been changing, with particular attention to two areas, transvestism and gender dysphoria, which have not at present been completely de-pathologized.

 We completed the module by looking at applications of all of this to the practice of psychiatry, using several case studies to bring home various points.

 We found the residents to be engaged and very willing to discuss the materials presented. Our pre- and post-testing demonstrated some increase in knowledge of the materials, and we were very pleased to have the students themselves indicate they had found the seminars worthwhile—it is no small thing to have a positive reaction from very busy residents in medicine. Some practical issues concerning scheduling need to be resolved, but it is currently the plan to incorporate this piece of cultural competency training into the training for residents in psychiatry on an ongoing basis.

 The Department of Family Medicine last year held a Grand Rounds on the subject of health issues specific to people identifying in the queer community and has offered our Positive Space information session to faculty, staff, and students several times over the last year. Family Medicine is now also expressing interest in the possibility of modifying the seminars on cultural competency for use with residents in family medicine.

College of Nurses of Ontario v Trozzi [2011] OJ No, 4744

Facts

This is an appeal for judicial review of the OHRT’s 2010 decision not to dismiss a human rights complaint against the College of Nurses of College by Edith Trozzi (RN, RPN). The The College of Nurses is a regulatory body whose double mandate is to govern the nursing profession and to protect the public interest.  It administers registration exams and certificates for registered nurses (RN) and registered practical nurses (RPN).  It has the duty/authority to impose (in accordance with section 15 of Schedule 1 of the RHPA) “to impose terms, conditions or limitations on a certificate of registration” of nurses with physical or mental disabilities which may impact their ability to provide safe medical services to the public. When Trozzi applied to certify as an RN and RPN, she requested and received accommodation for two disabilities which affected her ability to concentrate: clinical depression and fibromyalgia. She passed her practicum and her exams, but was required by the Registration Committee to agree to thirteen conditions (regarding the necessity of continued medical treatment and a requirement to disclose her disabilities when applying for future employment) which were applied to her RN and RPN certificates.  She appealed the College’s decision to place conditions based on disability on her certificates to the Health Professionals Appeal and Review Board (HPARB). The Board dismissed her appeal, determining that the Registration Committee’s that the conditions were reasonable and within the proper mandate and responsibility of the College which had discharged its duty to accommodate Ms. Trozzi. The College applied to the OHRT to dismiss Ms Trozzi human rights complaint based on the fact that the HPARB had already made a ruling on the same issue. The OHRT did not dismiss the complaint because, pursuant to Section 45.1 of the Code, it determined that HPARB had not appropriately addressed Trozzi’s human rights concerns. According to the tribunal, the board had not accommodated Trozzi to the point of undue hardship. 

Issue

Did the OHRT err in declining to exercise its discretion to dismiss the human rights application? 

Decision

Yes 

Reasons

  1. “First, it failed to take into account HPARB’s specialized expertise and public protection mandate.” (30) 
  2. “Second, though it purports to ask itself whether HPARB “appropriately” addressed Ms. Trozzi’s claims, the Tribunal’s reasons actually concern themselves with whether HPARB adequately addressed her claims, using the Human Rights Tribunal’s yardstick of “accommodation to the point of undue hardship”. The fallacy of the Tribunal’s logic is illustrated by the prospect of the Human Rights Tribunal ultimately having to substitute its own view on public health protection concerns for that of HPARB, or making a decision which ignores such concerns, and is potentially harmful to patients” (30)
  3. It determined that the Board had, in fact, adequately addressed Trozzi’s claims, as it addressed the alleged discrimination within the context of its own statutory mandate.
  4. Therefore, the Tribunal was not permitted to assume jurisdiction to substitute its own statutory mandate for the mandate of another tribunal having responsibility and expertise in that area.  Order the Tribunal’s decision was quashed and Trozzi’s impending case was dismissed
Jaffer v York University, 2010 ONCA 654

Facts

Ashif Jaffer has Tisomy 21 Down Syndrome.  He graduated from high school, where he had received accommodations for his disability, as an Ontario Scholar.

Mr. Jaffer enrolled at Glendon College (part of York University) in September 2006. In the summer leading up to the fall semester, the he and the university exchanged communications about accommodations for Jaffer, but no resolution was reached.  In April 2007, Jaffer failed a paper.  His professor agreed to allow him to resubmit a paper and told him that rather than give him a failed grade, he would grant him a deferred status.  Jaffer believed that this meant that he would receive a deferred status on not only the professor’s course, but rather on all of his courses, on the basis that the university had failed to accommodate him.  He resubmitted the paper in the summer of 2007. The professor acknowledged receipt of the paper, but failed to mark it.  As a result, Jaffer’s average fell beneath the required minimum average of D+ and was advised that he could no longer continue his studies at York.  

He took the University to court. He did not claim discrimination on the basis of disability, nor did he seek to have his mark changed or to be allowed to continue his studies. Instead, he claimed a breach of contract, negligence and negligent misrepresentation, as well as a breach of duty of good faith, for York’s failure to accommodate his disabilities and to properly investigate, assess and evaluate his claim for accommodation.

 In 2009, Justice Pitt (2009 CanLII 60086 ON S.C.) dismissed his claim for two reasons: 1) the issue was related to academics and was therefore within the discretion of the University or 2) the issue was one of human rights and was therefore within the jurisdiction of the OHRC. 

Jaffer took the decision to the court of appeal.

Issues

  1. Does the Court lack jurisdiction to hear this action because it relates to a dispute as to academics?
  2. Does the Court have jurisdiction to hear an action based upon the university’s failure to accommodate disabilities?
  3. If the court has jurisdiction to hear this action, do the pleadings disclose a reasonable cause of action for breach of contract, including a breach of the duty of good faith?
  4. If the court has jurisdiction to hear this action, do the pleadings disclose a reasonable cause of action for negligence or misrepresentation?

Decisions

  1.  No
  2.  No
  3.  No
  4.  No

 Reasons 

  1. Some claims fall under the jurisdiction of the court, even if they deal with academic matters.  Following Gauthier c. Saint-Germain, 2010 ONCA 309,the CA stated that it is the remedy sought by the applicant which determines the jurisdiction: “it is the remedy sought that is indicative of jurisdiction.  Judicial review is the proper procedure when seeking to reverse an internal academic decision. However, if a plaintiff alleges the basis for a cause of action in tort or contract and claims damages, then the court will have jurisdiction even if the dispute arises out of an academic matter” (26) The CA determined that Jaffer “did not seek to reverse decisions with respect to his grades or compel the university to readmit him. His claim is that the university owed him various obligations in both contract and in tort, and that its failure to meet those obligations has caused him pecuniary and non-pecuniary damages. Such claims fall within the jurisdiction of the Superior Court an may proceed if they are properly pleaded and tenable in law and disclose a reasonable cause of action” (29)
  2. On the one hand, the CA pointed to two cases;  Seneca College of Applied Arts and Technology v Bhadauria “rejected the recognition of an independent tort of discrimination and established that a civil cause of action cannot be ground directly in an allegation of a breach of human rights legislation or the public policy expressed therein” (37) and Honda Canada Inc. v Keays [2008] 2 SCR 362“concluded that a breach of the Code is neither an actionable tort, nor an “independently actionable wrong” for the purposes of awarding punitive damages” (38). On the other hand, using Gauthier the CA determined that “although a person may not commence an action based solely on an infringement of a right under Part 1 of the Code, breach of the Code may be properly raised in an action if the claim is otherwise properly before the court. Thus, whether or not a claim for breach of duty to accommodate disabilities can proceed in the Superior court depends upon whether or not the pleading discloses a reasonable cause of action that does not arise solely from a breach of the Code ”. (44 I underscore).  A reasonable cause of action could take the form of a failure to honour a “specific contractual provision” to accommodate disabilities which exists independently from the Code.  The rule would appear to be: No specific contractual provision, no reasonable cause:  “Thus, in the absence of a specific contractual provision, the duty to accommodate in the provision of education does not exist independently from the Code. There is no free-standing duty of care to provide accommodation that can ground a claim in negligence. The motion judge was therefore correct in his view that whether or not the university failed to comply with its duty to accommodate under the Code was a matter for the OHRC.” (40)
  3. Gauthier set forth specific conditions under which a human rights breach could be heard in court: 1) Was the university aware that the applicant had disabilities when it accepted him as a student? 2) Did the university’s policies provide for accommodation independently of its obligations under the Code? 3) If yes, did the university bind itself to such an obligation?  The CA determined that none of these aspects had been pleaded by the applicant, although, according to the latter, they could have been.   It therefore accepted the Supreme Court’s decision, but altered its orders as follows “While counsel suggested that it may be possible to amend the pleadings to include facts that allege York was award of the student’s disability and undertook to provide him with accommodations or that it bound itself to specific terms regarding accommodation independently from its obligations under the Code, the pleadings do not currently allege or support such a conclusion.” (50) "Accordingly, I conclude that the motion judge did not err in dismissing the claim for breach in contract as pleaded, although I do so for different reasons. I would vary his order, however, to strike the pleadings with respect to breach of contract and duty of good faith and permit an amendment to the pleadings (if available on the facts) to plead the specific term of agreement that was allegedly breached and the supporting circumstances, as indicated above. In so amending the pleadings, the appellant may choose to include the facts on which he asserts the existence, contents and breach of the obligation owed by the university to him." (51)
  4. Failure to accommodate students may be used as part of a claim for negligent misrepresentation[1], but the pleadings must establish a causal link between the misrepresentation and the damages claims. Jaffer failed to create such a link: Again, Jaffer’s pleadings were too vague to make out such a claim:“In my view, Jaffer has not made out a claim for negligent misrepresentation. The professor’s offer to permit Jaffer to redo a paper in his course cannot reasonably found an action in negligent misrepresentation on the facts as pleaded. It is not clear that this was a misrepresentation or how it could result in the expectation that Jaffer would have a deferred standing in is other courses or that he would be accommodated in his other courses. The pleadings do not establish a causal link between the misrepresentation and the damages claimed. In other words the pleadings do not establish that, but for the misrepresentation. Jaffer would have been able to continue his studies.” (57) The CA agreed with the SC, but altered the order: “Accordingly, as with the breach of contract claim, I conclude that the motion judge did not err in striking the claim for negligent misrepresentation, although I do so for different reasons. I would again vary his order, striking the negligent misrepresentation claim but permitting an amendment to the pleadings (if available on the facts) to plead specific facts demonstrating that the misrepresentation in question caused the damages pleaded.” (58)

Order

The CA allowed the appeal in part.  It struck the pleadings but varied the order of the SC.  It allowed Jaffer to amend the Statement of Claim in accordance with these reasons.


[1] “ […][A]n allegation that the university was negligent based solely upon the breach of its duty to provide accommodation as required by the Code does not create an actionable tort. However, that failure may be part of a claim for negligent misrepresentation.” (52).

Kelly v University of British Columbia [2012] BCHRTD no. 32

The complainant, Dr. Carl Kelly, has four documented disabilities: Attention deficit disorder, inattentive type (ADHD), Non-Verbal Learning Disability (NVLD), and intermittent anxiety/depression.  

He was a resident in the UBC Family Practice Residency Program and an employee of its affiliate, the Providence Health Care Society from 2005 to 2007, when he was terminated from the program and dismissed from employment on the basis of unsuitability.    

The complainant’s academic trajectory is as follows: he failed his first two rotations in Pediatrics (Nov 1, 2005 – Dec 18, 2005) and Family Medicine (December 19 – April 30, 2006). Accommodations (increased supervision and feedback) were put in place and his performance improved.  He passed his remediated rotation in Pediatrics (May-June 2006).  He neither passed nor failed his remediated rotation in Family Practice (July 1-24, 2006) but passed his rotations in Clinical Training Unit-Internal Medicine (July 31-August 27, 2006) and Emergency medicine (August 28th – September 24th2006).

In September fellow residents came forward with a concern about an inappropriate email Dr. Kelly had sent to the resident group. It was a satirical account of taking a patient’s sexual history. The concern was handled informally, Dr. Kelly apologized to his peers, who forgave him and who asked the program not to terminate his residency on account of the email. The program directors were concerned, based on their knowledge of Dr. Kelly’s performance difficulties, that he was psychotic and dangerous.  The Tribunal determined that while the email incident was never investigated or resolved formally, it was the factor that led the Program to dismiss the complainant, first by granting him an involuntary leave of absence, then by rejecting as unfeasible the recommendations for accommodation put forth in a subsequent psycho-neurological assessment (that it had ordered him to take) and a professional assessment of that assessment (that it had agreed to read upon the request of Dr. Kelly’s union).  The Program dismissed Dr. Kelly as unsuitable on account of the life-long nature of his disability (ADHD) and the unfeasibility of implementing the psychiatrist’s recommended accommodation. 

Issue

Did UBC (the Program) discriminated against Dr. Kelly on the basis of disability?

Decision

Yes

Reasons

  1. It made stereotypical assumptions about Dr. Kelly’s disability (he is probably psychotic and dangerous) based on one inappropriate email which was never investigated formally and for which he was never disciplined.
  2. They failed to take into consideration that his academic trajectory was positive and that with accommodation he was able to succeed
  3. They provided no proof that the accommodations would cause any legitimate undue hardship except inconvenience and morale problems amongst the residents who would have to shoulder extra responsibility due to re-bundling of tasks
  4. They had an exaggerated interpretation of many of the recommended accommodations (what they involved and how often they would have to be implemented) and failed to see that in his last two rotations he had succeeded without most of them.

Order

Cease and desist discrimination order

Senadheera v. Ryerson University [2012] O.H.R.T.D. No. 1144
This case was reviewed in the meeting of February, 2013.  is the case summary of the OHRTD.
Carlisle v University of Victoria. [2009] BCHRTD No. 352

Facts

The complainant is a man with HIV/AIDS who applied three times to law school at the University of Victoria.  He filed three human rights complaints; the first two were settled, the third (and present) one was dismissed by the Tribunal.

In 2003, Carlisle’s first law school application was rejected because UVIC refused to waive its requirement for an LSAT score.  UVIC settled his subsequent human rights complaint in 2004; it allowed Carlisle to reapply without an LSAT score on condition that he provided medical documentation establishing his medical inability to write the LSAT.  In exchange, Carlisle agreed to drop the complaint.

In 2004, Carlisle’s second law school application was rejected because UVIC determined that Carlisle had failed to comply with the conditions set forth in the settlement agreement.  UVIC settled his second human rights complaint in 2004; it allowed Carlisle to audit a course at UBC in 2005. In exchange, Carlisle agreed to drop the complaint and never to pursue it in the future.

In 2005, Carlisle’s third law school application was rejected.  This time he applied through the special access program.  In response, Carlisle filed his third complaint of discrimination on the basis of disability against the University.

The Tribunal reports that “the substance of Mr. Carlisle’s complaint is that UVIC’s special access program imposes identical academic standards as those required for all law school applicants, does not relax those requirements for prospective students with health conditions which affect their ability to attain those standards, and does not consider non-academic accomplishments in addition to, or instead of, academic ones” (para 52).

UVIC provided evidence to the contrary. The Tribunal found that:  

“The qualifications of special access applicants are compared only against other applicants in that category, not against applicants in other categories. In each case, UVIC looks for “substantial evidence of potential success in law school” first by considering the applicant’s GPA and LSAT score, and then by considering occupational achievements, community , public service and cultural activities a, and letters of reference. “ (para 56)

UVIC provided the following stats:  the 15 successful applicants, six of whom had medical issues, had three years of post-secondary education and much higher GPA’s and LSAT scores than Carlisle.

Issue [1]

Does the complaint have reasonable prospect of success?

Decision

  1. No

Reasons

  1. “On a consideration of all the material before me on this application, I conclude that Mr. Carlisle has no reasonable prospect of success of establishing his assertions about UVIC’s processes and standards are well-founded, and thus his complaint has no reasonable prospect of success. “  (59)
  2. “The material before me suggests that, far from denying Mr. Carlisle admission because of his disability, his disability was the only basis for UIC to consider his application at all. When it did so, it compared him to other special access applicants, on criteria which she does not suggest are arbitrary or irrelevant, and determined that others were better qualified for the limited number of available places. For this reason, as well, I find that Mr. Carlisle’s complaint has no reasonable prospect of success.”  (67)
 

[1] Other issues were raised, but this is the one relevant to this forum. Amongst those were applications to dismiss on the basis that 1) the Tribunal lacked jurisdiction to hear complaints previously settled at the University 2) the proceeding would not further the purposes of the code and 3) the complaint filed for improper motives or made in bad faith. The Tribunal rejected these arguments 1) because the complaint was not attempting to re-litigate previous complaints that had been settled; 2) because the 2004 settlements had not dealt with the underlying issues of discrimination and 3) because the factual inaccuracies of Mr. Carlisle do not amount to bad faith.

Gerd’son v University of Victoria, 2011 BCHRT 129

Facts

The complainant in this case is a male continuing studies student called Alkis Gerd’son. Mr. Gerd’son has PSTD, OCD, and allergies. He feels very safe in residences and lived there for 15 years before being evicted by the University in 2010.  Over the years, Mr. Gerd’son received two degrees (B.A. (1993) and a B.ED (1997)) as well as a certificate in Public Relations (from Continuing Studies).  At the time of the eviction, he was intending to complete a certificate in Business Administration.

The University first tried to remove Mr. Gerd’son from residence in 2003; he had spent the past three years living in residence while taking no courses at all.  With the support of the Human Rights Office, Mr. Gerd’son stayed with a “recovery plan” designed to get him back to the classroom so that he could complete his certificate in Public Relations.  In 2007, his apartment was inundated with water due to a broken pipe on another floor.  The flood caused him great anxiety, due to his disabilities, and he ended up losing an academic year and failing two courses.  The University accommodated him by housing him in another residence apartment and continued to try to get him to leave residence.  He was encouraged to seek outside medical help and to seek subsidized housing. In 2008 he received an eviction notice which was overturned in court, which determined that the university had entered into a month-to-month residency agreement with Gerd’son. In 2010, he was finally evicted.

Gerd’son alleges that the University Policy used to evict him was arbitrary (it arbitrarily excludes students in continuing studies) and discriminatory (against persons with disabilities).  The policy holds that only students in degree-granting programs and doing a minimum number of courses are eligible for residency.

Issue

Did the University discriminate against the student by enforcing its tenancy policy?

Decision

No

Reasons

The Tribunal asked itself the following questions.

1)      Is the University’s tenancy policy arbitrary?

No: UVic’s mandate is to grant undergraduate, graduate and post-graduate degrees and […] the University’s Policy was that residence housing was made available to students in degree-granting programs” in order to fulfill this mandate. It is therefore not arbitrary.

2)      Is Mr. Gerd’son part of the public to which residence housing is available?

No:  “I find that the public to which residence housing is available is a sub-group of students at the University, i.e. students who are enrolled in degree-granting programs.” (182) “I find that Mr. Gerd’son was not a member of the public to whom housing was available, and that housing was not customarily available to students who did not meet the requirements of the Policy, I find that the University did not discriminate against him contrary to the Code when it decided to deny him the right to remain in his apartment and began proceedings to evict him” (185)

3)      Did Mr. Gerd’son establish prima facie discrimination?

No – due to lack of medical documentation: “It is not in dispute that Mr. Gerd’son suffers from OCD and PTSD. Throughout his evidence, he testified about the symptoms, effects and consequences of his disabilities. In particular, with respect to his eviction, he stated that, because of his disabilities, he needed the stability of remaining on campus until he completed his academic goals, or more time to make the move off campus. However, other than the medical letters in 2003, he provided no medical evidence to support any link between his stated needs and his disabilities. Mr. Gerd’son seemed to rely on the fact that, since 2003, the University had not asked him to provide any documentation. That fact, however, has nothing to do with the nous on him, in the context of proving his complaint, to satisfy me that, because of the nature and scope of his disabilities, the University’s actions, beginning in 2008, were discriminatory and, more particularly, that the University’s actions had an adverse effect on him because of his disabilities.  Mr. Gerd’son bore the burden of satisfying me that he was medically required to remain in residence, or to be provided with an indeterminate longer notice period regarding his eviction. His self-assessment and self-reporting in this regard are not sufficient.  In the absence of any supporting medical documentation, I find that Mr. Gerd’son has not met the onus on him to establish a link between his disabilities and the alleged adverse impact on him. Accordingly, I would dismiss Mr. Gerd’son’s complaint on this basis.

4)      Has the University established a bona fide and reasonable justification?

Yes

1)      The policy is rationally linked to the mandate of granting degrees.

2)      The policy was adopted in good faith

3)      The University accommodated Mr Gerd’son to the point of undue hardship.

  1. He was provided accommodation from 2000 to 2003, even though he took no classes at all due to disability.
  2. The University accommodated him when it refrained from following through in evicting the complainant in 2003 when the human rights department got involved. It agreed to allow him to stay for up to three more years while he completed a certificate in PR from Continuing Studies
  3. It accommodated him again when it allowed him to stay for two more years until 2008
  4. After the flood, it accommodated him by providing him with alternative housing, and by offering to compensate him for damaged goods if he provided an itemized list (he refused).
  5. In 2008, the complainant told the University that he required three more years of residency to diploma a certificate in Business Administration. In 2010, he testified at the hearing that he required another three years to obtain the diploma and to take other desired courses.  This pattern of requesting more and more time to do more and more courses amounts to a request for “accommodation in the form of an open-ended right to remain in residence”.  While this would have been a perfect accommodation for Mr. Gerd’son, the University is not required to provide him with a perfect accommodation.
  6. “Viewed globally in light of their entire history, I find that the University had fulfilled its legal obligation to accommodate Mr. Gerd’son in Sept 2008 , when it began proceedings to evict him. The accommodation sought by Mr. Gerd’son – to stay in residence until he completed an evolving academic plan  - was unreasonable” (213)
  7. The University continued to accommodate Mr. Gerd’son after its eviction proceedings began

                                                               i.      By offering to work in partnership with him to find off-campus housing

                                                             ii.      By negotiating with him; if he would agree to get medical support off-campus, the University would help him with the move

                                                            iii.      By offering to accommodate him in a hotel for a month and to pay for a psychologist to work with him to draw up a transition plan (it was not obligated to pay for a full-fledged psychological assessment as requested by Gerd’son.

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.”
Dr. Gabor Lukás v Dr. Jon Doering and the University of Manitoba 2011 MBQB 203

Facts

On September 29, 2009, the Dean of the Faculty of Graduate Studies attended a meeting of the “Mathematics Graduate Studies Committee” at the University of Manitoba where a decision was made to waive a number of academic requirements in order to accommodate AZ, a graduate student with a disability.  The following day, Dr. Lukás became a member of this committee following the resignation of a colleague. In March 2009, AZ failed his second Candidacy Exam and was required to withdraw from the PhD program of Mathematics. He appealed to the dean in June 2009 who decided to reinstate AZ, “without the necessity of AZ sitting for another examination, pursuant to the University’s Accessibility for students with Disabilities By-law” (8). In August, Dr. Doering rejected a joint recommendation by Disability Services and the Committee concerning accommodation for AZ. He proposed his own recommendation which was refused and then accepted with dissension by the committee.  Shortly after this, he rejected the Committee’s suggestion for resolving the problem that AZ was short a course. He proposed an alternative solution which was refused by the Committee but implemented nevertheless.  Dr. Lukás challenged the Dean’s decision by filing an appeal to the University Senate, which refused to hear the appeal due to lack of jurisdiction. Dr. Lukás turned to the Courts saying…

“The substance of the Applicant’s pleading is that Dr. Doering interfered, without authority and unreasonably, with the academic requirements in the case of student AZ… Furthermore, the interference was to the benefit of AZ and to the detriment of the University’s academic integrity and credibility, and the ability of the Applicant to perform his duties credibly insofar as PhD candidates are concerned”

The Respondent applies to dismiss the case due to Dr. Lukás’ lack of standing

Issue

1)      Does Dr. Lukás have a personal stake in the outcome of the litigation?

2)      Does Dr. Lukás have public interest standing

Decision

1)      No

2)      No

Reasons

1)      “Without belabouring the point, I fail to see any direct, legitimate personal or private interest as defined by the authorities which would grant Dr. Lukács private interest standing. He did not teach the student in question, he was only laterally a member of the Committee, he himself does not hold a degree from the U of M nor does he represent in any official capacity anyone but himself. Neither has he demonstrated any damages other than unsubstantiated statements as to what he thinks will occur if he does not succeed in his mission. His interest, as he himself acknowledges, is one of conscience which, as counsel for the respondents observed, does not in itself necessarily ground a legal proceeding” (24)

2)      The Supreme Court of Canada (Canadian Council of Churches v Canada 1992 1 SCR 235) put forward a three-part test for public interest standing:

  1. Is there a serious issue raised as to the invalidity of the legislation in question?
  2. Has it been established that the plaintiff is directly affected by the legislation or, if not, does the plaintiff have a genuine interest in its validity?
  3. Is there another reasonable and effective way to bring the issue before the court?

Lukás fails to meet that test because he fails “to raise an issue regarding the invalidity of the University of Manitoba Act”. Moreover, he fails each part of the test : “the invalidity or validity of legislation is not the issue”, (29)“Dr. Lukás has not shown that he is directly affected by any impugned legislation or that he has a genuine interest in its validity” (29) and “if the matter is not one which should come before the courts it matters ot whether there is a reasonable and effective way for it to do so”  (30)

Other reasons include:

  • The University is a private entity and decisions made on its behalf are private decisions affecting the governance of the University and its academic programs (32)
  • This dispute is between a private individual and a private entity
  • "While universities are not immune from the purview of courts, case law shows that “the conferring of academic degrees is private in nature and generally the courts should exercise restraint” (35)
Vanderputten v Seydaco Packaging Corp. [2012] OHRTD no 1946

Facts

The complaint, Maria Vanderputten was dismissed from Seydaco Packaging following an incident with a co-worker (Gerry Sanvido).

The applicant, a transgender woman, was not a model employee.  Before coming out at work as a trans woman, she had a discipline history for insubordination and angry outbursts for which she was eventually dismissed in 2006.  Rehired in 2007, she was subsequently suspended for an incident of workplace violence (swearing, throwing wood). 

In 2008, she entered into the gender identity clinic at the Centre for Addiction and Mental health and was put on hormone treatment in preparation for genital reconstruction surgery.  She began dressing in “feminine” clothing (skirts, bras) and wearing makeup at work.  The president of the company told her that she would be treated as a male employee until such time as she presented legal or medical documentation attesting to her gender status.  When she asked him to write the Centre for Addiction and Mental health a letter attesting that she was working in a “female gender role”, he did write the letter but refused to attest that she was working in a female gender role, as he was a male “Tony Vander Putin was employed as a male gender and will continue to be employed as a male gender until we are provided with sufficient medical and Ontario Labour standards information to change his status to a female gender”.

When the Director of Operations heard from other female employees that Maria had told them that he would eventually be using the women’s washroom, he forbid her access to the facilities until such time as she could prove that he was a female by providing medical or legal documentation.  One day, while working in a warehouse (located at a different location from the plant where she usually worked) Maria used the women’s washroom because the plumbing of the men’s washroom was broken.   The Director of Operations received a complaint (from an employee of another business who rented space in the warehouse) and told Maria not to use the washroom. She was not disciplined but was not allowed to work at that warehouse anymore.

Like all the employees, Maria had to change from her own clothing into the company uniform upon arrival at work.   The men teased her because of the clothes she wore and her increasing breast size (from the hormones). Management denied her request to switch shifts so that she could change when the other men were not there, and told her to get to work early to change before anyone else arrived. This was impossible due to the Public Transit schedule.

Maria complained several times about alleged harassment in the workplace, including demeaning comments and questions about her gender, sexual orientation, physical violence (pushing, shoving, having things thrown at her), being isolated, being picked on, being stared at, being mocked publically on the company’s bulletin board (news clipping of a transvestite with the applicant’s name written across it).  The company dealt with some of these complaints.  Some employees were told to cease the teasing or face discipline.  An employee who physically injured the applicant was fired.  A meeting was held in which all employees were asked to read and sign a copy of the Code of Business and Conduct Ethnics which included an anti-discrimination clause

The respondent’s defense was that the applicant was the cause of all the incidents she characterized as harassment.  A number of complaints were investigated by the president or the director who spoke to the alleged harassers and came to the conclusion that they had all been provoked by the applicant. The president testified that the applicant provoked her fellow employees her by “displaying” her new clothing, exposing her bra to a female employee, asking men to comment on her bra and her growing breasts, by calling some of them homophobic names, or giving them written confirmation of her sexual identity.   It got to the point that when Maria came forward with a complaint about an employee hitting her in the fact with a “gay lea” card the director said “You probably started it”.

Maria received a letter of reprimand with a threat of termination for asking some of the women employees to share their gender-related experiences relating to their breasts and their menstrual cycles.

The applicant was dismissed following an incident in which she came to complain about one of her most persistent alleged harassers (Mr. Sanvido, named as a personal respondent in this case). She told the president that Mr. Sanvido had just called her a faggot for no reason.  The president interviewed Mr. Sanvido who claimed that Maria had been throwing skids around in an aggressive way so he told her not to be an asshole. It was Maria who, in anger, called him a “faggot”.   Maria denied throwing skids around, but admitted that at that time she should have been doing a different task; shrink wrapping. She had, instead, been cleaning up the skids that someone else had left lying around.   She said that she was working in a poisoned environment and that she couldn’t work under these conditions.  As a result, Maria was dismissed for insubordination (not doing the right task at the right time) and workplace aggression.  Mr. Sanvido was not disciplined.

Issue

  1. Was the applicant harassed because of her sex and gender identity?
  2. Did decision to terminate the applicant amount to discrimination?

Decision

  1. Yes
  2. Yes

 Reasons

  1. "For the reasons that follow, I find that prior to the date of the applicant’s dismissal, the applicant was subject to a poisoned work environment, through harassing comments about her gender identity and being required to use the men’s change room. Seydaco contributed to this poisoned environment through its insistence that the applicant be treated as a man in all respects until she completed surgery, including requiring that she change with men, and its failure to investigate and respond reasonably to the applicant’s allegations that she was being harassed because of her sex and gender identity “. (62)
  2. The tribunal used two human rights principles to make this determination 1) “Where termination occurs within a poisoned work environment a proper consideration of whether the termination was discriminatory requires that it e examined in the context of the poisoned work environment’ [Smith v Mardana 2005] and 2) Where employees are confrontational or aggressive as a result of a discriminatory working environment, discipline for that aggression is a violation of the Code  (several precedents see para 81) It concluded:  “Given all the events the overall attitude taken toward the applicant and her transition, it is ore probably than not that the applicant’s complaints of discrimination, the conflicts that arose because other experience her transition as novel and there her sex play a part in the decision to terminate her employment
Canada (Attorney General) v. Johnstone (2013 FC 113)

Facts

This is a federal decision regarding a 2010 decision by the Canadian Human Rights Tribunal which found that the Canada Border Services had discriminated against one of its workers, Fiona Ann Johnstone, by refusing to accommodate her childcare requirements.  What she wanted was to get out of the full-time shift work schedule and work a three-day full-time work schedule.  While the employer had accommodated employees for medical and religious reasons, it refused to accommodate employees for childcare issues which it did not consider to be a human rights issue.  The tribunal found that childcare was a family status issue and that employers had the duty to accommodate employees with childcare issues.  It found that the applicant established prima facie discrimination and that the respondent had failed to establish that its scheduling requirements were a BFOR.  Please read a detailed account of that decision

Issues 

  1. Did the Tribunal err in interpreting the term “family status” in section 3 of the Act to include childcare responsibilities
  2. Did the Tribunal err in finding the prima facie case of discrimination was established?
  3. Did the Tribunal err in making its remedial orders?

Decisions

  1. No
  2. No
  3. In part

Reasons

  1. Whereas the applicant argued that family status did not include childcare responsibilities, the Court established that indeed it was reasonable to find it did:" {} It is difficult to have regard to family without giving thought to children in the family and the relationship between parents and children. The singular most important aspect of that relationship is the parents’ care for children. It seems to me that if Parliament intended to exclude parental childcare obligations, it would have chosen language that clearly said so.  In result, I conclude the Tribunal’s conclusion that family status includes childcare obligations is reasonable.  It is within the scope of ordinary meaning of the words; it is in accord with decisions in related human rights and labour forums; it is in keeping with the jurisprudence; and it is consistent with the objects of the Act." 
  2. The Court dismissed the applicant’s view that 1) family status requires the establishment of a higher threshold compared to other grounds and that 2) Johnstone had failed to provide evidence supporting that she needed accommodation. In its decision, the judge stated:  "In my view, the serious interference test as proposed by the Applicant is not an appropriate test for discrimination on the ground of family status. It creates a higher threshold to establish a prima facie case on the ground of family status as compared to other grounds. Rather, the question to be asked is whether the employment rule interferes with an employee’s ability to fulfill her substantial parental obligations in any realistic way. (128) As for the question of evidence, it would that the Tribunal’s finding was reasonable: “ On the evidence before it, the Tribunal found Ms. Johnstone was a parent who had substantial childcare obligations and despite her best efforts could not find daycare for her children. The Tribunal also found on the evidence that accommodating Ms. Johnstone would not have caused undue hardship to the CBSA. [143]” The court, referring to the Dunsmuir standard, concluded that the Tribunal’s finding was reasonable:  “In Dunsmuir the Supreme Court stated that “a court conducting a review for reasonableness inquiries into the qualities that make a decision reasonable, justification, transparency and intelligibility, but it is also concerned with whether the decision falls within a range of possible acceptable outcomes defensible in respect of the facts and the law”. […] The Applicant prefers certain facts and interpretations of these facts but the substance of the matter is the Tribunal had evidence before it that support the outcome it arrived at. In doing so, the Tribunal’s decision falls within a range of possible outcomes[145]      The Tribunal’s finding that Ms. Johnstone had established a prima facie case of discrimination pursuant to ss. 7 and 10 of the Act. I am satisfied its findings are supported by the evidence and are within the range of reasonable outcomes.
  3. Two parts of the remedies proposed by the Tribunal were found not to be reasonable 1 The Tribunal’s order that the Employer create a human rights policy that was to the complainant’s satisfaction and 2: The Tribunal’s order that the Employer compensate the employee for a one-month period when she had opted to be on paid-leave
Devaney and ZRV Holdings 2012 HRTO 1590

Facts

In 2009, after 27 years of service, an architect (Devaney) was dismissed from ZRV Holdings (an architectural firm) for excessive absenteeism.  The firm offered to take him back on a contractual basis, paying him only for work completed onsite. He refused and brought forward a complaint of discrimination to the HRTO.

Devaney claimed that his absence from work was a human rights requirement on the basis of family status; over the last decade, his elderly mother, who was sick and growing sicker,  more and more incapacitated, depended increasingly on him to take care of her, feed her, give her medication, bring her to medical appointments, surgeries, rehabilitation sessions etc.  While he had limited support from a brother (who would help in the evenings several times a week) and the government (which provided one hour of service in the mornings to dress his mother), he was the principal care-giver.  His mother’s condition worsened in 2007-2008 causing Devaney to be absent more frequently from work for human rights-related reasons and she was eventually put on a waiting list for a nursing home. 

He was also excessively absent for reasons not related to his mother’s care; for example he would often arrive late at work to avoid rush hour traffic and would frequently take off the entire day when he had to take time off to accompany his mother to appointments.  A lot of the time he took off was not accounted for one way or another.

Devaney claimed that although he was very frequently absent from the office during core hours (8:30-5:00) he worked more than full-time hours (he had submitted claims for thousands of hours of overtime) and was performing very well; the client for the multimillion dollar project he was leading was so satisfied with his work that he hired him one week after ZRV fired him.  He claimed that he was perfectly capable of performing from home the work that ZRV was requiring him to do from the office. With modern technology, face-to-face interaction is no longer necessary.    

The partners of ZRV Holdings became increasingly irritated with Devaney’s absences, late arrivals and early departures from work.  Starting in 2007, they began writing him disciplinary warnings requiring him to work in the office during core hours, pointing out problems with staff morale. Devaney responded with emails explaining that his mother was ill, that he had to be absent to care for her, to which he received curt responses reiterating the employer’s requirement for him to be present at work during core hours.  Finally, in January 2009, his employment was terminated. In a panic, he told the Firm that things were about to change; that his mother had been placed in a home and that he would be able to be present from now on.  The Firm offered him a 3-month contractual position in which he would be paid only for work done on site; he would be stripped of his status as partner.  Devaney did not accept the offer.

Issues

1)      Did the employer discriminate against Devaney?

2)      Did the employer harass Devaney?

Decisions

1)      Yes

2)      No

Reasons

1)      The Tribunal found that some, but certainly not all, of the applicants absences were based on human rights based requirements to care for his elderly mother (family status).  Had the employer based its decision to discipline solely on the absences not related to human rights, they would not have been found responsible for discrimination.   Instead, they disciplined Devaney based on all his absences, explicitly including those related to the care of his mother.  This was the first mistake. The second was a procedural failure to investigate the applicant’s need for accommodation. The third was a substantial failure to accommodate his requirement to be absent from work to care for his mother. The Tribunal determined that it would not have been undue hardship to accommodate the applicant, because 1) there would have only been a couple of dozen absences related to family status and 2) the mother was going into a home. The offer of a contractual position was not a form of accommodation, as claimed by the employer – it was a humiliating demotion (he had been stripped of his partnership status) and did not accommodate his need to care for his mother

2)      The Tribunal found that the employer was not responsible for harassment: managing attendance is not a form of harassment. While “warnings or disciplinary communications in the workplace would be, by their by nature unwelcome to their recipients” this does not amount to code-harassment. Questioning an employee’s overtime claims does not amount to harassment either.