Report 409

DATE: August 17, 2020

PARTIES: A.M. (the “Student”) v. University of Toronto Faculty of Law

HEARING DATE: June 18, 2020, via Zoom

Senior Chair:
Professor Hamish Stewart

Appearances:
For the Student Appellant:
Mr. Marcus McCann, Counsel, Millard and Company LLP

For the Faculty of Law:
Ms. Robert Centa, Counsel, Paliare Roland Rosenberg Rothstein LLP

This appeal stems from a decision of the Accommodations Committee to deny the Student the ability to resume his studies on a part-time basis. The Student appealed this decision with the Associate Dean of the Faculty which upheld the decision. The Student then petitioned to the Faculty’s Academic Standing Committee (“ASC”); the ASC dismissed his petition. The Student appeals to the Academic Appeals Committee (“Committee”). The Student is seeking an order permitting him to complete his remaining work for the first year of the program and then to resume studies at the Faculty on a part-time basis with appropriate accommodation.

A few procedural and legal issues arose at the Hearing in which the Chair reviewed and determined these without assistance of the other Committee members.

First is the issue as to whether the Committee has jurisdiction to hear or decide any issues pertaining to this matter. The Student submitted that the Committee has jurisdiction to review the decision of the ASC and the Division conceded that the Committee has jurisdiction. The Chair noted that the Faculty’s concession is not determinative because jurisdiction cannot be created by consent (Phillips and Phillips v. The Queen, [1983] 2 S.C.R. 161 at p. 164; Canada (Attorney General) v. Haberman, 2000 CanLII 15802 (Fed. C.A.) at para. 20). The Chair noted that the Accommodations Committee as well as the ASC were concerned about whether they had jurisdiction over the Student’s request. The ASC chose to proceed on the assumption that it had jurisdiction, therefore, the appeal to the Committee proceeded on the same assumption. In the Chair’s view, jurisdiction in this matter depends on the proper characterization of the Student’s request and the response by the Deans. There are three ways to characterize the request and response. First, the Student inquired into his status at the Faculty and, in response, the Dean provided the Student information about his status. In this view, there would be no application of any of the Faculty’s policies and there would be no decision to appeal from and thus, the Committee would lack jurisdiction over this matter. Second, the Student requested an accommodation and the Accommodations Committee had jurisdiction over that request even though the Student was no longer registered. In this view, the jurisdiction of the ASC and the AAC is straightforward. Third, the Student requested an accommodation and the Accommodations Committee did not have jurisdiction over that request because the Student was no longer registered. Thus, the AAC would also not have jurisdiction. The Chair found that the AAC does have jurisdiction over this appeal on either the second or third characterization of the Student’s request because the Faculty was applying its accommodation policy. Therefore, the Committee has jurisdiction over the Faculty’s response to the Student’s request.

The second issue relates to the appropriate standard of review. The Student requested that the Committee conduct a de novo review of the Faculty’s response to the Student’s request and determine whether that response was correct. The Chair indicated that although the Terms do not explicitly define the standard of review, the Policy on Academic Appeals within Divisions (2005) states that the “standard of review of an academic appeal is reasonableness.” The Chair found that the issue before the Committee is the reasonableness of the decision being challenged by the Student appellant, whether or not it exercises its powers to receive additional evidence. The Chair was extremely reluctant to hold that a decision made by the ASC should be reviewed for correctness rather than for reasonableness. The Chair found that if the Committee were to adopt a standard of review of correctness there would still be a strong element of reasonableness embedded in that standard because the duty to accommodate is a duty of reasonable accommodation. The Chair found that the issue before the Committee is whether the Faculty’s overall response to the Student’s request was a reasonable application of the Faculty’s duty to accommodate in accordance with its accommodation policy.

Lastly, the Chair addressed the University’s duty to accommodate in accordance with the Human Rights Code (Code). The Chair outlined that the University is obligated to reasonably accommodate a person with a disability to the point of undue hardship. Section 17(1) of the Code indicates that the Student’s rights would not be violated if he is “incapable” of meeting the requirements to successfully complete the academic program, however s. 17(2) of the Code would direct the Committee not to find the Student “incapable” unless his disability “cannot be accommodated without undue hardship.” Whether or not academic integrity can be considered in determining undue hardship under s. 17(2), it is better considered in relation to “the essential duties or requirements attending the exercise of the right” under s. 17(1). Academic accommodations contribute to academic integrity by attempting to ensure that the extraneous factor of disability does not affect a student’s reported results; they are not designed to guarantee that the student succeeds. The University should not provide an accommodation that compromises academic integrity, whether or not doing so would amount to undue hardship, because it would not be possible to fairly assess a student’s performance under such an accommodation. An accommodation inconsistent with academic integrity is of no value in determining whether a student is capable of “performing or fulfilling the essential duties or requirements” of their academic program. It is not contrary to the Code to refuse an accommodation that would compromise academic integrity because, if a student is unable to succeed without such an accommodation, that student “is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.”

The Student raised two main issues in his appeal. The first is with respect to procedural fairness and the second is the duty to accommodate. The Student allegation surrounding procedural fairness was based on the fact that the Student did not get an opportunity to respond to the Faculty’s submissions or attend the ASC meeting to make oral submissions, while the Faculty was. The Committee found that the Faculty did not deny the Student procedural fairness because the procedure with respect to the Student’s petition was in accordance with the ASC’s rules. The Committee further held that its function does not extend to invalidating the policies of a division, even if it is of the view that those policies are flawed or unfair. Therefore, for the Committee to allow an appeal on the basis that a university division had acted unfairly even though it followed its own procedures would be tantamount to invalidating that policy and, as a remedy, would require the creation of ad hoc procedures on a case-by-case basis.

The second issue on appeal is the duty to accommodate. The question before the Committee is whether the Faculty’s refusal to offer the additional accommodations as requested by the Student was in accordance with its duty to reasonably accommodate his disability. The Committee was divided on whether the Faculty’s decision not to grant these accommodations was a reasonable exercise of its duty to accommodate. The majority of the Committee found that over the last number of years the Faculty had provided the Student with extensive accommodations, yet despite these accommodations, the Student could not complete the first year of the program. The majority Committee agreed with the ASC that the Student “has had three unsuccessful, heavily supported attempts at completing the first-year program… There is no realistic basis which we can have confidence that [the Student] is likely to succeed in the program even if undertaken on a part-time basis.”

Appeal dismissed.