By Isaac Won, Human Rights Lawyer

The Ontario Superior Court of Justice recently released an important decision about a university’s duty to accommodate a student with disabilities. Longueépée v. University of Waterloo, 2019 ONSC 5465, was a judicial review of a Human Rights Tribunal of Ontario (HRTO) decision. The case confirms important principles of human rights law for service providers and accommodation seekers alike.

Mr. Longueépée suffered institutional child abuse and was diagnosed with a traumatic brain injury and PTSD. He received very poor grades in high school and during a year he spent at Dalhousie University, before his disabilities were diagnosed. When Mr. Longueépée applied to the University of Waterloo’s program, he advised them that the grades on his academic record were assessed without any support for, or accommodation of, his disabilities. He provided the University with medical evidence of his disabilities to support his application, as well as information and letters of reference about the significant volunteer work he had done since then.

The University’s Admissions Committee reviewed Mr. Longueépée’s application in light of the extenuating circumstances he had identified. The Admissions Committee found that Mr. Longueépée’s grades fell too far below its admissions requirements, and he had not subsequently demonstrated potential for academic success. For these reasons, the University decided not to admit Mr. Longueépée to the program.

Mr. Longueépée applied to the Human Rights Tribunal of Ontario claiming that the University had discriminated against him on the basis of his disability. The HRTO found that the University did not discriminate against Mr. Longueépée in rejecting his application. The Tribunal found that the University had not breached its duty to accommodate by requiring some indicator of academic success, and held that the Admissions Committee’s emphasis on his previous grades was a “valid judgment call”. Mr. Longueépée sought judicial review of the HRTO’s decision.

In the Superior Court’s judicial review of the HRTO’s decision, Justice Graeme Mew found that the University had failed to consider an approach that did not rely on Mr. Longueépée’s prior poor marks, which he had obtained without any accommodations for his disabilities. Instead, the University rejected his application for reasons “firmly anchored” to discussions about his grades, while failing to consider his significant volunteer work. The Court found that the marks Mr. Longueépée had received while his disabilities were unaccommodated discriminated against him on the basis of disability, and the University could not interpret those marks free from their discriminatory effect. As a result, the University was obliged to assess Mr. Longueépée’s candidacy without recourse to his marks, or to establish that it would constitute undue hardship to do so. The Court set aside the HRTO’s decision and directed the Admissions Committee reconsider the matter by way of an accommodated admissions process consistent with its reasons. The Court did not, however, specifically require that Mr. Longueépée be admitted.

Longueépée provides important guidance and principles for individuals with disabilities and the service providers with a duty to accommodate them. First, the case follows the reasoning of the Supreme Court of Canada in the case of Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 that discrimination can occur when a service provider relies on a discriminatory decision made by a third party. However, accommodation seekers should keep in mind that a university or service provider must accommodate to the point of undue hardship, but is entitled to decline to take steps that exceed this threshold. Justice Mew noted that only in certain circumstances will a student with a disability require assessment without recourse to prior marks, and cautioned that accommodation that would result in the undermining of the integrity of the admissions process could constitute undue hardship.

A second important point from the decision is that individuals who require accommodation in grading or assessment should, where possible, request that accommodation from the service provider doing the assessment. Mr. Longueépée’s circumstances were unique in that he did not know he had disabilities requiring accommodation until long after accommodation was feasible. It was only because this accommodation was not reasonably available that Waterloo was obliged to accommodate him in its admissions process. Had Mr. Longueépée been able to seek accommodation from Dalhousie, the outcome of the case may have been very different.

The Longueépée decision sets out legal principles with potentially significant impacts on students with disabilities and service providers alike, making it an important case for parties on both sides to know. The potential for appeal to the higher courts also makes Longueépée a case to keep an eye on as a possible future governing decision in this fascinating area of human rights law going forward.