Waterloo university case sheds light on after-the-fact accommodation

There is a post-incident duty to accommodate, says lawyer

Waterloo university case sheds light on after-the-fact accommodation

A case involving disability accommodation for a University of Waterloo applicant is a reminder that duty to accommodate can be triggered after the fact, says lawyer Wade Poziomka. 

The Sept. 20 Divisional Court decision, Longueépée v. University of Waterloo, 2019 ONSC 5465, allowed Roch Longueépée’s application for judicial review and set aside two decisions by the Human Rights Tribunal of Ontario, sending the matter back to the university’s admissions committee for consideration “consistent” with the court’s decision.

The decision showed the admission process created a discriminatory barrier for a student with a disability and directed the university to develop a fairer admission process, said David Baker, the lawyer who represented Longueépée.

That decision will be appealed, the university announced. Poziomka, a partner at Ross & McBride LLP in Hamilton, Ont., and 1st Vice-President of the Board of Directors of ARCH Disability Law, was not involved in the case, but says he personally thinks the decision has important implications. 

For example, Poziomka says, the court “takes it to the next level” in its consideration of what an educational institution must do when considering grades, and also what a second, subsequent institution should consider. 

“I think the decision is helpful. It clearly sets out that there is a duty to accommodate — after the fact — in education cases, where a disability that may not be known at that time has impacted somebody’s grades and ability to carry out future educational opportunities,” he says. “It’s interesting because it goes so far as to say, ‘Maybe you don’t consider grades at all.’” 

Without considering grades, there may be few indicators for institutions to consider, so it may require a balancing act on the part of the university, he says. As it stands now, the decision is also a reminder about when the duty to accommodate can be triggered, says Poziomka. 

“A lot of lawyers — and clients and employers — take issue with the notion that after something happens, there still may be a duty to accommodate. Whether it’s in the employment or educational context,” he says. “The takeaway with this case is to highlight in the service context with education, there is a post-incident duty to accommodate. It’s not enough to just say, ‘Well, we didn’t know about it at the time, so there’s nothing we can do.’” 

Nicholas Pope, an associate lawyer at Hameed Law in Ottawa, says that the decision also addresses an issue that comes up often in the human rights realm: the importance of proving undue hardship. He says a party accused of discrimination must be specific and clear about what alternative accommodations could be made, and what resulting hardship would arise.

If the requirement to accommodate prior discrimination for applicants does become a hardship, universities will need to put forth evidence, he says. But, Pope says, the court also made clear that the scope of the decision isn’t meant to disregard the importance of grades for all applicants.

Another important point raised by the decision how prior discrimination carries through a person’s life, says Pope.

“Human rights law isn’t about intent, it’s about effect,” he says. “Even if someone sn’t planning or wanting to discriminate.”

Related stories

Free newsletter

Our newsletter is FREE and keeps you up to date on all the developments in the Ontario legal community. Please enter your email address below to subscribe.

Recent articles & video

Health minister committed systemic discrimination in treatment of midwives’ pay: Ontario court

Enhanced access to justice needs more than lawyers and paralegals: report

Criminal Lawyers’ Association filling mentor-gap with new online educational series

OBA's taxation law section names first female chairperson, Angela Salvatore

COVID-19 Economic Recovery Act to amend Justices of the Peace Act and Provincial Offences Act

OHRC tells Sudbury landlords they cannot discriminate based on receipt of public assistance

Most Read Articles

Canadian Constitution Foundation suggests amendments to mandatory mask order in Ontario

Windsor’s new associate dean to advance Indigenous law in legal education

Ontario and Superior Courts of Justice embark on first phase of reopening

Criminal Lawyers’ Association filling mentor-gap with new online educational series