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University Failed in Duty to Accommodate Disabilities, finds Ontario Court of Appeal

In July 2013, Mr. Roch Longueépée applied for admission to the University of Waterloo’s Faculty of Arts program.  He had attended Dalhousie University several years before where he achieved grades that were well below Waterloo’s minimum admission requirements for transfer students.

Waterloo accepted that Mr. Longueépée had undiagnosed and unaccommodated disabilities when he attended Dalhousie. An Admissions Committee considered his application, consisting of academic transcripts, information about his volunteer work, and reference letters. The Admissions Committee denied admission and concluded that Mr. Longueépée’s application did not demonstrate the ability to succeed at Waterloo.

The Case

In November 2013, Mr. Longueépée filed an application with the Human Rights Tribunal of Ontario (HRTO) under section 34 of the Code, alleging discrimination on the basis of disability with respect to goods, services and facilities. He alleged that the denial of his admission based on his past academic record at Dalhousie was discriminatory.

In May 2017, the HRTO, in Longueépée v. University of Waterloo, 2017 HRTO 575, dismissed Mr. Longueépée’s application and concluded that Waterloo had reasonably accommodated Mr. Longueépée’s disabilities in its admissions process. In December 2017 the HRTO also denied Mr. Longueépée’s request for a reconsideration of the HRTO’s May 2017 decision in Longueépée v. University of Waterloo, 2017 HRTO 1698.

The Judicial Review

In September 2019, on Mr. Longueépée’s application for judicial review, the Divisional Court, in Longueépée v. University of Waterloo, 2019 ONSC 5465, concluded that the HRTO made a mistake when it found that Waterloo had reasonably accommodated Mr. Longueépée.  The Divisional Court held that the Admissions Committee had improperly and unreasonably based its admission decision solely on the unaccommodated grades Mr. Longueépée had achieved at Dalhousie, when he had undiagnosed disabilities.

The Divisional Court allowed the application for judicial review and sent the matter back to the Admissions Committee for consideration by way of an accommodated admissions process consistent with the Court’s reasons. Waterloo University then appealed to the Court of Appeal for Ontario.

The Appeal

On December 21, 2020, by way of a unanimous decision in Longueépée v. University of Waterloo, 2020 ONCA 830, a three-judge panel of the Court of Appeal dismissed Waterloo’s case.  The Court of Appeal found that the HRTO unreasonably concluded that Waterloo met its duty to accommodate. While Waterloo’s Admissions Committee took Mr. Longueépée’s application package, it improperly based its admissions decision solely on the unaccommodated grades and neglected to consider and explain why the other non-academic materials in were not relevant.

The Court found that the HRTO considered an “undue hardship” defence, in effect following the definition of “undue hardship” in section 11 of the Human Rights Code. Yet, the Court found that Waterloo did not declare their intent to use this defence or provide evidence in support of it. The Court of Appeal ultimately concluded that the HRTO’s reasons for its dismissal of Mr. Longueépée’s application under the Code were unreasonable and that the Divisional Court was correct in setting aside the two HRTO decisions on judicial review.

The Court of Appeal ordered the HRTO decision and reconsideration decisions to be set aside. The Court declared that Waterloo discriminated against Mr. Longueépée, contrary to the Code, when it failed to reasonably accommodate his disabilities in its admissions process and remitted the matter back to a different HRTO member for a new hearing to determine the appropriate remedy under the Code.

This Case’s Importance

This case is an important reminder of the very fact-specific nature of the duty to accommodate. In this case it was on the basis of disability and in a university’s admissions process. Under the Code there must be a full and proper review in the accommodation process that reasonably considers and weighs all relevant factors and sufficiently explains the decision to the person seeking the accommodation.   

The case also reinforces the long-standing principle that evidence must be led by a respondent at the HRTO in order to make out the defence of undue hardship under section 11 of the Code.  Waterloo’s failure to present such evidence was fatal to its argument that it had met its duty to accommodate Mr. Longueépée’s disabilities in the unique factual circumstances of this case.