NEADS Conference 2004 - Right On!
Bill Holder is a lawyer currently working as Discipline Counsel for the Law Society of Upper Canada while on leave of absence from ARCH: A Legal Resource Centre for Persons with Disabilities. Prior to ARCH, Bill was in private practice and acted as litigation counsel to both the Ontario and the Canadian Human Rights Commissions. Bill has appeared at all levels of court, including the Supreme Court of Canada. He has been an instructor for the Bar Admission Course of the Law Society of Upper Canada for several years. He is the author of “Accommodation of Disability in Ontario,” a paper presented at the Disability Law Primer program sponsored by ARCH, the Law Society of Upper Canada, and Pro Bono Law Ontario.
The Drought in Accommodation Jurisprudence
In recent years, there has been a drought in the number of complaints being made against universities in regards to human rights accommodations. This has had an arguably negative effect on the availability of accommodations. When students are not coming forward with complaints formally and taking their complaints to the Human Rights Commission if necessary, some universities stop abiding by their obligations. Some universities need to be reminded of their obligation to provide accommodations, and be held accountable. Bill Holder will discuss how students who take initiative and go to the Human Rights Commission when accommodations requests are not being met, are generally more likely to receive their accommodations. This action can help pave the way for other students with disabilities.
In his presentation, Bill Holder, Discipline Counsel, Law Society of Upper Canada, examined four questions from a legal perspective.
Is there a right to education? With respect to post-secondary education, said Holder, the answer is no. He cited ongoing issues in access to post-secondary education, including huge tuition increases. Such increases affect people with disabilities in particular, because they disproportionately represent the poorest group in Canada. People with disabilities currently graduate at half the rate of other students, and increasing tuition costs will exacerbate the problem.
Is there a right to accommodation? The answer to this question is yes: People with disabilities have the right to receive the same services as everyone else.
What is meant by the concept of undue hardship? Accommodation must be provided unless providing it causes “undue hardship.” Undue hardship is defined as the point of inviability, insolvency, or bankruptcy of a business.
How do students with disabilities enforce their rights? When confronted with a new case, a lawyer will research previous cases to look for precedents. The lawyer will then write letters on behalf of individuals that have not received accommodations. The letters will cite the previous cases and ask for the same accommodations. The more case law in a specific area, the more predictable the outcome will be.
Discussing accommodations in employment, Holder explained that the obligation to provide accommodations is triggered when someone asks for them. Individuals should make a written request so that proof of when the request was made is available later. The letter should include a reference to existing human rights legislation. That reference will remind the employer that a legal entitlement exists and that the requester also has a right to be free from reprisal or retaliation for making the request.
If the employer asks for evidence, the person seeking accommodations should provide a note from a medical practitioner. The note should set out the restrictions or functional limitations. The note does not have to provide diagnostic information.
If an employer asks that the employee see a company physician, the employee may wish to seek legal advice to ensure that personal privacy is protected.
Many people do not know the accommodation measures they need. They only know their functional limitations. In that case, the employer has the obligation to determine the necessary accommodations. The employer may even have to retain an expert to look at the job duties, medical restrictions, and available assistive devices. The person seeking the accommodations has a duty to co-operate in that process.
With 25 years of jurisprudence on the record, lawyers are confident about entitlement and rights in employment for people with disabilities. But they know considerably less about accommodations in education. The last major case was decided in 1993, when Nigel Howard won his case against the University of British Columbia (regarding sign interpretation for courses). Lack of sufficient jurisprudence makes the outcome of cases in the area of education considerably less predictable. Universities may consider themselves immune to this kind of accountability, which may raise a problem for students.
The Ontario Human Rights Commission is expected to publish guidelines on education this year. Those guidelines may be useful for students trying to understand their rights in post-secondary institutions.
Being a complainant is not easy, Holder said. Students will find it hard to fight a legal dispute—especially one that may not be resolved until after graduation. But, if more cases are decided by tribunals, benefits will accrue for future students. Better precedents are needed, and universities and colleges “need to become more alive to the right to accommodation.”