The applicant, Jason Tang, was a graduate student at McMaster University. While he was a doctoral student in the Medical Sciences Graduate Program, he suffered a sports injury and was diagnosed with post-concussive syndrome (PCS) and a mild traumatic acquired brain injury (ABI). Mr. Tang alleged that the respondents, McMaster University, the Faculty of Health Sciences, the Centre for Student Development and the Medical Sciences Graduate Program, breached the Human Rights Code by failing to meet their substantive and procedural obligations to accommodate him. He alleged that the respondents did not provide him with appropriate accommodations for his disability, did not ask for more information about his accommodation, and did not adequately inquire into how they could meet his disability-related needs.
To complete his degree, Mr. Tang needed to pass the comprehensive exam. After some negotiations, university provided him with 32 weeks to complete the written component of the exam, with further extensions to be negotiated if necessary. Mr. Tang advised the respondents that the format of the exam would not meet his needs. The Human Rights Tribunal of Ontario (HRTO) noted that the additional accommodations that he appeared to have wanted were: replacing the written component of the exam with an oral one; in the scenario where a written component was required, setting no deadline to complete it; and, a process that would take place over hours rather than weeks or months.
The university did not provide the additional accommodations requested but did offer some more supports. However, it did not seek additional medical documentation from Mr. Tang, and even though he asked, Mr. Tang was not advised of the essential requirements of the exam.
Mr. Tang started writing the exam without the extra supports offered. He later advised the university that his health had gotten much worse in trying to fulfill the exam requirements. He was offered additional supports. Mr. Tang did not ask for additional supports, an extension of the 32 weeks allotted for the written component of the exam, or a leave of absence. He did not provide any additional information. Rather, he submitted a request to withdraw from McMaster University. The request to withdraw stated that that the accommodations were not effective and that he could not continue.
The HRTO’s original decision
Tribunal Member Ruth Carey determined that the “fundamental difficulty” with Mr. Tang’s allegation about the failure to provide appropriate accommodation was the “lack of objective evidence indicating that persons with post-concussion syndrome similar to his suffer adverse impacts related to their disability when undergoing something like the comprehensive exam with the accommodations provided but without the ones the applicant wanted.” The HRTO held that there was no evidence that the impact Mr. Tang described was related to his PCS except his and his supervisor’s sincerely held but subjective beliefs. The medical documentation listed all of the accommodations Mr. Tang’s doctors identified as being necessary and they were all offered. Thus, the HRTO concluded that Mr. Tang was unable to establish a link between the impacts he described and his post-concussion syndrome, and there was no reasonable prospect of success with respect to the allegation that the Respondents breached their substantive duty to accommodate.
The HRTO held that the difficulty with Mr. Tang’s argument on the procedural duty to accommodate was that “no evidence was presented in support of the proposition that individuals with post-concussion syndrome may need the academic accommodations the applicant wanted and did not receive.” Mr. Tang led no evidence that indicated that “asking for additional medical documentation would have changed the situation.”
The HRTO was satisfied that the application had no reasonable prospect of success and should be dismissed.
Mr. Tang’s Request for Reconsideration
Mr. Tang’s submissions included:
- The decision is in conflict with established jurisprudence on the test for no reasonable prospect of success and the procedural duty to accommodate.
- The HRTO relied on the Respondents’ defences to analyze whether Mr. Tang had met the threshold of a prima facie case.
- The decision is in conflict with the proper analysis of s.11 of the Code. The adjudicator was required to determine whether completion of the exam in a fixed time frame was reasonable and bona fide.
The OHRC’s submissions
The OHRC intervened in the Request for Reconsideration. Our submissions included:
- The HRTO’s approach to determining whether the application had a reasonable prospect of success departs from its jurisprudence.
- The HRTO’s determination that there was no link between the adverse impact and Mr. Tang’s disability is contrary to established jurisprudence.
- In effect, the HRTO required that a claimant’s disability be more than a “factor” in the adverse impact. All that is required is that the ground of discrimination be a “factor” in the adverse impact.
- Establishing that others with post-concussion syndrome would experience similar barriers is not required to satisfy the prima facie test for discrimination.
- The HRTO overlooked the principle that the ground of disability includes perceived disabilities.
- The HRTO conflated the procedural and substantive duties to accommodate and diminished the Respondents’ obligation to react to medical information that Mr. Tang provided. Both are contrary to established jurisprudence.
The HRTO’s reconsideration decision
The Request for Reconsideration was heard by Jo-Anne Pickel.
The HRTO determined that the decision was not in conflict with the proper analysis of s.11 of the Code. In its original decision, the HRTO was not persuaded that the applicant made out a prima facie case of discrimination. Thus, it was not a departure from established jurisprudence for the HRTO to not consider evidence in relation to a bona fide occupational requirement (BFOR) defence.
The HRTO found that it did not rely on the Respondents’ defences to analyze whether Mr. Tang met the threshold of a prima facie case. Rather, it accepted the Respondents’ submission that Mr. Tang did not provide enough evidence to establish a link between his disability and the adverse impact from requiring him to pass a written comprehensive exam with a fixed deadline. The HRTO had the relevant medical evidence before it and there was nothing in the Respondents’ evidence that could have reasonably established the link between Mr. Tang’s disability and the adverse impact.
The HRTO disagreed with Mr. Tang’s and the OHRC’s assertion that its finding of no prima facie case of discrimination was contrary to established jurisprudence. Instead, it concluded that Mr. Tang and the OHRC were disagreeing with the adjudicator’s assessment of the evidence. Although “it may have been possible for the adjudicator to draw a different conclusion,” it was clear from the original HRTO decision that it was not persuaded that there was sufficient medical evidence to establish a prima facie case of discrimination. It did not require that Mr. Tang’s disability be more than a factor in the adverse treatment.
In its original decision, the HRTO found that the “fundamental difficulty” with Mr. Tang’s allegation of discrimination was the “lack of objective evidence indicating that persons with post-concussion syndrome similar to his” would experience similar barriers to the ones he faced. The OHRC submitted that the HRTO’s analysis reflects one of the potential dangers of comparator groups identified by the Supreme Court in Withler and Moore. However, the HRTO disagreed in its Reconsideration Decision. The reference to “persons with post-concussive syndrome similar to his” was part of the HRTO’s finding that Mr. Tang did not provide sufficient medical evidence to establish a prima facie case of discrimination. The HRTO clarified that it was not carrying out a comparator group analysis.
The HRTO was not persuaded by the OHRC’s submission that it overlooked the principle that the ground of disability includes perceived disabilities. The issue of perceived disability did not arise; it was not disputed that Mr. Tang had a disability.
The HRTO found that the adjudicator weighed and assessed evidence in a way that was consistent with established jurisprudence because this case dealt with a mid-hearing motion for dismissal as opposed to a motion at a preliminary stage.
Finally, the HRTO confirmed the separate procedural component of the duty to accommodate and concluded that its earlier decision was not in conflict with established case law on to the procedural duty to accommodate. If one takes the view that the procedural duty is part of the duty to accommodate, there could be no finding of a breach of the procedural duty to accommodate in this case because Mr. Tang didn’t establish a prima facie case of discrimination. If one takes the view that the procedural duty to accommodate arises under ss.1-6 of the Code, there still could be no breach because the respondents provided all accommodations justified in the medical documentation and Mr. Tang conceded that he was aware that any accommodations offered to him would be based on the medical documentation provided.
Mr. Tang’s Request for Reconsideration was denied.
Although the test for a prima facie case of discrimination remains intact, the HRTO’s decisions in this case suggest that significant medical evidence could be required to establish the link between an applicant’s disability and the adverse treatment.
The HRTO’s clarification that it was not carrying out a comparator group analysis is helpful; it is consistent with the Supreme Court’s decision in Moore which confirmed that a comparator is neither helpful nor necessary in an accommodation case.
The HRTO minimized applying the principle that the ground of disability includes perceived disabilities. Its reconsideration decision suggests that the principle is only relevant when assessing if someone has a disability, but not when establishing the necessary connection between their disability and the adverse impact. In this case, the Respondents perceived Mr. Tang’s disability to negatively affect his ability to perform on the exam without the additional accommodations.
The HRTO confirmed the separate procedural component of the duty to accommodate. However, its decisions could help diminish a respondent’s obligation to react to medical information that an applicant provides.
Tang v. McMaster University, 2014 HRTO 92 at paras. 2 and 8 (CanLII) [“Original Decision”].
Ibid, at paras. 70 and 71.
 Ibid, at paras. 33-35, 43-46
 Ibid, at paras. 47-50.
 Ibid, at paras. 68, 69, 72-79.
Ibid, at para. 83.
 Tang v. McMaster University, 2015 HRTO 551 at paras. 24-27 [“Reconsideration Decision”].
Ibid, at paras. 29, 34 and 41.
Ibid, at paras. 61-67.
 Ibid, at para. 68
Ibid, at paras. 70-74.
Ibid., at paras. 76-80.
 Original Decision, supra note 1 at paras. 36, 78, and 47-49.