Post-secondary education

Overview

Ontario offers a wide range of postsecondary options. These include eighteen universities, twenty-five colleges of applied arts and technology, agricultural colleges, colleges of health sciences and of art, a military college, privately funded degree granting institutions, and private career colleges. There are also professional accreditation bodies that offer courses and evaluate students, such as, for example, the Law Society of Upper Canada. Each institution operates independently and determines its own academic and admissions policies, programs, and staff appointments.

Post-secondary education in Ontario is administered by the Ministry of Training, Colleges and Universities (MTCU). The Ministry develops policy directions for post-secondary institutions, authorizes universities to grant degrees, distributes funds to colleges and universities, registers private career colleges, and provides financial assistance programs for post-secondary students.

There were 263,637 students enrolled full-time in Ontario universities in the 2001-2002 school year. The number for colleges was 168,789. Enrolment at Ontario post-secondary institutions has been rising over the past decade, and the student population is expected to continue to grow rapidly over the next few years, due to the elimination of Grade 13, an increase in the population of 19 year olds in Ontario, and an increase in the participation rate of the 18-24 year old population.^[103]

For 2001-2002, 8,188 university students and 13,549 college students received accommodation for a disability, for a total of 21,737 students receiving accommodation. The most common type of disability cited by students at post-secondary institutions is a learning disability, followed by mobility impairments, and sensory impairments. A relatively small percentage indicate mental health disabilities. ^[104]

Accommodation of students with disabilities at the post-secondary level is not subject to the same detailed legislative structures as at the primary and secondary levels. Accommodation of students with disabilities is governed by the Charter of Rights and Freedoms, and by provincial human rights statutes. Post-secondary institutions have developed a wide range of delivery methods and structures in order to meet these obligations. All post-secondary institutions provide some specialized facilities, policies, equipment or services for students with disabilities. All publicly funded post-secondary institutions have centres or offices for students with disabilities that will provide or coordinate provision of services and supports for students with disabilities. However, service delivery models vary widely.

Students with disabilities at post-secondary institutions encounter many of the same difficulties experienced at the primary and secondary levels of education. This section of the Report focuses on issues and challenges unique to the post-secondary environment.

Access to Education

General Issues

The Commission’s Disability Policy reaffirms the right of persons with disabilities to full participation and integration. An accessible educational system is one in which persons with disabilities can “access their environment and face the same duties and responsibilities as everyone else, with dignity and without impediment”.^[105] In the context of post-secondary education, as with elementary and secondary education, accessibility goes beyond physical accessibility, to include accessible curricula, and delivery and evaluation methodology, as well as the provision of the necessary supports and accommodations to ensure that students with disabilities have equal opportunity in their education. Denial of access may be direct or indirect: it may result from refusal to accommodate students with disabilities, from admission criteria that indirectly exclude students with disabilities, or from barriers in funding programs.

Colleges and universities are required under the Ontarians with Disabilities Act^[106] (the “ODA”) to prepare and make public annual accessibility plans, in consultation with persons with disabilities. These plans must address barriers to people with disabilities, and ways to remove and prevent them, in the organization's by-laws, policies, programs, practices and services. The plans must include: a report on the measures the organization has taken to identify, remove and prevent barriers to people with disabilities; the measures in place to make sure that the organization assesses its proposals for by-laws, policies, programs, practices and services; a list of by-laws, policies, programs, practices and services the organization will review in the coming year to identify barriers; and how the organization intends to identify, remove and prevent barriers in the coming year. The Ministry of Citizenship has issued Guidelines for the University Sector, clarifying the requirements under the ODA for this sector.

The ODA also requires the Ministry to prepare similar annual accessibility plans, in consultation with the Accessibility Directorate of Ontario.^[107]

The ODA states clearly that nothing in it diminishes obligations under the Code. The Code continues to operate as the major enforcement mechanism for the rights of persons with disabilities. Accessibility plans may be effective means of ensuring compliance with the Code, as well as with the ODA. Education providers should take into account obligations under both pieces of legislation when drafting accessibility plans. The College Council on Disability Issues (CCDI) points out that, when considering access issues, the post-secondary educational system cannot be viewed in isolation. A student’s experience in primary and secondary education will have a powerful influence on his or her access to post-secondary education. According to the CCDI:

When school boards do not provide timely assessment or special education services to students with disabilities, they jeopardize students’ access to post-secondary education .... Without appropriate support, students with disabilities are at risk of academic failure and associated loss of self-confidence and self-esteem, and are thus less likely to go on to a post-secondary level of study.

The final report of the Learning Opportunities Task Force (LOTF) identifies supports for transition for secondary to post-secondary institutions as a major issue, recommending that school boards be held accountable for compliance with their regulatory responsibility to develop transition programs and plans, and that proven transition programming be made available to all students with learning disabilities who are going on to post-secondary education and are interested in participating in such opportunities. ^[108]

Although physical accessibility issues are probably the most widely recognized and acknowledged disability-related barriers, there is still much work to be done in terms of the physical accessibility of post-secondary institutions. Even where physical structures comply with the Building Code,^[109] barriers remain. The submission of the CCDI notes that:

The building code is insufficient in some instances in eliminating barriers. For example, the use of electronic chairs and scooters is on the rise at colleges across Ontario. However, they require more space to turn around than manual chairs, and students are not able to use ‘handicapped accessible’ washroom cubicles that currently meet old building code requirements.

The submission of ARCH notes that greater attention needs to be paid to the accessibility of student housing, stating that “Students spend much time educating the housing offices, and residences about their needs, as well as advocating for accommodations in housing”. Where accessible student housing is not available, students with disabilities may not be able to attend a post-secondary institution at all, or may do so only at the cost of long, exhausting commutes. CCDI recommends that offices for students with disabilities be consulted when campus buildings are constructed or retrofitted. The Inter-University Disability Issues Association (IDIA) recommends that principles of universal design be embraced to ensure that the design of services and environments are usable by all people to the greatest extent possible, without the need for adaptation or specialized accommodation.

More and more post-secondary courses are computer-delivered, whether through websites or CD-ROMs. Failure to consider the requirements of students who use screen readers during the development of such courses can make them completely inaccessible. The National Federation of the Blind states that:

The ‘duty to accommodate’ must also apply when it comes to the design of any websites that will be required by students to participate in any distance education program. This involves designing such sites in a manner that will make them easily accessible by students who use large print or screen readers to read the content on these sites.

University admission policies may also create barriers. For example, some professional schools and graduate schools will not accept grades from part-time studies. ^[110] Students with disabilities are more likely to pursue part-time studies, so these types of policies can pose significant barriers for these individuals. The IDIA states that “A standard for all university admissions policies and procedures, using inclusive language is required to facilitate equal access opportunities for students with disabilities”.

Students with disabilities may face challenges simply getting to and from school each day. The lack of reliable, accessible public transportation may pose a formidable barrier to education for students with disabilities.^[111] Students may find themselves persistently late for, or missing classes as a result. Where adequate assistance or student housing is not made available in a timely manner for students with disabilities, students may be forced to make long commutes to school every day and find themselves fatigued and burnt-out as a result.

Refusal to provide accommodation can provide a complete bar to access for some students. Several submissions raised concerns regarding private career colleges, which train a significant number of adults who are entering the work force, or seeking to upgrade their skills or change careers. Private career colleges, private universities, and professional licensing bodies, like all other post-secondary institutions, are bound by the Code. They are required to provide equal treatment with respect to their services, without discrimination because of disability. This means that they must provide accommodation to students with disabilities, up to the point of undue hardship. The cost of accommodation will only amount to an undue hardship where it is so substantial that it would alter the essential nature of the enterprise, or so significant that it would substantially affect its viability. ^[112] Some private career colleges are failing to respect their duty to provide accommodation to students seeking admission. For example, the Canadian Hearing Society stated that some deaf, deafened and hard-of-hearing students have been told that they must arrange and pay for sign language interpreters and real time captioners at private career colleges. Private career colleges are regulated by the Private Career Colleges Act.^[113] The Superintendent of private career colleges has the power to deny registration or renewal of registration to a career college in a number of circumstances, including where “the past conduct of the applicant affords reasonable grounds for belief that the applicant will not carry on the private career college in accordance with law and with integrity and honesty”.^[114] ARCH recommends that the government body regulating these institutions set requirements regarding the duty to accommodate, so that individual students with disabilities do not repeatedly have to fight to enforce their human rights.

Funding Issues

Background

Many of the access issues raised during the consultation were concerned with barriers related to funding programs and structures. The government has initiated numerous funding programs that may assist students with disabilities in accessing a post-secondary education. The funding structure for students with disabilities at the post-secondary level is complex, as there are a multitude of programs, with varying benefits and eligibility requirements.

Bursary for Students with Disabilities (BSWD) is intended to assist students in meeting additional costs of equipment and supplies related to their participation in post-secondary education, which the student must incur because of his or her disability. It is only for specialized equipment and services required for participating in post-secondary studies. Ineligible expenses include services and/or accommodation that are provided by the institution as part of the institutional obligation to accommodate persons with disabilities under the Code;^[115] expenses covered by the Assistive Devices Program (ADP), OHIP or Workers Safety and Insurance Board (WSIB); as well as tuition, books, and housing.

To be eligible, students must be studying full-time at an approved public post-secondary institution, and in an approved program. Full-time is defined, in general, as a 60% course load or higher, and a 40% course load or higher for students with disabilities.

If a student is in default on an Ontario Student Assistance Program (OSAP) loan, or if the student “can not maintain satisfactory academic progress”, continued eligibility for the BSWD will be denied.

Students who are not Canadian citizens or permanent residents, or who are from another province and have not resided in Ontario for at least 12 consecutive months are not eligible.

The BSWD is made up of two components:

• The Federal Government’s Study Grant for Students with Permanent Disabilities (maximum $8,000). Only students who have applied and qualified for OSAP are eligible for this portion of the BSWD.
• Provincial bursary funding provided by the Ontario government (maximum $2,000). Students who are not eligible for loan funding may still be eligible for this. In determining eligibility, disability-related education support costs are included in the calculation of eligible education costs in the Ontario portion of the Canada-Ontario Integrated Student Loan needs assessment.

The BSWD is non-repayable and taxable.

Canada Study Grants for High Need Students with Permanent Disabilities provides a maximum of $2,000 for tuition and living costs only to students with disabilities who have unmet needs after receiving the maximum loan from OSAP.

Canada Study Grant for High Need Part-time Students provides a maximum of $1,200 for education-related expenses to part-time students, including students with disabilities, who meet the requirements of a part-time Canada Student Loan, and who demonstrate income need and an inability to study full-time. This grant is available to eligible students with disabilities taking a 20 to 39% course load.

Ontario Special Bursary Plan (OSBP) is a $2500 bursary available to part-time students, including students with disabilities, who are unable to attend full-time and who have income needs to cover tuition, books, etc. A student with a disability can access both the OSBP and BSWD, but will only qualify for the $2000 Ontario maximum component under the BSWD.

Bursary for Deaf Students Attending Out-of-Country Postsecondary Institutions provides financial assistance to deaf, deafened and hard-of-hearing students attending post-secondary schools in the United States who have eligible education costs that are in excess of the weekly Canada-Ontario Integrated Student Loan maximum.

The Ontario government also provides funding directly to post-secondary institutions to assist with their disability accommodation responsibilities. The Accessibility Fund for Students with Disabilities is a portion of the operating grant targeted to assist publicly funded universities and colleges in meeting their obligations under the Code to make their programs and services accessible for students with disabilities. It can be used for expenses related to the operations of centres for students with disabilities, adaptive and other technology, professional development, and the expenses of contract services such as tutors, note takers, and assessments. The MTCU also provides funding for print-alternate materials to support blind, visually impaired, and learning disabled students. For students who are deaf, deafened or hard-of-hearing, the government funds Support Services for the Hearing Impaired, which is administered by George Brown College on behalf of Toronto area colleges; two Interpreter Funds for post-secondary institutions outside of Toronto; and Educational Support Services, administered by the Canadian Hearing Society, which supports part-time study accommodation costs.

In 2002, the MTCU announced the Enhanced Services Fund, a unique initiative to assist college and university students with learning disabilities to get help from learning strategists, assistive technologists, and related technology. This was in response to the preliminary recommendations from the Learning Opportunities Task Force (LOTF), established in 1997. Through the LOTF, the government committed $30 million over five years for initiatives including eight pilot projects at 13 colleges and universities across the province. The pilot projects, and the work of the LOTF have been lauded as examples of best practices in post-secondary education. ^[116]

Students with disabilities may also be eligible for funding from non-education related programs, such as the Assistive Devices Program (ADP), operated by the Ministry of Health, which funds personal needs equipment and supplies unrelated to work or education for persons with disabilities; the Ontario Disability Support Program (ODSP) which provides social assistance support for living and personal expenses, as well as employment supports (it will not cover tuition, books or travel allowance); and the Trillium Drug Program, which provides assistance with prescription drug costs.

Issues

Concerns regarding funding for students with disabilities should be viewed in the context of the rise in tuition fees for post-secondary students in recent years. Tuition fees at Ontario universities more than doubled between the1989/1990 academic year and the 1999/2000 academic year.^[117] While this has posed issues for many students, it raises extra concerns for students with disabilities. As stated by the National Federation of the Blind:

Over the past five years, tuition fees in Ontario have risen dramatically. While this provides a new barrier to any student who does not come from a wealthy family, or lives in any area of Ontario not close to a college or university, this situation fails to take into account the extra burden placed on students with disabilities who not only face additional costs associated with their disabilities, but also often have far greater difficulties in securing summer employment.

Further, the amount of funding available to students with disabilities has not necessarily increased alongside rising costs for post-secondary education. For example, the OSBP amount has remained at $2,500 for several years. Students struggle to pay the tuition for two courses, along with costs for books and travel, from this amount.

Part-time students face a number of extra financial barriers. Many students with disabilities register for part-time studies because of their disabilities, but for these students, a part-time course load is equivalent to full-time studies. OSAP has recognized this by defining a 40% course load as full-time for students with disabilities. However, many other services and programs do not recognize this. For example, as consultees indicated, part-time students are often not eligible for student health plans. Further, the submission of the CCDI points out that students undertaking reduced course-loads may still end up paying full-time fees:

Although policies and practices vary from college to college and even between programs within a given college, students taking a reduced course load often pay a full course fee at college. Even where refunds are provided for courses not taken, the refunds are often less than it costs the student to take the course at a later time, i.e. as a continuing education student. Thus, a student who takes half his first semester at one time and the other half at another time can end up paying up to twice the cost of a student without a disability. ... These additional costs can substantially increase a student’s debt or make it financially impossible for them to complete their program of study, and thus affect their access to a post-secondary education.

Similarly, a number of submissions raised concerns with the fact that scholarships are designed mainly for students who undertake full time studies, at both the graduate and undergraduate level, excluding many students with disabilities. The Commission’s Policy on Scholarships and Awards notes that scholarships are significant, not only in terms of financial access to educational services, but also as a means to access employment or post-graduate training. The Policy notes that:

[S]cholarships and awards should be based on factors such as merit, personal financial need, course specialization, or recognition of special contributions to academic or extracurricular life. Exclusionary scholarships or awards, on the other hand, use discriminatory criteria to assess eligibility. These criteria affect access to educational opportunities, either directly or indirectly.^[118]

Provincial and federal financing programs for students are often of especial importance to students with disabilities because, as one student’s submission pointed out, it is often difficult for students with disabilities to hold a job as well as go to school, so that students with disabilities are often dependent on government aid to complete their schooling.

Numerous concerns were raised during the consultation with respect to the operation of the BSWD. The BSWD is of particular importance to students with disabilities as it is the only student financing program whose purpose is to facilitate equal access to the service of education for students with disabilities by covering costs which are not borne by students without disabilities. Many submissions expressed concerns about the eligibility requirements of the BSWD, and in particular, the fact that it is tied to eligibility for OSAP, that the student must have a pre-diagnosed disability, and that students who have defaulted on OSAP or are overdrawn are ineligible.

With respect to the requirement that a student be eligible for OSAP in order to qualify for the BSWD, the submission of the LOTF noted that “The requirements [of the BSWD] represent a major barrier for many students with disabilities, whose parents may be able to help with tuition and living costs, but may not be able to cover all the disability specific additional costs”. The final report of the LOTF recommends that eligibility for the BSWD be separated from OSAP so that all students with disabilities can access bursary funds equally. The financial consequences for students with disabilities who do not qualify for OSAP are significant, despite the existence of other government programs: York University’s Psychiatric Dis/Abilities Program notes that while students who are eligible for OSAP can receive up to $10,000 from the BSWD for disability–related costs, students who are not eligible for OSAP and receive either the OSBP or the provincial portion of the BSWD can receive only $2,000 for disability-related costs.

Only students with a pre-diagnosed disability are eligible for BSWD. This poses a barrier for access for students who must self-fund their diagnosis. The LOTF, for example, points out that the diagnosis of learning disabilities is not covered by any Provincial health or assessment plan and that many people with learning disabilities therefore never have their condition fully and appropriately diagnosed.^[119] Rules, preconditions, policies or practices that treat persons with non-evident disabilities differently from other persons with disabilities are prima facie discriminatory.^[120]

Students who receive an over-award under OSAP more than once cannot return to school until it is paid back. Over-awards often occur when students reduce their course loads after the school term commences. There is no process for taking into account disability-related causes for reducing course loads. As ARCH has pointed out, this has a discriminatory effect on students with health-related or mental disabilities, who are more likely to withdraw from classes. The submission of the York University Psychiatric Dis/Abilities Program notes that this policy does not recognize the episodic nature of psychiatric illnesses, and as a result, students with psychiatric disabilities may be denied access to post-secondary education.

Concerns were also raised with respect to the restrictions on the types of services funded. For example, BSWD funding is not available for students who wish to attend private post-secondary institutions. As well, the York University Psychiatric Dis/Abilities Program submission expressed concerns that the BSWD does not cover the cost of medications. The submission states that “There are many students with psychiatric disabilities who need medication, specifically to help them concentrate while they are at school. This support is as critical as a computer and other software materials, which the bursary does cover.”

The BSWD, like other bursary assistance, is considered taxable income under federal tax law. This has been challenged unsuccessfully in two cases. Wignall v. Canada (Department of National Revenue)^[121] is a complaint under the Canadian Human Rights Act. The Tribunal concluded that this taxation practice, although perhaps unfair, was not a discriminatory practice in the provision of a service. The decision is currently under appeal to the Federal Court of Canada, Trial Division. In a recent decision,^[122] the Tax Court of Canada dismissed a Charter challenge on this point, concluding that the taxation of the bursary was not differential treatment, and that the source of the problem was the refusal of the education service provided to provide the necessary accommodation without cost to the plaintiff. Both decisions indicated that it may be problematic for education providers to require students to resort to taxable grants in order to access disability-related services.

Finally, the very complexity of these overlapping programs can pose difficulties for students with disabilities. It may be very difficult for students to ascertain what their entitlements actually are. In some cases, program requirements actually conflict. The City of Toronto Community Advisory Committee on Disability gives as an example the issue of summer work. The OSAP program expects that students will contribute to the cost of their education, for example through part-time or summer work. However, students who receive ODSP benefits are limited
in the number of hours that they are permitted to work.

The Supreme Court of Canada decision in Eldridge^[123] states that, when governments provide services, they have an obligation to take positive steps to ensure that members of disadvantaged groups, such as persons with disabilities, benefit equally from these services, subject to the undue hardship standard. Having undertaken programs such as the BSWD, the government is obliged to design it in an inclusive manner, taking into account the needs of all students with disabilities. If the BSWD requirements have an adverse impact on students with particular types of disabilities, this may raise issues under the Code. Further, blanket approaches to accommodation, that do not take into account the unique and individual needs of persons with disabilities, are likely inappropriate.

The Commission’s Disability Policy states that where outside sources of funding for accommodation costs (such as the BSWD) are available to persons with disabilities, a service provider can expect that these resources will be accessed first. However, such resources should most appropriately meet the accommodation needs of the individual, including respect for dignity. The primary responsibility for accommodation remains with the post-secondary institution. For example, in the case of Howard v. University of British Columbia^[124], the complainant, who was deaf, wished to obtain his teaching certificate from the University of British Columbia. To do so, he required interpretation services during lectures, which would have cost $9,000 for his prerequisite courses, and $40,000 per year during the teachers’ program. He was unable to obtain funding from the government’s Vocational Rehabilitation Services. The University provided him with $1,000 towards the cost of interpretation, and he obtained a $2,000 forgivable loan from the Ministry of Advanced Education. Unable to obtain funding, he withdrew from the program. Before the Tribunal, the University argued that providing funding for interpretation was the responsibility of the government, not the University; the Tribunal ruled that denial of interpretation amounted to denial of access to the University’s educational services. The Tribunal noted that while it may have been open to the complainant to allege discrimination against the government with respect to gaps in funding for interpreters, that did not absolve the University from responsibility. The Tribunal concluded that while the cost to the University of providing for these types of services from its discretionary funds would be significant, the University did not provide evidence to show that the University’s operations would have been seriously affected had it provided interpretation services to the complainant.

Disability and Other Forms of Discrimination

As discussed in the first section of this Report, students with disabilities may also belong to groups that have been discriminated against historically on grounds other than disability. Discrimination must be viewed in its context to be fully understood.

For example, single parents may face limitations on their educational options over and above those related to their disabilities, such as lack of access to subsidized day care. Individuals with disabilities from northern First Nations communities may have to leave their community support systems in order to access specialized educational programs in southern Ontario. As well, consultees told the Commission that Aboriginal students tend to be over-identified and misidentified with disabilities, and be denied access to post-secondary education as a result:

One [Native Student Centre] reported in a recent meeting that 100% of their Aboriginal post-secondary students had previously been IPRC’d by catchment area boards, perceiving this as a stereotype, if not racist practice equating cultural differences and ESL with mis-represented and virtually compulsory special education placement.

The IDIA raised concerns about the impact of the Test of English as a Foreign Language (TOEFL) on persons with language-based disabilities, or whose first language is sign language. The TOEFL test is required for any person wishing to study in Ontario whose first language is not English, and who has not attended a Canadian educational institution for at least three years. The IDIA notes that there are no provisions in place to accommodate individuals with disabilities whose test performance may be affected by their disability and to ensure that their performance is fairly evaluated.

The LOTF has identified problems with gender-based discrimination among students with learning disabilities whereby girls and women suffer from diminished educational opportunities. Pilot projects by the LOTF at the post-secondary level indicated positive results from greater openness to self-referral.

Actions Required

Post-Secondary Institutions

• (1) Take steps to move away from reliance, in their admissions procedures, on tests that fail to provide appropriate accommodation and confidentiality for students with disabilities. Include information on intersectional issues in training programs on disability for staff and faculty.

Test Providers

• (2) Implement policies and procedures to ensure that students with disabilities receive appropriate, dignified and confidential accommodations to testing procedures.

Negative Attitudes and Stereotypes

During the consultation, the Commission heard of ongoing issues at post-secondary institutions with respect to negative attitudes and stereotypes about students with disabilities. The IDIA stated that:

Universities have placed responsibility for improved awareness, understanding and sensitivity in the hands of offices that provide support for students with disabilities. Limited staff resources, increased numbers of students have made this process difficult to achieve. As a result, some faculty .... have been less exposed to information pertaining to myths and stereotypes about students with disabilities. Such limitations lead to comments such as “learning disabilities do not exist, there are just lazy students who watch too much television”.

One submission noted that there are particular barriers for students with non-evident disabilities, stating that, “When asking for help students with invisible disabilities are often approached with questions that are degrading ...Questions such as ‘What’s wrong with you? You look fine.’” The submission of the CCDI raised concerns that “Poor awareness and knowledge of disabilities and disability issues on the part of faculty can lead to discrimination in the academic evaluation of students as well as negatively affect faculty’s willingness to provide accommodations”. The submission of the Learning Disabilities Association of Ontario (LDAO) states that:

Students with learning disabilities often face a negative attitude within the post-secondary sector, where teaching faculty often do not understand that students with learning disabilities are just as able to achieve the required outcomes as their non-disabled peers, provided that they are assured access to the requisite appropriate accommodations.

Consultees identified a number of strategies for addressing these issues. First, disability awareness training should be a mandatory part of professional training for all teachers and faculty. Second, training on disability issues should not be the sole province of the offices for students with disabilities. Responsibility for training on disability issues should also be incorporated into general instructional development activities for faculty and staff, and should be available on an ongoing basis throughout the school year. Finally, the Commission itself can play an important role, by developing and communicating clear guidelines regarding the roles and responsibilities of faculty and staff. The submission of the CCDI recommends that:

Guidelines could highlight the duty of faculty to respect the dignity and confidentiality of students with disabilities, as well as to follow accommodations recommended via the accepted policies and procedures of the faculty’s institution. For example, when faculty speak about a student’s disability in front of their class or other students, disclose a student’s personal disability information without permission to other faculty/staff, leave written information regarding a student’s disability in a public place or in plain view, or use names when discussing general disability issues, they fail to respect the confidentiality and dignity of students with disabilities.

Accommodation Process

Background

The accommodation process for post-secondary students with disabilities can be a complex one. Accommodation of students with disabilities at the post-secondary level is not subject to the same detailed legislative structures as at the primary and secondary levels. Accommodation of students with disabilities is governed by the Charter of Rights and Freedoms and by the Code. This means that accommodation processes must meet the standards set out in the Disability Policy: they must respect the dignity of persons with disabilities; they must consider, assess and accommodate persons individually; and they must promote the integration and full participation of persons with disabilities. At the heart of the accommodation process is the responsibility, shared by all parties, to engage in meaningful dialogue about accommodation, and to seek out expert assistance as needed.

Post-secondary institutions have developed a wide range of delivery methods and structures to meet these obligations. As well, as noted in the previous section on funding, funding for accommodations for post-secondary students is provided through a wide variety of programs, with complicated inter-relationships.

All publicly funded post-secondary institutions in Ontario have centres or offices for students with disabilities.^[125] However, service delivery models vary widely across the province. Some provide test and exam accommodations, arrange textbooks in alternative formats, and provide career and employment counselling services. Others have a more decentralized delivery method, acting as experts in the area of disability, communicating with other campus departments, and supporting efforts to make the entire institution more accessible to all students, while relying on other departments to take shared responsibility for support. Although the creation of offices for students with disabilities has been a very positive development in ensuring access and accommodation for students with disabilities, they are not, of course, the entire answer to a post-secondary institution’s responsibilities to students with disabilities under the Code.

Access to Information

The complexity and variety of services and supports for students with disabilities can make it difficult for students to find and access the services that they need. This may be especially difficult for students making the transition from the much more structured accommodation processes of the primary and secondary educational systems. The IDIA notes that “systems are so large that individuals can easily be lost in a sea of administrative bureaucracy”. According to the CCDI:

It is not uncommon for a number of government departments to be involved in aspects of a student’s education, and the conflicting and contradictory policies and rules of each can not only be difficult to navigate, but can have negative consequences for students with disabilities.

The CCDI therefore recommends that government departments harmonize the delivery of programs to students with disabilities so that students are not disadvantaged because they access the services of more than one department, or because they fall under one department’s jurisdiction, rather than another. With respect to service delivery within post-secondary institutions, the IDIA stated that work towards a provincial standard of service delivery could be extremely beneficial to students with disabilities.

The submission from York University indicated that there is a dearth of information available on best practices in accommodating students with disabilities for students in post-secondary education, particularly in light of the continually evolving body of scientific and academic knowledge regarding certain forms of disability.

York University’s submission also noted that it has experienced difficulty in the accommodation process with timing issues. Funding decisions must often be made long before the University knows how many students will require disability-related accommodations or the nature of the accommodation needs that must be met. Even apart from funding issues, the University requires sufficient lead time to ensure that accommodations will be available when needed.

Dispute Resolution

A number of submissions raised issues relating to dispute resolution – for example, where a student and a faculty member cannot agree on a disability-related accommodation. Dispute resolution processes vary between institutions; in general however, they can be characterized as less formal than those at the primary and secondary level. Two issues were raised with respect to dispute resolution processes for accommodation-related issues: timeliness and onus of proof.

With respect to timeliness, concerns were raised that in some cases, dispute resolution processes take considerable time to pursue. The submission from ARCH indicates that:

Complaint procedures and processes at colleges and universities may take considerable time to pursue. We have received calls from students who have lost their right to pursue their disability-related discrimination complaint at the Commission due to the passage of time. This is a procedural concern that should be addressed by the Commission and the institutions, to ensure that recourse to the Commission is not denied. ^[126]

With respect to onus of proof, submissions have raised concerns that, in practice, some students are being required to prove that their proposed accommodations are in accordance with the Charter and the Code and could not in any circumstances amount to undue hardship. The Commission’s Disability Policy is clear that, where there is a dispute regarding a proposed accommodation, and a service provider alleges undue hardship, the onus is on the provider to demonstrate it. It is not the responsibility of a student seeking accommodation to prove that a proposed accommodation would not cause undue hardship.^[127]

Dispute resolution procedures that are not timely or effective could amount to a failure of the duty to accommodate.

Confidentiality

Confidentiality of information is an important consideration in the accommodation process. The Disability Policy provides that persons with disabilities are not necessarily required to disclose private or confidential matters. Information should be disclosed to the accommodation provider only as it pertains to the need for accommodation and any restrictions or limitations. Documentation supporting the need for a particular accommodation should be provided only to those who need to be aware of the information.

A number of concerns regarding confidentiality were raised during the consultation process. The duty to accommodate exists only for needs that are known. Where a person with a disability is requesting accommodation, the accommodation provider is entitled to verify that a disability exists, and the nature and extent of relevant restrictions or limitations. Reports from experts may be of assistance in determining the most appropriate accommodation for a student with a disability.

In order to avoid labelling or stereotyping, it is essential that confidentiality be maintained with respect to this type of information. Several submissions suggested as a best practice that documentation regarding the verification of a disability and the nature and extent of restrictions and limitations should be maintained in confidence by each institution’s office for students with disabilities. Disclosure to faculty or staff of the post-secondary institution should be on a need-to-know basis only, and at the choice of the student. The submission of the CCDI states that:

While disclosing the type of disability can lead to labelling and stereotyping, it can also assist faculty in understanding the learning needs of their students. Many of the accommodation practices implemented for college students are based on research and intervention practices with specific types of disabilities, and thus, knowing the type of disability can be important in determining the type of accommodations and services which would be beneficial.... However, disability offices recognize that the decision to disclose information to faculty regarding the type of disability is the responsibility of the student rather than of the disability student office. Thus, information regarding a student’s type of disability should be disclosed to faculty/staff by the student or, alternatively, by the disability service office, but only with the student’s informed consent (where informed consent implies a discussion of the risks and benefits of disclosure of type of disability).

The Commission has grave concerns regarding the disclosure of disability-related information, including accommodations received, on transcripts, entrance test result forms, or licensing exam result forms. For example, the submission of the CCDI states that the Law School Admissions Test (LSAT), when sending test scores of testees who received accommodations to law schools, indicates that the test was not completed under standard conditions, and that therefore the test scores should be interpreted with great sensitivity. This effectively notifies the law schools of the applicant’s disability, as well as implicitly undermining the validity of the score received. The resulting decision on the application may potentially be biased.

Appropriate Accommodation

Defining Appropriate Accommodation

Background

There are a wide variety of accommodations provided to students with disabilities at the post-secondary level. These include:

• Accommodations to improve the physical accessibility of post-secondary facilities, including classrooms, resource centres, and student housing;
• Provision of, or training on adaptive technologies;
• Support services, such as assessment or advice on learning strategies;
• In-class support such as, for example, notetakers; and
• Modifications to evaluation methodologies, such as extended test-taking time, or alternative examination formats.

Submissions revealed ongoing debate among stakeholders regarding the appropriateness of various forms of accommodation, often expressed as discussions of “academic freedom” or “academic integrity”. For example, the submission from York University states that:

Even with efforts to accommodate, there is concern that there remain barriers that cannot be overcome without inappropriately compromising the academic integrity of the University and its programs. The curriculum is set by those who determine what knowledge is needed to have mastery of a given subject matter or area. The standard of mastery of the curriculum for evaluation purposes is also set. Therefore, there are issues of academic integrity and academic freedom that prevent the relaxation of the curriculum or the overlooking of academic standards as a means of accommodating students with disabilities.

On the other hand, the submission from ARCH notes that “The concept of ‘academic freedom’ ... is really a doctrine designed to protect academics from censorship .... Academic standards, while serving a legitimate function, are not protected from human rights scrutiny.”

Academic Freedom

The Commission has taken the position that “academic freedom is unrelated to the duty to accommodate and should not be a defence to accommodating persons with disabilities.”^[128] The purpose of academic freedom is to protect the special role of institutions of higher education in the free search for truth, and its free exposition. As such, it relates mainly to freedom of research and of expression in instruction. It will be rare for a disability-related accommodation to impinge on academic freedom. The submission of the CCDI provides an example where a student’s disability requires him or her to tape record lectures, and faculty are concerned that the student is in this way obtaining an unauthorized copy of their ideas. However, the purpose of the accommodation is to permit the student to benefit from lectures equally with other students. That is, the student would not be entitled to put the tape recordings to any use to which other students could not put their lecture notes.

Academic Integrity

Issues surrounding academic integrity are more complex. In this context, it is used to refer to the maintenance of standards for curriculum, evaluation, and student achievement. The expressed concern is that modifications to curriculum or evaluation methodologies will dilute standards and render them less meaningful. For example, the submission of the IDIA notes that “faculty may determine that the use of memory aids or queue sheets, as well as take home or oral tests/exams, may be unacceptable accommodations because the nature of the test/exam does not lend itself to these accommodations.” The York University submission stated that “Whatever is designed for a student must be a program that gives sufficient comfort to the teaching faculty that he/she can provide the curriculum and suitable and fair evaluation, consistent with the University’s standards.” From the viewpoint of the LOTF, the use of appropriate accommodations does not interfere with the maintenance of the integrity of the curriculum or of the academic standards of programmes or courses. Appropriate accommodations should not lead to lowered standards or outcomes: rather, an appropriate accommodation will enable the student to successfully meet the essential requirements of the programme, with no alteration in standards or outcomes, although the manner in which the student demonstrates mastery, knowledge and skills may be altered.

The Commission’s Disability Policy indicates that the aim of accommodation is the integration and full participation of persons with disabilities in the life of the community. Barriers must be prevented and removed, so that persons with disabilities can access and benefit from their environment and face the same duties and requirements as everyone else, with dignity and without impediment. Thus, the aim of accommodation in a post-secondary educational context is to provide equal opportunities to all students to enjoy the same level of benefits and privileges and meet the requirements for acquiring an education. Based on these principles, an accommodation will be considered appropriate where it will result in equal opportunity to attain the same level of performance, or enjoy the same level of benefits and privileges experienced by others, or if it is proposed or adopted for the purpose of achieving equal opportunity and meets the individual’s disability-related needs.

A consideration of the appropriateness of an educational accommodation begins with an analysis of the nature of the educational right at issue. This will differ depending on the nature of the educational service offered. For example, at the primary and secondary levels of education, there is a statutory right to education for all. Each child is entitled to the opportunity to develop his or her unique abilities and talents. The goals of post-secondary education are different, and may be narrower in scope. The right may therefore be defined differently.

The next step is to consider what the essential duties or requirements attending the exercise of the right are. While courts and tribunals have provided little guidance on the nature of essential duties, terms that have been used include indispensable, vital, and very important. Thus, a requirement should not lightly be considered to be essential, but should be carefully scrutinized. This includes course requirements and standards. For example, it may likely be an essential requirement that a student master core aspects of a course curriculum. It is much less likely that it will be an essential requirement to demonstrate that mastery in a particular format, unless mastery of that format (e.g., oral communication) is also a vital requirement of the program.

Educators must provide accommodation, up to the point of undue hardship, to enable students to meet these essential requirements.

Universal Design

In designing educational programs, educators must keep in mind the principles of universal design. That is, course curriculum, delivery methods, and evaluation methodologies should be designed inclusively from the outset. This may mean providing a variety of ways for demonstrating knowledge and skills – for example, by giving students the option of writing a paper or making a presentation. It may mean creative use of technology, such as putting materials online, or selecting software that is compatible with screen readers. When courses are online, web-based, or CD based, accessibility issues should be addressed up-front, in the development stage. Universal design can be of benefit to all students, not only students with disabilities. The LDAO recommends that educators incorporate principles of inclusive design into their teaching methodology, in order to facilitate learning for all non-traditional learners, as well as students with disabilities. Even where inclusive design principles have been thoroughly applied, educators should keep in mind that differential treatment may still be required in some cases to achieve equal opportunity to enjoy the same level of benefits and privileges and meet the essential requirements of the learning environment.

Access to Accommodation

Even where there is no dispute regarding the appropriateness of an accommodation, students may have difficulty accessing it. For example, students may have difficulty even finding out what services and supports may be available to them. As one student stated:

Students shouldn’t have to search to find out what services are available to us outside our school, within the community and what we have rights to. I personally didn’t think I had any right to any of the services I am receiving now. I just thought it was my fault and I would have to deal with it.

Even where accommodations are available, timeliness may be an issue. For example, a number of stakeholders raised concerns about the availability of textbooks in alternative formats. The Report of the Task Force on Access to Information for Print Disabled Canadians noted that access to post-secondary texts in alternative formats varies widely between post-secondary institutions, despite the extent of the need. It also noted that Canada is the only member of the Organisation for Economic Cooperation and Development (OECD) that does not financially support the production of multiple alternate formats on a continuing basis.^[129] Ontario’s MTCU has operated a transcription services fund since 1983 to assist with the production of print-alternate materials, such as braille, tape, large print, and CD-rom. However, continual increases in demand for this service have outpaced funding increases. The National Federation of the Blind expressed concerns that many professors at post-secondary institutions decide their list of required reading very close to the start of the course, and bookstores often wait until the beginning of the term to stock textbooks, making it very difficult for blind students who must arrange for transcription of books into an alternative format. They recommended that post-secondary institutions require their instructors to develop their book lists early enough that transcription can be arranged. The CCDI and the IDIA recommend that the onus be placed on textbook publishers to ensure that alternative format textbooks are provided to bookstores in a timely fashion.

Similar concerns were raised with respect to the timely availability of class handouts in alternative formats.

As well, the general dearth of individuals in the wider community to act as transcribers, interpreters and other assistive professionals creates a barrier, even where money is available to provide their services to students. This problem is exacerbated in some parts of Northern Ontario. The Canadian Hearing Society noted that students in Northern Ontario have difficulty accessing interpreters, and may find themselves forced to move to Southern Ontario because that is where services are available. According to the Huron-Superior Catholic District School Board:

In Northern Ontario, there is a two-year waiting list to see a psychologist for assessment. Many institutions require recent psychological assessment reports before the student begins post-secondary education. Without this documentation, the student is denied access to supports or has to go through a lengthy evaluation process, often at the expense of the families.

Undue Hardship Standard

As discussed previously, whether an accommodation is appropriate is a completely separate and distinct determination from whether that accommodation would result in undue hardship. Where an accommodation is appropriate, but would result in undue hardship, the provider is required to consider phased-in accommodation, accommodation at a later date, next-best accommodations, or interim accommodations.^[130].

The threshold for undue hardship is high. This is necessary to ensure that the aims of the Code are achieved. The submission of the LDAO states:

As a caring society, we have an obligation to ensure that all vulnerable members of our society are guaranteed access to services, supports and accommodations to help them overcome the negative impacts of their vulnerability. When it comes to providing an enabling education to students with disabilities, it is society’s obligation to help them progress towards independence and a reduction of their vulnerability.

Because of the complexity of the provision of accommodation to post-secondary students with disabilities, some confusion exists with respect to who exactly has responsibility for the cost and provision of accommodation for students with disabilities. Is it disability service departments, each individual college or university, or the MTCU?

As discussed in the Undue Hardship Standard section in the first part of this Report, the Commission’s Disability Policy states that:

Costs of accommodation must be distributed as widely as possible within the organization responsible for accommodation so that no single department, employee, customer or subsidiary is burdened with the cost of an accommodation. The appropriate basis for evaluating the cost is based on the budget of the organization on the whole, not the branch or unit in which the person with a disability works, or to which the person has made an application. In the case of government, the term “whole operation” should refer to the programs or services offered or funded by the government.

Ultimately, it is the service provider who is responsible for ensuring that services are available to all students, without discrimination because of disability. As with elementary and secondary institutions, the determination of who the service provider is in a particular situation will be a factual determination, and will vary from case to case. In most cases, it will be the post-secondary institutions, in some it may also be the MTCU. ^[131]

However, disability service providers within post-secondary institutions are not themselves providers of the service of education. The creation of offices for students with disabilities is one way in which post-secondary institutions have attempted to meet their duty to provide equal education. However, the responsibility for accommodation rests with the post-secondary institution as a whole, and not simply with the disability service providers.

The undue hardship standard applies to all service providers, whether public or private. That is, it is not open to private career colleges, private universities or professional licensing bodies to refuse to accept students with disabilities, or to ask them to waive their rights to accommodation as a precondition of entrance, unless they can meet the undue hardship standard set out in the Commission’s Disability Policy. Whether or not private institutions have fewer resources than public universities and colleges, the ultimate standard for costs is the same: whether there are quantifiable costs related to accommodation that are so substantial that they would alter the essential nature of the enterprise, or so significant that they would substantially affect its viability.

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^[103] Portals and Pathways: A Review of Post-Secondary Education in Ontario, Report of the Investing in Students Task Force (2001), available on the internet at www.edu.gov.on.ca
^[104] National Educational Association of Disabled Students, Working Towards a Coordinated National Approach to Services, Accommodations and Policies for Post-Secondary Students with Disabilities (July, 1999), pp. 60-61
^[105] Disability Policy, supra, note 5 at Part 3.1.3.
^[106] Ontarians With Disabilities Act, 2001, supra, note 15.
^[107] Ibid., s. 10
^[108] Supra, note 33.
^[109] See the sub-section entitled “Physical Accessibility” in the Elementary and Secondary section of this Report for a discussion of the interaction of the Building Code and the Human Rights Code.
^[110] Meeting with IDIA, February 7, 2003. Numerous issues have been raised with respect to the treatment of part-time students. See the discussion below, under Funding.
^[111] The Commission has identified serious concerns regarding the impact of the lack of accessible public transit on older Ontarians, persons with disabilities, and families with young children and their ability to enjoy equal opportunities in education, employment and services, and to fully participate in the life of their communities. For more information, please see Human Rights and Public Transit Services in Ontario, (2002).
^[112] Disability Policy, supra, note 5.
^[113] R.S.O. 1990, c. P.26, as amended.
^[114] Section 5(1). Private career colleges denied registration or renewal of registration can seek a hearing from the Licence Appeal Tribunal.
^[115] This discretion to refuse BSWD funding for accommodation costs that fall under the institution’s duty to accommodate is problematic, because all eligible costs listed under the BSWD would fall under that obligation if it were not for the BSWD being available to the institution as an outside source of funding in meeting its duty to accommodate under the Code.
^[116] Supra, note 33.
^[117] Detailed statistical information on tuition fees at Ontario universities is available in the annual Ontario Universities Resource Document, produced by the Ontario Council of Universities, and available online at http://www.cou.on.ca
^[118] Ontario Human Rights Commission, Policy on Scholarships and Awards, (July 1997) at Part 2, under “Equality”, available online at www.ohrc.on.ca.
^[119] Supra, note 33. The final report of the LOTF includes a number of recommendations on this point, noting that “diagnosis is the gateway to identifying appropriate services, supports, accommodations and achieving future success for persons with disabilities.
^[120] Gibbs v. Battlefords and Dist. Cooperative Ltd. (1996), 27 C.H.R.R. D/87 (S.C.C.)
^[121] Wignall v. Canada (Department of National Revenue) [2001] C.H.R.D. No. 9, CHRT. The Tribunal indicates that the complainant might be able to look for redress to other parties that contributed to the problem, such as the University that required him to apply for this taxable grant as a condition of obtaining disability services, or to Human Resources Development Canada, which decided to fund the accommodation needs of students with disabilities through a taxable grant.
^[122] Simser v. R. (22 May 2003) 2003TCC366 (Tax Court of Canada).
^[123] Supra, note 22.
^[124] Howard v. University of British Columbia (No. 1), (1993), 18 C.H.R.R. D/353 (B.C.C.H.R.)
^[125] Information provided to the Commission by the Ministry of Training, Colleges and Universities.
^[126] Section 34(1)(d) of the Code gives the Commission discretion not to deal with a complaint of discrimination where “the facts upon which the complaint is based occurred more than six months before the complaint was filed, unless the Commission is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.” Commission procedures require that persons who contact the Commission with respect to a potential complaint be informed of this provision of the Code.
^[127] The Disability Policy states that: “In order to claim the undue hardship defence, the person who is responsible for the accommodation has the onus of proof. It is not up to the person with a disability to prove that the accommodation can be accomplished without undue hardship.”
^[128] Disability Policy, supra, note 5 at footnote 56.
^[129] Supra, note 32. The Task Force developed a list of 26 recommendations for improving access to information. In response, the National Librarian has established a Council on Access to Information for Print-Disabled Canadians, which provides advice, identifies funding requirements, monitors progress, and makes recommendations regarding the implementation of the Task Force recommendations.
^[130] Disability Policy, supra, note 5 at Part 3.3.
^[131] This issue will be dealt with further in the Guidelines on Accessible Education. Please see also Concerned Parents for Children with Learning Disabilities Inc. v. Saskatchewan (Minister of Education), supra, note 99 at 141.