Longueépée v University of Waterloo: Demarcating the Duty to Accommodate in University Admissions for Students with Previously Undiagnosed & Unaccommodated Disabilities
In Longueépée v University of Waterloo, 2020 ONCA 830, the Ontario Court of Appeal (“ONCA”) found that the University of Waterloo (“UW”)’s failure to consider the impact of a prospective transfer student’s previously undiagnosed and unaccommodated disabilities on his prior post-secondary grades discriminated against him on the basis of disability. In making this finding, the ONCA decision reinforced the rights of students with disabilities and the obligation on universities to accommodate both current and prospective students with disabilities, but left the exact boundaries of disability discrimination in the context of university admissions and grade requirements unclear.
In 2013, Roch Longueépée applied to the Faculty of Arts at the University of Waterloo (Longueépée, para 2). He had attended Dalhousie University for one year in 1999-2000, but his grades were well below UW’s admission standards for transfer students (Longueépée, para 3). When Mr. Longueépée spoke to UW about his application, he explained that while at Dalhousie, his academic performance was impacted by “undiagnosed and unaccommodated disabilities,” including a moderate traumatic brain injury and post-traumatic stress disorder (PTSD) from significant childhood trauma (Longueépée, paras 11, 13-14). To support his application, Mr. Longueépée provided evidence of his disabilities along with transcripts, descriptions of volunteer activities, reference letters, and writing samples (Longueépée, para 14). In response, UW convened the Admissions Committee to review his application given his extenuating circumstances (Longueépée, para 15). The Admissions Committee accepted that he had undiagnosed disabilities, and that these disabilities impacted his academic performance while at Dalhousie (Longueépée, para 23). However, they ultimately decided not to admit Mr. Longueépée. When he asked for clarification, the Admissions Committee confirmed that it was because he did not meet the minimum academic standards for transfer students (Longueépée, para 16).
Mr. Longueépée, in response, filed an application with the Human Rights Tribunal of Ontario (“HRTO”), alleging that UW rejecting his application due to his past academic record was discrimination on the basis of disability (Longueépée, para 17). He sought a wide range of remedies, including “monetary compensation, the option of admission to the University, and that the University develop more flexible assessment criteria to account for unusual situations where past academic results may not be a reliable predictor of future academic success” (Longueépée, para 17).
Lower Court & Tribunal Decisions
Human Rights Tribunal of Ontario
The Vice Chair of the HRTO accepted that Mr. Longueépée had both PTSD and a moderate brain injury (Longueépée, para 23). She found that he was adversely impacted by the admissions standard because of his disabilities, so found a prima facie case of disability discrimination (Longueépée, paras 24-25). Correspondingly, she found that UW had a duty to accommodate him. However, she found that UW had met its duty to accommodate, both procedurally and substantively, as UW had convened a meeting of the Academic Committee to assess his application in light of his circumstances (Longueépée, para 28). She rejected Mr. Longueépée’s argument that the Admissions Committee should have included Accessibility Services in their assessment of his application, finding that this omission did not violate the duty to accommodate (Longueépée, para 29). She held that grades are the only measure for evaluating success in university, and because of his past poor academic performance, there was “no information before the Admissions Committee that Mr. Longueépée could succeed at university” (Longueépée, para 31). Accordingly, she found no violation of the duty to accommodate, and no discrimination on the basis of disability (Longueépée, para 32).
Mr. Longueépée brought a request for reconsideration, arguing that the Vice Chair did not properly analyze the procedural duty to accommodate (Longueépée, para 32-33). He claimed that the Vice Chair failed to consider whether UW violated its procedural duty by not involving Accessibility Services when assessing his application (Longueépée, para 33). She rejected this challenge, finding that the involvement of Accessibility Services “would not have changed the decision of the Admissions Committee” (Longueépée, para 34). Mr. Longueépée also challenged the Vice Chair’s finding that the Admissions Committee was entitled to disregard the supplementary materials he submitted, including evidence of volunteer work and reference letters, as evidence of his ability to succeed in university (Longueépée, para 35). The Vice Chair rejected this argument too, finding that mandating the university consider this information would effectively “require universities to complete an in-depth assessment of every application by every student with a disability regardless of the extent of the gap between the admissions standard for the particular program and the individual student’s grades,” and would obligate universities to involve Accessibility Services in assessing every application brought by students with disabilities (Longueépée v University of Waterloo, 2017 HRTO 1698, paras 17-18). Consequently, she rejected Mr. Longueépée’s reconsideration request, and affirmed that UW met its duty to accommodate.
Mr. Longueépée brought an application for judicial review to the Divisional Court, who found the Vice Chair’s decision to be unreasonable (Longueépée v University of Waterloo, 2019 ONSC 5464). The Divisional Court held that UW had not met the test set out in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) ( 3 SCR 868) [Grismer], which applies when a requirement has been found to be prima facie discriminatory. Specifically, the Divisional Court found that UW did not show that the academic requirement for transfer students was “reasonably necessary to accomplish its purpose or goal” such that UW could not accommodate Mr. Longueépée without undue hardship (Grismer, para 20; Longueépée, para 39-40). According to the Divisional Court, “because the University acknowledged that it could not interpret Mr. Longueépée’s grades free from their discriminatory effect, it either had to: (1) assess Mr. Longueépée’s candidacy without recourse to his marks; or (2) establish that it would result in undue hardship for it to do so” (Longueépée, para 42). UW had not advanced an argument that accommodating Mr. Longueépée would involve undue hardship. Accordingly, the Divisional Court found that the HRTO’s decision was unreasonable and remitted the decision back to the Admissions Committee to be considered using an accommodated admissions process.
The ONCA, like the Divisional Court, found the HRTO’s decision to be unreasonable. Justice van Rensburg pointed to two key flaws in the Vice Chair’s reasoning. First, she explained that the Vice Chair failed to grapple with the core question in Mr. Longueépée’s case, which she framed as follows:
“if the Admissions Committee only considered Mr. Longueépée’s unaccommodated grades to be relevant to his ability to succeed in university, and considered irrelevant the other materials that it had undertaken to review, how could the University demonstrate that it had reasonably accommodated Mr. Longueépée in the admissions process?” (Longueépée, para 81).
She noted that the Admissions Committee considered only Mr. Longueépée’s grades, without a real assessment of how his disabilities may have affected his grades (Longueépée, para 75). Further, she found that the Academic Committee effectively disregarded all of the non-academic information he had submitted alongside his grades, thereby making no effort to consider whether this additional information could supplement his academic performance to demonstrate his ability to succeed in university (Longueépée, para 79-80). In doing so, the Academic Committee took Mr. Longueépée’s grades “at face value,” despite purportedly taking a “holistic” approach to admissions (Longueépée, paras 76, 83). In the HRTO decision, the Vice Chair merely “adopted the University’s point of view” by accepting that there was “‘no information’ before the Admissions Committee that Mr. Longueépée could succeed” in university (Longueépée, para 81). Justice van Rensburg found that this view was based on an internally incoherent chain of analysis, because the Vice Chair “simultaneously accepted that Mr. Longueépée’s grades were unaccommodated and that the Admissions Committee was entitled to disregard his other application materials and to base its decision to deny him admission solely on his unaccommodated grades” (Longueépée, para 84). Instead, Justice van Rensburg held that “[r]easonable accommodation could not take the form of simply applying the discriminatory grade standard to [Mr. Longueépée’s] unaccommodated grades” without a finding of undue hardship (Longueépée, para 84).
Building off this, Justice van Rensburg echoed the Divisional Court decision, taking issue with the implicit reliance on undue hardship in the Vice Chair’s decision when UW had not raised an undue hardship defence before the HRTO (Longueépée, para 86). If UW had intended to rely on undue hardship, UW would have needed to advance this argument before the HRTO (Longueépée, para 86, citing Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15 at paras 109, 142, 226). In the absence of such an argument, the Vice Chair “effectively gave credit to an undue hardship argument when the University did not present evidence on or rely on this defence,” again making her decision unreasonable (Longueépée, para 87). Consequently, Justice van Rensburg found the HRTO decision to be unreasonable. While the Divisional Court would have remitted the matter back to the Admissions Committee, she instead found that the case should return to the HRTO for the appropriate remedy to be determined (Longueépée, para 94).
Justice Lauwers wrote a concurring opinion, agreeing “without reservation” with Justice van Rensburg’s decision but adding his own brief set of reasons to emphasize the autonomy of universities and the deference that courts and tribunals should generally show to their admissions decisions (Longueépée, paras 97-98). He emphasized that “admission to university is not a right or entitlement,” and, accordingly, that universities are entitled to implement requirements for admission, including requiring applicants to demonstrate certain “cognitive capacities and other competencies to succeed at university” (Longueépée, para 104). He concluded that a high degree of deference should be given to academic decisions and that the HRTO “must be cautious not to override the admissions standards of universities in its mission to ensure accommodation” (Longueépée, para 106). However, in this case, he found that “the HRTO was too cautious,” and so agreed with Justice van Rensburg’s conclusion (Longueépée, para 106).
Analysis: The Impact of Longueépée
Justice van Rensburg’s decision in Longueépée was well-reasoned; in particular, her analysis of the Vice Chair’s implicit reliance on an undue hardship defence despite UW not having advanced this argument was astute and ensured that a powerful party like UW could not rely on the decision-maker to supplement its submissions. More than its legal reasoning, though, the ONCA’s decision in Longueépée provides important protection for the rights of students with disabilities, even where those disabilities have not been diagnosed or formally accommodated. By confirming that UW owed, and did not meet, a duty to accommodate to Mr. Longueépée in the admissions process, Longueépée emphasizes that universities’ duty to accommodate is not restricted to admitted and enrolled students, and is not limited only to students with official diagnoses. Further, the ONCA decision is also valuable in making clear that a one-size-fits-all approach to university admissions will not satisfactorily accommodate some students with disabilities. While Justice van Rensburg stressed that her decision does not impugn the general use of grade-based admissions standards (Longueépée, para 88), she was similarly clear that a failure to seriously consider the ways in which disability—especially undiagnosed and unaccommodated disability—may impact academic performance is a failure to meet the duty to accommodate. Rather than relying on grades as a neutral predictor of academic success, Justice van Rensburg’s decision helps to draw attention to the ways grades might not tell the whole story.
What Longueépée leaves unclear, then, is where exactly the lines will be drawn in cases involving grade requirements and academic accommodations. Both Justice van Rensburg and Justice Lauwers emphasize that grade-based admissions standards are not in and of themselves discriminatory. Justice Lauwers, writing separately out of a desire to more strongly emphasize this point, wrote:
Because admission to university is not a right or entitlement, an applicant’s obligation to demonstrate the cognitive capacities and the other competencies to succeed at university plays a role throughout the admissions process and is not entirely displaced by the positive duty to accommodate that is cast on the university under the Code. The difficult reality is that certain claimants will still fall short of the standards that universities have set, even with accommodation. For example, even if every possible accommodation were investigated and assessed, a claimant might still be evaluated as lacking the cognitive capacity and other competencies necessary to succeed at university and would therefore not be eligible for admission (Longueépée, paras 104-105).
However, might this focus on “cognitive capacity” similarly lead to discriminatory distinctions being drawn on the basis of disability? How will courts distinguish where grade-based admissions standards will be permissible and where, like in Mr. Longueépée’s case, they cross the line into disability discrimination if universities do not assess applications holistically with regard to other non-grade factors that might indicate an applicant’s ability to succeed in university? Longueépée, while a significant positive step forward, leaves the exact bounds of disability discrimination in the context of university admissions, and grades more broadly, yet to be determined.
Image found here.