A team of Baker & McKenzie lawyers successfully argued for the summary dismissal of a human rights application to the Human Rights Tribunal of Ontario. The applicant in this case alleged discrimination on the basis of disability under s. 11 of the Ontario Human Rights Code (“Code”).
The applicant was a graduate student at McMaster University (the “University”). While enrolled in a Ph.D. program, he suffered an injury which resulted in post-concussive symptoms. The applicant’s disability prevented him from working at the same standard he was accustomed to. The application alleged that the University had discriminated against him by requiring him to complete the comprehensive exam (one of three requirements in the Ph.D. program), and failed to accommodate the applicant by refusing his request that the format of the exam be altered or to be given unlimited time to complete the exam.
The Tribunal found as a fact that the University had provided the applicant with all the accommodations his medical reports recommended. In addition, the University provided the applicant with 32 weeks to complete the exam, with further extensions to be negotiated if his post-concussion symptoms deteriorated, instead of the usual 5 week deadline. The applicant attempted the exam with the accommodations provided by the University, but withdrew from the program less than two months into the exam without seeking additional accommodations.
The Tribunal found that the University provided everything the medical documentation recommended, as well as other accommodations not recommended by the applicant’s doctors. Moreover, the Tribunal found that the applicant admitted in his testimony that he could complete the written component of the exam with sufficient time.
While not an employment decision, this decision reaffirms the importance of ensuring sufficient medical documentation is provided. Where an employer receives accommodation recommendations from multiple health care professionals, or where the employer seeks clarification to ensure its understanding of the necessary accommodations is correct, it will be difficult for the individual to establish that there was a failure to accommodate, and may provide an opportunity for the case to be dismissed at summary hearing rather than proceeding to a full hearing or trial. To read the decision, click here.
Many thanks to Chanel Sterie for her assistance in drafting this blog.