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January 29, 2018
Claire M.C. Kennedy
Chair of the Governing Council
The Office of the Governing Council
Room 106, Simcoe Hall
27 King's College Circle
University of Toronto
Toronto, Ontario M5S 1A1
Dear Ms. Kennedy:
RE: University-Mandated Leave of Absence Policy raises human rights concerns
I hope this finds you well. I am writing today to outline the Ontario Human Rights Commission’s concerns regarding the University of Toronto’s proposed University-Mandated Leave of Absence Policy which is being considered by the University Affairs Board tomorrow (January 30, 2018).
The OHRC is concerned that the treatment of students contemplated in the Policy may result in discrimination on the basis of mental health disability contrary to the Human Rights Code. The OHRC raised these issues in a meeting with staff from the Office of the Vice-President and Provost on December 13, 2017. Given our ongoing concerns, we recommend that the Policy not be approved in its current form.
The Duty to Accommodate
In our view, the Policy falls short of meeting the duty to accommodate under the Code, and as outlined in the OHRC’s Policy on ableism and discrimination based on disability and Policy on preventing discrimination based on mental health disabilities and addictions.
Given the negative impact of being placed on a leave and losing access to education, student services, and housing, the University must be able to demonstrate that the Policy and its application is bona fide and accommodates students with mental health disabilities to the point of undue hardship. The duty to accommodate also exists at all stages: prior to putting a student on leave, in setting terms and conditions during or after a student’s leave, and in determining re-entry after a leave.
As you are aware, undue hardship can only be established due to excessive cost or significant health and safety risk. In rare situations, where a student with a disability poses a health and safety risk to themselves or to others, it is open to the education provider to argue that accommodating the student would cause undue hardship. In extremely rare cases, this will be clear – such as where the risk to others is imminent and serious. Otherwise, before undue hardship can be determined, education providers must evaluate the seriousness of the risk after accommodation has been provided and after other measures to manage inappropriate behaviour and reduce risk have been taken.
The Policy appears to allow decisions to be made by University administrators who do not have any specialized training on human rights or risk assessment, and does not require the University to seek objective information from an expert about the specific risk posed. Under human rights law, however, the onus is on the education provider to establish that it cannot accommodate a student due to health and safety risk. The risk assessment must be based on objective evidence (such as a medical assessment) and cannot be based on subjective views (that may be informed by stereotype). Ultimately, the decision to exclude a student from school due to alleged health and safety risk without sufficient objective evidence, and without meeting the undue hardship standard set out in the Code, may constitute discrimination.
The Policy also provides no explanation about when the University will determine that the student cannot engage in the essential activities required to pursue an education. Under the Code, a student with a disability cannot be judged incapable of fulfilling essential educational requirements unless accommodation has been provided to the point of undue hardship, and the abilities of the student have been assessed after accommodation is provided. The Policy makes no reference to this assessment or the duty to provide accommodation to the point of undue hardship prior to this determination being made.
Care and stigmatization of students with mental health disabilities
The Policy does not require the University to assist students who pose a serious risk of harm to themselves – either in terms of accessing additional supports or calling emergency services. Rather, the Policy appears to allow the University to immediately put the student on leave and withdraw essential services (housing, health, and counselling services) at a time when the student is in crisis and most in need of support. This approach is not consistent with the Policy’s intent of preventing harm.
While we acknowledge the challenge of meeting human rights obligations while addressing behaviour that present health and safety risks on campus, we are concerned that the Policy does not strike an appropriate balance. We urge the University Affairs Board to delay approval of the Policy until human rights concerns are addressed.
Please do not hesitate to contact me directly if you wish to discuss this further.
Sincerely,
Renu Mandhane, B.A., J.D., LL.M.
Chief Commissioner
Ontario Human Rights Commission
cc: Meric S. Gertler, President, University of Toronto
David Walders, Secretary, University Affairs Board
OHRC Commissioners