It is the OHRC’s position that the duty to accommodate requires that the most appropriate accommodation be determined and then undertaken, short of undue hardship. The most appropriate accommodation is one that most respects the dignity of the student with a disability, meets individual needs, best promotes inclusion and full participation, and maximizes confidentiality.
An accommodation will be considered appropriate if it will result in equal opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges enjoyed by others, or if it is proposed or adopted for the purpose of achieving equal opportunity, and meets the student’s disability-related needs.
The aim of accommodation is the inclusion and full participation of students with disabilities in educational life. Education providers must make efforts to build or adapt educational services to accommodate students with disabilities in a way that promotes their full participation. Barriers must be prevented or removed so that students with disabilities are provided with equal opportunities to access and benefit from their environment and face the same duties and requirements as everyone else, with dignity and without impediment.
Forms of accommodation
Depending on a student’s individual needs and the nature of the educational service being provided, accommodations that students with disabilities may require may include:
- modifications to improve the physical accessibility of educational buildings, facilities, resources and student housing
- support services, such as assessment or advice on learning strategies
- a modified curriculum
- modification to evaluation methodologies, such as extended time when taking tests and completing assignments, or alternative evaluation formats
- academic materials in alternative formats (e.g., Braille, large print, digitized text, voice activated software, assisted hearing devices)
- sign language interpretation services
- provision of and training on adaptive technology
- in-class assistance from specialized professionals
- in-class supports (e.g., tutors, interpreters, notetakers, personal readers)
- transportation to and from school.
At the primary and secondary levels, before considering placing a student in a self-contained or specialized classroom, education providers must first consider inclusion in the regular classroom. In most cases, appropriate accommodation will be accommodation in the regular classroom with supports. However, every student with a disability is unique. To provide appropriate accommodation to all students with disabilities, education providers must, with the assistance of parental input, assess each student’s particular strengths and needs, and consider these against a full range of placements, programs and services. Ultimately, appropriate accommodation will be decided on an individual basis.
In determining the most appropriate accommodation, education providers should consider factors such as:
- the student’s preferred learning style
- the student’s academic performance (grades and other signs of advancement or regression)
- the length of time the accommodation will take to arrange
- whether supports provided are compatible with accommodation supports used at home
- the geographical proximity of a placement to the student’s home (ideally, the student should be able to attend his or her neighbourhood school)
- the extent to which a placement affords the student with opportunities to socialize and interact with other students
- the degree to which a placement addresses health and safety issues.
In the Eaton decision, the Supreme Court of Canada established that equality may sometimes require different treatment that does not offend an individual’s dignity. Emily Eaton, a student with a disability, was initially placed in an integrated classroom. However, after three years, her teachers and assistants concluded that this placement was not in her best interests and she was moved to a specialized classroom. Her parents disputed the change and appealed the decision up to the Supreme Court of Canada. The Court stated that the failure to place Emily Eaton in an integrated setting did not create a burden or disadvantage for her, because such a placement was not in her best interests. According to the Court,
While integration should be recognized as the norm of general application because of the benefits it generally provides, a presumption in favour of integrated schooling would work to the disadvantage of pupils who require special education in order to achieve equality ...Integration can be either a benefit or a burden depending on whether the individual can profit from the advantages that integration provides.
At the same time, the Supreme Court has also said that the search for accommodation is a multi-party inquiry. In education, this means that students with disabilities, their parents or guardians, as well as educators, administrators and any necessary experts together must consider the best interests of the student in determining the most appropriate placement accommodation. In some circumstances, the best way to meet the individual needs of students with disabilities with dignity may be to provide separate or specialized services. This may include education in a self-contained classroom within a neighbourhood school, or it may involve enrolment in a specialized school, including a provincial school or a demonstration school. However, it is the OHRC’s view that, before considering placing a student in a self-contained or specialized classroom, education providers must first consider inclusion in the regular classroom.
Where placement outside the regular classroom is determined to be the most appropriate accommodation, the education provider should still make reasonable efforts to include the student in school programs and activities with students without disabilities, wherever possible. For example, the student should be afforded the opportunity to participate in music and art classes, lunch, recess, gym, school trips, etc.
Accommodation process as a continuum
Accommodation is a process and is a matter of degree, rather than an all-or-nothing proposition, and can be seen as a continuum. At one end of this continuum would be the most appropriate accommodation that meets a student’s needs. Alternative accommodation (that which would be less than "ideal") might be next on the continuum and might also be implemented as an interim solution until the most appropriate accommodation is implemented or restored. This also means that in the course of exploring other appropriate alternatives, the most appropriate accommodation known at that given point in time should still be implemented or maintained.
It is the OHRC’s view that short of undue hardship, the highest point in the continuum of accommodation must be achieved. However, if there is a choice between two accommodations which are equally responsive to the student’s needs in a dignified manner, then those responsible for accommodation may select the one that is less expensive or that is less disruptive to the organization.
In practice: While in grade 3, a student with dyslexia received the one-on-one services of a full-time Special Needs Assistant as an accommodation. Based on an assessment of the nature and extent of the student’s needs along with a review of her academic and social progress, this level of intensive support was no longer necessary once the student was in grade 4 and the school board decided that the services of a part-time Special Needs Assistant would be an appropriate accommodation.
The Code does not guarantee the right to any one particular form of accommodation. Before opting for the less expensive or disruptive option, however, an accommodation provider must first demonstrate, considering the student’s specific needs, that two accommodations are in fact equally responsive and equally dignified.
Modifying educational requirements
Section 17 of the Code states that a right is not infringed if the person with a disability is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right. Once appropriate accommodation is received, students must still be able to perform the essential requirements of the service. While courts and tribunals have provided little guidance on the nature of essential duties and requirements, terms that have been used include indispensable, vital and very important.
Depending on the level of education in question, essential requirements may be defined quite differently. At the primary and secondary levels, for instance, 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. Therefore, the essential requirements of the educational service at these levels would be defined broadly, and would likely include the student’s overall physical and social development, in addition to the student’s academic performance.
At the post-secondary level, the educational right would be defined more narrowly, and the essential requirements of the educational service at this level would likely be more focused on academic performance. An appropriate accommodation at the post-secondary level would enable a student to successfully meet the essential requirements of the program, with no alteration in standards or outcomes, although the manner in which the student demonstrates mastery, knowledge and skills may be altered. In this way, education providers are able to provide all students with equal opportunities to enjoy the same level of benefits and privileges and meet the requirements for acquiring an education without the risk of compromising academic integrity.
In practice: A college policy requires students to fulfil a minimum number of in-class hours to receive credit for a course. However, in response to the needs of students whose disabilities make it difficult or impossible to attend school full-time, the policy states that the attendance requirements may be modified where appropriate.
A requirement should not lightly be considered to be essential, but should be carefully scrutinized. This includes course requirements and standards. For example, at the post-secondary level, 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.
In practice: A university professor in a nursing program requires all students to demonstrate proficiency in her course by passing an in-class essay test worth 100% of the student’s final grade. The primary aim of the course is to teach students clinical evaluation methodology. Unless the education provider can show that the 100% essay mode of evaluation is an essential requirement of the course, it may be found to discriminate against students with learning disabilities and other types of disabilities that make it difficult to process large amounts of written material under strict time constraints.
The onus is on the education provider to show that a student is incapable of performing the essential requirements of the educational service, even with accommodation. Conclusions about inability to perform essential requirements must not be reached without actually testing the ability of the student. It is not enough for an education provider to assume that a student cannot perform an essential requirement. Rather, there must be an objective determination of that fact.
Non-essential requirements are those requirements that would not detract from the main purpose of the educational service if they were waived. Accommodation for non-essential requirements may include finding another way for the student to meet the requirement, having it done differently, or dropping it altogether.
 The Ministry of Education has articulated its policy position on this issue stating its commitment to the principle that “the integration of exceptional students should be the normal practice in Ontario, when such a placement meets the pupil’s needs and is in accordance with parental wishes.” Please see MEDU Memorandum dated June 9, 1994 to directors of education, superintendents of special education and principals as quoted in Ministry of Education, Special Education: A Guide for Educators, 2001 at D10. Please note that the Ministry of Education launched Ontario’s Equity and Inclusive Education Strategy in April 2009.
 In situations where an education provider makes a determination that home instruction is the most appropriate accommodation for a student with a disability, even if it is only an interim placement while other more permanent accommodation solutions are being explored, the education provider continues to have a duty to accommodate the student up to the point of undue hardship and to bear the costs of the accommodation.
Eaton, supra, note 10.
Central Okanagan School District No. 23 v. Renaud,  2 S.C.R. 970 at para. 43.
 For a more detailed discussion on academic integrity, please see The Opportunity to Succeed at pages 61-62.