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Appendix 2: Second letter to universities from the OHRC Chief Commissioner

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June 9, 2016

Letter addressed to Presidents of University of Guelph, Queen’s University, Carleton University, Brock University, Trent University, University of Ottawa, Ryerson University, University of Ontario Institute of Technology, Western University, University of Waterloo, Nipissing University, McMaster University, Algoma University, University of Windsor, Lakehead University, Laurentian University, University of Toronto, Wilfrid Laurier University and Council of Ontario Universities

Re: Medical documentation guidelines and accommodation

As you know I wrote to each public college and university in Ontario requesting a commitment to measures that will bring accommodation policies and practices relating to students with mental health disabilities in line with the requirements of the Ontario Human Rights Code (Code). In that letter I asked your institution to provide its commitment and outline its plan for implementing the outlined measures by September 6, 2016.

The outlined measures consist of implementing medical documentation guidelines, medical documentation forms and procedures across all divisions and faculties that:

  1. Do not require students to disclose their mental health disability diagnosis to register with your Office for Students with Disabilities (OSD), or receive accommodations or supports;
  2. Make it clear that students may request interim accommodations for mental health disabilities pending receipt of medical documentation;
  3. Make it clear that both temporary and permanent mental health disabilities will be accommodated;
  4. Do not state or imply that requests for accommodation after a deadline, test or course completion (i.e. retroactive accommodation) will not be considered;
  5. Do not require students to reveal their private medical information to, or seek accommodation directly from, their professors, instructors, teaching assistants, etc.; and
  6. Are clearly communicated to all students, faculty and staff.

The OHRC has been in contact with the Ministry of Training, Colleges and Universities (MTCU) regarding medical documentation requirements, in particular the request for a mental health diagnosis, for the purposes of eligibility for the Ontario Student Assistance Program (OSAP) and federal disability grants. The MTCU has advised that it has revised its disability-related eligibility criteria identified in OSAP forms and guidelines to remove the requirement for disclosure of mental health diagnosis, effective for the 2016-2017 OSAP academic year. This change will further facilitate consistency relating to the issue of disclosure of diagnosis across the post-secondary education sector.

In lieu of a response from your institution, the OHRC received a response from the Council of Ontario Universities (COU). The COU’s response lacks specific details about whether your institution is committing to implementation of the six measures and the associated timelines. The letter does not indicate when we will learn what your institution will be doing.

As a service provider, each university has discrete obligations to its students under the Code. As we are working to ensure that every post-secondary institution’s approach to medical documentation and accommodation is consistent with the Code, we continue to request a response from each individual institution.

The COU letter states that member institutions are seeking advice and working collaboratively to develop a collective understanding of, and wherever possible, a consistent, sector-wide approach to operationalizing the six measures outlined in my previous letter. Consistency and a sector-wide response are laudable goals and I commend your institution for recognizing your obligations under the Code and striving toward a systemic solution. I note that the purpose of the Academic Accommodations Report which was funded by the Ministry of Training, Colleges and Universities, was to develop a sector-wide approach to accommodating students with mental health disabilities.

Implementing the six measures the Commission has identified and acting on the recommendations of the Academic Accommodations Report will ensure a systemic, sector-wide response. Moreover, working collaboratively with other universities – while desirable – does not preclude meeting your current obligations under the Code through provisional operationalization of the six outlined measures at your institution.

Please respond to this letter to confirm that your institution has implemented or is in the process of implementing the six outlined measures by September 6, 2016. If you are not able to meet this timeline, we request that you report back with reasons and propose a detailed alternative timeframe which accounts for your institution’s internal governing processes. We are requesting your response by July 8, 2016.

Appropriate accommodations which satisfy both the procedural and substantive components of the duty to accommodate are a key aspect of human rights in Ontario. The OHRC is using its mandate to identify, prevent and eliminate discrimination and advance respect for human rights in Ontario to ensure that post-secondary institutions are meeting their duty to accommodate students with mental health disabilities. The Code gives the OHRC a range of powers to fulfil its mandate.

Section 35 of the Code gives the OHRC the power to initiate applications at the Human Rights Tribunal of Ontario and request remedies that would promote compliance with the Code.

Subsection 31 of the Code outlines the OHRC’s extensive powers to conduct an inquiry. Subsection 31(7) states:

Powers on inquiry

(7) A person conducting an inquiry may,

(a) request the production for inspection and examination of documents or things that are or may be relevant to the inquiry;

(b) upon giving a receipt for it, remove from a place documents produced in response to a request under clause (a) for the purpose of making copies or extracts;

(c) question a person on matters that are or may be relevant to the inquiry, subject to the person’s right to have counsel or a personal representative present during such questioning and exclude from the questioning any person who may be adverse in interest to the inquiry;

(d) use any data storage, processing or retrieval device or system used in carrying on business in the place in order to produce a document in readable form;

(e) take measurements or record by any means the physical dimensions of a place;

(f) take photographs, video recordings or other visual or audio recordings of the interior or exterior of a place; and

(g) require that a place or part thereof not be disturbed for a reasonable period of time for the purposes of carrying out an examination, inquiry or test. 2006, c. 30, s. 4.

Subsection 31(11) of the Code outlines the legal obligation to comply with the OHRC’s inquiry requests. It states:

Obligation to produce and assist

(11) A person who is requested to produce a document or thing under clause (7) (a) shall produce it and shall, on request by the person conducting the inquiry, provide any assistance that is reasonably necessary, including assistance in using any data storage, processing or retrieval device or system, to produce a document in readable form.

At this time, if your institution is not agreeable to outlining its own distinct commitment and plan to meet the six previously outlined measures by July 8, 2016, the OHRC formally requests production of the following by August 31, 2016 in accordance with section 31 of the Code:

  1. Your institution’s current policies and practices relating to the accommodation process for students with mental health disabilities including the role of the Office for Students with Disabilities and how accommodations are communicated to professors, instructors and
    teaching assistants.
     
  2. Your institution’s current policies, practices and any forms used relating
    to medical documentation requirements for student with mental health disabilities who need academic accommodations and whether diagnosis information is routinely requested;
     
  3. Your institution’s current policies and practices with respect to interim accommodation for students with mental health disabilities pending receipt of medical documentation;
     
  4. Your institution’s current policies and practices relating to accommodating temporary mental health disabilities;
     
  5. Your institution’s current policies and practices relating to retroactive accommodation;
     
  6. Your institution’s current policies and practices relating to complaints about or appeals related to accommodation of students with mental
    health disabilities.

After September 6, 2016, the OHRC plans to make public its progress on this issue including specific discussion of any institution which continues to fall short on meeting the requirements of the Code and the duty to accommodate students with mental health disabilities.

I look forward to receiving a response from you. Please direct your response to the Office of the Chief Commissioner at 180 Dundas Street West, Suite 900, Toronto, ON, M7A 2R9 as well as by email to legal@ohrc.on.ca

Sincerely,

Renu Mandhane, B.A., J.D., LL.M.
Chief Commissioner

cc:  The Honourable Reza Moridi

Minister for Training, Colleges and Universities

David L. Lindsay

President and CEO

Council of Ontario Universities
180 Dundas Street West
Suite 1800 M5G 1Z8

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