3.4: Legislative Process for Compliance
Each legislation establishes a process to ensure institutions are meeting all the legal requirements set out. And in some cases, a process for the public to file complaints in situations where they feel discriminated against. As an instructor delivering service on behalf of the institution, it is your responsibility to ensure that you follow these processes and ensure your actions are continuously compliant with the law.
Accessibility for Ontarians with Disabilities Act (AODA)
Post-secondary educational institutions are considered “Broader Public Sector” organizations under Schedule 1 of the AODA. As such, they are required to:
- File compliance reports to the Ontario government every two years
- Reports are pre-set, with a list of pre-formed questions requiring institutions to attest to their compliance with various areas of the standards
- Signed by a senior official that can bind the organization
- Develop an Accessibility Plan that:
- Describes how the institution will work towards meeting the standards and improve accessibility
- Plan must be renewed at least every 5 years
- Develop annual progress reports to demonstrate activities
- Must be posted and made available publicly
At most institutions, the completion of compliance reports and development of an accessibility plan is facilitated centrally. Your institution may require each department to attest to their compliance with areas of the AODA that impact their work.
Under the AODA, the Officer has the ability to fine individuals up to $2,000/day for each day they are in contravention of the act, or fine corporations up to $15,000/day. Your institution may have additional policies and/or processes to manage the responsibilities of central administration, departments, and individuals as it relates to areas of the AODA.
As a representative of your institution, all information you create or make available publicly is subject to AODA requirements. This includes public websites and web content, applications, and publications. Your institution may have internal policies and procedures on ownership and accountability of information dissemination—it is important for you to understand what they may be to ensure you meet the AODA requirements set out.
Ontario Human Rights Code (OHRC)
The Code has legal primacy over all other laws including the AODA. This means that even though you created content or delivered information that meets AODA requirements, you may still have to further adjust your information to suit an individual’s specific needs. Hopefully, with the flexibility built in using UDL principles, any individual adjustments you make will be simple and not arduous.
When an individual believes they have experienced discrimination or harassment, which includes not receiving reasonable accommodation, they can file an application with the Human Rights Tribunal of Ontario (HRTO). The HRTO can facilitate and settle disputes through mediation, or if the parties do not agree to mediation, a hearing will be held. The HRTO will consider if all the principles under the Human Rights Code have been met by the institution.
Procedural Component
The HRTO will also review whether the institution met its duty to accommodate. This duty includes a procedural component, and substantive component. The process to assess an accommodation (procedural component) is just as important as the final solution (substantive component). This means there needs to be meaningful interaction between the parties focusing on the student’s needs and consideration of whether the education provider can accommodate those needs (OHRC, 2018).
In a 2012 Tribunal decision, a student with a visual impairment was enrolled in an education program with a practicum component. The student cited discrimination from the school due to her disability. Among other allegations, the student noted that provision of alternate formats for educational materials was delayed. She had requested for the alternate formats in early September, and the school ultimately provided them in late November, after multiple discussions of other performance issues. Her first practicum placement was terminated by the host school and her second placement was also unsuccessful. The student was unable to complete her coursework and ultimately failed the program.
While the HRTO agreed that the student had not met the bona fide academic requirements, they ultimately found that discrimination had occurred as the provision of alternate formats were delayed, and it did not meet undue hardship clause to provide these formats in a timely manner.
So, while the substantive component – providing the materials in the requested format – was provided, because there was a significant delay in providing them, it created inequitable access to education and the institution was still found to have been discriminatory (Canadian Legal Information Institute [CanLII], 2012).
Record Retention
When you receive an accommodation request, it is important that you document your process. As we have highlighted, the procedural component of accommodation requires the education provider to determine what kind of modifications or accommodations might be required to allow a student to fully participate in school. While Student Accessibility Services can assist in devising solutions, the educator is also required to review the requests and participate in the process of solution-finding. Documentation of this review and process will support your position that you have met your duty to accommodate under the law. Documentation could come in the form of:
- Written offers of accommodation solutions
- Analysis of accommodations needs against bona fide academic requirements
- Meeting notes
- Emails
- “Contract” on agreed-upon assessment criteria, etc.
Documentation is also helpful in validating the credibility of your case in a Tribunal, should a human rights claim be made to the Human Rights Tribunal of Ontario (HRTO). HRTO cases can take a long time to be heard, and the process itself can take several years. Documentation of events and outcomes will help if you need to testify years later regarding a situation.
Consider This:
In a 2011 Tribunal decision, a student alleges her professors discriminated against her on the basis of her disability, in part, by making humiliating and derogatory remarks intended to drive her from the classroom. The professors deny vigorously that they made any such comments. As these allegations were uncorroborated, the HRTO relied on documentary evidence presented – emails and letters – which showed the professors were willing to accommodate but were very concerned that the student was at risk of academic failure. Based on the testimony and evidence presented, “on the preponderance of probabilities” the HRTO found that the University did not directly discriminate against the student on the basis of her disability (CanLII, 2011).
Note: The allegations of said events occurred during the student’s time at the University in 2004, but the hearing was not held until 2011.
Activity 4: Review Your Lesson Plan
Review your lesson plan. Are all your essential academic requirements documented? How do you intend to document any adjustments to your plan and/or assessments in order to meet an accommodation request?
You are invited to reflect in the way that works best for you, which may include writing, drawing, creating an audio or video file, mind map or any other method that will allow you to reflect and refer back to your thoughts.
Alternatively, a text-based note-taking space is provided below. Any notes you take here remain entirely confidential and visible only to you. Use this space as you wish to keep track of your thoughts, learning, and activity responses. Download a text copy of your notes before moving on to the next page of the module to ensure you don’t lose any of your work!
References
Canadian Legal Information Institute [CanLII]. (2011). Fisher v. York University, 2011 HRTO 1229. https://canlii.ca/t/fm44v
Canadian Legal Information Institute [CanLII]. (2012). Gamache v. York University, 2012 HRTO 2328. https://canlii.ca/t/fv8t7
Ontario Human Rights Commission [OHRC]. (2018). Policy on accessible education for students with disabilities. http://www.ohrc.on.ca/en/policy-accessible-education-students-disabilities#Duty%20to%20accommodate