A post-secondary education, for most Canadians, is a gateway and a pre-requisite to a better future. Additional education is especially important during difficult economic times, in particular after the loss of a job.
In 2011, Statistics Canada concluded a long-term impact study on post-secondary education, concluding that those who obtained this education found a $7,000 increase in annual salary. This held true even for those who lost their jobs due to the 2008 recession, for most of the participants involved.
Who gets into these education institutions is therefore a considerable factor into social mobility. At the same time, educational institutions want to maintain academic standards to ensure the quality of education, and to properly prepare students for the realities of the workforce and participation in society generally.
One of the most important criteria that universities use are the applicants’ grades. These are supposed to be objective, despite some variability between schools, and offer some insight into the potential ability of the candidate to perform academically in the post-secondary environment. How admissions deal with grades that have been affected by a disability, and whether universities properly accommodate those human rights considerations, was recently considered by the Ontario Court of Appeal in Longueépée v. University of Waterloo.
The Applicant in this case has already attended university for several years, and was seeking to transfer to the Respondent university. However, the grades he had achieved at the post-secondary level were far below the minus admission requirements for transfer students, and he was denied.
The Applicant had an undiagnosed and unaccommodated disability when attending university, which he claimed affected his performance, and therefore his grades in these courses. He was a survivor of institutional childhood abuse, and experienced severe physical, psychological and sexual traumas. Subsequently, he was diagnosed with moderate traumatic brain injury and post-traumatic stress disorder (PTSD).
The Respondent university created an admissions committee to look at these special circumstances, in addition to other supporting material, and still concluded that he did not demonstrate the ability to succeed at their institution, and refused him admission on that basis.
The human rights complaint was dismissed by the Human Rights Tribunal of Ontario, which stated,
 There was no information before the Admissions Committee that the applicant could succeed at university and it was not prepared to assume academic success based solely on the fact that the applicant was not accommodated at the time he attended university 13 years before his application to the respondent. The applicant had to do more than challenge the academic standard as discriminatory to demonstrate he could be successful in university. For example, he could have taken a university course with accommodation after his diagnoses in 2007 and 2011 to show that he could be successful. He did not do so prior to his application for admission to the respondent. In fact, there is no evidence that the applicant successfully completed any university study after his application to the respondent. The Admissions Committee did not breach its substantive duty to accommodate because it wanted some indicator of academic success in these circumstances.
 The respondent did not discriminate against the applicant in its assessment process. The respondent accepted that the applicant had undiagnosed and unaccommodated disabilities at the time his Dalhousie grades were obtained. This fact constituted the extenuating circumstances to bring the applicant’s application to the Admissions Committee after the deadline for admission had expired and all of the positions had been filled. It was the reason why the applicant was not summarily denied admission because of his grades and why he received an individualized assessment by the Admissions Committee. The Admissions Committee accepted that the applicant’s grades would have been impacted by his disabilities. It knew the applicant would require support, and it was aware of the supports provided by Accessibility Services. The summary of information provided to the Admissions Committee indicated the applicant believed the only additional support he required was TA support. Despite all of this information, the Admissions Committee not satisfied the applicant would be successful in university.
 The respondent has academic standards for admission because it believes past academic performance is the best indicator of future academic performance. The applicant challenged the respondent’s use of grades as a measure of his ability to succeed. The difficulty is that in an academic setting, the ability to succeed is measured by grades: there is no other measure to evaluate success. In this way, academic standards are different from other standards that may be assessed in a number of different ways. All students, including students with disabilities, must provide sufficient information to show that they have the ability to succeed. This is especially so when the gap between the student’s qualifications and the academic standard is large. The applicant failed to provide sufficient information to the Admissions Committee to show he could succeed at university.
The Applicant’s Request for Reconsideration to the Tribunal was also denied.
However, these decisions were set aside by the Divisional Court on judicial review, which stated that the circumstances in this case were unusual, given that the disability was unknown by the applicant until after the grades were in question were obtained. They did not then reflect the Applicant’s ability, if he were properly accommodated in a post-secondary environment. Consequently, the type of “accommodation dialogue” that would be required by the Court’s decision in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) (sub nom Grismer), did not occur,
 What the record does disclose is that the marks which the applicant received while unaccommodated discriminated against him on the basis of disability. Waterloo acknowledged that it could not interpret those marks free from their discriminatory effect. As a result, Waterloo was obliged to assess the applicant’s candidacy without recourse to his marks, or to establish that it would result in undue hardship for it to do so.
Instead, the Divisional Court emphasized that accommodation should be sought when it is needed, and not after the fact, wherever it is possible to do so. Where disability is discovered too later to be properly accommodated prior, accommodations should be sought immediately after the fact, where it is possible to do so. Where neither of these are possible, the duty of accommodation to undue hardship comes into play.
The Court in Council of Canadians with Disabilities v VIA Rail Canada Inc. (sub nom “Grismer”) indicated that discriminatory barriers should be removed, unless there is a bona fide justification for them on the basis of undue hardship. The grades requirement in this particular case had not been demonstrated to create that type of hardship.
The Court of Appeal heard this appeal in light of the post-Vavilov jurisprudence. All parties agreed that the reasonableness standard applied to the judicial review, though how that decision is considered reasonable is different now.
The Tribunal suggested that post-Vavilov their decisions should be reviewed on a patently unreasonable standard, especially given the privative clause under s. 45.8 of the Code, despite the pre-Vavilov jurisprudence reading this down to a reasonableness standard. The Court of Appeal refused to opine on this issue,
 In my view, it is both unwise and unnecessary for the proper disposition of this appeal, to embark on the analysis that the HRTO asks this court to undertake: that is, to determine whether post-Vavilov the statutory standard of review in s. 45.8 of the Code should be given effect, and if so, whether a court’s review of an administrative decision for “patent unreasonableness” would be different from a review for “reasonableness”. It is unwise to do so because these issues should be decided in a case where the standard of review makes a difference to the outcome, and where the parties with a stake in the dispute have joined issue on the point. It is unnecessary in this case because the result would be the same under both standards of review. Even assuming that “patent unreasonableness” can be given a pre-Dunsmuir meaning as proposed by the HRTO, for the same reasons that I find that the decisions of the Vice Chair were unreasonable, I also find that the decisions were patently unreasonable. The reasoning and logical errors are immediate and obvious, such that the decisions are “clearly irrational” and “evidently not in accordance with reason”.
The Court of Appeal agreed that the Tribunal’s decision was unreasonable, as this was a case of prima facie discrimination, and there was no dispute as to the appropriate test that should have been applied,
 …Under the Meiorin/Grismer test, the University had the obligation to establish:
that the grades standard for transfer students was adopted for a purpose or goal that is rationally connected to the function being performed;
that it adopted the grades standard in good faith in the belief that it was necessary for the fulfilment of that purpose or goal; and
that the standard was reasonably necessary to accomplish its purpose, in the sense that the University could not accommodate persons with the characteristics of [the Applicant] without incurring undue hardship.
The Court of Appeal discussed the approach used by the Court in British Columbia (Public Service Employee Relations Commission) v. BCGSEU (sub nom “Meiorin”), which describes a procedural and substantive component to accommodation.
The procedural aspect typically involves identification of the process or procedure to be adopted in accommodation, which is also called “accommodation dialogue” as it requires an understanding of a person’s needs and input from the person seeking the accommodation. The substantive aspect refers to the steps taken to implement accommodation to a point of undue hardship,
71] It is sometimes difficult, and not always helpful to the analysis, to separate out the procedural and substantive components of accommodation. What is identified as procedural accommodation can shade into substantive accommodation because it is the particular measure or method of accommodation identified through procedural accommodation that is to be assessed as substantive accommodation. In this case there was no indication that the University engaged in an “accommodation dialogue” with [the Applicant] or undertook any other measures to assess how his disabilities might impact his ability to meet the University’s grade standard. Instead, it decided that [the Applicant] ’s application would be assessed by an Admissions Committee to determine his ability to succeed in university….
The Court of Appeal found that the procedural aspect was violated when the university failed to consider whether the supplementary materials provided by the Applicant demonstrated an ability to succeed at university. Instead, they considered everything other than the grades submitted to be irrelevant to this consideration.
Because the Tribunal didn’t even examine this core procedural aspect of accommodation, assuming that it was met without making any effort to understand how the Applicant’s grades were affected by his disability, and how they might be interpreted in that light.
More importantly, the Tribunal made their decision on the basis of undue hardship, without the university relying on this defence, or providing any information that would inform this defence,
 Before leaving this issue, I note that nothing in these reasons is intended to discourage or disparage the University’s grades-based admissions standards. The conclusion that the University did not accommodate [the Applicant]’s disabilities does not impugn its academic standards or its usual discretion in applying such standards. The issue before this court was the reasonableness of the Vice Chair’s finding in the context of his human rights complaint, that the University discharged its duty to accommodate [the Applicant]’s disabilities in its admissions process. The finding was unreasonable because the University fell short in the performance of its express undertaking to provide accommodation in the ways I have described.
Justice Lauwers of the Court of Appeal provided a concurring decision, referring to the broad discretion and autonomy that is afforded to universities. A measure of deference is therefore provided to them in the law, but that does not insulate them entirely from public scrutiny,
 Courts have treated universities with some caution. The borders of university autonomy are implicated by legal debates over the proper limits to be placed on executive and judicial oversight into the internal affairs of universities…
 The deference owed to universities does not completely insulate academic decisions from tribunal or judicial scrutiny, but the Human Rights Tribunal of Ontario must be cautious not to override the admissions standards of universities in its mission to ensure accommodation. In this case, the HRTO was too cautious. Other cases will be different and we will be feeling our way on how these tensions of deference to university decisions in the core areas of their mandates and the duty to accommodate get worked out on the ground. I add these observations to explain why I agree strongly with my colleague’s statement that: “nothing in these reasons is intended to discourage or disparage the University’s grades-based admissions standards.”
While this decision is unlikely to radically transform university admissions, given the very unique nature of the facts in this case, it does provide some appellate level treatment of how human rights will be reviewed post-Vavilov. And although we all thought that patently unreasonable was over after Dunesmuir, the comments in this case, and the finding at para 87 that the decisions “were unreasonable and patently so,” may open the door to it again.
An older Statistics Canada study from 2003 found that there was a strong relationship between family income and post-secondary participation, especially during the early to mid 1990s. This only improved as a result of increases to increases to student loans, and strengthening student supports.
Since that time, the relationship between income and post-secondary participation has likely strengthened further, with a large segment of the population being excluded due to financial constraints. This is especially true for law school, a professional education that is obtained after already incurring considerable expense.
Although not a human rights consideration, these barriers also fail to reflect the diversity of the public in educational spaces. Given that many low income people attending university also are compelled to work during their studies, their marks may also not fully reflect their full potential.
Universities will have to balance all of this while still maintaining academic integrity. One thing that remains clear is that marks will still remain a component of consideration for most candidates on admission.