A LEGAL RESOURCE CENTRE FOR PERSONS WITH DISABILITIES
425 Bloor Street East, Suite 110
Toronto, Ontario M4W 3R5
www.archlegalclinic.ca
(416) 482-8255 (Main)
(416) 482-1254 (TTY)
(416) 482-2981 (FAX)
1 (866) 482-ARCH (2724) (Toll Free)
1 (866) 482-ARCT (2728) (Toll Free)
1 (866) 881-ARCF (2723) (Toll Free)
ARCH Submission to the
Post-Secondary
Education
Review
In Response to:
Higher Expectations for Higher Education: A
Discussion Paper
November 2004
SUBMISSION TO THE POST-SECONDARY REVIEW COMMITTEE
Table of Contents
I.
II.
About ARCH: A Legal Resource Centre for Persons with Disabilities
Overview
About Disability
III.
Legal Obligations
IV.
Socio-Economic Data
V.
Accessibility-Barrier Removal
VI.
Student Funding Issues
VII. Recommendations
I.
About ARCH: A Legal Resource Centre for Persons with Disabilities
ARCH is an Ontario-based not-for-profit legal clinic that is dedicated to defending
and advancing the equality rights of persons with disabilities from a crossdisability perspective. ARCH represents disability organizations and individuals in
test case litigation at all levels of tribunals and courts, including appeals before
the Supreme Court of Canada. We provide education to the public on disability
rights and to the legal profession about disability law, and we make submissions
to government on matters of law reform. We also offer a province-wide telephone
summary legal advice and referral service, and it is through this service that we
know of the concerns and complaints of students with disabilities trying to access
and succeed in post-secondary studies. This submission is informed by these
callers and by our on-going legal work in equality rights and human rights law.
II.
Overview
In this submission, our limited purpose is to address certain issues identified in
Higher Expectations for Higher Education: A Discussion Paper (“Discussion
Paper”) released by the Postsecondary Review Committee. The first is
“Accessibility”, and second is “Student Funding” in the context of disability.
1
It is crucial that any recommendations made by this Committee discuss
strategies that consider the needs of persons with disabilities. ARCH submits that
such recommendations must be guided by the following principles:

To provide a place of learning free from attitudinal barriers.

To engage proactively in the removal of barriers that limit the participation and
affect the success of students with disabilities, including the revision of
exclusionary and discriminatory rules, practices, and policies.

To adopt principles of universal design wherever possible.
III.
About Disability
Throughout this submission, the term “disability” is used to mean “disability” as
defined in the Ontario Human Rights Code (“Code”). The definition includes but
is not limited to:
(a) any degree of physical disability, infirmity, malformation or
disfigurement that is caused by bodily injury, birth defect or illness
and, without limiting the generality of the foregoing, includes
diabetes mellitus, epilepsy, a brain injury, any degree of paralysis,
amputation, lack of physical co-ordination, blindness or visual
impediment, deafness or hearing impediment, muteness or speech
impediment, or physical reliance on a guide dog or other animal or
on a wheelchair or other remedial appliance or device,
(b) a condition of mental impairment or a developmental disability,
(c) a learning disability, or a dysfunction in one or more of the
processes involved in understanding or using symbols or spoken
language,
(d) a mental disorder, or
(e) an injury or disability for which benefits were claimed or received
under the insurance plan established under the Workplace Safety
and Insurance Act, 1997; 1
This list is not exhaustive and has been broadly interpreted. Thus a broad
interpretation of disability includes conditions that do not result in any functional
limitation. Disability can include: non-evident disabilities; episodic disabilities;
temporary disabilities; past disabilities; and a perception of disability.
1
Human Rights Code, R.S.O. 1990, c. H.19, s. 10 (1).
2
Non-evident disabilities
A non-evident disability refers to those disabilities which are not apparent, such
as environmental sensitivities and chronic fatigue syndrome. Barriers faced by
persons with non-evident disabilities are amplified in the education context. A
lack of understanding of such disabilities leads to many stereotypes and
prejudices.
Episodic disabilities
Disabilities can be episodic in nature such as bi-polar disorder, multiple sclerosis,
arthritis, and epilepsy. Episodic disabilities can remain hidden or non-evident
because of their very nature. As noted above, a lack of understanding can lead to
attitudinal barriers. For example, a student that experiences a reoccurrence of an
episodic condition during the end of the semester, from a condition previously
unknown to faculty, may be confronted with strong resistance to obtaining
extensions for papers, or accommodations for examination writing.
Temporary disabilities
Disabilities can also be temporary such as back pain, injury, or short-term illness.
Past conditions
Discrimination based on a past condition takes place when a person continues to
be treated unfairly due to a condition they have since recovered from.
Perceived disabilities
Disability includes the perception that one has a disability or limitation.
The Supreme Court of Canada endorsed the following approach to defining
disability:
Instead, a multi-dimensional approach that includes a socio-political
dimension is particularly appropriate. By placing the emphasis on
human dignity, respect, and the right to equality rather than a
simple biomedical condition, this approach recognizes that the
3
attitudes of society and its members often contribute to the idea or
perception of a "handicap". In fact, a person may have no
limitations in everyday activities other than those created by
prejudice and stereotypes.2
The broad interpretation of “disability” reflects the conceptual shift of
understanding disability, from a medical model, where it was considered to be an
individual pathology needing treatment, to a social model, where a person with a
disability is seen as restricted from performing activities of daily living due to a
complex set of interrelated factors. Inherent in this understanding of disability is
the recognition that society has constructed barriers that affect a person with a
disability. It is incumbent upon the administration of higher education to examine
constructed barriers with respect to the many forms of disability.
Inclusive Design
Principals of inclusive design refer to the creation of a fully inclusive environment
from
the
outset,
alleviating
constructed
barriers
and
incorporating
accommodations on a regular basis. Ultimately, the aim is to alleviate the need
for individual accommodation requests. In the context of designing education
programs:
course curriculum, delivery methods, and evaluation methodologies
should be designed inclusively from the outset. This may mean
providing a variety of ways for demonstrating knowledge and skills
– for example, by giving students the option of writing a paper or
making a presentation. It may mean creative use of technology,
such as putting materials online, or selecting software that is
compatible with screen readers.3
Inclusive design principles offers benefits to all students, not only students with
disabilities.
2
Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City);
Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City),
[2000] 1 S.C.R. 665 at para. 77. [Mercier]
3
Ontario Human Rights Commission, The Opportunity to Succeed: Achieving Barrier-free
Education for Students with Disabilities, (Toronto: Ontario Human Rights Commission, 2003) at
62.
4
IV.
Legal Obligations
Unlike the elementary and secondary education framework under the Education
Act,4 the post-secondary framework does not provide a detailed scheme
specifically for students with disabilities. However, any revisions of the current
post-secondary education framework must respect all obligations imposed by the
Canadian Charter of Rights and Freedoms and the Ontario Human Rights Code.
Of particular relevance in the decision of Eldridge v. British Columbia (A.G.) is
the Supreme Court of Canada’s pronouncement that:
once the state does provide a benefit, it is obliged to do so in a nondiscriminatory manner… In many circumstances, this will require
governments to take positive action, for example by extending the
scope of a benefit to a previously excluded class of persons.5
Principles of Accommodation
Post-secondary service providers have the legal duty to accommodate students
with disabilities to the point of undue hardship. Two key principles informing the
duty to accommodate are: individualization and human dignity.
Individualization
Approaches to accommodating students must be individualized. “Because
abilities and functional limitations are individualized, so too must be approaches
to accommodation; there is no single formula. In each case, there will be a
different approach that is appropriate for each individual’s accommodation.”6
The Supreme Court of Canada stated that:
the [impugned] standard, if it is to be justified under the human
rights legislation, must accommodate factors relating to the unique
capabilities and inherent worth and dignity of every individual… . 7
4
Education Act, R.S.O. 1990, c. E 2. [Education Act]
Eldridge v. British Columbia (A.G.), [1997] 3 S.C.R. 624 at para. 73. [Eldridge]
6 Bill Holder, “Accommodation of Disability in Ontario” in A Disability Law Primer: A Continuing
Legal Education Program for Ontario Lawyers, 2003, see online: ARCH
<http://www.archlegalclinic.ca/publications/index.asp>.
7 British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R.
3 at para. 62.
5
5
Human Dignity
The accommodation process must also be consistent with human dignity. The
Ontario Human Rights Commission explains this as follows:
Human dignity encompasses individual self-respect and self-worth.
It is concerned with physical and psychological integrity and
empowerment. It is harmed when individuals are marginalized,
stigmatized, ignored or devalued. Privacy, confidentiality, comfort,
autonomy, individuality and self-esteem are important factors as
well as to whether an accommodation maximizes integration and
promotes full participation in society.
Different ways of accommodating the needs of persons with
disabilities should be considered along a continuum from those
ways which are most respectful of privacy, autonomy, integration
and other human values, to those which are least respectful of
those values.
Perhaps the most common example of an accommodation that
demonstrates little respect for the dignity of a person with a
disability is a wheelchair entrance over a loading dock or through a
service area or garbage room. Persons with disabilities should have
the same opportunity as others to enter a building in a manner that
is as convenient for them as it is for others.8
The duty to accommodate therefore must meet the needs of the individual
student in a respectful manner.
Ontarians with Disabilities Act
Under the Ontarians with Disabilities Act,9 colleges and universities are required
to
review their policies, programs and services and identify existing barriers
through the development of accessibility plans.
8
Policy and Guidelines on Disability and the Duty to Accommodate, approved on 23 November
2000, available in the following published format: Ontario Human Rights Commission, Human
Rights Policy in Ontario (Toronto: CCH Canadian Limited, 2001) at 197, citing at 205. See also
online : OHRC <http://www. ohrc.on.ca>.
9
Ontarians with Disabilities Act, 2001, S.O. 2001, c. 32.
6
Accessibility for Ontarians with Disabilities Act, Bill 118
The post-secondary education sector will fall under the jurisdiction of the
Accessibility for Ontarians with Disabilities Act (Bill 118), if passed, and will be
subject to accessibility standards.
College and University Disability Centres
Most, if not all, universities and colleges have established support centres for
students with disabilities, offering a range of services. As well, universities and
colleges have developed, or are in the process of developing equity initiatives.
ARCH applauds these efforts and encourages all institutions to develop policies
and practices on disability and equity generally.
V.
Socio-Economic Data
The Participation and Activity Limitation Survey (“PALS”), conducted between
September 2001 and January 2002, estimates that 13.5% of Ontarians have a
disability. It is reported that 36.5% of Ontarians with disabilities aged 15-64 have
less than a high school education compared to 24% of persons without
disabilities. The Discussion Paper acknowledges the poor representation of
persons with disabilities accessing post-secondary education, stating that only
11% of persons with disabilities in Ontario have a university degree. In
comparison, 22% of persons without disabilities obtained a university degree.
PALS data also illustrates a disparity between persons with and without
disabilities in the context of employment and income. Of persons with disabilities
aged 15-64 in Ontario, 41% are employed, 26% are unemployed and 30% are
not in the labour force. Of persons without disabilities in the same age group,
76% are employed, 4.6% are unemployed, and 19% are not in the labour force.
The average annual income of persons with disabilities aged 15 and over, in
Ontario is $21,716. The average annual income of persons without disabilities is
$32,316.
7
VI.
Accessibility − Barrier Removal
In its Discussion Paper, the Committee acknowledges a lack of funding as the
most common barrier to post-secondary education. Callers to ARCH confirm this
perception. The Committee further comments that “[p]ersons with disabilities
experience negative attitudes and stereotypes, a varying degree of support
services and face actual physical access and complicated transportation
barriers”.10
Barriers in Transition from Secondary to Post-Secondary
Issue: Students with disabilities are not provided sufficient support to succeed
and continue onto post-secondary studies.
Recommendation: Examine ways of encouraging and facilitating the transition
from secondary to post-secondary education.
ARCH regularly receives calls from students and parents advocating for
appropriate accommodations in primary and secondary schools who have had
little success. Their frustration is coupled with the inability to appeal decisions on
programs and services and accommodations within the Education Act
framework. Students with disabilities are subjected to labeling, bullying and
taunting, exclusion from school for disability related behavior under the Safe
Schools Act, and face a special education funding system that does not meet the
needs of all students.
Ultimately, this reality facilitates failure. It instills an assumption of limitation
rather than an aspiration of reaching one’s full potential.
Many callers report to ARCH that their children are repeatedly told by educators
and school staff that post-secondary education is out of their reach. What is
needed is increased sensitization of school staff, particularly of guidance
counsellors, on the capacity of students with disabilities to achieve success at
10
Higher Expectations for Higher Education: A Discussion Paper at 15 .
8
post-secondary levels. In support of this, counsellors should be familiar with the
issues and concerns facing students with disabilities accessing post-secondary
education. For example, this includes providing assistance to navigate the
numerous funding programs available.
Regulation under the Education Act provides that transition plans be prepared for
students with disabilities. These can be used as a vehicle to articulate and plan
for the goals of higher education at an early stage in the student’s life .
Attitudinal Barriers
Issue: There are significant attitudinal barriers which impede students with
disabilities from obtaining an equal opportunity within post-secondary programs.
Recommendation: Review the current training programs undertaken for
university and college staff and make recommendations to ensure ongoing
training on accessibility issues and accommodation requirements.
Recommendation: Identify what procedures are established by each institution to
identify and address possible barriers.
Attitudinal barriers refer to the negative attitudes and stereotypes about people
with disabilities. Negative attitudes towards people with disabilities exist
throughout many parts of post-secondary education, and have the devastating
effect of preventing individuals with disabilities from achieving their potential.
Stereotypes about the intellectual capacity of persons with disabilities inform
many decisions and assessments, and result in attitudinal barriers that have an
impact on service delivery.
Discrimination on a systemic level is often caused by structuring post-secondary
education in a way that does not allow for the unique needs and abilities of
different individuals.
Students may face uncooperative and inadequate responses to accommodation
requests and accessibility issues. A major source of attitudinal barriers is
9
ignorance about the capacities and abilities of persons with disabilities and a lack
of knowledge of the need to accommodate students with disabilities. Thus, a
large part of creating an accessible and progressive post-secondary institution
involves actively promoting attitudinal accessibility. Attitudinal accessibility is
defined here in a broad sense to mean the combating of prejudices and
stereotypes in the post-secondary environment. Attitudinal accessibility can be
achieved in many ways, including the training of faculty and staff, public
awareness campaigns, and ensuring inclusive extra-curricular activities.
It is recommended that training programs on disability issues, including
accessibility and accommodation requirements, be made mandatory for
university and college staff. This includes information on various types of
accommodations students may require with reference to practical ways that staff
and faculty can accommodate students, both proactively and upon request. Also
necessary is a clear communication of guidelines outlining the roles and
responsibilities of faculty and staff with reference to legal obligations.
Flexibility in decision-making needs to be encouraged. Moreover, decision
making practices, rules, and policies need to be reviewed to ensure the removal
of possible barriers.
Ensuring success
Issue: Students with disabilities face significant barriers to accessing adequate
accommodations which prevent their full inclusion in post-secondary education.
Recommendation: Develop comprehensive and efficient service delivery that
seeks to promote inclusion.
The Ontario Human Rights Commission report on education titled The
Opportunity to Succeed: Achieving Barrier-free Education for Students with
Disabilities, states the following regarding the duty to accommodate under the
Code:
10
[accommodation processes] must respect the dignity of persons
with disabilities; they must consider, assess and accommodate
persons individually; and they must promote the integration and full
participation of persons with disabilities. At the heart of the
accommodation process is the responsibility, shared by all parties,
to engage in meaningful dialogue about accommodation, and to
seek out expert assistance as needed.11
The following are examples of possible accommodations:

Physical accessibility
Examples: Lowering kitchen cupboards in student housing; ensuring
sufficient space for wheelchair mobility on campus; ensuring accessible
laboratory tables and library work stations.

Communication accommodations
Examples: Providing American Sign Language interpreting services, visual
aids, and captioned videos.

Alternate testing and exam arrangements
Examples: Providing examinations in electronic format with screen reader
software; providing trained readers and scribes; and providing extra-time
for completion.

Materials in alternate formats
Examples: Providing handouts and materials in large print, and providing
textbooks in audio format.

Note taking
Examples: Providing trained and skilled peer notetakers, and facilitating
access to copies of course notes.
There are a broad range of accommodations that may be appropriate, of which
these are but very few examples.
Many callers have told us that every semester presents a new challenge, a new
battle, due to socially constructed barriers. Currently, individual requests from
11
Ontario Human Rights Commission, The Opportunity to Succeed: Achieving Barrier-free
Education for Students with Disabilities, (Toronto: Ontario Human Rights Commission, 2003) at
57.
11
students for accommodations can create an adversarial relationship between the
student and professor, and the student and the university. What must be
achieved is an environment conducive to learning, where as much as possible,
potential barriers are completely removed, thus alleviating the need for students
to focus their energy on constantly proving their disability, and advocating for
their equality rights.
Timeliness of Accommodations
Issue: Course materials in alternate formats are sometimes provided late into the
semester.
Recommendation: Recommend that faculty is required to have syllabi prepared
sufficiently in advance so that requests can be made for materials in alternate
formats and that the university or college can produce the requested materials in
a timely manner.
The need for accommodations must not only be satisfied, but done so in a timely
fashion. The receipt of needed course materials in alternate formats in midNovember, just a few weeks before examinations, defeats the purpose of
providing accommodations. Our callers repeatedly report similar situations.
Students who had requested materials in alternate formats in July had still not
received them in November. Faculty must be required to decide upon their
course materials in advance so that there is sufficient time for the materials to be
ordered and received.
Co-ordination of Services and Accommodations
Issue: Students often are unaware of various services offered by numerous
Ministries, or experience difficulty in accessing and coordinating the different
programs or services.
Recommendation: Examine the possibility of coordinating the different services
offered by various Ministries in facilitating the transition from secondary to
postsecondary education.
A further issue with accessing accommodations are the various services offered
by different ministries. It becomes difficult for the student to navigate this
12
potentially complex system. Many callers have told us that if an accommodation
is summarily denied by the disability office, they receive little assistance to
access the necessary services through various ministerial programs. The
transition from secondary to post-secondary results in many services, such as
attendant care and nursing care, to come to an end. The onus is unjustly on him
or her to seek the similar needed assistance from other service providers. An
integration of services funded by various service providers and Ministries for
persons with disabilities needs to take place.
Economic Barriers
Issue: Students with disabilities face additional costs due to their disability.
Recommendation: Provide bursaries and loans in a manner that respects and
considers the individual needs of student with disabilities, and is sensitive and
flexible to the socio-economic reality this population faces.
For many students with disabilities, post-secondary education is out of reach due
to financial constraints. As seen in the socio-economic context above, persons
with disabilities are more likely to be underemployed or unemployed than
persons without disabilities. Costs related to disability can also pose a significant
added financial burden. This can include interpretation services, home
modifications, increased transportation costs, special diets, and medication.
These costs, coupled with the increase of tuition, costs of books and costs of
housing needs for out of town students, makes higher learning practically
inaccessible. An appropriate student funding assistance model must consider the
unique needs of persons with disabilities.
13
VII.
Student Funding Issues
Issue: The student assistance framework is complex, insufficient, and does not
consider the needs of students with disabilities.
Recommendation: That OSAP be reviewed to ensure that students with
disabilities are not inadvertently or directly penalized due to their disability.
Recommendation: That all OSAP eligibility rules and policies be made public and
available on the Ministry website.
Recommendation: That the interaction between various programs, and their
different rules, be clearly presented on the Ministry website.
The Ontario Human Rights Commission noted that “[t]he funding structure for
students with disabilities at the post-secondary level is complex, as there are a
multitude of programs, with varying benefits and eligibility requirements”.12 The
complex interaction between different sources of funding is coupled with the
inaccessibility of various rules and procedures that guide the Ontario Student
Assistance Program (“OSAP”) decision making process. The numerous funding
and financial assistance programs include: the Ontario Student Assistance
Program, the Bursary for Students with Disabilities, Ontario Special Bursary Plan,
Canada Study Grants for High Need Students with Permanent Disabilities,
Canada Study Grant for High Need Part-time Students, Bursary for Deaf
Students Attending Out-of-Country Post-Secondary Institutions, the Ontario
Disability Support Program, and Ontario Works.
Some issues that arise from the interaction of various programs can be remedied
by making available easily accessible information. A reduction in Ontario
Disability Support Program (ODSP) benefits will occur if the recipient receives
the living allowance top-up portion from OSAP. Crucial information such as
knowing that the OSAP living allowance portion can be opted out from if
12
Ontario Human Rights Commission, The Opportunity to Succeed: Achieving Barrier-free
Education for Students with Disabilities, (Toronto: Ontario Human Rights Commission, 2003) at
48.
14
requested, can resolve potentially severe consequences for the individual in the
future.
ARCH submits that a better integrated student funding model be adopted; one
which provides for, and acknowledges, the unique concerns of students with
disabilities at the post-secondary level. Below are some of the concerns that
students have reported.
The Ontario Student Assistance Program
If a student is in an overpayment position, then OSAP is not renewed until the
overpayment has been repaid. For students with disabilities and health problems,
this poses a significant barrier. If a student needs to reduce his or her academic
course load during the year, then an overpayment is created. Therefore, the
student will only be able to continue studying after the overpayment is repaid.
This poses a significant barrier, especially to students with episodic disabilities. A
process that considers disability-related causes for the withdrawal and reduction
of course loads needs to be adopted, without the student incurring significant
overpayment.
A number of our callers have also expressed concerns over the granting process
of forgiveness for an OSAP loan for medical reasons. Once a condition is
manageable and a student feels they can return to pursue their studies, OSAP is
denied due to the previous loan forgiveness. Unless payments are repaid in full,
the student will not receive OSAP funding. This policy penalizes persons whose
condition later improves.
The Bursary for Students with Disabilities
The Bursary for Students with Disabilities (“BSWD”) is aimed at assisting
students to meet the additional disability-related costs during their postsecondary studies, and is the only such bursary. The BSWD is not available to all
students with disabilities as its eligibility criteria is contingent upon meeting OSAP
15
eligibility. Thus, if a student is denied OSAP due to their parents’ income, they
would be denied BSWD but the family income may not be sufficient to cover the
disability related costs in addition to tuition and living costs. The eligibility
requirements for the BSWD must be independent from OSAP.
16
VIII.
SUMMARY OF RECOMMENDATIONS

Examine ways of encouraging and facilitating the transition from secondary
to post-secondary education.

Review the current training programs undertaken for university and college
staff and make recommendations to ensure ongoing training on accessibility
issues and accommodation requirements.

Identify what procedures are established by each institution to identify and
address possible barriers.

Develop comprehensive and efficient service delivery that seeks to promote
inclusion.

Recommend that faculty is required to have syllabi prepared sufficiently in
advance so that requests can be made for materials in alternate formats and
that the university or college can produce the requested materials in a timely
manner.

Examine the possibility of coordinating the different services offered by
various Ministries in facilitating the transition from secondary to
postsecondary education.

Provide bursaries and loans in a manner that respects and considers the
individual needs of student with disabilities, and is sensitive and flexible to
the socio-economic reality this population faces.

That OSAP be reviewed to ensure that students with disabilities are not
inadvertently or directly penalized.

That all OSAP eligibility rules and policies be made public and available on
the Ministry website.

That the interaction between various programs, and their different rules, be
clearly presented on the Ministry website.
17