By: Kenyah Coombs
Mental health disabilities can create several challenges for individuals pursuing a post-secondary education. Too often, students who are managing the effects of their mental health disabilities find it difficult to also stay on track with regular readings, complete assignments, and study for exams which can lead to academic misconduct or poor performance. What these students often forget, or are not aware of, however, is that they can take advantage of accommodations.
The Ontario Human Rights Code (the “Code”) guarantees the right to equal treatment in education, without discrimination based on disability. A fundamental aspect of ensuring equal access for students with disabilities is academic accommodations. Education providers have a duty to accommodate students with disabilities up to the point of undue hardship — that is, so long as the accommodation is not unduly costly, extensive, substantial, or disruptive.
What is considered a mental health disability?
The Ontario Human Rights Commission (the “OHRC”) interprets disability broadly to encompass “both present and past conditions” and may have “a subjective component based on perception of disability.” This means that disabilities can be addressed retroactively. In addition, the OHRC distinguishes between evident and non-evident disabilities. The nature or degree of certain disabilities, such as mental disabilities, may render them non-evident to others. Such disabilities may become apparent over time through extended interactions or they may only become known when an accommodation is requested.
As the the OHRC has taken a broad approach on the definition of disability, it has stayed away from creating a formalized definition or test to determine if a disability occurs. However, in Crowley v LCBO, 2011 HRTO 1429, Vice Chair Mark Hart provided guidance. The Vice Chair wrote at paragraph 63:
“I agree that in order to meet the definition of mental disability within the meaning and protection of the Code, where the case does not involve an allegation of discrimination on the basis of of perceived disability, there needs to be a diagnosis of some recognized mental disability, or at least a working diagnosis or articulation of clinically-significant symptoms, from a health professional in a report or other source of evidence that has specificity and substance.”
This definition has been applied to subsequent decisions, as well as by the Ontario Superior Court in Simcoe Condominium Corporation No. 89 v Dominelli, 2015 ONSC 3661. For Ontario students, this means that their symptoms must be clinically recognized for the courts.
What is an accommodation?
The OHRC sees accommodation as a process and describes it as a matter of degree, rather than an all-or-nothing approach. That is, accommodation is a continuum. The highest point in the continuum must be achieved, so long as undue hardship does not arise. At the far end of the continuum is full accommodations based on the individual’s needs. If this cannot be achieved then the “most appropriate” accommodation must be provided. The OHRC encourages the accommodation process to be collaborative, with both parities taking part.
There are different types of methods and techniques to respond to the unique needs of each individual experiencing a mental health disability. Accommodation may include an organization modifying its: buildings and facilities; policies and processes; performance goals, conditions and requirements; decision-making practices; organization culture; or methods of communication. In addition, the OHRC states that accommodation may also mean accommodating the side-effects associated with the individual receiving treatment, such as medication for their disability, or accommodating symptoms of withdrawal.
When should I request a mental health accommodation and how do I show hardship?
As noted, the accommodation process is a shared responsibility between the educational institution and the individual requesting an accommodation. It is important that all parties are cooperative and fully engaged in the process including sharing information and consider all of the potential accommodation solutions.
The individual requesting accommodations is required to:
make accommodation needs known to the best of their ability — this can be done retroactively but it is best to do so as soon you become aware that you require accommodations
answer questions or provide information about any relevant restrictions or limitations you may have
take part in open discussions about possible accommodation solutions
cooperate with any express whose assistance may be required in managing the accommodation process or when the information needed is not available to the individual experiencing the disability
work with the accommodation provider on an ongoing basis to manage the accommodation process
discuss his or her disability only with individuals who need to know
The education institution is required to:
be aware to the possibility that an individual may require accommodations, even if that individual has not made a specific or formal request
accept the individuals’ request for accommodation in good faith unless there are legitimate reasons for acting otherwise
refer to expert opinion or advice when necessary
take an active role in ensuring that alternative approaches and possible solutions have been considered
maintain a record of accommodation request and actions that have been taken
maintain confidentiality
limit requests for information to those reasonably related to the accommodation request
implement accommodation in a timely manner to the point of undue hardship
bear the cost of any medical information or other documentation that may be required
Kenyah Coombs is an internationally trained lawyer currently completing her final exams from the National Committee on Accreditation from the Federation of Law Societies of Canada. Kenyah has been a law student with Battick Legal since 2020.