Principles and Recommendations from Task Force, 1986
Committee of Presidents Task Force Report (1986)
Ontario's college system recognizes its obligation to ensure that college programs and services are accessible to persons with handicaps, in accordance with the Canadian Charter of Rights and Freedoms (The Charter) and the Ontario Human Rights Code (The Code), and consistent with the implications of Bill 82 (The Education Amendment Act, 1980) for the college system. To that end, the following principles have been articulated to provide guidelines to colleges in establishing admission policies and procedures.

These principles have been developed on the basis of legal obligations articulated under the Charter and the Code. Consistent with the language of the Code, the term "persons with handicaps" appears throughout the text.

Discussion

Section 15, the Equality Rights section, of the Canadian Charter of Rights and Freedoms protects citizens from discrimination by governments on the basis of mental or physical disability. The protections provided by the Charter apply to the colleges. The guarantee of equality under the Charter is similar to that set out in the Ontario Human Rights Code. The principles and terms used in this paper, therefore, are developed in reference to the Ontario Human Rights Code.

Section 1 of the Ontario Human Rights code stipulates that "Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of handicap."

The Ontario Human Rights Code explains in Section 9 that without discrimination "because of handicap" means:

"for the reason that the person has or has had, or is believed to have or have had,

(i) 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, including diabetes mellitus, epilepsy, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, muteness or speech impediment, or physical reliance on a guide dog or on a wheelchair or other remedial appliance or device,
(ii) a condition of mental retardation or impairment,
(iii) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language, or
(iv) a mental disorder;

The intended effect of these principles is to balance the rights of persons with handicaps with the right of colleges to manage their operations efficiently. Each principle should be interpreted within the total context of the principles.

The determination of the extent and scope of the rights and obligations flowing from both the Charter and the Code is an ongoing process. The principles set out in this paper reflect those rights and obligations as they are understood to date.
A: General

1. Equal Treatment

Persons with handicaps have the right of equality of opportunity to participate in college programs and services to the extent of their individual abilities.

Discussion

Equal treatment does not mean identical treatment. Equal treatment means meeting the individual and differentiated needs of persons with handicaps so that they have the same opportunity to achieve results as everyone else.

2. Conditions or Requirements

Where there is a condition or requirement imposed in relation to a college program or service, there must be evidence that the condition or requirement is relevant to the program or service.

3. Reasonable Accommodation

Where persons are unable to comply with conditions or requirements because of a handicap, the college must provide reasonable accommodation to the handicap. Reasonable accommodation can be made either by adapting the conditions or requirements or by providing alternative ways for individuals to meet the conditions or requirements.

Discussion

Reasonable accommodation is currently being interpreted to mean that there is a duty in two ways: The essential requirements should be adapted so that the individual can fulfill them; e.g., adjustments to regular programs or to admissions policies and procedures. The individual needs of persons with handicaps should be met by the college so that the individual can fulfill the essential requirements; e.g., physical alterations, provision of technical aids, support services, sign interpreters, scheduling of classes or examinations, etc.

4. Undue Hardship

Accommodation is not reasonable if it imposes undue hardship. Undue hardship must be demonstrated objectively. Factors to consider include:
• significant alteration of the fundamental nature of the program or service

• substantial economic hardship

• organizational inconvenience which has a substantial effect on the college due to disruption of operations

• availability of persons with appropriate expertise

• significant adverse impact on learning opportunities for other students

• risk of safety hazard to other persons or property

Discussion

It is the opinion of the Ministry of the Attorney General that "while the cost of accommodation is a relevant consideration, it likely cannot be asserted as a defense to an equality claim in a vacuum. Before an accommodation can be denied on account of cost, a college would have to substantiate its financial concerns with evidence showing that no form of accommodation could be afforded."

The individual is entitled to assume risk to himself or herself if he or she understands the nature and extent of that risk. Colleges may wish to implement a waiver of liability where the individual wishes to assume a personal safety risk.

Discussion

A distinction must be made between "special programs" and "regular programs targeted specifically to persons with handicaps."

A regular program targeted specifically to persons with handicaps is a program, which ordinarily is offered to the general student population (carpentry, for example) but has been established specifically for students with a handicap (a carpentry program for the deaf, for example).

For regular programs to be targeted specifically to persons with handicaps, it should be established that:

• accommodation in regular programs would create undue hardship

• the targeted program is the least restrictive for the student

• the results of the targeted program will be equally as effective as or more effective than the regular program

• the necessity and effectiveness of the targeted program can be demonstrated

• decisions are not based on generalizations regarding a particular group of persons with handicaps but rather on individual assessments

A special program is defined in Section 13 (1) of the Ontario Human Rights Code as a program that is:

"designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under Part I.

Generally, "special programs" are viewed as a mechanism to offset disadvantages experienced by students with handicaps. They are of an affirmative action or preferential nature. Examples of such programs would be those designed to enhance individual capacity to fulfill requirements for admission to regular programs or reserving extra seats in regular programs. Such programs, while they are desirable, are not obligatory.

It should be noted that short of undue hardship, colleges are obliged under the Charter and the Code to make reasonable accommodations to enable persons with handicaps to participate in regular programs. Reasonable accommodations are not viewed as "special programs" in this context Examples of such accommodations are audio-Braille services and physical accessibility.

It should be noted further that the establishment of targeted programs that are accessible to persons with handicaps does not discharge the college's obligations to make reasonable accommodations in regular programs and services.

6. Identification

Students with handicaps should be responsible for identifying their own needs given the following:

a) The college must clearly communicate the mechanism through which accommodations will be made so that persons with handicaps will not feel that it is futile to self-identify.

d) Verification of the need may be requested, but only if the

e) need is not reasonably apparent or if abuse is established as a problem

B: Admissions

7. Eligibility and Selection Criteria

Program eligibility criteria and applicant selection criteria must be relevant to the program. Persons with handicaps must meet these criteria provided that reasonable accommodations have been made by the college in determining and applying these criteria.

Discussion:

This principle reflects the requirements of the new Ministry admission policy. In applying this policy to persons with handicaps, it must be recognized that equal treatment with respect to admissions does not guarantee admission for persons with handicaps. Colleges can admit whom they wish consistent with prevailing admissions policy providing they do it on non-discriminatory grounds.

Reasonable accommodations may be needed in applying the procedures for determining whether the applicant has aptitudes and skills appropriate to the program of instruction. For example, there may be alternative ways in which the applicant could fulfill the essential requirements of the program. Any reasonable method of fulfilling these requirements should be acceptable, short of undue hardship. It should be presumed that reasonable accommodations will be made in the program of instruction and elsewhere so that the student will be able to fulfill the requirements.

There is no onus on the college to attempt reasonable accommodations for an applicant with a handicap if the applicant is unable or unwilling to comply with the necessary requirements for reasons unrelated to the handicap.

8. Onus of Proof

No greater onus of proof with respect to capacity or ability should be required from an individual with a handicap than is required from others.

9. Assessment of Functional Ability

Assessment of ability to meet published admission criteria must be based on an assessment of the applicant's present functional ability. Anticipated physical or mental deterioration or incapacity should not be a factor.

10. Individualized Assessment

Where there is evidence that the particular handicap may affect ability, the applicant is entitled to some form of individualized assessment by the college, with a view to affording him or her a fair and accurate appraisal of abilities.

11. Probability of Employment

Probability of success in the occupation cannot be used in determining admission to a program.

Discussion

Persons with handicaps must not be excluded from college programs because of possible or perceived lack of accommodations in the labour market or because of an opinion that the student would never be able to find a job in the occupation to which the program of study pertains. However, all students should be counselled as to the possibilities of employment.

12. Presumption of Capability

Once applicants have been admitted to a program, they are presumed to be capable of fulfilling the essential requirements of the program subject to the ongoing provision of reasonable accommodation.

13. Limitations on Number of Places

There must not be a limit placed on the proportion or number of persons with handicaps admitted to colleges unless undue hardship can be demonstrated by the college.