Administrative boards and tribunals are “service providers” for the purposes of the Human Rights Code (the Code), and accordingly have the duty to accommodate Code-related needs of parties accessing their services. They must provide these accommodations up to the point of undue hardship.
This post will cover some important practice tips which may help representatives secure for their clients the accommodations they need to ensure that they can participate in the legal process in a meaningful way. These include:
- The kinds of accommodations that may be available
- The limits on the duty to accommodate
- What kind of supporting medical documentation may be required
- How to be proactive about privacy
The kinds of accommodations that may be available
Administrative boards and tribunals are required by the Code to accommodate parties’ disability-related needs to the point of undue hardship. As set out in the Accessibility and Accommodation Policy, the Tribunals Ontario – Social Justice Division (which encompasses the Human Rights Tribunal (HRTO) and the Landlord and Tenant Board (LTB) among others) is committed to providing inclusive and accessible access to its services in accordance with both the Accessibility for Ontarians with Disabilities Act and the Code.
In theory, boards and tribunals take a broad and liberal approach to granting accommodations. For example, the Accessibility and Accommodations statement of the HRTO states that:
The HRTO wants to ensure that everyone is able to participate in its proceedings on equal basis and will provide accommodation (alternative arrangements) for people who have needs related to any of the grounds in the [Code].
… In some cases, the HRTO may ask for more information, including relevant medical records, to better understand your needs and determine how it can make the process accessible.
A potentially large array of accommodations may be available to parties to facilitate their participation in the administrative process. These include ASL interpretation, recording the hearing, Real Time Captioning, alternative locations of hearing, testifying in a separate room, documents in different formats, and additional breaks during the hearing.
This list is certainly not closed – it is open for applicants to identify and request additional accommodations to access services. Individual boards and tribunals may work with parties to create appropriate accommodations that meet the needs of the party.
The limits on the duty to accommodate
There are two important limits on an administrative board or tribunal’s legal obligation to provide disability-related accommodations. One, as will be explored later in this post, administrative boards and tribunals are only obligated to provide accommodation for needs, not preferences. Two, as will be discussed immediately below, administrative boards and tribunals are required to provide accommodations to the point of undue hardship.
Pursuant to the Code, undue hardship can only be demonstrated by considering cost and health and safety. This kind of undue hardship analysis is demonstrated in Francisco v Ontario (Community Safety and Correctional Services), where the HRTO grappled with the impact on health and safety of an applicant’s request to smoke marijuana in the hearing room as a disability-related accommodation:
… The Tribunal … carefully considered the applicant’s specific request for accommodation by being allowed to smoke marijuana during the hearing, and expressed significant concerns about sidestream THC contained in cannabis smoke and its risk to passive inhalers, particularly in a closed environment. The Tribunal once again expressed its view that allowing the applicant to take breaks to smoke marijuana outside was a reasonable form of accommodation, but continued to express willingness to explore alternative forms of accommodation if the applicant felt that this arrangement did not meet his disability-related needs. (para 26)
However, this undue hardship analysis does not always align perfectly with administrative boards and tribunals because they are also tasked with maintaining the fairness and efficiency of the administrative process. This tension is illustrated in Hoffman v Provincial Long Term Care Inc, where an applicant’s accommodation request significantly impacted the procedural fairness of the opposing party.
Specifically, the applicant requested that his testimony be limited to 3 hours each hearing day, and to have his wife sit with him as a support person, despite that she was also appearing as a witness. The respondent objected. In considering the applicant’s request, the HRTO looked to the principles of undue hardship, but also procedural fairness to the other party:
… In the somewhat unique context of an administrative tribunal, where an individual has requested a particular form of accommodation that will likely have an impact on the hearing process, an assessment of undue hardship may require an examination of the impact of the requested form of accommodation on the other parties’ legal interests, and in particular procedural fairness issues that may arise and have an impact on their right to a fair hearing. (para 9)
In light of these considerations, and the supporting medical documentation that was provided, the HRTO refused to limit the applicant’s testimony to 3 hours per day. The HRTO gave the applicant the opportunity to provide additional supporting material to assist the HRTO in creating an accommodation that was less intrusive to the hearing process but would also accommodate his needs, such as frequent breaks. With respect to having his wife sit with him as a support person, the HRTO granted this request and remedied the respondent’s procedural fairness concerns by ordering that his wife would testify prior to the applicant.
What kind of supporting documentation may be required
While requests for accommodation ought to be taken in good faith, it has become common that boards and tribunals request additional supporting material. For example, the HRTO appears to have adopted a standard practice in which it requires, at the very least, some medical information for most requests for accommodation. The HRTO has held that it needs enough to be “reasonably sure” that the accommodation requested is linked to a Code-enumerated need, “rather than a personal preference of the individual” (see for example, Gravelle v Giorgio’s No Frills, para 29).
With respect to the content of the medical documentation, administrative boards and tribunals have demonstrated through their decisions that medical documentation of a certain quality is required. Generally, a one sentence medical note has been found to be insufficient. Similarly, a medical note that merely repeats the parties’ preference or desire for a specific accommodation, rather than providing medical basis, has also been found to be insufficient.
In Ihasz v Ontario (Revenue), the HRTO spelled out the level of detail that may be required for the HRTO to grant an accommodation:
- A description of the applicant’s disability-related restrictions and how/why these restrictions prevent or limit his participation in a hearing;
- The accommodations, e.g., alterations to the typical hearing procedure, that would allow the applicant to participate in a hearing: and,
- If the applicant is unable to participate in a hearing, even with accommodation, an estimate of when the applicant will be able to participate in a hearing and, again, any accommodation required to assist him. (para 20)
A similar approach is taken at the LTB, where the tenant was directed to provide more specificity in her medical documentation:
Next, if the Tenant has any other disability based need for accommodation in the hearing process she should clearly state what it is that she requires and why. In other words, as above, the Tenant needs to identify her specific limitations. Then she needs to provide medical evidence that addresses whether or how these barriers could be accommodated. (para 9)
How to be proactive about privacy
In light of the potentially vast amount of personal and sensitive medical documentation that could be put before boards and tribunals to support requests for accommodation, it is imperative that representatives and applicants be proactive about limiting the amount of medical information that may become available to opposing parties or the public.
Indeed, for requests for accommodation in any other social area (employment, for instance), it goes without saying that only the employer and select others who are involved in the implementation of the accommodation are privy to the details of the accommodation. Further, only the employer would be in possession of any supporting medical information.
In a progressive move, presumably with aims to limit unnecessary disclosure, the HRTO cautions applicants to not copy the other parties on accommodation requests. Its Accessibility and Accommodations policy states:
Do not automatically send your accommodation request to the other parties. If the HRTO thinks your request could affect the rights of the other parties, then the HRTO will ask you to send them copies.
This means that the HRTO will permit opposing parties to have notice of and an opportunity to make submissions on the substance of the accommodation request (i.e. the changes made to the hearing process), but not the supporting medical documentation. In Ihasz v Ontario (Revenue), the HRTO set this out expressly:
The Tribunal does not generally require medical reports in support of a party’s request for accommodation before this Tribunal be disclosed to the other parties. Rather, the Tribunal would advise the respondent of the substance of any such accommodation and would afford it with an opportunity to make submissions in response. (para 11)
In this way, the HRTO provides opposing parties an opportunity to respond to accommodation requests that affect their right to a fair hearing without overbroad disclosure of the applicant’s medical documentation. See another case, for example, Kusinksi v Marvin Basar Pharmacy Ltd, at para 8.
The significance of this approach can be illustrated by comparing it to human rights cases that are not as nuanced. A number of cases demonstrate that Vice-Chairs and even parties themselves were not careful about disclosure of private medical documentation.
In AB v Timbercreek Asset Management, the applicant filed numerous requests for adjournments as a disability-related accommodation. Her supporting medical notes were provided to the respondent and even reproduced in the decision. The respondent argued, in part, that the medical documentation was insufficient as it did not “provide information about how her disabilities affect her ability to prepare her case or participate in a hearing or how those disabilities could be accommodated.” (para 7)
With respect, these kind of submissions are wholly improper from a disability-rights perspective. The respondent ought to only be permitted to make submissions on how the substance of the accommodation request affect their right to a fair hearing. In this case, the submissions should have been limited to only how the respondent’s right to a fair hearing would be affected by multiple adjournments. See also Hoffman v Provincial Long Term Care Inc at para 13, for a similar case.
The assessment of the sufficiency of the medical documentation is exclusively the role of the HRTO as the service provider. It is hopeful that HRTO’s recent messaging – which directs parties to not copy the other parties on accommodation request – has greatly reduced much of the overbroad disclosure and potential barrier to accessing the administrative process from the HRTO.
Unfortunately, other administrative boards and tribunals have not adopted a similar approach to personal information. For example, the LTB continues to reproduce detailed, and potentially identifying, medical documentation or diagnoses in full within its decisions (see this case and this case for example).
It is imperative that representatives and applicants are proactive and thoughtful about making requests for accommodation to ensure meaningful access to administrative boards and tribunals.