Submission of 
ARCH Disability Law Centre 
to the Postsecondary Education Standards Development Committee regarding its 2021 Initial Recommendations Report

November 1, 2021
55 University Avenue, 15th Floor, Toronto, ON, M5J 2H7
Phone: 416-482-8255 or 1-866-482-2724
TTY: 416-482-1254 or 1-866-482-2728
www.archdisabilitylaw.ca 
 @ARCHDisabilityLawCentre
@ARCHDisability

Table of Contents
I.	About ARCH
II.	Introduction
III.	Submissions
Recommendation 1: the long-term objective of the standards
Recommendation 40: Linking assessments to essential academic requirements
Recommendation 55: Professional practicum placement supervision
Recommendation 57: Jurisdiction of accessibility supports in work integrated learning settings (non-regulatory)
Recommendation 62: Braille, captioning, described video and sign language interpretation
Recommendation 92: Documentation policies for academic accommodations
Recommendation 93: Interim academic accommodations
Recommendation 95: Clear Policies and Procedures
Recommendation 96: Disability accommodations plans
Recommendation 108: Accessibility and accommodations coordinator/champion and Recommendation 110: Resolving disability accommodation refusal disputes
Recommendation 112: Service animal definition for postsecondary institutions
Barrier area 8: Financial barriers
IV.	CONCLUSION
APPENDICES

I.	About ARCH 
ARCH Disability Law Centre is a specialty legal clinic, primarily funded by Legal Aid Ontario, that practices exclusively in disability rights law.  ARCH is dedicated to advancing and defending the equality rights, entitlements, fundamental freedoms and inclusion of persons with disabilities in Ontario. In order to carry out its mandate, ARCH provides a range of legal services directly to persons with disabilities across Ontario, including:
a)	legal information and summary legal advice directly to persons with disabilities across Ontario on a range of areas of law; 
b)	representation of  persons with disabilities and disability rights organizations in precedent setting cases at all levels of courts and tribunals, including the Supreme Court of Canada; and  
c)	An extensive law reform practice, working on a variety of initiatives related to advancing the rights of persons with disabilities, and the provision of rights education to disability communities, and capacity building in support of our communities.  
Relevant to this feedback, ARCH provided fulsome submissions to standards development committees (SDCs) in the development and review of all accessibility standards pursuant to the Accessibility for Ontarians with Disabilities Act (AODA), and participated in the three Independent Reviews of the AODA.  We also provided submissions to the Health Care SDC on its initial recommendations.
More information about our work is available on our website: www.archdisabilitylaw.ca
II.	Introduction 
Education, including postsecondary education, has been a longstanding priority legal area for ARCH.  ARCH is continuously aware, throughout our work, of ongoing and persistent barriers to postsecondary education for persons with disabilities.   These obstacles are exacerbated for persons with multiple disabilities and intersecting identities, people with disabilities who live in rural, remote and northern communities, and Indigenous (First Nations, Métis and Inuit) Peoples. 
The benefits of postsecondary education are countless.  For persons with disabilities, postsecondary education contributes to engaged citizens who can fully participate in society; further development of their personality, talents and creativity; and fosters an increased sense of dignity and self-worth.  Postsecondary education develops skills and knowledge that can lead to employment, which can help lift people out of poverty and add to Ontario’s economy. 
Given this background, ARCH is well positioned to provide comments on the Postsecondary Education SDC’s 2021 Initial Recommendations Report. ARCH wishes to thank the Postsecondary Education SDC for its commitment and thorough work in developing its comprehensive initial recommendations report, and we welcome this opportunity to offer feedback. Given the detailed number of recommendations this SDC makes, ARCH will restrict our comments to those recommendations we believe are particularly important to the communities of students with disabilities we serve.
III.	Submissions
Recommendation 1: the long-term objective of the standards
ARCH applies a human rights lens to our work.  The Ontario Human Rights Code (Code), the Canadian Charter of Rights and Freedoms (Charter) and The Convention on the Rights of Persons with Disabilities (CRPD) are essential laws governing civil society.  The AODA also embraces human rights principles in s.1, which states “Recognizing the history of discrimination against persons with disabilities in Ontario  ...” A commitment to furthering the rights and entitlements of Ontarians with disabilities under the CRPD and compliance with our international obligations will strengthen these recommendations.
Section 1 of the AODA also promises a fully accessible Ontario by January 1, 2025.  In order to achieve this important goal, the interplay of each of the Standards, and how they support and work with one another, must be acknowledged.   A specific recognition that incorporates all Standards by reference will ensure that the government, and public and private institutions, are aware of all of their obligations under the AODA. 
Wherever possible, prescriptive language must be used throughout these recommendations. This will strengthen the impact of these recommendations, and require that the government and postsecondary institutions take action.
Finally, it is important that these recommendations apply to all public and private post-secondary institutions to the extent possible. The scope of the initial recommendations should be part of the long-term objective. 
1.	In its long-term objective, this SDC specifically include an obligations to implement international human rights treaties, and in particular, Ontarians’ rights and entitlements under the CRPD.
2.	This SDC must incorporate all other AODA Standards by specific reference so that there is no mistake that these Standards interact in a harmonious way to achieve accessibility in Ontario by January 1, 2025.
3.	Wherever possible, prescriptive language must be used throughout these initial recommendations.
4.	It must be clear that these recommendations apply to all postsecondary institutions, both publically and privately funded, to the extent possible.
Recommendation 40: Linking assessments to essential academic requirements
There is considerable confusion about the concepts of “academic freedom”, “academic integrity” and what their impact is on appropriate accommodations. Postsecondary institutions must provide information to students with disabilities defining and explaining how these concepts interact with each other.  Appropriate accommodations do not interfere with maintaining the academic standards of a course or program.  They are the supports and services required so students with disabilities can meet those essential requirements or academic standards.
Academic freedom or academic integrity are often used to defeat accommodations such as note-taking or recording lectures.  However, the purpose of these accommodations is to ensure that students with disabilities benefit equally from lectures. This includes class discussion of the subjects being taught.  Faculty must be trained to appreciate how these concepts interrelate and the purpose of granting accommodations, such as recording lectures.
Recording lectures is to be preferred over note-taking, which too often relies on volunteers without training on effective note-taking.  Students with disabilities will benefit from a recording of the actual lecture and the ensuing discussion.
These comments and recommendations apply equally to Recommendation 45: identification and communication of bona fide and essential academic requirements.
5.	Academic freedom, academic integrity and their relationship with accommodations must be clearly explained to students with disabilities.
6.	Faculty shall receive training on why accommodations like recording lectures and discussion do not interfere with academic freedom or academic integrity.
7.	Recording lectures must be an available accommodation for students with disabilities.
Recommendation 55: Professional practicum placement supervision
8.	This recommendation should clearly include all experiential learning settings. 
Recommendation 57: Jurisdiction of accessibility supports in work integrated learning settings (non-regulatory)
This recommendation requires the Ministry of Seniors and Accessibility to provide guidance to postsecondary institutions and employers regarding the division of responsibilities and applicability of the act’s standards and accommodations for students with disabilities in required work integrated learning settings.  However, until the Ministry provides such guidance, each postsecondary institution and their requisite programs, must have a policy setting out the division of responsibilities and applicability of the act’s standards and accommodations.  This policy must be made available to students at the commencement of their course or program so they understand the requirements and who is responsible for providing accommodations and other supports and services.
9.	Each institution and/or program shall have a policy that describes the division of responsibilities and applicability of the act’s standards and accommodations, to be available to students at the beginning of their course or program.
Recommendation 62: Braille, captioning, described video and sign language interpretation
ARCH suggests that deaf-blind intervenors be included in this list of professionals to be trained.  Deaf-blind intervenors shall be included as an accommodation in all recommendations that address appropriate accommodations whenever applicable.
10.	The Ontario government should explore, in partnership with postsecondary institutions, employers and apprenticeship bodies, increasing the province’s training capacity for deaf-blind intervenors, with an emphasis on technical training (particularly for science, technology, engineering and mathematics, trades and healthcare fields).
11.	 Deaf-blind intervenors shall be included wherever appropriate in these initial recommendations.
Recommendation 92: Documentation policies for academic accommodations
It is important that this recommendation include that students with mental health disabilities do not have to disclose their diagnosis.  In fact, it is ARCH’s position that no student with a disability should be required to disclose a diagnosis unless it is absolutely necessary to the provision of accommodations. Moreover, documentation requirements should be included with the application for accommodations. These requirements shall be set out in a clear and transparent manner.  The realities of living in northern, rural and/or Indigenous communities, where the wait time for appointments and specialists can be lengthy, must also be recognized as a barrier to timely documentation requests. Interim accommodations (Recommendation 93) will be provided as required.
12.	No student will be required to disclose their diagnosis.
13.	Documentary requirements shall be included with the application for accommodations and be clear and transparent.
14.	The unavailability of documents in certain circumstances must be acknowledged. Interim accommodations will be provided in these instances.
Recommendation 93: Interim academic accommodations
Along with interim accommodations, there should also be a clear policy or practice with respect to granting retroactive accommodations.  ARCH understands the individualized and contextual nature of granting retroactive accommodations, however, students with disabilities must be aware that they can be requested in certain circumstances. In addition, postsecondary institutions shall also consider accommodations for temporary mental health accommodations.
15.	Postsecondary institutions shall alert students to policies regarding retroactive accommodations.
16.	Postsecondary institutions shall grant accommodations for students who experience temporary mental health disabilities.
Recommendation 95: Clear Policies and Procedures
Similar to Recommendation 6: Postsecondary education accessibility standards plain language version, ARCH recommends that postsecondary institutions, in consultation with students with disabilities, the organizations that support them, disability and accessibility offices, and relevant stakeholders,  develop clear language guides, fact sheets, tool kits and resource materials for students with disabilities. In addition to the topics listed in this recommendation, students should also have access to clear language guides to appeal and other dispute mechanisms and processes.  These documents must include where they can access advice and/or assistance with issues arising in the course of their postsecondary education journey.  These materials shall be readily available at accessibility and disability offices, student unions, common and study areas and other places that students frequent.
17.	Postsecondary institutions, in consultation with students with disabilities and relevant stakeholders, shall develop clear language guides, fact sheets, tool kits and resource materials that advise students with disabilities of accommodations available to them in all academically related learning activities.  These materials must include guides to appeal routes and dispute mechanisms.
18.	Postsecondary institutions shall provide students with information about where they can seek advice and/or assistance with issues arising in the course of their postsecondary studies.
19.	All materials shall be readily available in places where students frequent.
Recommendation 96: Disability accommodations plans
Developing disability accommodation plans can be the source of stress for students with disabilities.  They may believe that once the plan is developed, they must stick with the accommodations contained in it. However the accommodations process is on-going and must be flexible to meet the needs of students with disabilities.  Students with disabilities must be made aware of the on-going nature of accommodations, and that they can try out accommodations to determine whether they are appropriate.  If they are not, a student is entitled to seek new or different accommodations.
In order to avoid confusion and ensure a mutual understanding of accommodation plans, the plan must be in writing.  The student will have a copy and the accessibility or disability services office must keep another copy that is confidential, except that it can be shared on a need to know basis.  This would include the faculty involved with the student’s courses or caseload.
Any consent to share confidential information must specifically name the person it will be shared with.  Blanket consents risk disclosure of sensitive and personal information without the student’s knowledge or express agreement.
ARCH recommends that the accessibility offices be responsible for implementation of the accommodation plan in each of the student’s courses.  The accessibility/disability services office has reviewed all relevant documentation and has worked with the student to develop the appropriate accommodations.  A student should not have to negotiate their accommodations with each faculty member.  Having to bargain for accommodations potentially breaches the student’s right to privacy and confidentiality by inquiring faculty.  It makes the student vulnerable to stigma and stereotype.  It can also result in inconsistent accommodations in the program or course of study. Finally, attending postsecondary education may be stressful for all students, but particularly so for students with disabilities who are navigating through many barriers. A centralized process is to be preferred over mandating students to make arrangements for their own accommodations.
20.	Students shall be advised that achieving appropriate accommodations is an on-going process.  They can try out accommodations to determine if they work, but can request new or additional accommodations throughout their post-secondary journey.
21.	Disability accommodation plans shall be in writing and kept confidential except that they can be shared with the student’s faculty members for implementation.
22.	All consent forms to share information must specifically name the person who will receive the information. 
23.	The accessibility services office is responsible for ensuring the implementation of accommodation plans with each faculty member.  
Recommendation 108: Accessibility and accommodations coordinator/champion and Recommendation 110: Resolving disability accommodation refusal disputes  
We commend this SDC for these recommendations.  ARCH is not aware of any postsecondary institutions with an accommodations dispute mechanism. However, many students have reported to ARCH that what they need is an advocate to help them navigate the accommodations process and enforce accommodation plans when necessary.  The accommodations process should not be driven by complaints or appeals.  An advocate should be available early on to make sure all possible steps are taken to arrange, settle or implement accommodations.  However, the advocate would also be available to represent student interests, if they so wish, in a dispute resolution process (Recommendation 110).  The dispute may involve a particular faculty member or it could involve the accessibility services office itself.  The power dynamic between the institution and the student is readily apparent and there are few, if any, resources to assist students who want to dispute the provision, or failure to provide, appropriate accommodations.  A student accommodations advocate would address this imbalance and level the playing field in disputes.
ARCH is concerned that an internal body with the power to decide accommodation disputes may run afoul of s.45.1 of the Code, which allows the Human Rights Tribunal Ontario (HRTO) to dismiss an application if another proceeding has addressed the human rights issues raised.  The jurisdiction of an internal dispute resolution body must include specific language that states a student can access the HRTO if they are not satisfied with any decision or proposed settlement.  The advocate can make sure that the internal body does not overstep its authority. In addition, the advocate should assist the student with preparing their human rights application and advice on human rights processes.  There are very few, if any, resources to assist with the drafting of a human rights application. In addition, the advocate should refer students to appropriate resources for further assistance.
ARCH also recommends that the dispute resolution process include specific timelines.  Words like “prompt” and “expeditious” are subject to various interpretations.  Hard deadlines will ensure swift action and guarantee that a student gets their accommodations as soon as possible, and without denying them equal access to their education.
Although it may seem evident, postsecondary institutions bear the onus of proving undue hardship if an accommodation is denied.  Whether or not an accommodation is appropriate is separate from whether providing it would amount to undue hardship.  Additionally, a high threshold for undue hardship must be maintained.
24.	An advocate shall be appointed to assist students with accessibility and accommodations issues.
25.	An advocate will assist students through the dispute resolution process.
26.	Specific language about the jurisdiction of the internal dispute resolution body and access to the HRTO will be included.
27.	An advocate will ensure that access to the HRTO is preserved for students.
28.	Hard timelines for the dispute resolution process will be included in recommendation 110.
29.	Postsecondary institutions have the onus of proving undue hardship in disputes about accommodations.
Recommendation 112: Service animal definition for postsecondary institutions
This recommendation should include a definition of support animals as well, to make sure they are also allowed on campus.
ARCH has been told that some postsecondary institutions rely on training certificates of training certificates are not required under any of the AODA standards, and are not required under the Code...
30.	A definition of support animals must be included in this recommendation. 
31.	Training certificates are not required for service or support animals.

Barrier area 8: Financial barriers
There are many pots of funding that students with disabilities can access, but may not know about. We suggest a recommendation that requires institutions to provide students with disabilities with information about all potential sources of additional funding to which they may be entitled, at the pre-admissions stage. This will ensure that applications are made in a timely manner and before the funding is exhausted.
32.	Institutions must provide students with disabilities information about and eligibility for any and all funds to which they may be entitled, at the pre-admissions stage.
IV.	CONCLUSION
ARCH commends this SDC for its comprehensive recommendations that will significantly improve accessibility and inclusivity in postsecondary education. We hope that our contributions are useful in the review of the initial recommendations.  Please do not hesitate to contact us if you have any questions or if we can be of assistance.

APPENDICES
1.	In its long-term objective, this SDC specifically include an obligations to implement international human rights treaties, and in particular, Ontarians’ rights and entitlements under the CRPD.
2.	This SDC must incorporate all other AODA Standards by specific reference so that there is no mistake that these Standards interact in a harmonious way to achieve accessibility in Ontario by January 1, 2025.
3.	Wherever possible, prescriptive language must be used throughout these initial recommendations.
4.	It must be clear that these recommendations apply to all postsecondary institutions, both publically and privately funded, to the extent possible.
5.	Academic freedom, academic integrity and their relationship with accommodations must be clearly explained to students with disabilities.
6.	Faculty shall receive training on why accommodations like recording lectures and discussion do not interfere with academic freedom or academic integrity.
7.	Recording lectures must be an available accommodation for students with disabilities.
8.	This recommendation should clearly include all experiential learning settings. 
9.	Each institution and/or program shall have a policy that describes the division of responsibilities and applicability of the act’s standards and accommodations, to be available to students at the beginning of their course or program.
10.	The Ontario government should explore, in partnership with postsecondary institutions, employers and apprenticeship bodies, increasing the province’s training capacity for deaf-blind intervenors, with an emphasis on technical training (particularly for science, technology, engineering and mathematics, trades and healthcare fields).
11.	 Deaf-blind intervenors shall be included wherever appropriate in these initial recommendations.
12.	No student will be required to disclose their diagnosis.
13.	Documentary requirements shall be included with the application for accommodations and be clear and transparent.
14.	The unavailability of documents in certain circumstances must be acknowledged. Interim accommodations will be provided in these instances.
15.	Postsecondary institutions shall alert students to policies regarding retroactive accommodations.
16.	Postsecondary institutions shall grant accommodations for students who experience temporary mental health disabilities.
17.	Postsecondary institutions, in consultation with students with disabilities and relevant stakeholders, shall develop clear language guides, fact sheets, tool kits and resource materials that advise students with disabilities of accommodations available to them in all academically related learning activities.  These materials must include guides to appeal routes and dispute mechanisms.
18.	Postsecondary institutions shall provide students with information about where they can seek advice and/or assistance with issues arising in the course of their postsecondary studies.
19.	All materials shall be readily available in places where students frequent.
20.	Students shall be advised that achieving appropriate accommodations is an on-going process.  They can try out accommodations to determine if they work, but can request new or additional accommodations throughout their post-secondary journey.
21.	Disability accommodation plans shall be in writing and kept confidential except that they can be shared with the student’s faculty members for implementation.
22.	All consent forms to share information must specifically name the person who will receive the information. 
23.	The accessibility services office is responsible for ensuring the implementation of accommodation plans with each faculty member.  
24.	An advocate shall be appointed to assist students with accessibility and accommodations issues.
25.	An advocate will assist students through the dispute resolution process.
26.	Specific language about the jurisdiction of the internal dispute resolution body and access to the HRTO will be included.
27.	An advocate will ensure that access to the HRTO is preserved for students.
28.	Hard timelines for the dispute resolution process will be included in recommendation 110.
29.	Postsecondary institutions have the onus of proving undue hardship in disputes about accommodations.
30.	A definition of support animals must be included in this recommendation. 
31.	Training certificates are not required for service or support animals.
32.	Institutions must provide students with disabilities information about and eligibility for any and all funds to which they may be entitled, at the pre-admissions stage.