Originally appeared in McMillan LLP employment and labour bulletin.
Author: Lai-King Hum
March 2012
Universities are often challenged by the need to accommodate students with medical conditions. However, the balance between maintaining legitimate academic standards and treating a student fairly by accommodating for medical conditions- is sometimes hard to achieve.
In Singh v. University of British Columbia, 2012 CanLII 691 (SCC), a case involving an anxiety disorder and a student’s persistent inability to maintain the requisite academic standards, the Supreme Court of Canada recently dismissed with costs an application for leave to appeal from a decision of the British Columbia Court of Appeal. The University purportedly failed to provide procedural justice to a student who had a history of failing her courses. As the case demonstrates, however, a well publicized accommodation policy, and an Access and Diversity Office dedicated to such issues, provided the university with the basis for defeating accusations of a failure to accommodate.
Ms. Priya Singh enrolled in the University of British Columbia’s Diploma in Accounting Program (DAP), after having received an undergraduate degree from the university. On probation in the DAP, she was required to maintain a 65% average in her first two terms. Unfortunately, she fell well short of the 65% benchmark in her first five courses, failing all except one, even after two examination re writes – only one of which was formally authorized by the university.
Her appeal to the Appeals Committee accused the university of a failure to accommodate her, and requested that she be given an opportunity to re write all of her failed exams or be accorded retroactive withdrawal from the courses. She provided medical evidence of an anxiety disorder related to the taking of exams unless her panic attacks could be effectively treated.
Under its usual procedure in medical disability cases, the matter was referred to the Access and Diversity Office (“ADO”) for assessment. The ADO supported Ms. Singh’s application for retroactive withdrawal from three of the courses, stating that she had provided documentation establishing “a picture of a student in difficulty”. It noted that she did not realize the extent of the impact of her disability until after she had failed, then sought more intensive help. However, it recommended that the failing grade in the fourth course stand, as she had been provided with accommodation to sit the exam for that course, but did not write it. Instead, in spite of well publicized university rules regarding exam accommodation, she chose to write the exam on an alternate date, absent university authorization.
Dissatisfied with the ADO’s recommendation, Ms Singh asked for a modification of the ADO’s assessment regarding the fourth course. The ADO did not change its recommendation.
In oral submissions before the Appeals Committee, Ms. Singh expanded her claim for relief, requesting that all of her 19 failed grades at the university, including her undergraduate record, be expunged.
The Appeals Committee accepted the recommendations of the ADO, and refused Ms. Singh’s expanded claims for relief. Ms. Singh applied for judicial review on the basis of a failure of procedural justice.
On judicial review, the chambers judge confirmed the decision of the Appeals Committee. The chambers judge found no evidence of a failure of procedural fairness, as the ADO was not prohibited from changing its recommendation – it had just chosen not to.
On further appeal to the Court of Appeal, deference was paid to the judgment of the Appeals Committee, and its decision was found not to have been unreasonable. The Supreme Court of Canada refused Ms. Singh’s application for leave to appeal.
As was borne out in the ultimate decision of the Supreme Court, the University’s assessment and review, while adhering to academic criteria set out for Ms. Singh, had navigated a reasonable balance between accommodation and upholding academic standards. Unfortunately for Ms. Singh, she persisted with her excessive demands through several appeals and ultimately had costs awarded against her.