regulationAccommodation in the context of regulatory activities
Updated September 28, 2015
HRPA is committed to providing a regulatory environment that is inclusive and free of barriers based on age, race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex (including pregnancy and gender identity), sexual orientation, record of offences, marital status, family status, and disability. HRPA will provide accommodation for needs related to the grounds of the Ontario Human Rights Code, unless to do so would cause undue hardship, as defined by the Ontario Human Rights Commission’s Policy on Disability and the Duty to Accommodate.
This policy covers three areas:
Where individuals with disabilities require some form of accommodation in order to be able to participate fully in a regulatory proceeding,
Where an individual’s disability is central to the subject of the proceeding, and
Accommodation in the context of examinations
Accommodation will be provided in accordance with the principles of dignity, individualization, and inclusion. HRPA will work cooperatively, and in a spirit of respect, with all partners in the accommodation process.
The Registrar is responsible for responding to accommodation and accessibility needs of persons with disabilities in the context of any regulatory proceeding at HRPA. In regards to general dealings with the public and HRPA members, the Office of the Registrar is guided by HRPA’s AODA Policy and Procedures which is posted on the HRPA web site. However, the requirements for accommodation that apply to regulatory activities go beyond such general dealings.
The Legal Framework
The Canadian Charter of Rights and Freedoms, 1982, and the Ontario Human Rights Code (revised 1990) are major pieces of legislation guaranteeing equal opportunity and freedom from discrimination because of disability. In accordance with the law, HRPA recognizes the legal obligation to institute policies and procedures that provide equal opportunity and safeguard against discrimination on the basis of disability.
The Canadian Charter of Rights and Freedoms, 1982, section 15(1), guarantees that:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race…or mental or physical disability.
The Ontario Human Rights Code (revised, 1990), guarantees every person:
Equal treatment with respect to services, goods and facilities without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap.
The Accessibility for Ontarians with Disabilities Act, 2005, (AODA) is legislation that focuses on the core principles of independence, dignity, integration, and equality of opportunity for all individuals. Under this Act, the government of Ontario has developed mandatory accessibility standards that will identify, remove, and prevent barriers for people with disabilities in key areas of daily living, and applies to both public and private sector organizations across Ontario.
The rights of persons with disabilities as set out in many important pieces of legislation the Canadian Charter of Rights and Freedoms, Ontario Human Rights Code, the Ontarians with Disabilities Act, 2001 (ODA), and the Accessibility for Ontarians with Disabilities Act, 2005 (AODA).
From the Accessibility for Ontarians with Disabilities Act, 2005 (AODA), we get the following definition for “disability”
(a) 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, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
(b) a condition of mental impairment or a developmental disability,
(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
(d) a mental disorder, or
(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997.
Individuals with disabilities who require some form of accommodation in order to be able to fully participate in some regulatory proceeding
In regulatory proceedings, accommodation issues can become a matter of natural justice. Any barrier to full participation in a regulatory proceeding weakens the fairness of the proceeding.
Just like everyone else, persons with disabilities may be involved in administrative proceedings as parties, lawyers, adjudicators, witnesses, or members of the public. However, because of their disability they may not be able to access what they need to participate fully in those proceedings. The right to equality for persons with disabilities includes a right to have disability-related needs reasonably accommodated, up to the point of undue hardship, to ensure that persons with disabilities can fully participate in any administrative proceeding whatever role they may be playing in such proceedings. The word ‘proceeding’ is used advisedly in that accommodations are available at all stages of the process not only just the hearings.
Tribunals are required to provide accommodation for persons with disabilities.
In any disability-related accommodations, such accommodations will give primary consideration to the method of accommodation identified by the person with a disability. Cognitive and mental disabilities can be challenging for administrative tribunals. The reason is that these disabilities may impair the capacity to make informed judgments in such proceedings.
Specific accommodations may include providing barrier-free hearing rooms, telephone or video conference facilities, and frequent breaks. Individuals with cognitive, mental, or emotional disabilities also need to be accommodated. For instance,
A party may be permitted to use alternative formats such as whiteboards and flipcharts,
Breaks in the hearing should be scheduled rather than granted upon request;
Parties and panel members should repeat questions or instructions as required;
The panel might need to accommodate a slower pace for the hearing;
The lights may need to be dimmed or the hearing held in a comfortable room.
Although requests for accommodation should be made ahead of the hearing, sometimes the need for accommodation become clear only after the hearing has begun. Request for accommodation should be considered at any time.
Situations where an individual’s disability is central to the subject of the proceeding
It is important to clarify the relation between the concepts of ‘disability’ and ‘incapacity,’ these are different concepts. The Registered Human Resources Professionals Act, 2013 gives the following definition for incapacitated.
“A member of the Association is incapacitated for the purposes of sections 46 to 48 if, by reason of physical or mental illness, condition or disorder, other infirmity or addiction to or excessive use of alcohol or drugs, he or she is incapable of meeting his or her obligations under this Act.”
A ‘disability’ may become ‘incapacity’ when the disability causes the individual to be incapable of meeting his or her obligations as a professional. HRPA has a ‘capacity’ stream. Matters where the capacity of the member may be at issue are handled in a different manner than cases where misconduct or incompetence is at issue.
When the Association receives information suggesting that a member may be incapacitated, the matter is investigated. Following an investigation, the Association may apply to the Capacity Committee for a determination of whether the member is incapacitated. If the Capacity Committee determines that it is necessary to obtain the opinion of a physician or psychologist in order to determine whether a member is incapacitated, the committee may, on its own or on motion, order the member to undergo a medical or psychological examination.
The member shall be provided with a list of physicians and psychologists who may conduct the assessment. Following the assessment of the member, the physician or psychologist shall provide the Capacity Committee with his or her report his or her opinion of the following:
(a) an assessment of whether the member is incapacitated;
(b) an assessment of the extent of any incapacity; and
(c) any further information respecting the medical or psychological issues in the case.
After having reviewed the report, the Capacity Committee may do one or more of the following:
(a) suspend the member’s membership;
(b) impose restrictions or conditions on the member’s right to practise in the field of human resources; or
(c) make any other order, other than revoking the member’s membership, that the committee considers necessary to protect the public interest.
In cases where the member has been found by the Capacity Committee to be incapacitated, the public register will include only such details as shall be necessary to protect the public.
Accommodation in the context of examinations
In regards to examinations, accommodation becomes a more technical matter. On the one hand there is the need to provide accommodation for various disabilities, but there is still the fundamental duty to protect the public interest. There is also the issue of fairness to all other individuals pursuing certification by HRPA. It is also the case that departures from standardized administrations of the exams may impact the validity of the exam. For this reason, HRPA has developed a rigorous approach to accommodation in the context of exams. Accommodations are made as narrow and specific as they can be to mitigate the disability. The detail of HRPA’s accommodation policy in regards to exams is found in the Certification chapter.
With respect to its examination process, it is HRPA’s policy to provide reasonable testing accommodations for candidates with documented disabilities. Reasonable accommodation refers to any adjustment to the examination materials or testing environment that permits a qualified applicant with a disability to perform, without undue hardship to the institution providing accommodation. Documented disabilities are those for which there is a assessment by a qualified professional.
The purpose of accommodations is to provide equity, not advantage. Any requested modification that would substantially alter essential elements of the examination will not be granted. As a general principle, it is desirable to retain as much of the original examination materials and testing environment and make the accommodations specific to the disability or disabilities in question. There are many different types of disabilities and many kinds of accommodations. Most individuals with disabilities fall into one of the following categories:
Each of the above disabilities can present challenges that will impede the performance of otherwise qualified candidates on examinations. Depending on the disability, there are many different possible types of accommodation. (The following list is not exhaustive.)
Extended testing time
Additional rest breaks
Writer/recorder of answers
Sign language interpreter (for spoken directions only)
Large-print answer sheet
Audio recording with large-print figure supplement
Audio recording with raised-line (tactile) figure supplement
Low-noise testing environments
Wheelchair-friendly testing rooms
Examinations that are individually proctored
Assistive devices or adaptive equipment (e.g., computers, calculators, specialized software)
It is recognized that no single type of test accommodation may be adequate or appropriate for all individuals with any given type of disability.
Test takers with disabilities may be able to test under standard conditions if HRPA’s Office of the Registrar determines that only minor adjustments to the testing environment are required (e.g., wheelchair access, large-print test book, a sign language interpreter for spoken directions). For example, if a test taker uses a large-print version of a reading comprehension test and requires no extended test time, the test could be administered under standard conditions.
Score reports contain no indication of whether a test was taken with accommodations.
Defining Disabilities for purposes of requesting examination accommodationsLearning Disability
The Learning Disabilities Association of Ontario defines learning disabilities as follows:
"Learning Disabilities" refers to a variety of disorders that affect the acquisition, retention, understanding, organization or use of verbal and/or non-verbal information. These disorders result from impairments in one or more psychological processes related to learning, in combination with otherwise average abilities essential for thinking and reasoning. Learning disabilities are specific not global impairments and as such are distinct from intellectual disabilities.Auditory Impairment
Deafness is a profound hearing loss in which there has been damage to the auditory pathway. Many deaf people must depend on sign language to communicate.
Hard of hearing is a condition that describes people with all types of hearing disabilities ranging from mild to profound hearing loss.Mobility Impairment
Generally, there are two types of physical disabilities that affect mobility: orthopedic and neurological. Orthopedic disabilities involve a deformity of the skeletal system. The impairment can be the result of a congenital anomaly (e.g., scoliosis, Spina Bifida), the result of disease, (e.g., Muscular Dystrophy, Arthritis), or the result of trauma or accident (e.g., amputation)
Neurological disabilities involve the nervous system affecting the ability to move, use or control certain parts of the body. Such impairments can be the result of a congenital anomaly (e.g., Cerebral Palsy), the result of disease (e.g., poliomyelitis, carpal tunnel syndrome), or the result of an accident (e.g., spinal cord injury, head trauma).Visual Impairment
To be considered legally blind, an individual's visual acuity must be equal to or less than 20/200 and impossible to correct by medical or surgical means or corrective eye wear.
Low vision refers to visual acuity between 20/70 and 20/200. Some individuals with low vision can distinguish only light or darkness, or varying patterns and shapes. Many are able to read only with difficulty and may rely on large print materials and optical aids such as magnifying devices, tactile drawings, print enhancers and reading software.Mental Illness or Psychological Disability
Mental illnesses or psychological disabilities are conditions either temporary or permanent that have a significant, serious impact on an individual's functioning. Included in this category are conditions such as depression, anxiety disorders, eating disorders, schizophrenia, and mood disorders. A psychological disability will often not be apparent in the classroom. Many psychological disabilities are invisible and episodic in nature. Psychological disabilities are the most frequently misunderstood and stereotyped of all the disabilities. Questions about psychological disabilities should be addressed in private to protect candidate confidentiality.Attention Deficit Disorder (ADD) & Attention Deficit Hyperactivity Disorder (ADHD)
Medical research treats this disorder as neurobiological in origin. ADD and ADHD tend to be transmitted genetically and are characterized by chemical abnormalities in the brain. According to the DSM-IV (the diagnostic manual used by physicians), ADD can occur in three forms: inattentive type, hyperactive impulsive type, and combined type.
Most children diagnosed with these deficits have symptoms that persist into adulthood and affect social, academic and occupational functioning to a significant degree. Other conditions, including learning disabilities, anxiety and depression, often co-exist. ADD/ADHD is not due to poor parenting or diet. It is manageable through a combination of medical intervention, compensatory strategies and academic accommodations.Brain or Head Injury
A brain injury is a traumatic insult to the brain. It may be the result of a violent concussion (e.g., car accident, stroke), penetration of the skull, or illness. The injury may be mild, moderate or severe and varies greatly from person to person. A brain injury may result in numerous impairments, including the following:
Physical impairments, such as paralysis, susceptibility to seizures, and impairments of speech, vision, and hearing
Cognitive impairments, such as loss of concentration, short and long-term memory loss, and loss of communication skills
Behavioural impairments, such as anxiety, depression, loss of motivation, and fluctuations in mood.
Medical conditions refer to serious health problems that may be chronic or acute and that interfere with functioning. This category includes conditions such as epilepsy, kidney disease, HIV-related illnesses, cancer, fibromyalgia, tuberculosis, and diabetes. The presence of a medical condition may result in absences due to the effects of medication, treatment schedules, fatigue, and pain.Other Disabilities
This category includes other dysfunctions that necessitate the use of support services or programs and do not fall within the categories listed above. One example is a severe speech impediment.
A key aspect of accommodation is documentation. Documentation on file for the applicant must:
clearly state the diagnosed disability or disabilities
describe the functional limitations resulting from the disability or disabilities
be current — i.e., completed within the last 5 years for LD, last 6 months for psychiatric disabilities, or last 3 years for ADHD and all other disabilities (NOTE: this requirement does not apply to physical or sensory disabilities of a permanent or unchanging nature)
include complete educational, developmental, and medical history relevant to the disability for which testing accommodations are being requested
include a list of all test instruments used in the evaluation report and relevant subtest scores used to document the stated disability (this requirement does not apply to physical or sensory disabilities of a permanent or unchanging nature)
describe the specific accommodations requested
adequately support each of the requested testing accommodation(s)
be typed or printed on official letterhead and be signed by an evaluator qualified to make the assessment (include information about license or certification and area of specialization).
The type of documentation and the qualifications required of the professional will depend on the disability or disabilities documented. In the case of learning disabilities, such assessment will usually be made by psychologists, psychological associates, or psychoeducational consultants. Self-assessment is not sufficient or appropriate in supporting a request for accommodation. Individuals with undiagnosed disabilities are strongly encouraged to seek out an appropriate assessment of their disability.
Documentation and identification may come from a variety of professionals including: physicians, medical specialists, psychologists, psychiatrists, speech/language pathologists, case managers with insurance companies, community agencies, and Workplace Safety and Insurance Board representatives.
For instance, “not doing well on multiple-choice tests” is not a disability per se, and accommodations cannot be provided based on such requests. There are many different kinds of disabilities that may impact one’s ability to perform on multiple-choice tests. Each of these disabilities might well require a different form of accommodation. The key here is to get a assessment of the disability which then can be used to provide an effective accommodation.
Procedures for requesting accommodations
Individuals must identify themselves to the Office of the Registrar and, where required, provide appropriate documentation of their disability or disabilities.
The request for accommodation must be made no later than at the time of registration. Individuals with well described disabilities, and for which the type of accommodation sought is straightforward; this should be sufficient time to provide the requested accommodation. However, should the requested accommodation be more extensive, the normal time frames may not be sufficient. It is strongly recommended that individuals with disabilities who would be requesting more extensive or individualized accommodations get in touch with HRPA’s Office of the Registrar as early in the process as possible.
By their very nature, accommodations are often individualized. In response to a request for accommodation, and considering all available resources, HRPA’s Office of the Registrar will develop a specific accommodation that it deems reasonable and effective. HRPA’s Office of the Registrar endeavors to respond within two weeks to requests for accommodation, nonetheless, in more complex cases it may take more time to develop an effective accommodation.
In providing accommodation to individuals with documented disabilities, HRPA’s Office of the Registrar will work cooperatively with other institutions and organizations. For instance, HRPA will often work with the centers that exist in colleges and universities for students with disabilities. It has been possible, on many occasions, to make use to the testing facilities and the assistive technology equipment available in such centers. Many test writers at HRPA are students, or have recently graduated from colleges and universities. Often, these colleges and universities will make the resources of their testing centers available to their students, and sometimes even to non-students, to write the NKE. Nonetheless, access to these testing centers is not guaranteed.
HRPA has the right to select the specific adaptive equipment and support services it provides, as long as they are reasonable and effective.
In accordance with the Ontario Human Rights Code and HRPA Policy, HRPA’s Office of the Registrar is required to provide reasonable and effective accommodations for documented disabilities. Should the individual requesting accommodation not agree with the accommodation proposed by HRPA’s Office of the Registrar, the individual may appeal the decision of the Registrar to HRPA’s Appeals Committee.
The parties to an appeal of a proposed accommodation (or the decision that no accommodation is warranted) are the Registrar and the individual requesting an accommodation to an examination.
As part of the appeal process, the Registrar will be asked to demonstrate: (a) that alternate proposed accommodations would cause undue hardship for the Association; or (b) that the alternate proposed accommodations would fundamentally alter the examination requirement.Confidentiality
It is understood that information about disabilities is personal and highly sensitive. It is also the case that effective accommodation often involves the coordination of different organizations and individuals (diagnosing professionals, test centers, the Canadian Council of Human Resources Association, proctors, etc.).
In matters relating to accommodations and requests for accommodations, HRPA is guided by the following guidelines:
HRPA will obtain explicit written consent of the individual requesting accommodation to share any personal information with any external organization, agency, or individual.
In working with any external organization, agency, or individual, HRPA will only share the information that is necessary to provide effective accommodation.
Documentation regarding accommodations or requests for accommodation will be kept separate from the member file and will only be available to HRPA’s Office of the Registrar staff.
There will be no indication in the record of examination results that accommodations were provided to the individual