Longueépée v. Wilfrid Laurier University, 2015 HRTO 165

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Roch Longueépée Applicant

-and-

Wilfrid Laurier University Respondent

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: February 5, 2015

Citation: 2015 HRTO 165

Indexed as: Longueépée v. Wilfrid Laurier University

WRITTEN SUBMISSIONS

Roch Longueépée, Applicant

Anthony Tibbs, Counsel

Wilfrid Laurier University, Respondent

D. Brent Labord and Matthew J. Mihailovich, Counsel

Introduction

1This Application alleges discrimination on the basis of disability in relation to the applicant’s application for admission to academic studies at Wilfrid Laurier University.

2This Interim Decision addresses the applicant’s request that I recuse myself from hearing this Application on the basis of a reasonable apprehension of bias.

3The applicant has filed two Applications with the Tribunal alleging discrimination with respect to university applications for admission to academic studies. One Application was filed against the University of Waterloo. I am the assigned adjudicator in that case and have heard two days of evidence. The second Application is this Application against Wilfrid Laurier University.

4The applicant has asked me to recuse myself from hearing the Wilfrid Laurier University Application on the basis of reasonable apprehension of bias. He asserts the apprehension of bias results from the fact that I would have a subconscious tendency to conflate and combine the facts, evidence, and testimony heard across the two matters. The applicant confirms that I have taken no action to date that would give rise to a reasonable apprehension of bias.

5The applicant concedes that there is substantial overlap between the University of Waterloo Application and the Wilfrid Laurier University Application in terms of the applicant’s history, medical and financial evidence, and the anticipated testimony of the witnesses on the applicant’s behalf. The applicant states, however, that the way the two universities handled his applications for admission is distinctly different.

6Wilfrid Laurier University objects to the applicant’s request that I recuse myself from hearing this Application.

Reasonable Apprehension of Bias

7It is well-known that an adjudicator may not recuse him or herself simply because a request for recusal has been made. Where there is a request for recusal based on an alleged perception of bias, the adjudicator must determine whether the perception is a reasonable one. Specifically, as the Supreme Court of Canada explained in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at p. 394:

… the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”

8The applicant concedes that the overlap between the two cases is with respect to the applicant’s evidence. In his recusal request, the applicant states the two Applications involve the same documentary evidence and similar testimony for the applicant, and that hearing both matters simultaneously (but separately) could lead me to subconsciously conflate the evidence in one hearing into the other hearing.

9Accepting for the moment the applicant’s argument regarding the risk of conflating the evidence, it appears to me that the concern would lie with Wilfrid Laurier University, not the applicant. If the applicant’s documentary and viva voce evidence is substantially the same in both cases, how can there be a conflation of the applicant’s evidence? If any party was concerned that I would conflate the evidence in the two proceedings, it appears to me that it would be Wilfrid Laurier University.

10That said, I do not accept the applicant’s conflation argument. It is a core adjudicative function to decide a case on the basis of the evidence before the adjudicator. Documentary evidence will be filed and detailed notes taken of the testimony in each case. Separate hearing files will be kept. There is no basis for the applicant’s speculation that I will be unable to keep the hearings separate other than his bald assertion. There is a presumption of impartiality and the onus is on the applicant to establish a reasonable apprehension of bias: a bald assertion is not sufficient. See Latronico v. York Region District School Board, 2010 HRTO 2497 at para. 22.

11Applying the relevant test to the facts of the case at hand, I find that the applicant’s request that I recuse myself must be denied. A reasonable and informed person would not conclude that assigning the same adjudicator to two cases involving the same applicant and different respondents gives rise to a reasonable apprehension of bias.

order

12The applicant’s request that I recuse myself from hearing this Application is dismissed.