David Baker

The University of Waterloo sought judicial review of a Human Rights Tribunal of Ontario decision ordering it to implement a Prior Learning Assessment and Recognition (PLAR) pilot project as a systemic remedy for discriminating against an applicant with learning disabilities.

The University argued the Tribunal improperly relied on inadmissible expert evidence and that the remedy violated its institutional autonomy over admissions.

The Divisional Court dismissed the application, finding the Tribunal's decision reasonable.

The Court held that the Tribunal did not improperly rely on inadmissible expert opinion and that the PLAR pilot project was a tailored, proportional remedy that respected the University's academic standards while addressing the specific discrimination suffered by the respondent.

The Council of Ontario Universities brought a motion for leave to intervene as a friend of the court in an application for judicial review of a Human Rights Tribunal of Ontario decision.

The underlying decision ordered the applicant university to implement a pilot project for admitting students with disabilities based on prior learning and assessment recognition rather than purely grades.

The court granted the motion, finding that the Council's sector-wide perspective on university autonomy and human rights compliance would usefully contribute to the determination of the application without causing injustice to the parties.

The appellant, Valerie Jacob, a recipient of Canada Pension Plan Disability Benefit (CPP-D), challenged the eligibility criteria for the Canadian Emergency Response Benefit (CERB) and Canadian Recovery Benefit (CRB) during the COVID-19 pandemic.

She argued that the $5,000 income threshold and the exclusion of CPP-D from eligible income sources violated her equality rights under s. 15(1) of the Charter.

The application judge dismissed her claim.

On appeal, the Court of Appeal found that the income threshold and the exclusion of CPP-D did constitute a breach of s. 15(1) due to their disproportionate impact on disabled workers.

However, the Court further concluded that this breach was justified as a reasonable limit under s. 1 of the Charter, given the emergency context of the pandemic and the government's need for a simple, fast mechanism for benefit delivery, along with subsequent ameliorative measures like relaxed Employment Insurance rules.

The appeal was dismissed, and no costs were ordered.

The applicant, a Member of Provincial Parliament, sought judicial review of a censure decision by the Legislative Assembly of Ontario following her social media posts about the Israeli-Palestinian conflict.

The respondents moved to strike the application for want of jurisdiction.

The Divisional Court granted the motion and dismissed the application, holding that the censure and the motion leading to it fell squarely within the established categories of parliamentary privilege, specifically the control over debates and proceedings and the disciplinary authority over members.

Consequently, the court lacked jurisdiction to review the matter, even on Charter grounds.

The applicant, Valerie Jacob, challenged the $5,000 income eligibility criteria for the Canada Emergency Response Benefit (CERB), Canada Recovery Benefit (CRB), and Canada Recovery Sickness Benefit (CRSB), asserting it violated her section 15(1) Charter right due to her physical disability.

The court applied the two-step test from R. v. Sharma, finding that the applicant failed to demonstrate a disproportionate impact based on disability (first step) and that the criteria did not reinforce, perpetuate, or exacerbate disadvantage (second step).

The court concluded the $5,000 threshold was not arbitrary, being based on a minimum workforce attachment benchmark, and applied equally to disabled and non-disabled individuals who did not meet it.

The application was dismissed without costs.

The applicant, a forensic pathologist, sought judicial review of a reporting letter issued by the Death Investigation Oversight Council regarding her complaint against the Chief Forensic Pathologist.

The applicant alleged that the Chief Forensic Pathologist abused his authority by interfering with her conclusion that a child's death was due to natural causes rather than abuse.

The Council investigated and issued recommendations to improve the death investigation system but did not recommend the Chief Forensic Pathologist's dismissal.

The Divisional Court dismissed the application, finding that the Council is an advisory body, not a disciplinary tribunal, and its decision not to make findings of fact or recommend dismissal was reasonable.

The Death Investigation Oversight Council (DIOC) brought a motion for a sealing order over autopsy files and a redaction order for witness identities in its record of proceedings, which was filed in response to an application for judicial review by Dr. Jane Turner.

Applying the Sherman Estate test, the Divisional Court held that while identifying information in the autopsy files must be redacted to protect the dignity of the deceased infants and their families, sealing the entire files was unnecessary.

The court also refused to redact the identities of witnesses interviewed during the DIOC's investigation, finding that the open court principle did not pose a serious risk to the public interest in witness candour.

The applicant sought judicial review and broad declaratory relief against Ontario, arguing that the province failed to ensure the equitable distribution of COVID-19 vaccines to vulnerable populations.

The Divisional Court dismissed the application, finding it lacked jurisdiction under the Judicial Review Procedure Act because the requested declarations did not relate to the exercise, refusal to exercise, or proposed exercise of a specific statutory power.

The court noted that while the applicant raised important issues regarding vaccine equity, the broad, abstract relief sought was not properly before the court.

Roch Longueépée, largely successful in his appeal, sought partial indemnity costs from the University of Waterloo and the Human Rights Tribunal of Ontario (HRTO).

The Court of Appeal for Ontario found Longueépée entitled to costs against the University, fixing them at $25,000.

The court also awarded costs against the HRTO, fixed at $7,500, because its arguments on the standard of review and request for a five-judge panel expanded the scope of the appeal, even though its position was not taken in bad faith.

The respondent applied to the University of Waterloo as a transfer student but did not meet the academic standards due to prior grades affected by undiagnosed disabilities.

The University's Admissions Committee rejected his application based solely on those unaccommodated grades.

The Human Rights Tribunal of Ontario dismissed his discrimination complaint, finding the University met its duty to accommodate.

The Divisional Court set aside the HRTO decision as unreasonable.

The Court of Appeal upheld the Divisional Court's finding that the HRTO decision was unreasonable, as the University could not rely solely on unaccommodated grades to demonstrate reasonable accommodation, but varied the remedy to remit the matter back to the HRTO rather than the Admissions Committee.

The applicant, a former postsecondary student with disabilities, brought a Charter application challenging the constitutionality of the Canada Student Loans Program (CSLP) and the Ontario Student Assistance Program (OSAP).

The applicant argued that the 'time in study' structure of the programs disproportionately burdened students with disabilities, who often take longer to complete their studies and thus accrue more debt.

The court found that while the legislation establishing the CSLP did not violate s. 15(1) of the Charter, the operation and administration of the program infringed the applicant's equality rights by failing to redress the additional debt she accrued due to her disabilities.

The court held that this infringement was not justified under s. 1 of the Charter.

The court granted declaratory relief and ordered the return of monies paid by the applicant pursuant to the unconstitutional operation of the CSLP, but denied her request for Charter damages.

The court issued case management directions for an upcoming virtual hearing of an application for judicial review before a three-judge panel of the Divisional Court.

The endorsement outlines the procedures for the Zoom video conference, attire requirements, and detailed instructions for the electronic filing of documents, factums, and compendiums via a password-protected drop box.

The applicants sought judicial review of a Human Rights Tribunal of Ontario decision finding them liable for sexual harassment and creating a poisoned work environment, and ordering them to pay $200,000 to the respondent.

The applicants argued the Vice-Chair's approach to credibility was unreasonable and procedurally unfair, particularly regarding the respondent's memory issues and the use of expert evidence.

The Divisional Court dismissed the application, finding the Vice-Chair's credibility assessments were reasonable, did not improperly rely on oath-helping, and did not subject the applicant's evidence to unequal scrutiny.

The applicant, a survivor of institutional child abuse with a traumatic brain injury and PTSD, applied for admission to the University of Waterloo.

The university rejected his application based on poor grades he had obtained 13 years earlier at another institution, before his disabilities were diagnosed and accommodated.

The Human Rights Tribunal of Ontario dismissed his discrimination complaint, finding the university had fulfilled its duty to accommodate.

On judicial review, the Divisional Court set aside the HRTO's decision, holding that the university discriminated against the applicant by relying on unaccommodated grades and failed to establish that assessing his application without those grades would cause undue hardship.

Following a decision upholding a student's expulsion, the parties engaged in an application before the Human Rights Tribunal of Ontario (HRTO).

The respondent school board sought an order varying the CFSRB's standard confidentiality order to permit the use of records and evidence from the expulsion appeal in the HRTO proceeding.

The CFSRB granted the request, directing that each party is permitted to rely on their own affidavits and exhibits in the HRTO application, provided the pupil's identity continues to be protected.

The appellant appealed the expulsion of her 7-year-old son, who has Autism Spectrum Disorder, from his French immersion school following a physical assault on an educational assistant that resulted in a concussion and PTSD.

The Child and Family Services Review Board considered whether mitigating factors, such as the pupil's inability to control or understand the consequences of his behaviour, rendered the expulsion inappropriate.

The Board found that while the pupil could not control his behaviour, his continuing presence in the school created an unacceptable risk to the safety of staff and students.

The Board confirmed the expulsion, noting that the school board had made extensive efforts to accommodate the pupil and that a fresh start in an English-language program would likely be beneficial.

The respondent in a judicial review application moved to strike an affidavit delivered by the applicants.

The underlying application sought judicial review of a Human Rights Tribunal of Ontario decision finding sexual assault and harassment.

The applicants sought to introduce the affidavit of a forensic psychiatrist to argue the tribunal improperly relied on treating doctors' evidence to bolster the complainant's credibility.

The Divisional Court granted the motion to strike, holding that the proposed evidence was irrelevant to the legal issue of oath helping and did not meet the narrow test for admitting fresh evidence on judicial review.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision that denied her claim for $100,000 in general damages.

The Tribunal had found that the Ministry's subcontracting rules under the Ontario Disability Support Program discriminated against the applicant based on her disability.

However, applying the Mackin rule, the Tribunal held that damages were not available because the government's conduct in applying the policy was not clearly wrong, in bad faith, or an abuse of power.

The Divisional Court dismissed the application for judicial review, finding that the Tribunal's application of the Mackin rule to the policy directive and its conclusion that no exceptions applied were reasonable.

The applicant, a student with disabilities, sought judicial review of a Human Rights Tribunal decision that found the school board failed to accommodate him but denied his claim for special damages covering private school tuition.

The Divisional Court held that while it was reasonable to deny tuition costs for subsequent years because the parent removed the student from the public system without giving the board a further chance to accommodate, it was unreasonable to deny tuition costs for the remainder of the Grade 9 year when the board had completely failed to provide support.

The application was granted in part and remitted to the Tribunal to assess special damages for the Grade 9 year.

The appellant sought out-of-country funding for surgery to repair a medical condition, arguing that a delay in Ontario would cause irreversible tissue damage.

The Health Services Appeal and Review Board denied the request, and the appellant appealed to the Divisional Court.

The appellant argued the Board lost jurisdiction by reconstituting the hearing panel and ignored medical evidence regarding tissue damage.

The Divisional Court dismissed the appeal, finding no procedural unfairness in the panel reconstitution and concluding the Board's decision on the medical evidence was reasonable.