Longueépée v. University of Waterloo, 2021 ONCA 53

Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210126 DOCKET: C67862

Strathy C.J.O., Lauwers and van Rensburg JJ.A.

BETWEEN

Roch Longueépée Applicant (Respondent)

and

University of Waterloo and Human Rights Tribunal of Ontario Respondents (Appellant / Respondent)

Counsel: Frank Cesario and Amanda P. Cohen, for the appellant David Baker and Laura Lepine, for the respondent Roch Longueépée Brian A. Blumenthal and Jason Tam, for the respondent Human Rights Tribunal of Ontario

Heard: June 1 and 5, 2020 by video conference

On appeal from the order of the Divisional Court (David L. Corbett, Graeme Mew, and Frederick L. Myers JJ.), dated September 20, 2019, with reasons reported at 2019 ONSC 5465, 439 D.L.R. (4th) 326, allowing an application for judicial review of a decision of the Human Rights Tribunal of Ontario dated May 25, 2017, with reasons reported at 2017 HRTO 575 and a reconsideration decision dated December 22, 2017, with reasons reported at 2017 HRTO 1698.

Costs Endorsement

1We have received and considered the written submissions on costs of the appeal.

2The respondent Roch Longueépée seeks his partial indemnity costs of the appeal severally from the appellant University of Waterloo and from the Human Rights Tribunal of Ontario (the “HRTO”). He seeks approximately 25% of his costs from the HRTO. Both the University and the HRTO resist the claim for costs.

3We disagree with the University that this is a case where no costs should be awarded as between itself and Mr. Longueépée because success was divided on the appeal. Mr. Longueépée was largely successful, and is entitled to his costs. The central issue on appeal – whether the HRTO’s decision dismissing Mr. Longueépée’s human rights complaint was unreasonable – was determined against the University. The appeal was allowed only to the extent that the matter was sent back to the HRTO for a remedy.

4The University does not take issue with the number of hours spent or work done by Mr. Longueépée’s counsel but argues that the partial indemnity rates claimed, when compared with his counsel’s actual rates, is too high; we agree and fix Mr. Longueépée’s costs against the University at $25,000 inclusive of disbursements and HST.

5In seeking costs against the HRTO, Mr. Longueépée asserts that the appeal was made more complex by the positions taken by the HRTO: first, in unsuccessfully seeking a five-judge panel for the appeal, and second, in arguing that the correct standard of review of a decision of the HRTO post- Vavilov (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65), was patent unreasonableness – an argument that was not made by the University. Although the HRTO did not take a position on the outcome of the appeal, it provided detailed written and oral submissions on the standard of review issue, to which Mr. Longueépée responded. Ultimately, this court concluded that it was unwise and unnecessary in this appeal to determine the issue because it should be decided in a case where the standard of review makes a difference to the outcome and where the parties with a stake in the dispute have joined issue on the point (at para. 56).

6While we agree with the HRTO’s submission that it did not raise the standard of review issue in bad faith or improperly, it is nevertheless appropriate in the context of this case for the HRTO to be responsible for a portion of Mr. Longueépée’s partial indemnity costs. The HRTO’s decision to advance the standard of review argument necessarily expanded the scope of the appeal, and Mr. Longueépée had no choice but to respond.

7We fix Mr. Longueépée’s costs against the HRTO in the sum of $7,500, inclusive of disbursements and HST, which amount reflects the proportion of time required to address the standard of review issue raised by the HRTO and to respond to the request for a five-judge panel.

8Mr. Longueépée is therefore entitled to partial indemnity costs of $25,000 from the University and $7,500 from the HRTO, both amounts inclusive of disbursements and HST.