[CITATION]: Watter v. McMaster University, 2025 ONSC 4930
DIVISIONAL COURT FILE NO.: DC-24-00000294-00JR
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
T. Heeney, N. Backhouse, S. Nakatsuru, JJ.
BETWEEN:
SCOTT WATTER
Warren Mouck, Counsel for the Applicant
Applicant
- and -
MCMASTER UNIVERSITY and THE BOARD SENATE HEARING COMMITTEE UNDER THE MCMASTER UNIVERSITY REVISED POLICY AND REGULATIONS WITH RESPECT TO ACADEMIC APPOINTMENT, TENURE AND PROMOTION
George Avraam, Ajauthana Anandarajah, Anton Rizor, Counsel for the Respondents
Respondents
HEARD at Hamilton: June 2, 2025
REASONS FOR DECISION
S. Nakatsuru J.
A. OVERVIEW
A. OVERVIEW
1Prior to May 27, 2024, Dr. Scott Watter was teaching at McMaster University’s Psychology Neuroscience and Behaviour Department as a tenured Associate Professor. On that date, the Executive and Governance Committee of the McMaster University Board of Governors (the “Board”) affirmed the conclusion of the Board Senate Hearing Committee (the “Hearing Committee”) that had inquired into misconduct allegations. Both the Hearing Committee and the Board decided that adequate cause existed to remove Dr. Watter from his faculty position (collectively the “Decision”).1 McMaster University (the “University”) proceeded with his removal.
2The misconduct was serious. The Hearing Committee determined that Dr. Watter breached the trust necessary to remain as a faculty member because he: (a) had a sexual relationship with a mentally vulnerable student with whom he had an academic relationship and with whom he had a power imbalance; (b) hired another student as a research assistant without disclosing to the University that he was in a romantic relationship with her; and (c) knowingly flirted with an undergraduate student who he met on a website designed for sexual arrangements.
3Dr. Watter has brought this judicial review application on the grounds that the Decision is unreasonable in lacking a rational chain of analysis. Further, he contends that throughout the course of the hearing he was deprived of the level of procedural fairness owed in a dismissal case where his livelihood is at stake. He seeks the quashing of the Decision and a remittance of the matter to a differently constituted hearing committee for redetermination or, alternatively, damages in lieu of reinstatement.
4For the following reasons, the application for judicial review is dismissed. The Decision is reasonable and the hearing was procedurally fair.
B. BACKGROUND
B. BACKGROUND
- The Factual Background
The relationship with S.L.
1. The Factual Background
5Dr. Watter testified and acknowledged that he had a consensual sexual relationship with S.L. which according to him lasted six weeks in the spring of 2017. S.L. did not testify at the hearing.
6S.L. was a PhD student in the same department as Dr. Watter and she likely took one of his courses in 2010. S.L. was introduced to Dr. Watter and Witness H. when S.L. began to teach their child piano lessons in 2015. S.L. was in a relationship with Witness C. at the time. Dr. Watter and S.L. became friends. S.L. worked as a teaching assistant for one of Dr. Watter’s courses in 2016.
7Dr. Watter admitted that shortly after he and S.L. kissed for the first time in April 2017, S.L. revealed to him that she self-harmed and had suicidal thoughts.
8C. testified that S.L. had issues with anxiety, suicidal ideation, purging, and engaged in self-harm. In 2017 S.L. had a significant decline in her mental well-being. S.L. also had problems with alcohol. S.L. met Dr. Watter for drinks and regularly attended at the home of Dr. Watter and H. for dinners. S.L. turned to Dr. Watter for advice and consolation. Dr. Watter assisted her in negotiating a leave of absence from her department and in responding to the department after getting a bad grade. Dr. Watter assisted in taking care of S.L. when she was mentally unwell and was harming herself including patching up her wounds and calming her. One specific incident included S.L. taking off her clothes and trying to run home through a ravine after dinner at Dr. Watter’s home.
9H. provided information about H’s close relationship with Dr. Watter and confirmed that Dr. Watter received psychology training during his medical studies. H. became close friends with S.L. and C. H. testified that S.L. had longstanding struggles with anxiety for which she was prescribed medication. S.L. also abused substances and became increasingly erratic in 2017. S.L. became reliant on Dr. Watter. On two incidents where S.L. cut herself, Dr. Watter attended to her. In July 2017, after being urged to disclose her psychiatric symptoms. S.L. texted H. advising her of the doctor’s diagnosis of her and that she was in a “dissociative state.” S.L. refused to go to a psychiatric hospital. In November of 2017, S.L. told H. that Dr. Watter had been cheating on H. with C.R. for months. Dr. Watter confessed to the affair.
10Text messages between S.L. and Dr. Watter established the nature of their sexual relationship, S.L.’s mental challenges, Dr. Watter’s knowledge of those challenges, and his conduct in relation to them. The Hearing Committee found that Dr. Watter contributed to her mental health deterioration, harmed her, and knowingly exploited her vulnerability for his own benefit. The following texts and factual findings based on them are examples of the evidence the Hearing Committee relied upon:
On April 16, 2017, S.L. told Dr. Watter that she was on anxiety medication.
On April 19, 2017, S.L. described herself as “resilient and fucked up,” a “dark soul” with “a lot of pain.”
On April 22, 2017, S.L. sent photos to Dr. Watter showing fresh cuts she inflicted on her leg, to which he responded, “… how it would be divine to put my lips on that” and “I like your pics.” The Hearing Committee found that Dr. Watter was encouraging S.L. to cut herself. During this same exchange, S.L. expressed jealousy over Dr. Watter's relationship with C.R. In response, he invited S.L. to his house to talk, where they became physically intimate. The next day, S.L. sent a text that Dr. Watter had “left bite marks” on her legs. While the texts revealed that S.L. was struggling to “share” Dr. Watter with others, Dr. Watter continued to raise the possibility of a threesome with S.L.
On April 26, 2017, after S.L. cut herself, she said she felt “isolated” and needed him. This was after S.L. met Dr. Watter and C.R. at a bar. At the bar S.L. and C.R. kissed. Dr. Watter acknowledged that S.L. appeared jealous and emotionally needy that night. She was also drunk. Later that night, S.L. texted Dr. Watter two pictures of self-inflicted cuts. Dr. Watter went to S.L. and C.’s home with a first aid kit and treated her wounds.
On April 28, 2017, Dr. Watter continued to discuss by texts a potential threesome with S.L., C.R., and himself.
On May 5, 2017, S.L. called herself a “functioning anxiety/depressed/messed up person,” admitted to using alcohol to reduce anxiety, and said she was “anxious in the classroom,” to which Dr. Watter replied, “But now you have the good drugs, right?”
On May 7, 2017, Dr. Watter sent a text saying he had been “tied up” intending to suggest he had been intimate with C.R. S.L. sent texts with her holding a wine glass, a scalpel, and an Egyptian-style eye freshly cut in her skin. Dr. Watter testified that he was called by C. and he went to help. S.L. had done more cutting in the meantime and Dr. Watter acknowledged the eye did not seem like a “good thing.” Dr. Watter testified that he tried to be a calming influence but offered no treatment.
On May 12, 2017, S.L. mentioned that she was “having a fucking awful night” and that no one could help her when she was like this. Dr. Watter asked S.L. if she had plans to cut herself that night. He went to S.L.’s place that night, engaged in sexual acts, and bruised her nipples.
The Hearing Committee found that S.L. was jealous and unhappy because she wanted to be the focus of Dr. Watter’s attention. They also found that Dr. Watter’s conduct contributed to S.L. deciding to engage in self-harm cutting and he manipulated S.L. while he was also in an intimate relationship with C.R.
On May 13, 2017, Dr. Watter and S.L. texted at length about the sexual acts in the car that happened the evening before.
On May 26, 2017, S.L. described herself as “depressed and pulling away” and having a “total panic attack with extreme dissociation,” S.L. was upset as C. had witnessed S.L. “making out” with her neighbor a few days earlier.
On May 28, 2017, S.L. referred to her “depression level.”
11The Hearing Committee decided that although they were not satisfied that further sexual interactions between Dr. Watter and S.L. occurred after May 28, 2017, Dr. Watter continued to have an intimate relationship with S.L. until at least October 2017. They continued to flirt and socialize despite S.L. being vulnerable and displaying what Dr. Watter admitted he perceived to be “crazy extreme behaviour” on S.L.’s part.
12The Hearing Committee found that during the time he engaged in sexual acts with S.L., Dr. Watter was aware of S.L. being in a situational crisis, was cutting herself in self-harm, and had suicidal ideations. They found he exploited a vulnerable student for his own desires.
The relationship with C.R.
13SeekingArrangement is a website that matches “generous men” with “sugar babies” for mutually beneficial relationships. Using this website, Dr. Watter met and had sexual relationships with two graduate students of the University. One was C.R.
14After they had been engaged in a sexual relationship for a few months, on March 23, 2017, Dr. Watter and C.R. first exchanged emails about him hiring her for a research position. After C.R. expressed interest, Dr. Watter gave her the job. He did not disclose their relationship to the University and lied about it when directly asked about it by the University’s Security Service. C.R. worked on the project starting in May, 2017, for about 2 ½ to 3 months. She was paid $5,900 out of his research grant funds. Dr. Watter helped C.R. get set up and supervised her. Dr. Watter used the word “nepotism” in a text message with C.R. about the job. He did not post the job, email other graduate students about it, or consult with anyone about its propriety, and he admitted that C.R. would not have gotten the job if he had not been in an intimate relationship with her.
15The Hearing Committee found Dr. Watter failed to disclose his conflict of interest and that Dr. Watter’s conduct with C.R. was an abuse of his position and the responsibilities entrusted in him as a faculty member.
The interaction with an undergraduate student
16In September of 2019, on SeekingArrangement, Dr. Watter exchanged messages with a 23‑year‑old University student. During that exchange, he revealed he was a professor and she revealed she was a student at the University. Dr. Watter invited her to his office but she never came by and their communications stopped.
17The Hearing Committee found Dr. Watter was interested in exploring a relationship with this undergraduate student. While the Hearing Committee found that if this misconduct stood alone, this may have warranted just a written warning, the interaction with the undergraduate student was relevant to the issue of trust on the overall question of the adequate cause for removal.
- The Procedural Background
The initial allegations were made
2. The Procedural Background
18In February of 2020, the University received serious allegations against Dr. Watter from two students, S.L. and a student, O. The University notified Dr. Watter in a letter from the President that they were putting him on a non-disciplinary administrative leave and cited the Sexual Violence Policy, the Discrimination and Harassment Policy, the Faculty Code of Conduct, and the Tenure and Promotion Policy.
The investigation
19Not long after, on February 18, 2020, the University hired Katharine Monpetit, a lawyer from Rubin Thomlinson LLP (the “Investigator”) to conduct a fact-finding investigation. Dr. Watter was advised of this investigation that was to be conducted under the above-named policies.
20Over 2020 and into 2021, the Investigator’s mandate was expanded as more student complaints against Dr. Watter arose. The investigation was paused from March 2020 to July 2020 at the request of the Hamilton Police Services who began their criminal investigation into Dr. Watter.
21After July 2020, the Investigator moved into interviewing the complainants and providing further information to Dr. Watter.
22On May 28, 2021, the Investigator issued her report to the University. After reviewing the investigation report, the University’s Provost sent Dr. Watter a letter dated June 23, 2021, and shared the results of the investigation with him. The Provost’s letter also advised Dr. Watter that she was recommending to the President that he start removal proceedings under the Tenure and Promotion Policy because, in her view, Dr. Watter had breached the Sexual Violence Policy, the Discrimination and Harassment Policy, and the Faculty Code of Conduct.
23The Tenure and Promotion Policy is the document that governs how the University exercises its statutory decision-making power under The McMaster University Act, 1976, S.O. 1976, c. 98, (the “MUA”). Under the MUA, it is up to the Board of Governors to make the decision to remove a faculty member from their employment.
The removal process
24After reviewing the investigation report and the Provost’s recommendation, the President started removal proceedings under the Tenure and Promotion Policy. He notified Dr. Watter of that decision in a June 29, 2021, letter known as the “Charging Document”.
25The Charging Document outlined, in five bullet points, the allegations that the President found constituted adequate cause for his removal.
26The President sent Dr. Watter a copy of the Charging Document and the investigation report, including all appendices.
The Hearing Committee’s Decision
27The Hearing Committee started the removal hearing in March 2023, after the Ontario Court of Justice acquitted Dr. Watter of all criminal charges regarding S.L. in December 2022.
28At the start of the hearing, Dr. Watter brought a procedural motion arguing that the allegations in the Charging Document made out no prima facie case of wrongdoing or, alternatively, were not sufficiently particularized. The basis for this was several claimed contradictions including:
The University conceded consent was not at issue but nonetheless included a sexual harassment allegation in the Charging Document. Dr. Watter submitted that the lack of consent was a necessary pre-requisite to sexual harassment.
The University further conceded that this case was not about Dr. Watter’s sexual orientation yet also accused Dr. Watter of having a relationship with “BDSM elements”.
29The Hearing Committee concluded that “fulsome and reasonable particulars were provided by the President’s letter” and did not allow the motion.
30Over the 14 hearing days, the Hearing Committee heard from six witnesses and reviewed thousands of pages of evidence. This included many contemporaneous texts that Dr. Watter had with his students. Dr. Watter testified for over four days and his counsel delivered detailed opening and closing submissions.
31In its 122-page decision, the Hearing Committee made findings that:
(i) Dr. Watter had a sexual relationship with a graduate student S.L., with whom he had an academic relationship, knowing that she had mental health challenges and self-harming behaviours.
(ii) Dr. Watter hired another graduate student C.R., with whom he was having a sexual relationship, to be his research assistant and never disclosed that relationship to anyone at the University. Dr. Watter did not contest that he should have disclosed this conflict of interest.
(iii) Dr. Watter used the internet service SeekingArrangement in an attempt to have a relationship with an undergraduate student with whom he flirted and invited to his office.2
32Considering the above factual findings, the requirements/breaches of the University policies, and relevant case law going to the importance of trust and ethical standards in academia, the Hearing Committee concluded that the University had adequate cause to remove Dr. Watter as a faculty member.
The Board of Governors’ Decision
33Dr. Watter appealed the Hearing Committee’s Decision to the University’s Executive and Governance Committee of the Board. Their authority is limited to determining whether the Hearing Committee acted in a procedurally fair manner.
34The Board dismissed Dr. Watter's appeal. It determined that the process was procedurally fair, upheld the Hearing Committee’s findings as “fully justified” and evidence based, and proceeded with Dr. Watter’s removal.
C. THE STANDARD OF REVIEW
C. THE STANDARD OF REVIEW
35The presumptive standard of review for all questions on judicial review is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653. In this case, all parties agree that reasonableness is the appropriate standard of review.
36Regarding breaches of procedural fairness, there is no standard of review: Afolabi v. Law Society of Ontario, 2025 ONCA 257, at paras. 59-60. The requisite level of procedural fairness is determined by applying the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 SCC 699, [1999] 2 S.C.R. 817.
D. THE ISSUES ON JUDICIAL REVIEW OF THE DECISION
D. THE ISSUES ON JUDICIAL REVIEW OF THE DECISION
37The following issues are raised on this judicial review:
(1) The admissibility of the affidavit of C.R. on the judicial review application.
(2) Whether the hearing was procedurally unfair in that:
The applicant did not receive fair notice of the allegations and the University added new allegations during the hearing;
The Hearing Committee failed to draw an adverse inference from the University’s failure to call S.L. as a witness to the hearing;
The Hearing Committee failed to order disclosure of relevant documents from the University; or
The Hearing Committee made erroneous and unfair rulings showing it held the applicant to a different standard from the University. It was predisposed to rule against him and there was a reasonable apprehension of bias.
(3) Whether the Decision is unreasonable in that:
The Hearing Committee failed to properly apply the criminal standard of proof in its Decision;
The Hearing Committee failed to address the applicant’s arguments;
The Hearing Committee irrationally made findings regarding S.L.’s mental diagnosis;
The Hearing Committee’s Decision on penalty to remove the applicant from his employment was unreasonable.
E. ANALYSIS
E. ANALYSIS
- The Relevant Statutory and Policy Framework
1. The Relevant Statutory and Policy Framework
38Under s. 9(b) of the MUA, the Board of Governors of the University has the authority to remove a faculty member from their employment.
39The Tenure and Promotion Policy governs how the University exercises its statutory decision‑making power under the MUA. Under Section VI of the Tenure and Promotion Policy, a Hearing Committee of the University Senate holds a hearing and then makes a recommendation for removal to the Board of Governors.
40Under Section VI, “adequate cause” for removal is defined to be:
- a. In general terms, “adequate cause” for removal exists if it has been established that a faculty member has unreasonably neglected his or her academic responsibilities, or has been guilty of such unethical academic behaviour as to impair his or her usefulness as a member of the University. However, it is understood that the words “adequate cause” must necessarily be interpreted in the context of each removal case.
41The University also relied upon two further policies.
42First, the duties and responsibilities found in paragraph 1 of the Code of Conduct for Faculty and Procedure for Taking Disciplinary Action which states in part:
- d. Each faculty member is responsible for conducting himself or herself in a professional and ethical manner towards colleagues, students, staff, and other members of the University community.
43Second, the Conflict of Interest Policy for Employees which states inter alia that it is a conflict of interest for a faculty member to have an intimate relationship with a person who reports to them in an employment or supervisory relationship, or who relies upon them for opportunities to further their academic or employment career. All conflicts of interests are required to be disclosed.
- The Admissibility of the Affidavit of C.R.
2. The Admissibility of the Affidavit of C.R.
44On this judicial review application, the applicant seeks to admit the affidavit of C.R. In her affidavit, C.R. deposes that she was not in a vulnerable position when she was in a relationship with Dr. Watter, nor was she “exploited” by him. The respondents object to this affidavit on the grounds that it does not meet any of the known exceptions for admission.
45To start, I note that C.R. testified at the hearing as a witness called by Dr. Watter but she was not asked by either side about whether she viewed herself as exploited or vulnerable.
46The general principle is that an application for judicial review is usually to be decided on the record that was before the original decision maker. Affidavit evidence is only admissible in very limited circumstances, such as where there is a complete absence of evidence on an essential point, where the evidence addresses a breach of natural justice that cannot be proven by the record, or to provide general background or context to the issues on the application: Canadian National Railway Co. v. Teamsters Canada Rail Conference, 2019 ONSC 3644 (Div. Ct.), 56 Admin. L.R. (6th) 219, at paras. 10-11; Jaffer v. Ontario (Health Professions Appeal and Review Board), 2019 ONSC 6770 (Div. Ct.), at para. 37; Filippova v. Dr. Whyte and Senate Board for Student Appeals of McMaster University, 2024 ONSC 497 (Div. Ct.), at para. 49.
47The applicant seeks to gain admission on the basis that this affidavit demonstrates a complete absence of evidence for the Hearing Committee’s conclusion that Dr. Watter “exploited” C.R. while she was “vulnerable”.
48I do not agree. The Hearing Committee’s findings about Dr. Watter and C.R.'s relationship were based on the whole of the evidence from which they drew the conclusion that C.R. was “exploited” and “vulnerable” in relation to the power imbalance and breach of trust inherent in Dr. Watter’s authority over C.R. as her work provider, in violation of academic policy. In the Hearing Committee’s finding, this amounted to a misuse of his authority leading to their characterization of C.R. in those impugned terms. I agree with the respondents that whether C.R. subjectively felt “vulnerable” or “exploited” cannot reasonably prove the absence of the fact she was so exploited or vulnerable based on the totality of the circumstances existing at the material time. Her personal belief has little if any probative value on this issue.
49Given this, even if this affidavit had been admitted, it would have had no impact on my analysis on the reasonableness of the Decision or the fairness of the process.
- The Procedural Fairness of the Hearing
3. The Procedural Fairness of the Hearing
50To commence my analysis of each of the grounds of review on the issue of procedural unfairness, I acknowledge that there is some merit to the respondents’ position that some of those grounds amount to challenges to the substance of the Decision on its merits, rather than to the procedural fairness of the hearing. That said, as the applicant has raised them here, I will address them under this section.
51In considering the Baker factors, it is not open to dispute that a significant degree of procedural fairness is required in this case. Processes that affect one’s livelihood or the ability to pursue a profession will generally attract a high level of procedural fairness: Ford v. University of Ottawa, 2022 ONSC 6828 (Div. Ct.), at para. 55; Filippova, at para. 74.
52I will now turn to examine each complaint made against the Hearing Committee. I really do not need to say this but in assessing the procedural fairness of the hearing, I have considered their collective effect.
Notice of the allegations and adding of new allegations during the hearing
53The challenge on this ground of judicial review spans several inter-related arguments. At its core, Dr. Watter submits his hearing was unfair since he did not know the case to meet due to the ambiguity of the allegations and the moving nature of the University’s case.
54Dr. Watter submits that the University did not provide him with sufficient particulars despite his pre-hearing motion seeking them. The applicant contends that the case against him was initiated under the Sexual Violence Policy, and the Charging Document uses language derived directly from the definition of vitiated consent in that policy. In other words, as far as Dr. Watter knew, it was always the University’s case against him that he committed sexual violence specifically enumerated as sexual harassment.
55The applicant argues that when sexual harassment was not made out, the University pivoted to accusing Dr. Watter in their closing submissions of “misconduct of a sexual nature.” Put differently, the University added a new allegation regarding S.L. by dropping allegations of sexual violence and presenting the allegation of “misconduct of a sexual nature.” A new allegation that the applicant “exploited” C.R., which was not found in the Charging Document, was also allegedly added during the hearing.
56Consequently, it is submitted that Dr. Watter was not properly apprised of the case against him, as mandated by s. 8 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, and that the allegations against him were not properly limited or precise as required under clause 7 of the Tenure and Promotion Policy. A violation of these provisions would render his hearing procedurally unfair: see Dr. Henderson v. The College of Physicians and Surgeons of Ontario, 65 O.R. (3d) 146 (Ont. C.A.), at para 31.
57I do not accept these submissions. Dr. Watter was provided reasonable notice and particulars. Moreover, he was not faced with a moving target when it came to the allegations he was charged with.
58To begin, the President advised Dr. Watter in the Charging Document dated June 29, 2021 - the critical instrument that provided the contours for the hearing - that the Hearing Committee needed to determine whether his misconduct, including violations of the Sexual Harassment Policy, Discrimination & Harassment Policy and the Faculty Code of Conduct, was “adequate cause” under the Tenure and Promotion Policy. The grounds that the President relied upon in making his recommendation were further specified. The Charging Document advised that the inappropriate conduct included:
Despite the clear power imbalance, you engaged in a sexual relationship with BDSM elements with S.L. a graduate student in the Department of Psychology, Neuroscience and Behaviour at McMaster University.
You knew that S.L. was engaging in self-harm and that at times she had suicidal ideation. At times, the self-harm was so serious that you went over to S.L.’s apartment so that you could counsel her and treat her wounds.
You were in a position of authority over S.L. and abused your position of trust, power, and authority because you knew S.L. suffered from mental health issues and she relied on you for support in dealing with those issues. Your behaviour also amounts to sexual harassment of S.L.
You used a website called SeekingArrangement and set the settings on the website for a geographic scope of Westdale, a neighborhood right beside the University, and an age of 18+. Through this website, you met two graduate students and had sexual relationships with both of them, with full knowledge that they were McMaster University students. You also used $4,000 from your Research Grants to hire one of the graduate students [C.R.] without disclosing your relationship with her to the University. You also used the website to flirt and chat with an undergraduate student. Even after knowing the complainant was an undergraduate student, you suggested that she come by your office to meet.
59The Charging Document then further advised Dr. Watter:
This conduct is an abuse of your position as a faculty member, amounting to misconduct, that violates your obligations of professionalism and ethical conduct towards colleagues, students, staff and others, contrary to the requirements of the Faculty Code of Conduct; constitutes violation of the University’s Sexual Violence Policy and Discrimination & Harassment Policy; and constitutes unethical and inappropriate behaviour, amounting to a fundamental breach of trust incompatible with an ongoing employment relationship.
60On top of that, the President provided Dr. Watter with the Investigator's full investigation report and appendices some 20 months before the hearing.
61In my view, even considering the fact that a more demanding standard of notice and particulars is required given the serious consequences to Dr. Watter of the Hearing Committee’s findings, the information provided in the Charging Document was sufficient. The University was required to provide adequate information for Dr. Watter to understand and appreciate the issues at the hearing, prepare a defence, and link the allegations to his conduct: Brooks v. Ontario Racing Commission, 2016 ONSC 1136 (Div. Ct.), 347 O.A.C. 200, at paras. 37-40. The allegations in the Charging Document were more than adequate for this purpose.
62Given this context, in a decision dated March 25, 2023, the Hearing Committee dismissed Dr. Watter’s motion for particulars, which he only raised after opening statements were delivered at the start of the hearing. The Hearing Committee pointed to the Charging Document and the Investigator’s report, and concluded that “in the circumstances, fulsome and reasonable particulars are provided by the President’s letter which is supported by the Investigation Report in sufficient detail for the Respondent to prepare a defence in response as required by the Policy.” The Hearing Committee fell into no error in coming to that conclusion.
63Regarding Dr. Watter’s submission that the University’s case “pivoted” during the course of the hearing, I would not give effect to this ground of review either.
64The University set about proving the allegations that it specified in the Charging Document, focusing its case on Dr. Watter's misconduct as a breach of trust and a breach of the Code of Conduct. From the beginning, the University never contended that the sexual acts or relationships were non‑consensual. In closing submissions, the University advised that it was no longer pursuing the sexual harassment allegation. However, this did not mean the case against Dr. Watter materially changed. Not pursuing a specific allegation at the end of a hearing is neither uncommon in such matters nor, in this case, something that could have prejudiced Dr. Watter.
65The Hearing Committee’s role was to assess whether the evidence presented met the “adequate cause” standard, not to limit its findings to specific terms like “sexual violence” or “sexual harassment.” The Hearing Committee reasonably evaluated the full scope of the allegations and evidence and concluded that Dr. Watter’s conduct warranted removal. The Charging Document specified that the Hearing Committee was to determine whether the misconduct it found “constitutes unethical and inappropriate behaviour, amounting to a fundamental breach of trust incompatible with an ongoing employment relationship.”
66In this ground of review, Dr. Watter’s complaints unduly focus on isolated phrases in the Decision, taken out of their proper context, while ignoring the whole of the Decision. The Hearing Committee did not pivot away from an assessment of the proof of sexual harassment to a new creature called “misconduct of a sexual nature” which caught Dr. Watter off-guard. The phrase “misconduct of a sexual nature” was introduced by the University in its closing submissions, not by the Hearing Committee.3 The Decision recites the University’s closing submission where it conceded Dr. Watter’s misconduct was not sexual violence or sexual harassment, but misconduct “of a sexual nature that goes to the heart of his relationship with the University.” In responding to that submission, the Hearing Committee makes the finding that Dr. Watter “was in a position of authority and engaged in conduct which was of a sexual nature that exploited S.L. when she was vulnerable and relying upon him for support.”4 The impugned phrase is simply used by the Hearing Committee as a descriptor for the character of the conduct as set out in the Charging Document and as proven by the evidence at the hearing. It was not inaccurate. Nor could it have come as a surprise to Dr. Watter that this was the allegation he was facing. Regardless of the consensual nature of the sexual acts or whether it met the definition of sexual violence, it was the specific context of the sexual relationship with S.L., given who she was, what Dr. Watter knew about her, and his conduct in light of his position and knowledge that amounted to “misconduct of a sexual nature” sufficiently grave to warrant his removal.
67As a final point, the Hearing Committee specifically stated that it was not considering the Sexual Violence Policy and did not question that his relationship with S.L. was consensual. The Hearing Committee considered Dr. Watter’s submissions regarding this and rejected it. It determined it was not necessary to find the Sexual Violence Policy to be violated before adequate cause for removal could be established under the Tenure and Promotion Policy.5 I see no error in that determination.
68The allegation regarding C.R. was that Dr. Watter created and then failed to disclose a conflict of interest when he hired her as an assistant while he was having a sexual relationship with her. This was the conduct that the Hearing Committee sanctioned him for. Dr. Watter submits that the Hearing Committee introduced a new allegation that he had “exploited” C.R., of which he was not given notice.
69The phrase objected to is found in the Decision where the Hearing Committee analyzes whether Dr. Watter’s conduct vis-à-vis S.L. and C.R. had a sufficient nexus to the University. In determining that Dr. Watter’s breach of trust and the abuse of his duties and privileges as a faculty member amounted to relevant misconduct, the Decision recognized that the power imbalance did not necessarily impact S.L. and C.R.’s decision to engage in a sexual relationship with him. However, the power imbalance that Dr. Watter misused for selfish reasons remained relevant. In coming to these conclusions, the Hearing Committee found that C.R. was in a vulnerable position and Dr. Watter “exploited” her for his personal benefit regardless of the consensual nature of their relationship.
70The Committee agreed that in general, a consensual relationship with an adult student could be acceptable. But in C.R.’s case, the misconduct that the Hearing Committee addressed was the fact that Dr. Watter did not disclose the conflict of interest that he was in a sexual relationship.6 When the Decision is read accurately, the suggestion that the University’s case dramatically shifted to an uncharged allegation of “exploitation” has no foundation. It simply did not. The Decision just used the word “exploited” to describe the inappropriate nature of Dr. Watter’s position as C.R.’s supervisor and how it related to their relationship.
An adverse inference from the University’s failure to call S.L. as a witness
71The applicant submits that his hearing was procedurally unfair as the Hearing Committee failed to properly deal with his argument that an adverse inference should be drawn by the University’s failure to call S.L., who was a key witness. He submits that the Decision was confusing and circular in dismissing this argument.
72The Court of Appeal in Parris v. Laidley, 2012 ONCA 755, O.J. No. 5214 at para. 2 explained that:
Drawing an adverse inference from a failure to produce evidence is discretionary. The inference should not be drawn unless it is warranted in all the circumstances. What is required is a case-specific inquiry into the circumstances including, but not only, whether there was a legitimate explanation for failing to call the witness, whether the witness was within the exclusive control of the party against whom the adverse inference is sought to be drawn, or equally available to both parties, and whether the witness has key evidence to provide or is the best person to provide the evidence in issue.
73This approach to adverse inferences has continued to be applied by this court: see Warren v. Ontario (Labour Relations Board), 2013 ONSC 847, 305 O.A.C. 52 (Div. Ct.), at paras. 16, 23.
74In my view, the Hearing Committee did not err in the exercise of its discretion.7 The reasons given were not circular. The Decision referenced the voluminous record of text messages exchanged between S.L. and Dr. Watter, which the University relied upon to prove the allegations. Dr. Watter himself relied heavily on these text messages. In these fact-specific circumstances, it was open to the Hearing Committee not to draw an adverse inference given the available substitute for her testimony.
75As well, it is noteworthy that both H. and C. provided direct evidence about S.L. and Dr. Watter.
76In any event, the failure to draw this inference did not render the hearing unfair. As the respondents point out, the applicant could have summoned S.L. to the hearing.
Failure to order disclosure of documents
77At the outset of the hearing, the parties agreed to procedural rules where all arguably relevant documents were to be disclosed. The University did not disclose any of its internal notes and records from its Human Rights and Equity Office pertaining to the investigation into Dr. Watter. On this judicial review, Dr. Watter submits that the Hearing Committee erred in their ruling that Dr. Watter was not entitled to access these documents given their clear relevance.
78In their Procedural Decision No. 2, the Hearing Committee found that given that the motion was heard after opening statements, the Hearing Committee had a sufficient understanding of the issues to decide the relevance of the additional productions being sought. They reasoned that relevance was to be assessed by the scope of the hearing set out in the Charging Document. Given that the documents sought by Dr. Watter concerned two complainants whose allegations were not being pursued by the University, the Hearing Committee concluded that they were not relevant. However, the Hearing Committee made it clear that this was not a final ruling. If relevance was established during the course of the hearing, it was open to revisiting the ruling and ordering production.
79Here, the request by the applicant for the production from a Ms. Prah of the Human Rights and Equity Office of the University was broad and general. The suggestion of collusion between complainants had little evidentiary basis except that the complainants sought support from one another after the allegations were raised. Given the deference afforded to the procedures of an administrative tribunal, this ruling did not make the hearing procedurally unfair. The requested productions had little relevance to the allegations he had to meet at the hearing. Moreover, Dr. Watter did not request that the ruling be revisited.
Rulings holding Dr. Watter to a different standard
80There is no merit to the sundry of objections under this heading. As context, the Hearing Committee was asked to consider numerous procedural and evidentiary matters. The common thread of Dr. Watter’s complaint on this judicial review is that they demonstrated a double standard by the Hearing Committee towards Dr. Watter and the University, giving preference to the latter. Put differently, Dr. Watter argues that these instances clearly demonstrate a prejudicial predisposition to rule against him without justification. Yet on this judicial review, little substantive challenge is directed at the correctness of the rulings aside from a bald assertion that they were wrong.
81The following examples, though not addressed in oral submissions, are found in the factum.
82Dr. Watter objects to three videos produced by the University during the course of the hearing contending that it was untimely production and the videos were of poor quality.
83The University disclosed the recordings to Dr. Watter’s counsel on March 31, 2023, and followed up on April 4, 2023, asking if Dr. Watter required Special Constable Smith, the person who interviewed the participants and recorded the interviews, to authenticate them. Dr. Watter’s counsel did not respond. When the University introduced the recordings into evidence for identification through the Investigator, Dr. Watter's counsel objected. Since the Investigator reviewed the recordings during her investigation, the Hearing Committee marked them for identification until authenticated by Special Constable Smith. The Hearing Committee also granted Dr. Watter an adjournment to review the recordings before his cross‑examination of the Investigator. Since Dr. Watter wanted the University to authenticate the recordings, the University called Special Constable Smith to testify and played the videos for him. The Hearing Committee then marked them as exhibits. Although the recordings were at times problematic because of their audio quality, Dr. Watter testified during the hearing about these recordings without raising any issues.
84In my view, this was merely a not uncommon evidentiary issue arising during the course of the hearing that was dealt with appropriately by the Hearing Committee. It caused Dr. Watter no prejudice.
85Dr. Watter is also critical of a reference made in the Decision about using his failure to disclose documents in a timely manner as a factor in assessing his credibility. This reference was only one sentence in the Decision’s assessment of his credibility. It referred to relevant text messages he exchanged with Witness H., Witness C., and S.L. that should have been disclosed before the hearing but were not. Dr. Watter only disclosed them after the Hearing Committee ordered him to do so in Procedural Order No. 5. The Hearing Committee’s decision references this disclosure dispute in its Decision and separately explains its impact on its credibility assessment of Dr. Watter. I see no error in the Hearing Committee considering this amongst the host of other factors it used in making its credibility finding.
86Dr. Watter further submits that the Hearing Committee unfairly prevented him from testifying about allegations that the investigative report found to be incredible and did not form part of the allegations. In my opinion, the Hearing Committee was well within its rights to limit the evidence to matters relevant to the allegations it needed to decide. The Hearing Committee did not limit his ability to testify to anything relevant to the allegations. Moreover, I do not find anything problematic with the manner in which the Hearing Committee used the investigative report. As is evident in the Decision, the Hearing Committee never accepted the Investigator’s findings as facts but made its own findings.8
87While a reasonable apprehension of bias is not specifically raised by Dr. Watter on this judicial review, it is worth addressing briefly. The test, as stated in Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, at p. 394 by Grandpré (dissenting, but not on this point) asks whether “an informed person viewing the matter realistically and practically … [w]ould think that it is more likely than not that [the decisionmaker], whether consciously or unconsciously, would not decide fairly”: Vento Motorcycles, Inc. v. Mexico, 2025 ONCA 82, at para. 27.
88I find that none of the complaints raised, even if viewed collectively, would meet the test for a reasonable apprehension of bias. Additionally, Dr. Watter never raised a reasonable apprehension of bias motion during the hearing itself.
Conclusion on procedural fairness
89The Hearing Committee conducted a procedurally fair hearing. They gave Dr. Watter ample notice, a full opportunity to respond, and a transparent, impartial process. Procedural fairness focuses on ensuring that decisions are made using a fair and open procedure, where those impacted by the decision are able to put forward their arguments and evidence and have them fairly and impartially considered by the decision maker: Baker, at para. 22; Vakulenko v. Canada (Minister of Citizenship and Immigration), 2014 FC 667, 458 F.T.R. 226, at para. 16. The Hearing Committee met all the required fairness standards.
- The Reasonableness of the Decision
3. The Reasonableness of the Decision
90Turning to the reasonableness of the Decision, the following is my analysis of the grounds raised by the applicant. I find that the Decision was reasonable, and that the reasoning process is transparent, intelligible and justified and the outcome falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
Misapplication of the criminal standard of proof
91Dr. Watter was charged criminally and acquitted of the sexual assault of S.L.: R. v. Watter, 2022 ONCJ 581. The reasons of Camara J. for Dr. Watter’s acquittal were entered before the Hearing Committee as evidence on consent.
92Dr. Watter submits that the Hearing Committee failed to apply the proper standard of proof when it stated in the Decision that the criminal court determined that S.L. engaged in a consensual sexual relationship with Dr. Watter. An acquittal in a criminal proceeding does not factually determine consent as an acquittal can simply be a failure to prove consent beyond a reasonable doubt. This is not the same as proof of consent on a balance of probabilities which was the standard to be applied at the hearing. Therefore, Dr. Watter submits that the Hearing Committee erred by holding that when someone is acquitted of sexual assault in a criminal proceeding, it means there was consent on a balance of probabilities. Dr. Watter submits that erroneously introducing the criminal standard of proof into this administrative proceeding was fundamentally wrong in principle, and on its own, amounts to a reason for allowing this application: see Doe v. the University of Windsor, 2021 ONSC 2990 (Div. Ct.), at para. 34.
93To be clear, Dr. Watter does not suggest that the Hearing Committee misapplied the burden of proof, that being on the University on a balance of probabilities to prove the allegations in the Charging Document.9 Rather, the applicant’s argument is that a misapplication of the criminal standard of proof on this one portion of the factual finding that the relationship with S.L. was consensual makes the entire decision unreasonable.
94I do not agree.
95It was never contested from the start that the relationship was consensual. The University did not argue otherwise. Moreover, there was substantial evidence, including the testimony of the applicant and the text messages, that the relationship was consensual. Even if the Hearing Committee made an error regarding what a criminal court acquittal meant, any error could only be to the applicant’s benefit. Finally, unlike Doe v. the University of Windsor, the Hearing Committee did not delegate its responsibility to the criminal court decision-maker. It made its own independent determinations based on the voluminous evidence that it heard. In the context of the live issues in this case, this error did not taint any of the central issues that the Hearing Committee had to decide.
96In dismissing this ground of review, I am mindful that both parties at the hearing introduced the decision of Camara J. and relied upon in it in various ways including for factual findings made. In Polgrain Estate v. The Toronto East General Hospital, 2008 ONCA 427, 90 O.R. (3d) 630, at para. 45, Rosenberg J.A. held that it is not an abuse of process to challenge, in a subsequent civil proceeding, findings made by a trial judge in the course of acquitting an accused.
97In this instance, the applicant does not contend that the Decision was unreasonable in that there was an erroneous application of Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 which held that the doctrine of abuse of process precluded the relitigating of the facts underlying a conviction. Polgrain Estate authoritatively holds that this principle does not apply to findings of fact when an accused is acquitted. Dr. Watter does not point to any specific finding made by Camara J. that the Hearing Committee relied upon that contributed to the unreasonableness of its Decision. Indeed, during the course of the hearing, the applicant often referred to the finding of Camara J. regarding the lack of credibility of S.L. in his response to the allegations.10 The University largely took the position that Camara J.’s decision was not relevant to the Hearing Committee’s Decision.
98To set aside a decision as unreasonable, “[a]ny alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the decision.” Instead, they must be "sufficiently central or significant to render the decision unreasonable.”: Vavilov, at para. 100.
99If there was a shortcoming in the Hearing Committee’s treatment of the criminal court acquittal, it was peripheral to the merits of the Decision or one that was in Dr. Watter’s favour. The Hearing Committee’s conclusions on adequate cause for Dr. Watter’s removal never relied on the criminal court's findings. Rather, the Hearing Committee's findings turned on evidence introduced during the hearing.
Failure to address the applicant’s arguments
100The applicant submits that the Decision was unreasonable by ignoring the following key arguments:
Dr. Watter’s reliance on the University’s own policies, especially that regarding relationships between professors and students. Instead, the Hearing Committee developed its own criteria, relying on the fact that Dr. Watter had been S.L.’s teacher at a prior time.
Dr. Watter’s position that there is no impropriety in having a relationship where there is a power imbalance, and further that not every relationship with a power imbalance is an involuntary one.
101I do not give effect to this ground of review.
102Regarding the first argument, Dr. Watter points to the University’s policy Conflict of Interest Guidelines: Undergraduate Studies and Graduate Studies which speaks to conflicts of interest in the evaluation of a graduate student. The policy states that if a faculty member had an intimate personal relationship with a student, they were prohibited from being involved in the evaluation of that student. Dr. Watter points to this policy as showing the University’s tolerance and acceptance of professor/student relationships. While the Decision set out this policy, Dr. Watter submits that the Hearing Committee never applied it to the facts of S.L. but rather developed its own criteria at paragraph 335 of the Decision in concluding that there was a power imbalance exploited by Dr. Watter. The applicant argues that the Hearing Committee finds, for example, that because Dr. Watter taught S.L. at a previous time, their relationship was somehow improper, contrary to the explicit wording of the Conflict of Interest Guidelines.
103This submission both misreads the Decision and fails to appreciate the focus of the allegation against him regarding S.L. The University’s case was never about the application of this policy on a conflict of interest. When Dr. Watter taught S.L. he did not have a sexual relationship with her. Once that relationship started, Dr. Watter never evaluated S.L. The conflict of interest policy had no application to S.L.
104The paragraph of the Decision that is objected to does not develop its own criteria for a prohibited sexual relationship between a professor and a student. The Hearing Committee determined Dr. Watter’s conduct was an abuse of his position as a faculty member and incompatible with his professional and ethical obligations owed to students and the University amounting to a fundamental breach of trust which irreparably undermined an ongoing employment relationship. In explaining that decision, the Hearing Committee referred to the specific facts that supported its finding there was a substantial power imbalance between Dr. Watter and S.L. In the impugned paragraph, the Decision outlines the relevant academic links between Dr. Watter and S.L. that the evidence established. It was a rational and coherent analysis from the evidence to their conclusion about the power imbalance that existed. The Hearing Committee was not developing its own criteria for the prohibition of sexual relations between a professor and a student that was inconsistent with any University policy.
105The failure of the Hearing Committee to expressly apply this specific Conflict of Interest Guideline to the S.L. allegation is readily explained by the fact that it was not applicable. Moreover, the fact that this policy recognized that a consensual sexual relationship could be acceptable in other circumstances, did little or nothing to assist the Hearing Committee in determining whether Dr. Watter’s sexual relationship with S.L., given its fact-specific circumstances, was acceptable.
106Regarding the second argument, the Hearing Committee explicitly acknowledged that as a general proposition, consensual relationships between a professor and an adult student could be acceptable in the academic community.11 In addition, the Hearing Committee consistently noted that Dr. Watter’s relationship with S.L. was a consensual one regardless of the power imbalance.
107The Hearing Committee did not determine that it was always misconduct for a professor in a power imbalance to have an intimate sexual relationship with a student. Rather, it found that Dr. Watter exploited the power imbalance that existed by his academic relationship and history with S.L. when she was objectively vulnerable and in distress, something that he was acutely aware of.
108There was ample evidence for the Hearing Committee to conclude this including the following:
Regarding the academic nexus and power imbalance: Dr. Watter previously taught S.L. as a student, supervised her as a teaching assistant for his course, assigned her teaching duties as part of his role as Associate Chair Undergraduate for his department while they were in a relationship, advised her on her clinical graduate program academic progress, and helped her when she was struggling with the effects of her mental health on her academic progress.
Regarding the nature of their relationship and the exploitation of her vulnerability: text messages between Dr. Watter and S.L. showed her struggles with her mental health during their relationship. Witnesses C. and H. also testified on this issue. The Hearing Committee found Dr. Watter knew about it and his actions contributed to it deteriorating.12
109With respect to C.R., Dr. Watter admitted that he breached the University’s Conflict of Interest Policy when he failed to disclose his relationship with C.R. when he hired her. The Hearing Committee went on to consider whether Dr. Watter’s conduct with C.R. abused his position and the responsibilities entrusted to him as a faculty member. In outlining the circumstances of his hiring of C.R., their relationship, and his failure to disclose the relationship to the University, they found he did abuse his position. The Hearing Committee’s factual findings were supported by the evidence, including witness testimony, documentary records, and Dr. Watter’s own admissions.
110Thus, no basis exists for Dr. Watter’s submission that the Hearing Committee did not consider his key arguments. It did.
111As an overall challenge to the Decision’s legitimacy, Dr. Watter submitted that the hearing became essentially an improper attack on Dr. Watter’s character.
112I do not agree. Read holistically and contextually, the Hearing Committee Decision was an intelligible, transparent, and justified analysis of the evidence led on the allegations raised in the Charging Document. This includes their extensive analysis in finding Dr. Watter’s credibility lacking, a finding which is not challenged on this judicial review. The hearing was not an improper attack on his character.
Findings regarding S.L.’s mental diagnosis
113The applicant submits that while the Hearing Committee discusses in great detail the self-harm, suicidal ideations and poor mental health of S.L., their conclusions were unreasonable in that: (1) they were diagnosing a mental condition, a “situational crisis”, in the absence of expert evidence; and (2) such a diagnosis did not bar one from having a consensual relationship, nor does it automatically indicate exploitation. Dr. Watter points to the fact that medical opinions were not tendered at the hearing. Instead, the Hearing Committee’s conclusions leaned heavily on the content of text messages between Dr. Watter and S.L., someone who did not testify and could not be cross-examined. It is argued that this made the Decision unreasonable.
114In my opinion, the Hearing Committee did not need a medical professional to conclude that S.L. was struggling with her mental health. This is essentially what the Hearing Committee means in describing S.L. being in a “situational crisis”. A reasonable inference of this could be drawn based on credible contextual evidence, including witness testimony. The Witnesses C. and H. testified about S.L.'s struggles with bulimia, suicidal ideations, depression, anxiety, self-harm, and the effect these had on her academic challenges in 2016, and how they worsened in 2017. Even Dr. Watter’s own witness, C.R., testified in examination-in-chief that Dr. Watter told her about S.L.’s cutting. Lastly, the text messages themselves strongly supported the inference that S.L. had serious mental health challenges. On this evidentiary record, there was nothing irrational or incoherent about the Hearing Committee’s conclusion in this regard. A logical evidentiary pathway existed for this finding.
115With respect to the second submission, the Hearing Committee never came to the conclusions that are being suggested by Dr. Watter. Nor do their reasons resort to this type of analysis. It was not simply the concurrence of S.L. merely having a mental health condition and a sexual relationship with Dr. Watter that led to the finding of misconduct. It was the power imbalance that existed between the two, Dr. Watter’s knowledge of her mental health crisis and vulnerability, and the abuse of this knowledge to advance his own sexual interests.
The removal decision
116The applicant submits that the Hearing Committee failed to follow established employment law principles regarding the University’s failure to call a member of the administration to testify on penalty. He submits that in discipline cases, the decision maker is not only judging the employee, but they must also judge the employer to determine if the employer has ignored some relevant consideration, proceeded on some misunderstanding, acted from an illicit motive, or otherwise affronted the decision maker’s sense of what is “just”.
117In my opinion, with respect to the Hearing Committee’s decision not to draw an adverse inference from the University’s failure to call a witness from the administration, this fell within the Hearing Committee’s discretion. It chose not to draw such an inference. The exercise of this discretion was not unreasonable. Any argument that the University conducted themselves improperly in pursuing the allegations in the Charging Document is almost entirely speculative without any evidentiary foundation. The only thing Dr. Watter points to is a letter dated July 19, 2023, in which the University’s Acting Provost and VP Academic declined to pursue a complaint by Dr. Watter that S.L. made a false allegation of sexual assault. In this letter, she wrote that she did not accept that S.L.’s allegation was “frivolous, vexatious or fabricated” despite the criminal trial judge’s acquittal and the Investigator’s findings. The letter explained why: regardless of the consensual nature of the sexual acts, Dr. Watter engaged in a sexual relationship with S.L. who was struggling with her mental health, including self-harming behaviours and suicidal ideation. Dr. Watter had power in that relationship but chose to enter and continue it.
118Given that context, it is entirely unreasonable to suggest that this letter is any evidence of the University’s complicity in pursuing a false sexual assault claim against him.
119In addition, Dr. Watter submits the Hearing Committee erred in not following labour cases in its penalty decision and that it was insufficient and an error for the Hearing Committee to simply note that this process was different than a labour relation proceeding. In making this argument, the applicant relies on Bart v. McMaster University, 2016 ONSC 5747, 133 O.R. (3d) 592. In quashing the University’s decision, the Divisional Court noted there was no support in arbitral jurisprudence or in the employment law context for a three-year suspension that was imposed in that case. The Divisional Court ultimately substituted suspensions of one year on the subject professors: Bart, at paras. 179, 190, 215. The applicant relies upon Bart both for the principle that labour law cases are applicable in his case and that the remedy of recommending his removal was unreasonable.13
120I do not find Bart of much assistance.
121First, it is clearly factually distinguishable. In Bart a toxic work environment existed between a group of professors and the administration led by the dean of the school with whom the professors conflicted. The professors engaged in unacceptable instances of bullying or personal harassment, but their motivation was not personal gain. Instead, they were taking a misplaced approach to advancing their view of workplace issues such as faculty management and leadership, expansion of the business school, and hiring contract rather than tenure-track professors. The three-year suspensions were deemed by the Court as excessively punitive and tantamount to termination, which was not justified by the findings of misconduct. The Court emphasized the need for proportionality in disciplinary measures and reduced the suspensions accordingly. In my view, Bart has little application in this judicial review given the misconduct of the professors was of a totally different nature and far less egregious than Dr. Watter’s misconduct.
122Second, while the Divisional Court in Bart at para. 190 refers to the fact that no support existed in the arbitral jurisprudence or in the employment law context for a 3-year suspension on similar facts as a factor in assessing the fairness and proportionality of the sanction, Dr. Watter has not provided any precedents from any context that supports that on equivalent facts, the Hearing Committee’s Decision on remedy is unreasonable.
123I end with the following on the analysis of this ground of review. Although it is a lengthy recitation of the Hearing Committee’s core conclusions regarding the removal decision, it is worth setting it out to demonstrate the thoughtfulness and sensitivity of the reasons that compelled the Hearing Committee to find Dr. Watter’s removal was justified (at paras. 534 – 541):
Trust is critical in a university context where a high degree of autonomy and independence is enjoyed by faculty members. Therefore, it is fundamental that faculty members must be trusted to protect and contribute to a safe and respectful working and learning environment for all University community members.
The Committee is satisfied there is a clear academic link that is relevant to Dr. Watter’s conduct with both S.L. and Witness R [C.R]. In its decision, the Committee has found Dr. Watter engaged in a serious breach of trust and abused his position by exploiting S.L. for personal gain while she was vulnerable. In the Committee’s view, Dr. Watter’s conduct has caused irreparable harm which requires his removal….
Dr. Watter’s conduct was incompatible with the core values of the University and cannot be reconciled with how a faculty member should be reasonably expected and trusted to conduct themselves. The public as well as current and prospective students must be able to trust faculty members. A faculty member’s conduct is relevant to the public’s confidence in the academic profession and the institution. The interests of students and their well-being must be reasonably protected by a faculty member if they are to meet a fundamental obligation and the duties which are implicit in their appointment. Faculty members must conduct themselves in a manner that is consistent with or complies with University policy.
Certain core values are sacrosanct. A faculty member cannot harm a student and, at the very least, cannot exploit or contribute to the deterioration of the well-being of a vulnerable student. Exploiting a student’s vulnerability in these circumstances for personal benefit crosses acceptable boundaries. Dr. Watter’s personal interests and the sexual benefits he obtained from the relationship with S.L. and Witness R [C.R.] were a primary motivation for his conduct. In the Committee’s view, this motivation may explain Dr. Watter’s conduct, as well as why the interests and well-being of S.L. were minimized or appear to be an afterthought for him. Dr. Watter’s conduct was not simply confined to his private life. It crossed the line and negatively impacted members of the University community.
Dr. Watter’s conduct is unbecoming, unprofessional, and discreditable. Moreover, the Committee finds it is clearly inconsistent with the fundamental obligations that can be reasonably expected of a faculty member. In this case, Dr. Watter’s conduct was a serious breach of trust and abuse of his position which provides adequate cause for his removal. The Committee is satisfied that the trust necessary for a continued employment relationship between Dr. Watter and the University has been irreparably damaged.
The Committee also finds that the University has established in the evidence that Dr. Watter’s conduct cannot be reconciled with McMaster University’s reputational interests and potentially exposes the University to a legal claim(s) and liabilities. Dr. Watter’s conduct is also incompatible with the reputational interests of other faculty members…..
The Committee finds that Dr. Watter cannot reasonably continue as a tenured professor with research responsibilities and fulfill the obligations of his appointment because his conduct has irreparably breached a viable relationship with the University. The institution cannot maintain its standing in the academic community unless high standards are expected from its faculty members when their conduct is considered.
124Looked at holistically and in context, considering the factual and legal constraints that were present, this decision is nothing but intelligible, transparent, and justified.
Conclusion on reasonableness
125The core frailty of Dr. Watter’s judicial review application stems from his approach, criticized in Vavilov as a "line-by-line treasure hunt for error" in the Decision. Administrative decision makers cannot always be expected to deploy the same array of legal techniques that might be expected of judges. Instead, the context and administrative setting may impact both the form and content of the reasons. As the Supreme Court of Canada held in Vavilov, at para. 91:
A reviewing court must bear in mind that the written reasons given by an administrative body must not be assessed against a standard of perfection. That the reasons given for a decision do “not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred” is not on its own a basis to set the decision aside… The review of an administrative decision can be divorced neither from the institutional context in which the decision was made nor from the history of the proceedings [citation omitted]
126Here, the University institutional context is important. These institutions of higher learning have long enjoyed a measure of autonomy in the pursuit of their mission that must be respected. The deference owed to academic decisions reflects both the legal autonomy of universities as institutions and the important normative value society attaches to academic freedom: Longueépée v. University of Waterloo, 2020 ONCA 830, 153 O.R. (3d) 641, at paras. 97-106 per Lauwers J.A. (concurring). The Decision, one that involves the removal of a tenured professor for adequate cause, implicates these principles and invites due deference from the Court.
F. DISPOSITION
F. DISPOSITION
127The application for judicial review is dismissed.
128In accordance with the agreement of the parties, the applicant shall pay the respondent $10,000 in costs all inclusive.
Nakatsuru J.
I agree:
Heeney J.
I agree:
Backhouse J.
Released: August 28, 2025
[CITATION]: Watter v. McMaster University, 2025 ONSC 4930
DIVISIONAL COURT FILE NO.: DC-24-00000294-00JR
DATE: 20250828
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
T. Heeney, N. Backhouse, S. Nakatsuru, JJ.
BETWEEN:
SCOTT WATTER
Plaintiff
- and -
MCMASTER UNIVERSITY and THE BOARD SENATE HEARING COMMITTEE UNDER THE MCMASTER UNIVERSITY REVISED POLICY AND REGULATIONS WITH RESPECT TO ACADEMIC APPOINTMENT, TENURE AND PROMOTION
Respondents
REASONS FOR JUDGMENT
Released: August 28, 2025
Footnotes
- The applicant essentially challenges the Hearing Committee’s decision in this judicial review application. That being said, although the Board’s jurisdiction was limited to reviewing the procedural fairness of Hearing Committee’s decision, it alone had the authority to remove the applicant from his position although it acted on the recommendations of the Hearing Committee. While I am aware of the legal distinction that exists between the two decisions, these reasons respond to the applicant’s arguments and do not draw the distinction between the two decisions, given the nature of those arguments..
- No issue is taken with this finding on the judicial review application.
- Paragraph 294 of the Decision.
- Paragraph 295 of the Decision.
- Paragraphs 514 to 516 of the Decision.
- Paragraphs 322 to 323 of the Decision.
- Paragraph 332 of the Decision.
- Paragraphs 26 to 27 of the Decision.
- Paragraph 268 of the Decision.
- Paragraph 41 of the Decision. Hearing Transcript October 30, 2023, Closing Submissions, pgs. 2817, ln. 10 – pg. 2818, ln. 1. pgs. 2833, ln. 19-24, pg. 2875, ln. 17 – pg. 2884, ln. 22.
- Paragraph 331 of the Decision.
- Paragraphs 77 to 82, 156 to 157, 201, 247, 296, 364 to 375, 378 to 384, 391 to 427 of the Decision.
- Before the Hearing Committee, Dr. Watter relied upon Bart in his penalty submissions: at paragraph 518 of the Decision.