CITATION: Longueépée v. University of Waterloo, 2019 ONSC 5465
DIVISIONAL COURT FILE NO.: 371/18
DATE: 20190920
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. CORBETT, MEW and F.L. MYERS JJ.
BETWEEN:
ROCH LONGUEÉPÉE
Applicant
– and –
UNIVERSITY OF WATERLOO and HUMAN RIGHTS TRIBUNAL OF ONTARIO
Respondents
David Baker, for the Applicant
Darrell Hawreliak, for the Respondent University of Waterloo
Sabrina Fiacco for Human Rights Tribunal of Ontario
HEARD: 4 April 2019, at Toronto
MEW J.
[1] Universities have a duty to reasonably accommodate applicants for admission who disclose that they have a disability.
[2] This application for judicial review concerns a decision by the Human Rights Tribunal of Ontario (“HRTO”) that the University of Waterloo fulfilled that duty in relation to an unsuccessful application by Roche Longueépée for admission as an undergraduate to its Faculty of Arts.
[3] In his application to the HRTO, Mr. Longueépée claimed that the Waterloo had discriminated against him on the basis of a disability. He argued before the HRTO that in deciding not to admit him, Waterloo had discriminated against him by relying on grades which he had obtained at a time when he had undiagnosed and unaccommodated disabilities.
[4] The HRTO held that Waterloo had procedurally and substantively accommodated the applicant in his admissions application. The HRTO found that Waterloo had not discriminated against the applicant in determining that the applicant had not sufficiently shown that he could achieve academic success.
[5] The applicant requests an order setting aside the decision of the HRTO and substituting a finding of discrimination or, in the alternative, remitting the matter back to the HRTO.
Background
[6] The applicant completed his high school equivalency in the form of a General Educational Development (GED) assessment in February 1999, receiving a grade of 52% for his writing skills. From 1999 to 2000, he was a first year undergraduate, enrolled in the general arts programme at Dalhousie University. The applicant received a D grade in both terms. Consequently, he withdrew from the programme and did not pursue further post-secondary education until the events giving rise to this application.
[7] The applicant is a survivor of institutional child abuse. During his childhood, he experienced severe physical, psychological, and sexual traumas. He has subsequently been diagnosed as having moderate traumatic brain injury and post-traumatic stress disorder (PTSD). The applicant was not aware of these disabilities at the time of his GED assessment or during his time at Dalhousie.
[8] The applicant decided to revive his pursuit of post-secondary education in 2013. He states that he favoured Waterloo because of its proximity to his family, social and medical support networks. He had previously applied, and been accepted for admission, to York University. However, he decided to decline the York offer due to financial constraints and the cost of living in Toronto.
[9] On 30 July 2013, the applicant inquired with the Registrar at the University of Waterloo about being admitted to the Faculty of Arts. The applicant advised the Registrar that he had been diagnosed with a traumatic brain injury which impacted his prior pursuit of post-secondary education.
[10] The Registrar informed him that spaces for the 2013/2014 academic year had all been filled and that the application process was closed. Nevertheless, the Registrar agreed to review the applicant’s background with a view to determining his admissibility, and directed the Associate Registrar to collect the applicant’s information.
[11] The Associate Registrar requested the applicant’s high school and university transcripts, which showed the grades he obtained on the GED assessment and at Dalhousie.
[12] The applicant informed the Associate Registrar in a letter dated 7 August 2013 that he had been a victim of institutional child abuse and provided letters from doctors confirming his diagnoses of post-traumatic stress disorder and traumatic brain injury. He explained that while at Dalhousie his injuries had been undiagnosed and that, as a consequence, he had received no support or accommodations during that time. However, he noted that he had since been involved in significant volunteer work in the field of child abuse.
[13] Waterloo’s Faculty of Arts Admissions Committee is tasked with reviewing applications from individuals who do not meet the stated criteria for admission, but who have identified extenuating circumstances.
[14] At a meeting on 15 August 2013, the Admissions Committee discussed the applicant’s application for admission. The application was presented by the Assistant Registrar, who presented the Committee with information that included a summary prepared by the Associate Registrar, the applicant’s 7 August letter and medical documentation confirming the diagnoses of PTSD and traumatic brain injury.
[15] The Admissions Committee considered the applicant as a transfer student because he had previously completed studies at Dalhousie, the ultimate question being whether the applicant would be successful in his academic studies.
[16] Waterloo maintains an admission standard of 65% for university courses and a 70% in grade 12 English. The applicant’s D grade was considered equivalent to a 55%.
[17] The academic standard for transfer students is lower than the academic standard for high school students and mature students. A student who has attended university before is assessed as a transfer student regardless of when that attendance was.
[18] It was the practice of the Admissions Committee to recognise a “grey zone” of 2% when dealing with high school applicants where a student was very close to meeting the criteria. If applied to the admission standard for transfer students, that approach would result in the application of a lower admission threshold of 63%. The HRTO noted, however, that there was no “precise number” for transfer students “because the length and depth of their education varies” (HRTO decision at para. 23).
[19] The Faculty’s Admissions Officer testified that the applicant ought to have petitioned Dalhousie to revise his grades before applying to Waterloo. The Assistant Registrar testified that the Admissions Committee found that the applicant’s prior grades fell too far below Waterloo’s requirements and the applicant had not subsequently demonstrated potential for academic success. Ultimately, the Committee decided not to admit the applicant and recommended that he pursue post-secondary studies elsewhere. The applicant was advised of the Committee’s decision on 16 August 2013.
HRTO Decision
[20] On 14 November 2013, the applicant made an application to the HRTO claiming that Waterloo had discriminated against him on the basis of disability, contrary to the Human Rights Code, R.S.O. 1990, c. H.19 (the "Code"). The HRTO's decision on the application was released on 25 May 2017 and is reported at 2017 HRTO 575.
[21] The HRTO began its analysis by considering whether the applicant had a disability, as defined by the Code. The Admissions Committee had accepted that the applicant had a disability, and Waterloo had not contested the applicant's disabilities until the second day of hearing before the HRTO, when Waterloo withdrew its concession that the applicant had a brain injury. Waterloo did not, however, withdraw its concession that he had PTSD. Consequently, the applicant called the evidence of Dr. Donna Ouchterlony, who testified that the applicant had a moderate brain injury and PTSD. The HRTO accepted Dr. Ouchterlony's evidence and found that these medical conditions fell within the definition of disability under the Code.
[22] The applicant argued that the 65% admissions standard was discriminatory because his Dalhousie grades had been attained when his disability had not been diagnosed, and therefore had gone unaccommodated. The HRTO accepted that the applicant's disabilities impacted his ability to meet the 65% admissions standard, and that he was adversely impacted by this standard. The HRTO considered whether Waterloo had accommodated the applicant in the admissions process to the point of undue hardship, pursuant to s. 11 of the Code.
11(1) A right of a person under Part 1 is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such a ground is not an infringement of a right.
(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, consider the cost, outside sources of funding, if any, and health and safety.
[23] The HRTO held that the duty to accommodate included both procedural and substantive components, and that the duty had been triggered when the applicant disclosed his disabilities. The HRTO found that Waterloo had met its procedural duty to accommodate by considering the applicant's application outside of the normal admissions process because he presented extenuating circumstances.
[24] While the Admissions Committee based its decision on the applicant's previous academic performance, which had been at a time when his disabilities were undiagnosed and unaccommodated, the HRTO held that "we cannot expect [Waterloo] to presume that the applicant would be successful in university merely because his grades were unaccommodated by another university. Unaccommodated grades and academic success are two separate issues."
[25] The applicant argued that the Admissions Committee failed to substantively accommodate him because the Committee did not have the expertise to assess what accommodations were required for him to succeed, it did not involve the University’s own Accessibility Services, and it failed to consider whether he would succeed in part-time studies. The HRTO held that involving Accessibility Services would have been part of the procedural duty to accommodate, not the substantive component, and, in any case, there was no evidence that involving Accessibility Services would have changed the Committee's decision. Furthermore, the HRTO held that it was not breach of the substantive duty to consider whether the applicant could succeed in part-time studies, since the applicant's application was for full-time studies.
[26] The HRTO held that the Admissions Committee had treated the applicant with compassion, recognised that his marks were obtained prior to his diagnosis, and accepted that he would require support if admitted. While there is no indication that the Committee had considered the applicant's volunteer work as being relevant to his ability to succeed, the HRTO held that "that was a judgment call the Committee was able to make." The HRTO found that the Committee had not breached its duty to accommodate by requiring some indicator of academic success. There was no evidence before the Committee that the Applicant could attain academic success and "it was not prepared to assume academic success based solely on the fact that the applicant was not accommodated at the time he attended university 13 years before his application to [Waterloo]."
[27] Simply put, the HRTO concluded that Waterloo was entitled to rely on past academic performance to base admissions decisions, and the Committee had not been satisfied that the Applicant could be successful in university.
Reconsideration Decision
[28] The applicant requested a reconsideration of the HRTO's decision on 23 June 2017. He argued that the HRTO's decision was in conflict with established case law, the issues raised involved matters of general or public importance, and the decision failed to properly analyse the procedural duty to accommodate.
[29] In reviewing the request for reconsideration, the HRTO found that the applicant was improperly trying to appeal the HRTO's decision, but nevertheless addressed his arguments. The HRTO’s decision is reported at 2017 HRTO 1698.
[30] The applicant argued that the Admissions Committee breached its procedural duty to accommodate by not involving Accessibility Services in the admissions process. The HRTO found that the applicant was conflating the duty to accommodate during the admissions process and the duty to accommodate for admitted students. The Admissions Committee was required to consider that a student might need accommodations once admitted, but was not required to conduct "an in-depth assessment of what the accommodations will be once the student is admitted". The HRTO reiterated on reconsideration that the applicant had failed to point to any information that involving Accessibility Services would have made a material difference. While the HRTO addressed these arguments in terms of the Committee's substantive duty to accommodate, rather than the procedural duty, that difference would not have changed the decision.
[31] The HRTO held that the duty to accommodate does not displace the requirement that all students, including the applicant, must show the potential for academic success. That potential could not be presumed because his previous grades were achieved while unaccommodated, and the Committee was not satisfied that his volunteer work and reference letters demonstrated that potential.
[32] Furthermore, as a practical matter, the HRTO concluded that it was unclear how the applicant’s previous grades could be evaluated by Waterloo when they were obtained at another university: “how can one university sit in review of how another accommodated a student?”
[33] Accordingly, applicant's Request for Reconsideration was denied.
Standard of Review
[34] The parties agree that the standard of review is reasonableness. In reviewing the decisions of a HRTO adjudicator, the reasonableness standard accords “the highest degree of deference … with respect to [the adjudicator’s] determinations of fact and the interpretation and application of human rights law”: Shaw v Phipps, 2012 ONCA 155, at para. 10.
[35] The applicant argues that although the HRTO’s decision is reviewable on a reasonableness standard as it involves questions of mixed law and fact, the Tribunal should be accorded limited deference as its decision is not rationally supported by the evidence.
Issues
[36] The applicant submits the following issues on judicial review:
a. Whether the HRTO erred by not conducting a proper analysis of prima facie discrimination before making its finding with respect to the duty to accommodate, insofar as the failure to do so unreasonably limited the scope of Waterloo’s duty to accommodate the applicant.
b. Whether the HRTO's analysis of Waterloo's procedural duty to accommodate is unreasonable in light of the evidence that the Admissions Committee did not adjust the applicant's grades which were achieved while un-accommodated.
c. Whether the HRTO acted unreasonably by limiting the Waterloo's duty to accommodate by making a de facto determination of undue hardship despite no such defence having been argued by Waterloo and without having engaged in any undue hardship analysis in its decision.
[37] The University of Waterloo raises the additional issue of costs in the proceedings before the HRTO.
The Parties’ Positions
Issue 1: Did the HRTO conduct a proper analysis of prima facie discrimination?
[38] The applicant argues that he was adversely impacted by Waterloo’s grades-based admission standards because of his disabilities. The HRTO recognised at the outset that the “applicant’s disabilities impacted his ability to meet the respondent’s admissions standard for transfer students and in this way, he was adversely impacted by the standard.” But having done so, the applicant contends that the HRTO unreasonably failed to consider whether the grades-based admissions standard applied by the Admissions Committee was prima facie discriminatory.
[39] Waterloo disagrees with this approach. Rather, it argues, the HRTO correctly identified the central issue to be decided as “whether the respondent accommodated the Applicant in the admissions process to the point of undue hardship pursuant to section 11 of the Code …” and then proceeded to engage in an “accommodation dialogue” and in so doing obtained and considered additional information from the applicant in coming to its decision. Whether or not Waterloo did enough in this regard is “the very subject matter of the expertise” of the HRTO and its decision was entitled to deference.
Issue 2: Was the HRTO’s Analysis of Waterloo’s Procedural Duty to Accommodate Reasonable?
[40] According to the applicant, the HRTO failed to analyse the sufficiency of the steps said to have been taken by Waterloo in the purported discharge of its procedural duty to accommodate the applicant. The Admissions Committee did not make an individualised assessment of Mr. Longueépée’s need for accommodation nor attempt to judge the significance (or otherwise) of the grades he had obtained while unaccommodated. Instead, the HRTO held that the Admission Committee’s emphasis on the applicant’s previous grades to deny him admission was a “valid judgment call”. According to the applicant, he was entitled to have his grades assessed in a different manner than (a) grades earned by students while accommodated; or (b) grades earned by students not requiring accommodations.
[41] Waterloo responds that the Admissions Committee undertook a “reasonable investigation” and an “individualized assessment” of Mr. Longueépée’s application. It rejects the assertion that its decision was based solely on grades and points to the list of other information considered by the Admissions Committee. The Admissions Committee accepted that the applicant had a disability and that, as a result, was adversely affected by the admission standard. In the discharge of the University’s duty to accommodate the applicant, it recognised that his previous grades were achieved at a time when he was unaccommodated, but it was not open to the University to completely ignore the applicant’s academic history.
Issue 3: Undue Hardship
[42] The applicant argues that the HRTO erred by making a de facto finding that Waterloo could not base its decision on his admissibility on anything other than his grades without undue hardship without requiring Waterloo to prove undue hardship.
[43] The respondent accepts that the HRTO concluded that Waterloo had accommodated the applicant to the point of undue hardship, having identified that as the core issue to be resolved. According to the respondent, the Tribunal’s reasons make it clear that the issue had been fully considered.
Issue 4: Costs before the Tribunal
[44] In response to the applicant’s request for “costs of the proceeding throughout”, Waterloo, relying on this court’s decision in Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry v. S.D., 2016 ONSC 1688, observes, correctly, that there is no statutory authority for the court to award a party costs for hearings before administrative tribunals. This issue was not pursued further in argument by the applicant.
Discussion
[45] At the heart of this application for judicial review is the assertion that Waterloo discriminated against the applicant by anchoring its admission decision to the grades he obtained at Dalhousie at a time when his disability had not been diagnosed and, hence, had not been accommodated.
[46] The basis for the Admission Committee’s decision is captured in the following paragraphs of the HRTO’s decision:
[22] …. The Admissions Committee takes into account everything that the student has done. It asks for the applicant’s high school marks, university marks and a statement of what the applicant has been doing, in order to obtain a more holistic view of the applicant. The ultimate question before the Admissions Committee is whether the applicant will be successful in his/her academic studies.
[24] The Admissions Officer testified that he did not know why the applicant was even in the gray area because he was so far below the academic standard. The applicant was ten percent below the academic standard. The Admissions Offer testified the applicant should be petitioning Dalhousie to get his grades revised and if that happened, the respondent would consider the revised grades. He testified the respondent could not take the applicant’s D grade and make it a B minus because the applicant was not taking the respondent’s courses and was not assessed by the respondent’s professors: it was up to Dalhousie to grade the applicant fairly.
[25] The Assistant Registrar testified that there were a number of reasons for the decision of the Admission Committee. First, it was evident that the applicant was not successful at high school and university. The applicant obtained 55 percent at Dalhousie and the admissions requirement was 65 percent. The Committee felt the gap was too large to make an exception. It believed the best course of action was for the applicant to attend an alternative institution to show academic success. Second, the applicant was offered admission to York University and it was unknown whether he attended. There was a reasonable amount of time between the medical diagnoses and the applicant’s application for admission for him to pursue undergraduate studies with accommodation and he did not do so. The Assistant Registrar testified that it was not the 10% gap itself, but rather, it was about the applicant demonstrating success. The Assistant Registrar believed the applicant had not demonstrated that he would be successful at university.
[47] The HRTO’s decisions make repeated references to the information which the Admissions Committee had available to it, much of it provided by Mr. Longueépée. The Admissions Committee had accepted that the applicant had disabilities – moderate traumatic brain injury and post-traumatic stress disorder – that had impacted the applicant’s prior academic attainment. When, before the HRTO, Waterloo changed its position on whether the applicant had a brain injury, Dr. Ouchterlony was called as a witness. Her evidence that the applicant had a moderate brain injury, the result of many years of abuse, was, as previously noted, accepted by the HRTO.
[48] The Admissions Committee considered Mr. Longueépée’s application despite the fact that he did not even fit in the “grey zone”, let alone meet the admission standard usually applied to transfer students. It did so because it recognised that he presented with disabilities. But having accepted that the applicant’s previous grades were achieved at a time when those disabilities were unknown and unaccommodated, it surely follows that those grades were not reflective of his academic abilities at the time.
[49] In British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 646 (SCC), [1999] 3 S.C.R. 868 at para. 20, (“Grismer”), the Supreme Court of Canada held that once an applicant has shown a prima facie case of discrimination, the responding party must prove on a balance of probabilities that:
a. it adopted the standard for a purpose or goal that is rationally connected to the function being performed;
b. it adopted the standard in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal; and
c. the standard is reasonably necessary to accomplish its purpose or goal, in the sense that the defendant cannot accommodate persons with the characteristics of the claimant without incurring undue hardship.
[50] The record reasonably supports a conclusion that Waterloo discharged the first two elements of this burden. The adoption of an academic standard for admission based on past academic performance as the best indicator of future academic performance is a rational one. It no doubt reflects the good faith belief that the standard is necessary to fulfil the purpose of admitting students who have the ability to succeed in their university studies.
[51] The applicant argues that the HRTO made a serious error by not requiring Waterloo to meet the third element of its burden.
[52] In Grismer the Supreme Court held that “accommodation” refers to what is required in the circumstances to avoid discrimination. In Council of Canadians with Disabilities v VIA Rail Canada Inc. 2007 SCC 15, the Supreme Court explained, at para. 121, that a discriminatory barrier “must be removed unless there is a bona fide justification for its retention, which is proven by establishing that accommodation imposed undue hardship on the service provider”. What constitutes undue hardship will depend on the factors relevant to the circumstances. These considerations should be applied “with common sense and flexibility in the context of the factual situation presented in each case”: VIA Rail, at paras 123 and 124; Chambly v. Bergevin, 1994 102 (SCC), [1994] 2 S.C.R. 525, at p. 546.
[53] A review of the Admission Committee’s reasons for rejecting the Mr. Longueépée’s application discloses that despite its professed “accommodation dialogue”, it was a dialogue firmly anchored to the very grades which it implicitly, if not expressly, recognised as not being reflective of Mr. Longueépée’s abilities. Indeed, the Admissions Committee seems to have deflected its responsibility to evaluate Mr. Longueépée’s application as presented. They suggested that he should go back to Dalhousie and get the grades he was awarded thirteen years previously revised, or he should take some other university courses at an “alternative institution” to “upgrade” his academic background.
[54] Despite its professed consideration of a significant volume of information other that the applicant’s grades, Waterloo’s explanation for its decision is bereft of any evaluation of that other information. This absence of any indication that the Admissions Committee considered the applicant’s volunteer work on behalf of child abuse survivors and reference letters for that work was, according to the HRTO, a “judgment call” for the Admissions Committee to make.
[55] Although I agree with the Adjudicator that Waterloo should not be expected to presume that the applicant would be successful in university merely because his grades were unaccommodated by another university, that conclusion does not absolve Waterloo of the burden of establishing that it did in fact accommodate the applicant in the admissions process to the point of undue hardship. The Adjudicator saw things differently, stating, in her Reconsideration Decision at para. 17:
To accept the applicant’s argument would have the effect of requiring universities to complete an in-depth assessment of every application by every student with a disability regardless of the extent of the gap between the admissions standard for the particular program and the individual student’s grades. All the student would have to say is “I am a student with a disability and my grades are not an accurate reflection of my ability to succeed, either because I was not accommodated at all or was not appropriately accommodated”.
[56] Waterloo did not rely on an “undue hardship” defence before the HRTO. In fact, the process described by the Waterloo witnesses envisaged a holistic approach in which information other than marks would be considered. But the record does not support a conclusion that that is what actually happened.
[57] What the record does disclose is that the marks which the applicant received while unaccommodated discriminated against him on the basis of disability. Waterloo acknowledged that it could not interpret those marks free from their discriminatory effect. As a result, Waterloo was obliged to assess the applicant’s candidacy without recourse to his marks, or to establish that it would result in undue hardship for it to do so.
[58] Waterloo did neither of these things. Instead, it relied on marks as the criteria for its admission decision: marks that were the process of an unaccommodated disability.
[59] In evidence, considered by the HRTO, but not available to the Admissions Committee, Dr. Ouchterlony said that in assessing Mr. Longueépée’s application, the Admissions Committee should have (a) recognised that the applicant’s marks were obtained when his disabilities were undiagnosed; (b) given appropriate weight to the applicant’s accomplishments; and (c) considered the supports available to the applicant at the university.
[60] It was for Waterloo to decide how best to accommodate Mr. Longueépée in the admissions process. Dr Ouchterlony’s approach is one option. But the accommodation must be reasonable, to the point of undue hardship. Waterloo did not consider an approach that placed no reliance on prior marks, and so cannot now establish that there are no such approaches available, or that such approaches would cause it undue hardship.
[61] To be clear, this does not mean that every student who presents with a disability must be assessed without recourse to prior marks. The OHRT’s suggestion that accommodation of Mr. Longueépée’s disability in the admissions process could could lead to this result is a conclusion that disability accommodation would give rise to undue hardship by undermining the integrity of the admissions process. That argument was not advanced by Waterloo and there is no evidence in the record to support it.
[62] The circumstances giving rise to this case are unusual. Mr. Longueépée was unaware of his disabilities in high school and at Dalhousie, so he could not seek accommodation for them at the time. Of course, accommodation should be sought when it is needed, not after the fact, but this was not possible for Mr. Longueépée. Second, just as clearly, where disability is discovered too late for prior accommodation, accommodation should be sought immediately after the fact, where possible. In most cases Waterloo’s suggestion that Mr. Longueépée seek accommodation from Dalhousie would be reasonable. In the circumstances of this case, however, it was not. Too much time has passed. Aside from Dalhousie noting on Mr. Longueépée’s transcript that his marks are a result of unaccommodated disability (a fact already known to Waterloo), it is hard to see what Dalhousie could now do. This is very different, for example, from the student who suffers a medical event during an examination, who should raise this event as soon as reasonably possible thereafter and seek accommodation immediately (in the form of writing the examination over, for example). In the circumstances of Mr. Longueépée’s case, where the disability was unknown at the time and for long afterwards, and so accommodation for high school and undergraduate marks is not reasonably available from the original institutions, it is for Waterloo to accommodate Mr. Longueépée in the admissions process to the point of undue hardship. This is by no means a “free pass” into university for Mr. Longueépée and would not undermine the integrity of the overall admissions process, which is substantially marks-based.
[63] I would therefore allow the application for judicial review, set aside the decision and reconsideration decisions of the HRTO dated 25 May 2017 and 22 December 2017 respectively, and remit the matter to the Admissions Committee for consideration by way of an accommodated admnissions process that is consistent with these reasons.
Costs
[64] All of parties were publicly funded in one way or another. However, the applicant received Test Case Funding from Legal Aid Ontario and thus section 46 of the Legal Aid Services Act, 1998, S.O. 1998, c.26 (which provides in part that costs are recoverable in the same manner as an individual who has not been legally aided and that all costs ordered by the court in such circumstances are the property of Legal Aid Ontario) applies.
[65] The applicant seeks costs assuming success in the cause. He submits that his partial indemnity costs amount to $35,856.06 inclusive of disbursements and HST. Waterloo would not have sought costs if successful. The HRTO takes no position on the costs of the other parties and does not seek costs.
[66] The applicant described this application as a “test” case and evidently satisfied Legal Aid Ontario that it was. For our part we see an application which turned on its own facts. We agree with Waterloo that while this case is no doubt important to the applicant, it is fact specific. To quote from Waterloo’s costs submissions, “[t]he probability of another person with Mr. Longueépée’s disability who earned his prior marks from another university more than a decade before his or her application for admission to a university is extremely low”.
[67] That having been said, the application was necessary for Mr. Longueépée to overcome Waterloo’s failure to accommodate. He should be awarded costs in an amount that recognises and applies the principles of proportionality and the reasonable expectations of the parties. We fix those costs in the all-inclusive amount of $20,000.
Graeme Mew J.
I agree
D.L. Corbett J.
I agree
F.L. Myers J.
Released: 20 September 2019
Longueépée v. University of Waterloo, 2019 ONSC Number
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. CORBETT, MEW and F.L. MYERS JJ.
BETWEEN:
ROCH LONGUEÉPÉE
Applicant
– and –
UNIVERSITY OF WATERLOO and HUMAN RIGHTS TRIBUNAL OF ONTARIO
Respondents
REASONS FOR JUDGMENT
Mew J.
Released: 20 September 2019