Reasons for Decision

[1] Jane Doe brings this application for judicial review of a disciplinary decision made by an Adjudicator on November 18, 2020.

BACKGROUND

[2] The applicant and Christopher Ricard, whom I will refer to as the respondent, are students at the University of Windsor. Ms. Doe alleges that the respondent sexually assaulted her on September 2, 2019. On January 13, 2020, Ms. Doe filed a complaint against the respondent alleging sexual assault, in breach of the University’s Student Code of Conduct (“Code”).

[3] When a non-academic misconduct complaint is filed under the Code, the process by which it is addressed and determined is governed by the University’s Procedures for Addressing Student Non-Academic Misconduct (the “Procedures”)

[4] The Code, the Procedures and the University’s Policy on Sexual Misconduct were all passed by the University of Windsor Senate pursuant to the Senate’s powers under the University’s incorporating statutes and the direction of s. 17(3) of the Ministry of Training, Colleges and University Act, RSO 1990 c. M19. Section 17(3) requires all universities receiving funds from the Ontario government for the purposes of post-secondary education to have a sexual violence policy that sets out the University’s process for responding to and addressing incidents and complaints involving students enrolled at the University.

[5] Under the Procedures, the complaint is directed to the University’s Associate Vice-President Student Experience (“AVP”) as a first level decision-maker. The AVP may either investigate a complaint or appoint an investigator to do so. Following an investigation by an investigator, the investigator must file a report with the AVP, who may ask questions of the investigator, the complainant, the student under investigation or any other witnesses. After the investigation is completed, the AVP shall either dismiss the complaint, determine that the misconduct occurred and impose a sanction or attempt mediation. The Procedure contemplates that this decision is made by the AVP, and not the investigator. The AVP is also free to make his or her own findings of fact.

[6] In this case, the AVP appointed an investigator to investigate this complaint together with several other complaints made against the respondent. In her report, with respect to Ms. Doe’s complaint, the investigator summarized the evidence of Ms. Doe. The respondent declined to meet with the investigator or provide evidence to her in response to Ms. Doe’s sexual assault complaint. He did provide evidence in writing to the investigator through his counsel in relation to the other complaints made against him. Ms. Doe’s evidence, if believed clearly supported her complaint. The investigator noted in her report that in making her findings, she was required to assess credibility. She then said that, in this regard, everyone she met with presented as sincere and genuine in the expression of their concerns and that there was no reason to believe that any of them had an ulterior motive for coming forward. This of course includes Ms. Doe but does not include the respondent.

[7] The investigator explained her findings in respect of Ms. Doe’s complaint very briefly. She stated, “Based on the facts she presented, there is insufficient evidence to establish that her sexual interaction with Chris was not consensual ... These facts, in and of themselves are not sufficient to justify a finding of sexual assault.” The investigator mentioned only three facts in explaining why the evidence was insufficient. First, she mentioned that during her interview, the complainant focused on the physical pain she suffered from the intercourse. Second, in the interview, the complainant focused on the fact that the respondent had spoken to his wife that day. As I understand the evidence, the complainant understood that the respondent was separated from his wife, but on the occasion of the alleged sexual assault, he told her that he had begun speaking to his wife that day. Third, the investigator noted that the complainant “appeared to communicate ongoing consent by asking Chris to continue having intercourse after he had stopped.” She omitted from this brief description that a great deal of the alleged non-consensual sexual activity took place before this apparent communicated consent, and that according to the complainant, she told the respondent to re-enter her only after the respondent had penetrated her without her consent, and then withdrew, pushed her legs back and held them firmly over her head. She said this to him in the hope that if he re-entered her, it would allow her to free her legs. The investigator also failed to include this explanation in her lengthy recitation of the facts earlier in her report.

[8] Since we are not sitting in review of the investigator’s conclusion, I will confine myself to saying that her reasoning gives rise to concern. She omitted entirely Ms. Doe’s evidence that she did not consent and had expressed her lack of consent at several points verbally or by her actions. Instead, she focused on how she would expect a sexual assault complainant to act both during a sexual assault, and when reporting it later.

[9] On July 15, the AVP issued a decision in which he concurred with the findings of the investigator concerning Ms. Doe’s sexual assault allegation. He concluded, on a balance of probabilities, that the respondent did not sexually assault Ms. Doe. He apparently found it relevant to add two small points to the reasons of the investigator: that the applicant and respondent were in a consensual physical relationship from some point in August 2019 to early November 2019; and that they last had sex in November.

[10] The Procedures provide for an appeal of the decision of the AVP by the complainant or the student to the Adjudicator, who is the Provost or the Provost’s delegate. The appeal is not as of right. The request must be based on the grounds that there has been serious procedural error, there is new evidence that casts doubt on the decision or that the decision of the AVP was clearly wrong or unsupportable on the evidence. If the request is granted, then on the appeal, the Adjudicator is not required to show deference to the decision of the AVP. The parties to the appeal may tender new evidence or information and may call witnesses. The Adjudicator may ask questions and seek clarification of the investigator, the parties, witnesses and any other individual the AVP deems appropriate, and may consult a “Subject Matter Expert”, who will receive and review information for the purpose of providing professional advice to the Adjudicator. It is beyond question that the appeal is intended to be a de novo hearing. The Procedure provides that the standard of proof on the hearing will be on a balance of probabilities.

[11] The Procedure contemplates that appeals will be dealt with expeditiously. It provides that if a request to appeal is granted, the appeal shall normally be completed, and a decision rendered no later than 60 days from the date of the granting of the request. In addition, the Adjudicator must inform the parties in writing of his or her decision within seven days of receiving the last submission, or within seven days of an oral hearing when one is held. The Adjudicator does have the power to waive or modify deadlines when the interests of justice warrant or where no substantial prejudice would result.

[12] The decision that the Adjudicator is limited to either a finding of misconduct and sanctions, or dismissal.

[13] Ms. Doe brought a request for an appeal of the AVP’s decision. The Adjudicator granted leave to appeal the AVP’s decision on two of the grounds she raised: (1) that there was serious procedural error in the processing of the complaint, which was prejudicial to the appellant, and (2) that the AVP’s decision was clearly unreasonable or unsupportable on the evidence.

[14] On the appeal, Ms. Doe raised several issues that need not be recounted here. The respondent, once again, tendered no evidence. In his Response to the Appeal, the AVP conceded that the appeal should be allowed. He recognized that as in a civil proceeding for battery, including sexual battery, “consent” is an affirmative defence. Once it is shown that a person has interfered with the body of another, a prima facie case is made out, and the person implicated is called upon to explain if he can or be found at fault. He conceded that given the facts provided by Ms. Doe to the investigator, a prima facie case of sexual assault was made out, and it was not open to him to find that the respondent had established the defence of consent. He recognized that he had erred in finding that the appellant consented to sexual touching and intercourse by requiring the appellant to establish an absence of consent and agreed that his decision was clearly unreasonable and unsupportable on the evidence.

[15] In his decision, the Adjudicator agreed that there was evidence of sexual touching that, “depending on the framing around consent, could have potentially supported a finding of sexual assault” and that there were problematic aspects of the investigator’s report. In particular, he said that it was reasonable that someone who was forced to participate in having sex might focus on the pain they felt because of the non-consensual act. He expressed concern that the investigator’s report veered into the dangerous territory of assessing how an ordinary victim might react or how a complainant ought to have reacted.

[16] He went on to say, confusingly, that because the investigator “did not accept the evidence of the Appellant”, the investigator and the AVP could not make a finding of no consent, and that a finding of liability based on the investigator’s report would be unsafe since the investigator “was clearly of the view that a sexual assault had not occurred” and that “the AVPSE relied heavily on the Investigator’s findings.”

[17] He then said that he was left in a predicament. Despite his reluctance “to tie this matter to the pending criminal matter” given that the Procedures contemplate an expeditious appeal and that this administrative regime differs from the criminal process in many ways, including a different burden of proof, he not only adjourned the matter to await the outcome of the criminal trial, as Ms. Doe and the respondent had suggested but he had rejected before the appeal was argued, but in fact effectively delegated the determination of the appeal to the criminal trial judge. He made the following order:

The Parties will report any criminal conviction of the Respondent arising from the facts underlying the matter currently before me to the University Secretariat. The University Secretariat will in turn report that outcome to me or to another Adjudicator as assigned.
If there is a conviction, I or another Adjudicator will determine sanction, following a request for written submissions from the parties.
If there is no conviction, the Appeal will be considered dismissed.

THE ISSUES

[18] The applicant says that the decision of the Adjudicator was unreasonable because:

the Adjudicator abdicated or unlawfully delegated his disciplinary decision-making power to the criminal proceeding, which was not permitted by the statutory scheme; and
the Adjudicator applied the incorrect standard of proof to the decision he was required to make, in breach of the express requirements of the statutory scheme.

[19] In oral argument counsel for the respondent University took the position that the Adjudicator did not defer final determination of the complaint until the completion of the criminal proceedings. Instead, counsel suggested that the Adjudicator actually dismissed the complaint, except that, should the respondent be found guilty in the criminal proceeding, sanctions would be imposed on him. This, the respondent University argues, is a reasonable decision.

[20] The respondent took no position on the appeal.

THE STANDARD OF REVIEW

[21] The parties agree that the Adjudicator’s decision must be reviewed on a standard of reasonableness. We also agree.

[22] We observe that at least the first issue raised by the applicant concerning delegation of the Adjudicator’s decision-making authority would historically have been characterized as a jurisdictional question, and reviewed on a standard of correctness. However, in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the Court stated, at para. 65, that it would cease recognizing jurisdictional questions as a distinct category attracting correctness review, and instead apply the standard of reasonableness. The Court noted, at para. 67:

Reasonableness review is both robust and responsive to context. A proper application of the reasonableness standard will enable courts to fulfill their constitutional duty to ensure that administrative bodies have acted within the scope of their lawful authority without having to conduct a preliminary assessment regarding whether a particular interpretation raises a “truly” or “narrowly” jurisdictional issue and without having to apply the correctness standard.

[23] And at para. 68:

Reasonableness review does not give administrative decision makers free rein in interpreting their enabling statutes, and therefore does not give them licence to enlarge their powers beyond what the legislature intended. Instead, it confirms that the governing statutory scheme will always operate as a constraint on administrative decision makers and as a limit on their authority. Even where the reasonableness standard is applied in reviewing a decision maker’s interpretation of its authority, precise or narrow statutory language will necessarily limit the number of reasonable interpretations open to the decision maker -- perhaps limiting it [to] one.

ANALYSIS

Unlawful delegation of the Adjudicator’s Decision

[24] When an appeal is taken from a decision of the AVP respecting a complaint of student non-academic conduct, the Procedures give the power to determine the appeal exclusively to an Adjudicator. The Procedures provide that the Adjudicator, who is the Provost or the Provost’s designate, “has final and binding jurisdiction over appeals of Decisions of the Associate Vice-President, Student Experience (or designate)”. Nowhere in the Procedures is there any authority for an Adjudicator to delegate their decision-making authority.

[25] It has been consistently and authoritatively determined that administrative decision-makers cannot delegate their decision-making authority to another body in the absence of clear and express authorization by the statutory scheme. (See, for example, Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11 at para. 65. While Courts today avoid making the law obscure by the use of Latin maxims, the maxim delegatus non potest delegare (literally, a delegate cannot delegate) is hallowed by long use and is applicable here.

[26] The Adjudicator’s effective abdication of his power to determine the outcome of the appeal to the court hearing a related criminal trial is simply not authorized by the enabling instrument. The decision of the Adjudicator to do so was unreasonable. This is one of those rare cases where the language of the source of his decision-making authority necessarily limits the number of reasonable interpretations open to the decision maker to one: he and he alone must decide the appeal.

[27] In its factum, the respondent University would have it that there was no delegation here. The Adjudicator simply adjourned that determination of the appeal until after the criminal case was decided, as he was entitled to do. While the Procedures require the Adjudicator to inform the parties in writing of his or her decision within seven days after receiving the last submission, or within seven days after an oral hearing, the Adjudicator has the power to waive or modify deadlines when the interests of justice warrant it or where no substantial prejudice may result. But plainly this was no simple adjournment. The Adjudicator was clear that if the trial judge finds the respondent guilty of sexual assault, the appeal will be allowed and sanctions imposed, but if the respondent is acquitted, the complaint will be considered dismissed. That is a far cry from a simple adjournment.

[28] In oral argument, counsel for the respondent University took a slightly different position. As I have noted, he said that the Adjudicator did not defer final determination of the complaint until the completion of the criminal proceedings. Instead, the Adjudicator decided that the complaint was not substantiated, subject to reversing his decision if the respondent is found guilty in the criminal proceeding. The short answer to this is that even if such a decision could properly be made, it is simply not what the Adjudicator decided.

[29] In his decision, the Adjudicator was at pains to explain that he felt that he was in a predicament. He said that he could not make a finding of liability given the investigator’s view that a sexual assault had occurred. As I will explain shortly, he was wrong in this. The Procedure makes clear what he had authority to do to escape his predicament. But for now, I will simply say that contrary to the submission of the respondent University, he clearly did not dismiss the complaint. He delegated his decision to the criminal trial judge.

[30] The unlawful delegation of the Adjudicator’s decision was unreasonable, and the decision of the Adjudicator must be set aside. I will, however, go on to consider the second issue, which is closely related to the first.

Incorrect Standard of Proof

[31] Even if it were open to the Adjudicator to delegate his decision, it would still not be open to him to delegate it to the judge presiding over the respondent’s criminal trial. The Procedures implicitly require the decision of the AVP to be made on a balance of probabilities, and in his decision, the AVP acknowledged that the findings of fact that he accepted were made on the balance of probabilities. The Procedures explicitly require an appeal to be determined on a balance of probabilities. On the other hand, the criminal trial judge can only find the respondent guilty of sexual assault if the Crown satisfies the judge of the respondent’s guilt beyond a reasonable doubt. If there is a reasonable doubt, the respondent must be acquitted. The decision of the Adjudicator has the effect of elevating the standard of proof of a misconduct complaint to the criminal burden of proof beyond a reasonable doubt.

[32] The Adjudicator was alive to the shortcomings of relying on the outcome of the criminal proceedings to determine the misconduct appeal, and in particular, that it would alter the standard of proof. He stated:

From the start, I have been reluctant to tie this matter to the pending criminal matter. The Procedures contemplate an expeditious appeal and there are many ways in which an administrative regime such as the one in which we are operating differs from the criminal process. Nonetheless, I have come to the reluctant conclusion that awaiting the outcome of the criminal matter is the only safe way to proceed. In doing so, I am of course aware that the criminal court will operate with a different (higher) burden of proof that the decision-making process at the university level. I am also aware that this will take us outside of the time limits normally contemplated by the Procedures. Nonetheless, in my view this is a reasonable and fair way to proceed in light of all the circumstances of this difficult and complex matter.

[33] There is little that could be more fundamental to the nature of a judicial or administrative process than the standard of proof. It follows that the decision of the Adjudicator alters the misconduct procedure in a fundamental manner. If there is a reasonable doubt about the guilt of the respondent in the criminal proceeding, the misconduct complaint against him will be dismissed, even if he probably sexually assaulted Ms. Doe.

[34] Intruding the criminal standard of proof into this administrative proceeding is not only fundamentally wrong in principle; it also contradicts the mandatory language of the statutory scheme. The Adjudicator’s decision was plainly an unreasonable one for this reason as well and cannot stand. All that remains to be determined is the appropriate remedy.

REMEDY

[35] The decision of the Adjudicator must be set aside, and the matter remitted to an Adjudicator for redetermination. While the matter must be left to the discretion of the Adjudicator, we can see no good reason for further delay of what is supposed to be an expeditious process. In particular, we see no reason to delay the decision until the conclusion of the criminal trial, whenever that may be. The outcome of the criminal trial will not assist the Adjudicator in any way.

[36] Given the comments made by the Adjudicator, we will require that the redetermination by conducted by a different Adjudicator, with certain directions from the Court.

[37] In his reasons, the Adjudicator stated:

A finding of liability based on the current Investigator’s report would be unsafe in my view given a) that the Investigator was clearly of the view that a sexual assault had not occurred and b) that the AVPSE relied heavily on the Investigator’s findings.

[38] This simply is incorrect. It is tantamount to saying that both the AVP and the Adjudicator cannot reach a conclusion that is different than the conclusion reached by the investigator. If that were so, then it is hard to imagine how an appeal brought on the ground that the decision of the AVP was clearly wrong or unsupportable on the evidence could ever succeed. The Procedures clearly contemplate otherwise.

[39] First, the AVP is not bound to accept the conclusion reached by the investigator. The Procedures provide the following:

Where the investigation has been assigned to an investigator, the Associate Vice-President, Student Experience, following receipt of the investigator’s report, also may ask any questions of the investigator, the complainant, the Student, and/or any witnesses separately. The Associate Vice-President, Student Experience shall make a record of any new evidence presented during this stage and shall append the information to the investigator’s report. The Complainant and the Student will be given the opportunity to respond to, or question any new information before the decision is rendered.

[40] In the end, it is the AVP, and not the investigator, who has the obligation to determine whether or not the complaint should be dismissed.

[41] Similarly, on an appeal, before making a decision, the Adjudicator may:

[A]sk any questions and seek clarification of the investigator, the Parties, witnesses, or any other individual s/he deems appropriate. The Adjudicator shall make a record of any new evidence presented. The Parties shall be given the opportunity to respond to, or question any new evidence arising from information sought by the Adjudicator. Any responses shall be submitted to both the Adjudicator and the other Party(ies).

[42] The Adjudicator is not bound be the conclusions reached by the investigator or the AVP. Furthermore, in this case, it would be open to the Adjudicator to take a different view of the facts without hearing new evidence. After all, the investigator did not find that the evidence of Ms. Doe was incredible. There is no reason to doubt the applicant’s description of what took place between her and the respondent. The investigator did not suggest that she did not accept it. What the investigator did conclude is that “there is insufficient evidence to establish that her sexual interaction with Chris was not consensual.” In reaching this conclusion, she relied on three factors which seem to reflect her idea of how a sexual assault victim would act and made no reference to the evidence of the applicant that might have established that there was not consent. Most importantly, she demonstrated no awareness of where the burden of proof on the issue of consent lies. The Adjudicator should also bear in mind the factors relating to consent found in the University’s Policy on Sexual Misconduct.

DISPOSITION

[43] The application for judicial review is granted. The decision of the Adjudicator is quashed, and the matter is remitted to a different Adjudicator for re-determination.

[44] On the re-determination of the new appeal, the Adjudicator is directed that he or she is not bound by the conclusions reached by the investigator or the AVP.

COSTS

[45] Having regard to the cost outlines of the applicant and the respondent University, we award costs to the applicant in the amount of $16,072.73 all inclusive, payable only by the respondent University. I note that this amount is considerably less than the costs of $28,996.93 sought by the respondent University.

Dambrot J.

I agree _______________________________

Penny J.

I agree _______________________________

Fregeau J.

Released: April 22, 2021

CITATION: Doe v. the University of Windsor, 2021 ONSC 2990

DIVISIONAL COURT FILE NO.: 20-629-0000-JR

DATE: 20210422

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Dambrot, Penny and Fregeau J.J.

BETWEEN:

JANE DOE Applicant

– and –

THE UNIVERSITY OF WINDSOR Respondent

– and –

CHRISTOPHER RICARD Respondent

REASONS FOR DECISION

Dambrot J.

Released: April 22, 2021

Doe v. the University of Windsor, 2021 ONSC 2990

Case Summary

Reasons for Decision

BACKGROUND

THE ISSUES

THE STANDARD OF REVIEW

ANALYSIS

Unlawful delegation of the Adjudicator’s Decision

Incorrect Standard of Proof

REMEDY

DISPOSITION

COSTS

Judges

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 1

Legal Tests 1

Legislation 2