



COURT OF APPEAL FOR ONTARIO

CITATION: Longueépée v. University of
    Waterloo, 2021 ONCA 53

DATE: 20210126

DOCKET: C67862

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

BETWEEN

Roch Longueépée

Applicant (Respondent)

and

University of Waterloo
and
Human Rights Tribunal of Ontario

Respondents (
Appellant
/
Respondent
)

Frank Cesario and Amanda P. Cohen, for
    the appellant

David Baker and Laura Lepine, for the
    respondent Roch Longueépée

Brian A. Blumenthal and Jason Tam, for
    the respondent Human Rights Tribunal of Ontario

Heard: June 1 and 5, 2020 by video conference

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


COSTS ENDORSEMENT

[1]

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

[2]

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

[3]

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

[4]

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

[5]

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

[6]

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

[7]

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

[8]

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

G.R.
    Strathy C.J.O.

P.
    Lauwers J.A.

K.
    van Rensburg J.A.


