



COURT OF APPEAL FOR ONTARIO

CITATION: Longueépée v. University of
    Waterloo, 2020 ONCA 830

DATE: 20201221

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.

van Rensburg J.A.:


A.

OVERVIEW

[1]

This is an appeal of an order of the Divisional
    Court.

[2]

The respondent, Roch Longueépée, brought an
    application to the Human Rights Tribunal of Ontario (the HRTO) alleging
    discrimination under the
Human Rights Code
, R.S.O. 1990, c. H.19 (the
    Code) against the appellant, University of Waterloo (the University). He
    alleged that the University discriminated against him on the basis of his
    disabilities, in refusing him admission to the Faculty of Arts (the Faculty)
    for the fall of 2013.

[3]

Mr. Longueépée had attended Dalhousie University
    (Dalhousie) several years before he applied for admission to the University,
    where he achieved grades that were well below the Universitys minimum
    admission requirements for transfer students. Accepting that Mr. Longueépée had
    undiagnosed and unaccommodated disabilities when he attended Dalhousie, the University
    convened an admissions committee (the Admissions Committee) to consider his
    application, consisting of academic transcripts, information about his
    volunteer work, and reference letters, despite the fact that he did not meet
    the minimum admission requirements and had applied late. The Admissions
    Committee concluded that Mr. Longueépées application did not demonstrate the
    ability to succeed at university, and he was refused admission.

[4]

Vice Chair Jennifer Scott of the HRTO dismissed Mr.
    Longueépées application alleging discrimination by the University. The Vice
    Chair accepted that the Universitys grades-based admissions standard had a
    discriminatory effect on Mr. Longueépée because he had unidentified and
    unaccommodated disabilities when he obtained the relevant grades. She concluded
    however that the University had reasonably accommodated Mr. Longueépées
    disabilities in its admissions process. The Vice Chair also denied a request for
    reconsideration of her decision.

[5]

On judicial review, a three-judge panel of the
    Divisional Court concluded that the HRTO erred in finding that the University
    had reasonably accommodated Mr. Longueépée when the Admissions Committee
    anchored its admission decision to the unaccommodated grades Mr. Longueépée had
    achieved at Dalhousie, when he had undiagnosed disabilities. The court remitted
    the matter back to the Admissions Committee with directions.

[6]

The University appeals. The University contends
    that the Divisional Court erred in its application of the reasonableness
    standard of review, and, in the alternative, in remitting the matter to its
    Admissions Committee, rather than to the HRTO, as the administrative decision maker
    whose decision was under review.

[7]

The HRTO, a respondent to the appeal, takes no
    position on the outcome of the appeal, but asserts that this court, post-
Vavilov
    (Canada (Minister of Citizenship and Immigration) v. Vavilov
, 2019 SCC 65,
    441 D.L.R. (4th) 1), should give effect to the patently unreasonable standard
    of review prescribed by s. 45.8 of the Code. Essentially the HRTO asks that
    this court revisit the leading authority,
Shaw v. Phipps
, 2010 ONSC 3884,
    325 D.L.R. (4th) 701 (Div. Ct.) (
Shaw (ONSC)
), affd on other
    grounds at 2012 ONCA 155, 347 D.L.R. (4th) 616 (
Shaw (ONCA)
), that
    holds that decisions of the HRTO are to be reviewed on a reasonableness
    standard. The other two parties to this appeal assert that the standard of
    review is reasonableness. There is no dispute that the content of the
    reasonableness review has been modified by
Vavilov
.

[8]

For the reasons that follow, I would allow the
    appeal only to the extent of setting aside the remedy imposed by the Divisional
    Court, and substituting an order declaring that the University discriminated
    against Mr. Longueépée and referring the question of remedy to the HRTO for
    determination.

[9]

Briefly, in my view the Divisional Court was
    correct in setting aside the Vice Chairs decisions. Stepping into the shoes of
    the Divisional Court and applying the new framework for reasonableness
    described in
Vavilov
, I conclude that the Vice Chairs decisions were
    unreasonable. After confirming that the University adopted a procedure to accommodate
    Mr. Longueépée by permitting his application package to be considered by
    an Admissions Committee, the Vice Chair unreasonably concluded that the
    University met its duty to accommodate when the Admissions Committee then
    considered
only
Mr. Longueépées unaccommodated grades in refusing him
    admission. The Vice Chair also unreasonably accepted that the accommodation Mr.
    Longueépée was seeking would require the University to take unreasonable
    measures, in effect accepting an undue hardship defence where none was
    advanced by the University or supported by the record.

[10]

It is both unnecessary and unwise in this appeal to determine whether,
    post-
Vavilov
,

decisions
    of the HRTO are subject to a patent unreasonableness standard of review, and
    indeed whether, in this context, a review for patent unreasonableness is
    something different from a reasonableness review. Even assuming that patent
    unreasonableness has the pre-
Dunsmuir
(
Dunsmuir v. New Brunswick
,
    2008 SCC 9, [2008] 1 S.C.R. 190) meaning that the HRTO seeks to attribute to
    this term, the decisions of the Vice Chair were patently unreasonable. In this
    appeal, nothing turns on any distinction there might be between the different
    standards of review advocated by the parties.

B.

FACTS

[11]

Mr. Longueépée is a survivor of institutional child abuse. He suffered
    severe physical, psychological and sexual trauma during his childhood. Mr.
    Longueépée completed his high school equivalency in Nova Scotia in the form of
    a General Educational Development (GED) assessment in February 1999,
    receiving a grade ranking in the 52
nd
percentile for his writing
    skills. He also attended Dalhousie for two terms in 1999-2000, withdrawing
    after he received a D grade in both terms.

[12]

Years later Mr. Longueépée was diagnosed with moderate traumatic brain
    injury and post-traumatic stress disorder (PTSD). He was not aware of these
    conditions when he completed his high school equivalency and when he attended
    Dalhousie.

[13]

In July 2013, Mr. Longueépée contacted the University seeking admission
    as a full-time undergraduate student for the 2013-14 school year in the Faculty
    of Arts. He applied as a mature student. Mr. Longueépée had not applied through
    the normal Ontario Universities Application Centre (OUAC) process, and when
    he applied the Universitys admissions process had already closed for the
    2013-2014 academic year, and it had filled all its student positions.

[14]

Mr. Longueépée advised the University that when he attended Dalhousie,
    he had undiagnosed and unaccommodated disabilities which impacted his prior
    pursuit of post-secondary education. He explained that he was a survivor of
    institutional child abuse and had a moderate traumatic brain injury and PTSD.
    He provided evidence that this was the case. Mr. Longueépées application package
    consisted of more than 100 pages, including transcripts, an outline of his
    experience and volunteer activities, reference letters and testimonials,
    writing samples, and medical information.

[15]

Because of his prior studies at Dalhousie, the University considered
    Mr. Longueépée to be a transfer student, rather than a mature student, in
    the admissions process. The University had established academic standards for an
    applicant to be considered for admission. For transfer students, the standard
    was 65% for university courses and 70% in Grade 12 English. If an applicant to
    the Faculty did not meet such criteria and identified extenuating
    circumstances, the Facultys Admissions Committee could evaluate the
    application and grant or deny admission. Recognizing that Mr. Longueépée
    presented extenuating circumstances, and accepting that he had disabilities
    that were undiagnosed when he attended Dalhousie, the University convened the
    Admissions Committee to consider his application.

[16]

In August 2013 the Universitys Assistant Registrar sent Mr. Longueépée
    an email advising: [t]he Faculty of Arts Admissions Committee undertook a
    comprehensive review of your supporting documents, references and testimonials
    with a view to determining your admissibility. After careful consideration, the
    committee concluded that you are not admissible  and an offer of admission
    will not be extended to you. In response to an email from Mr. Longueépée
    requesting clarification, the Assistant Registrar confirmed that Mr. Longueépée
    did not meet the minimum admission requirements needed for consideration to
    the  Program. The email also informed Mr. Longueépée that the Admissions
    Committee recommended that he consider academic upgrading through Athabasca
    University, Ryerson Continuing Education, or Guelph Open Learning (open
    universities/programs that offer distance education courses) by completing a
    minimum of four courses at the university level, and stated that he would need
    to pass each course and achieve an overall average of 65 percent in order to be
    considered for admission to the University in the future.

[17]

In November 2013, Mr. Longueépée filed an application with the HRTO under
    s. 34 of the Code, alleging discrimination on the basis of disability with
    respect to goods, services and facilities. His complaint alleged that the
    denial of his admission based on his past academic record was discriminatory.
    He sought various remedies, including monetary compensation, the option of
    admission to the University, and that the University develop more flexible
    assessment criteria to account for unusual situations where past academic
    results may not be a reliable predictor of future academic success.

C.

THE DECISIONS BELOW

(1)

The HRTOs Decision

[18]

At the hearing before the Vice Chair, the Universitys witnesses were the
    Assistant Registrar and an Admissions Officer in the Faculty (both of whom were
    on the Admissions Committee), and the Universitys former registrar. Mr. Longueépée
    called Dr. Donna Ouchterlony, a specialist in the field of neurorehabilitation.

[19]

The Vice Chair summarized the role of the Admissions Committee in determining
    the admissibility of individuals who do not meet the admissions criteria but
    present extenuating circumstances. She stated, at para. 15 of her reasons:

The purpose of the Admissions Committee is to
    consider applications from individuals who do not meet the criteria for
    admission and who have identified extenuating circumstances.
The issue
    before the Admissions Committee is whether an exception should be made to admit
    a student who has not met the academic criteria for admission. Members of the
    Admissions Committee are aware of the kinds of supports provided to students
    with disabilities by the [Universitys] Accessibility Services department.
[Emphasis
    added.]

[20]

Referring to the evidence of the Admissions Officer, the Vice Chair
    noted that applications that come before the Admissions Committee usually fall
    under a grey area  where a student is very close to meeting the academic
    standard: at para. 22. While there is no precise deviation from the grade
    standard for transfer students to fall within the grey area because the length
    and depth of their education varies, the Admissions Committee takes into
    account everything that the student has done. It asks for the applicants 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: at para. 23. The Admissions Officer
    testified that he did not know why the applicant was in the grey area because
    he was ten percent below the academic standard, and that Mr. Longueépée
    should be petitioning Dalhousie to get his grades revised: at para. 24.

[21]

The Assistant Registrar testified about the reasons for the decision of
    the Admissions Committee. First, it was evident that Mr. Longueépée was not
    successful at high school and university. The gap between his 55 percent at
    Dalhousie and the Universitys admissions requirement of 65 percent was too
    large to make an exception. The Admissions Committee believed the best course
    of action was for Mr. Longueépée to attend an alternative institution to show
    academic success. Second, Mr. Longueépée had been offered admission to York
    University, and it was unknown whether he had attended. There was a reasonable
    amount of time between his diagnoses and his application for Mr. Longueépée to
    have pursued undergraduate studies with accommodation elsewhere, and he had not
    done so. The Assistant Registrar testified that it was not about the ten
    percent gap itself, but that Mr. Longueépée had not demonstrated that he would
    be successful at university: at para. 25.

[22]

The Vice Chair noted that the issue to be determined was whether the
    University had discriminated against Mr. Longueépée in its admissions process:
    at para. 28.

[23]

First, she considered whether Mr. Longueépée had a disability. Although
    the Admissions Committee had accepted that Mr. Longueépée had undiagnosed disabilities
    that impacted his academic performance while at Dalhousie, at the HRTO hearing,
    the University accepted that Mr. Longueépée had PTSD, but not that he had
    suffered a brain injury. Dr. Ouchterlony testified that Mr. Longueépée had a
    moderate brain injury. There was no evidence to contradict her opinion, and it
    was accepted by the Vice Chair. She concluded that Mr. Longueépées moderate
    brain injury and PTSD fell within the definition of disability under the Code
    and existed at the time he applied for admission to the University: at paras.
    30-34.

[24]

The Vice Chair then turned to whether Mr. Longueépée was discriminated
    against in the admissions process and his argument that the Universitys
    admissions standard of 65 percent for transfer students was discriminatory
    because he had undiagnosed and unaccommodated disabilities when he obtained his
    grades at Dalhousie. She accepted that [Mr. Longueépées] disabilities
    impacted his ability to meet the [Universitys] admissions standard for
    transfer students and in this way, he was adversely impacted by the standard:
    at para. 35.

[25]

Having made a finding of
prima facie

discrimination
    (that is not challenged in this appeal), the Vice Chair identified the issue as
    whether the [University] accommodated [Mr. Longueépée] in the admissions
    process to the point of undue hardship pursuant to section 11 of the Code: at
    para. 36.

[26]

Section 11 of the Code provides:

11 (1) A right of a person under
    Part I 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 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, considering
    the cost, outside sources of funding, if any, and health and safety
    requirements, if any.

[27]

The Vice Chair agreed with Mr. Longueépée that the duty to accommodate
    has both procedural and substantive components. She concluded that the
    University met its procedural duty to accommodate Mr. Longueépée by considering
    his application for admission although it was submitted late, and not through
    the normal OUAC process, and after all the student positions in the Faculty had
    been filled. The University convened a meeting of the Admissions Committee to
    consider Mr. Longueépées application because he presented extenuating
    circumstances. The Admissions Committee was aware of his academic background,
    his disabilities, and the fact that his disabilities were diagnosed after he
    attended Dalhousie: at para. 38.

[28]

The Vice Chair also concluded that the University met its substantive
    duty to accommodate. She noted that the purpose of the Admissions Committee is
    to determine whether a student will be successful in the academic program to
    which he applies. She referred to the significant gap between the Universitys
    admission requirements and Mr. Longueépées past academic performance, and his
    failure to take any university courses after his diagnoses. The Vice Chair
    noted that it was clear that the Admissions Committee considered Mr.
    Longueépées previous academic performance when assessing his ability to be
    successful at school. Addressing Mr. Longueépées argument that his grades are
    not reflective of his academic abilities, she observed: That may be true. But,
    we cannot expect the [University] to presume that [Mr. Longueépée] would be
    successful in university merely because his grades were unaccommodated by
    another university. Unaccommodated grades and academic success are two separate
    issues: at para. 42.

[29]

The Vice Chair rejected the argument that the Admissions Committee
    should have involved the Universitys Accessibility Services department in the
    assessment of Mr. Longueépées application. In her view, the failure to involve
    Accessibility Services was part of the procedural duty to accommodate and did
    not mean that the University failed in its duty to substantively accommodate
    Mr. Longueépée. She concluded that, in any event, there was no evidence
    that the decision to deny Mr. Longueépée admission would have been different
    had Accessibility Services been involved in the assessment process: at paras.
    43-44. The Vice Chair also rejected the argument that the Admissions Committee
    should have determined whether Mr. Longueépée could have been successful in
    part-time studies. The University had assessed the application Mr. Longueépée
    made, which was specifically for full-time studies: at para. 45.

[30]

The Vice Chair considered the evidence of Dr. Ouchterlony about what
    the Admissions Committee should have done in considering Mr. Longueépées
    application. The Vice Chair noted that the University had treated Mr.
    Longueépée with compassion and recognized that his marks were obtained when his
    disabilities were unknown and unaccommodated and accepted that he would need
    support. She stated: The only way the Committee deviated from Dr.
    Ouchterlonys view is there is no indication that it considered [Mr. Longueépées]
    volunteer work on behalf of child abuse survivors and reference letters given
    for that work as relevant to his ability to succeed in university. According
    to the Vice Chair, that was a judgment call the Committee was able to make. It
    did not breach its substantive duty to accommodate: at para. 48.

[31]

The Vice Chair concluded that there was no information before the
    Admissions Committee that Mr. Longueépée could succeed at university. She stated
    that the University did not breach its substantive duty to accommodate in
    requiring some indicator of academic success and by not simply assuming that
    Mr. Longueépée could succeed based on the fact that he was not
    accommodated when he attended university in the past: at para. 49. The
    University accepted that Mr. Longueépée had undiagnosed and unaccommodated
    disabilities when he attended Dalhousie and that this would have impacted his
    grades. Indeed, it was because of these extenuating circumstances that he
    received an individualized assessment by the Admissions Committee: at para.
    50. The Vice Chair concluded that grades are reflective of the ability to
    succeed academically and that it was appropriate for the University to impose
    academic standards. She stated at para. 51:

The [University] has academic standards for
    admission because it believes past academic performance is the best indicator
    of future academic performance. [Mr. Longueépée] challenged the [Universitys]
    use of grades as a measure of his ability to succeed.
The difficulty is that
    in an academic setting, the ability to succeed is measured by grades: there is
    no other measure to evaluate success.
In this way, academic standards are
    different from other standards that may be assessed in a number of different
    ways. All students, including students with disabilities, must provide
    sufficient information to show that they have the ability to succeed. This is
    especially so when the gap between the students qualifications and the
    academic standard is large. [Mr. Longueépée] failed to provide sufficient
    information to the Admissions Committee to show he could succeed at university.
    [Emphasis added]

[32]

The application was accordingly dismissed.

(2)

The HRTOs Reconsideration Decision

[33]

Mr. Longueépée argued that the test for reconsideration was met because
    the Vice Chairs decision failed to properly analyze the procedural duty to
    accommodate by not identifying its components and not assessing whether the
    University had satisfied its procedural duty to accommodate when, among other
    things, it had not involved the Accessibility Services department in the
    assessment of his application.

[34]

The Vice Chair denied Mr. Longueépées request for reconsideration. She
    reaffirmed her findings that the involvement of Accessibility Services, whether
    part of the substantive duty to accommodate or the procedural duty to
    accommodate, would not have changed the decision of the Admissions Committee. She
    rejected the assertion that a different process, involving Accessibility
    Services, would have made a difference: at paras. 10-12.

[35]

The Vice Chair also rejected the challenge to her finding that the
    Admissions Committee was entitled to disregard reference letters and volunteer
    work as indicators of potential academic success: at paras. 11, 16. She confirmed
    that Mr. Longueépée, like all students, was required to show that he could be
    successful in university and she rejected his argument that her decision
    created a Catch-22 for students with disabilities applying for admission to
    post-secondary education based on grades achieved while they were
    unaccommodated. She noted that her decision, like all decisions, was based on
    the facts of the particular case. Although Mr. Longueépée did not meet the
    required academic standard, his application was considered precisely because
    his grades were obtained at a time when his disabilities were unknown and
    unaccommodated. The Vice Chair observed that to accept his 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 students grades: at paras. 16-17. This would require universities
    to involve accessibility services in every admission application made by a
    student with a disability so that the university could determine whether the
    student would be successful in meeting the academic requirements of the
    program. In Mr. Longueépées case, where his previous grades were obtained at
    another university, it would effectively require one university to sit in
    review of how another university accommodated its students: at para. 18.

[36]

The Vice Chair confirmed that, while the University was responsible for
    accommodating Mr. Longueépée in the admissions process, it met its procedural
    duty to accommodate by conducting an individualized assessment of his
    application and it met its substantive duty to accommodate by recognizing that
    his previous grades were obtained at a time when his disabilities were unknown
    and unaccommodated and by accepting the fact that he would need support if
    admitted: at para. 19.

(3)

The Decision of the Divisional Court

[37]

The Divisional Court allowed Mr. Longueépées judicial review
    application, concluding that the University failed in its duty to accommodate
    his disabilities in its admissions process.

[38]

Mew J., in reasons concurred in by Corbett and Myers JJ., began by
    reviewing the matters background and confirming that the applicable standard
    of review was reasonableness. The court noted that the reasonableness standard
    accords the highest degree of deference  with respect to [the HRTOs]
    determinations of fact and the interpretation and application of human rights
    law: at para. 34, citing
Shaw (ONCA)
, at para. 10. The court then
    set out the issues and the parties submissions and explained that the heart
    of the application was whether [the University] discriminated against [Mr.
    Longueépée] 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: at para. 45.

[39]

The Divisional Court referred to the three-part test in
British
    Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of
    Human Rights)
, [1999] 3 S.C.R. 868 (
Grismer
), at para. 20, that
    applies when a requirement or standard has been shown to be
prima facie

discriminatory. The responding party must prove on a balance of
    probabilities that:

1)

it adopted the standard for a purpose or goal
    that is rationally connected to the function being performed;

2)

it adopted the standard in good faith, in the belief that it is
    necessary for the fulfillment of the purpose or goal; and

3)

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.

[40]

The Divisional Court was satisfied that the University had discharged
    the first two elements. The adoption of an academic standard for admission
    based on past academic performance as the best indicator of future academic
    performance is rational. It 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.

[41]

The Divisional Court was not satisfied, however, that the University
    met the third prong of the
Grismer
test. The Court noted that the
    Admissions Committee had professed an accommodation dialogue, but the
    dialogue was firmly anchored to the very grades which [the Admissions Committee]
    implicitly, if not expressly, recognised as not being reflective of Mr.
    Longueépées abilities: at para. 53. In the courts view, the Admissions Committee
    seem[ed] to have deflected its responsibility to evaluate Mr. Longueépées
    application as presented: at para. 53. While it purported to consider
    information other than Mr. Longueépées grades, the explanation for its
    decision was bereft of any evaluation of that information: at paras. 54-56. The
    University did not have to presume that Mr. Longueépée would be successful
    in university merely because his previous grades were unaccommodated, but it
    did have to establish that it accommodated him in the admissions process to the
    point of undue hardship: at para. 55.

[42]

The Divisional Court concluded that because the University acknowledged
    that it could not interpret Mr. Longueépées grades free from their
    discriminatory effect, it either had to: (1) assess Mr. Longueépées candidacy
    without recourse to his marks; or (2) establish that it would result in undue
    hardship for it to do so: at para. 57. It failed to do either of these things:
    at para. 58. The University did not consider an approach that placed no
    reliance on prior marks, and so it could not now establish that no such
    approaches are available or would cause it undue hardship: at para. 60.

[43]

The Divisional Court noted that, in her reconsideration decision, the
    Vice Chair had suggested that accommodation of Mr. Longueépées disabilities in
    the admissions process could lead to undue hardship (in the requirement to
    conduct an in-depth assessment of every application from a person asserting a
    disability). However, undue hardship had not been advanced by the University
    and there was no evidence in the record to support this conclusion: at para.
    61.

[44]

The Divisional Court acknowledged that this was an unusual case because
    Mr. Longueépée was unaware of his disabilities in high school and at Dalhousie,
    and so he could not seek accommodation at that time: at para. 62. Given the passage
    of time, accommodation for his high school and undergraduate marks was not
    reasonably available from the original institutions, so it was the Universitys
    obligation to accommodate Mr. Longueépée in the admissions process to the point
    of undue hardship: at para. 62.

[45]

The Divisional Court allowed the judicial review application, set aside
    the Vice Chairs decisions, and remitted the matter to the Admissions Committee
    for consideration by way of an accommodated admissions process that is
    consistent with [the courts] reasons: at para. 63.

D.

ISSUES

[46]

The following issues are raised in this appeal:

1.

Did the Divisional Court appropriately identify
    reasonableness as the standard of review or is the standard post-
Vavilov
patent unreasonableness?

2.

Did the Divisional Court correctly apply the
    standard of review? And, if the standard was reasonableness, does a post-
Vavilov
approach lead to a different result?

3.

If the Vice Chairs decisions were properly set
    aside, did the Divisional Court err in its remedy, in sending the matter back
    to the Admissions Committee rather than to the HRTO?

E.

ANALYSIS

[47]

On an appeal of a judgment of the Divisional Court disposing of a
    judicial review application, this court must determine whether the Divisional
    Court identified the appropriate standard of review and applied it correctly.
    In doing so, this court will step into the shoes of the Divisional Court and
    focus on the administrative decision under review:
Agraira v. Canada
    (Public Safety and Emergency Preparedness)
, 2013 SCC 36, [2013] 2 S.C.R.
    559, at paras. 45-47;
Groia v. Law Society of Upper Canada
, 2016 ONCA
    471, 131 O.R. (3d) 1, at para. 49, revd on other grounds 2018 SCC 27,
    [2018] 1 S.C.R. 772;
Ball v. McAulay
, 2020 ONCA 481, at para. 5.

[48]

Accordingly, what is required in order to address the issues on appeal
    is for this court: (1) to determine the appropriate standard of review; (2) to
    apply that standard of review to the decisions of the Vice Chair; and if her
    decisions were properly set aside, (3) to determine the appropriate remedy.

[49]

I turn to the first question, the appropriate standard of review.

(1)

What Is the Applicable Standard of Review of the
    Vice Chairs Decisions?

[50]

When this matter was before the Divisional Court, all three parties
    agreed that the appropriate standard of review on the judicial review
    application of the decisions of the HRTO was reasonableness. After the
    Divisional Court allowed the application for judicial review, and before this
    appeal was heard, the Supreme Court released its decision in
Vavilov
.

[51]

The University and Mr. Longueépée agree that the reasonableness
    standard of review applies to the judicial review of a decision of the HRTO,
    although they accept that the framework and approach to determining whether a
    decision is reasonable has been modified by the Supreme Courts decision in
Vavilov
.
    They differ only on the application of the reasonableness standard of review,
    and hence the outcome of the appeal.

[52]

The HRTO asserts that post-
Vavilov
, its decisions should be
    reviewed under the patent unreasonableness standard, which is the standard of
    review prescribed by s. 45.8 of the Code. Section 45.8 functions as a privative
    clause and, as applied to the decision affecting Mr. Longueépée, provides that
    the HRTOs decision is final, not subject to appeal, and shall not be altered
    or set aside in an application for judicial review or in any other proceeding
    unless the decision is patently unreasonable.

[53]

The Divisional Courts decision in
Shaw (ONSC)
held that patent
    unreasonableness in s. 45.8 of the Code, which was enacted pre‑
Dunsmuir
but proclaimed in force post-
Dunsmuir
, must be interpreted to mean
    reasonableness as defined in
Dunsmuir
.
That standard has been
    applied since 2010. The HRTO has accepted the reasonableness standard of
    review in numerous reported cases since
Shaw (ONSC)
[1]
.

[54]

The HRTO now seeks to revisit the standard of review applicable to its
    decisions post-
Vavilov.
It
has
    done so in three recent cases before the Divisional Court:
Intercounty
    Tennis Association v. Human Rights Tribunal of Ontario
, 2020 ONSC 1632, 446
    D.L.R. (4th) 585 (Div. Ct.),
Ontario v. Association of Ontario Midwives
,
    2020 ONSC 2839 (Div. Ct.), leave to appeal to Ont. C.A. granted, M51703
    (December 16, 2020), and
Xia v. Board of Governors of Lakehead University
,
    2020 ONSC 6150 (Div. Ct.), leave to appeal to Ont. C.A. requested, M52029. In
    each case the Divisional Court rejected the HRTOs argument and confirmed that
    reasonableness is the standard of review for the decisions of the HRTO post-
Vavilov.

[55]

The HRTO defines a decision that is patently unreasonable as one that
    is clearly irrational and evidently not in accordance with reason, citing
Canada
    (Attorney General) v. Public Service Alliance of Canada
, [1993] 1 S.C.R.
    941, at pp. 963-64, and, although it takes no position on the outcome of the
    appeal, it urges this court on this appeal to apply this and other pre-
Dunsmuir
authorities to the assessment of whether the Vice Chairs decisions were
    patently unreasonable. The HRTO advances a number of arguments in support of
    its position that
Vavilov
has reanimated a separate patent
    unreasonableness standard of review for its decisions.

[56]

In my view, it is both unwise and unnecessary for the proper
    disposition of this appeal, to embark on the analysis that the HRTO asks this
    court to undertake: that is, to determine whether post-
Vavilov
the
    statutory standard of review in s. 45.8 of the Code should be given
    effect, and if so, whether a courts review of an administrative decision for
    patent unreasonableness would be different from a review for
    reasonableness. It is unwise to do so because these issues 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.
    It is unnecessary in this case because the result would be the same under both
    standards of review. Even assuming that patent unreasonableness can be given
    a pre-
Dunsmuir
meaning as proposed by the HRTO, for the same reasons
    that I find that the decisions of the Vice Chair were unreasonable, I also find
    that the decisions were patently unreasonable. The reasoning and logical errors
    are immediate and obvious, such that the decisions are clearly irrational and
    evidently not in accordance with reason.

(2)

Did the Divisional Court correctly apply the
    reasonableness standard of review?

(a)

Reasonableness Review Under
Vavilov

[57]

The parties point to the majority reasons in
Vavilov
to
    describe what constitutes a reasonable decision and to define the role of the
    reviewing court in conducting a reasonableness review.

[58]

The majority in
Vavilov
describes the review for
    reasonableness as one that focuses on the decision actually made by the
    decision maker and considers both the rationale for the decision and the
    outcome to which it led: at para. 83. A principled approach to a reasonableness
    review puts the reasons first. The reasons must be examined by a reviewing
    court with respectful attention, seeking to understand the reasoning process
    followed by the decision maker to arrive at its conclusion: at para. 84. The
    court notes that a reasonable decision is one that is based on an internally
    coherent and rational chain of analysis and that is justified in relation to
    the facts and law that constrain the decision maker: at paras. 85, 102-4. The
    shortcomings or flaws relied on to challenge the decision must be sufficiently
    central or significant to render the decision unreasonable: at para. 100.

(b)

Were the Vice Chairs decisions reasonable?

[59]

As noted earlier, this court must step into the shoes of the Divisional
    Court when considering this appeal. As such, the focus is not on the reasoning
    of the Divisional Court, and whether it reveals error, but on the reasoning in
    the Vice Chairs decisions and their result. That said, and despite the fact
    that the Divisional Court conducted its review for reasonableness pre-
Vavilov
,
    I am in substantial agreement with that courts analysis and conclusions: in
    effect that the logical errors in the Vice Chairs decisions, and her implicit
    finding of undue hardship when the University had not relied on this defence,
    rendered her decisions unreasonable.

(i)

Positions of the Parties

[60]

The University submits that the Vice Chairs decisions were reasonable:
    her analysis is internally rational and coherent and is justified on the facts
    and the law. The University asserts that the Divisional Court erred by focusing
    on grades out of context, by failing to take proper account of the Universitys
    academic standards, and by failing to defer to the Vice Chairs findings about
    the role and weight to be given to the supplemental or non-academic materials
    provided by Mr. Longueépée.

[61]

Mr. Longueépée submits that the Vice Chairs decisions were
    unreasonable. Specifically, he contends that the Vice Chairs reasons contain a
    logical error: once she concluded that the 65 percent grade standard for transfer
    students was discriminatory, she could not rationally conclude that the
    application of that standard to him constituted reasonable accommodation of his
    disabilities. The error was in determining that the University accommodated Mr.
    Longueépée when it based its admissions decision on his unaccommodated grades.
    He also argues that the decisions were unreasonable because the Vice Chair
    applied the defence of undue hardship when this defence had not been pleaded by
    the University and no evidence had been tendered on this point.

(ii)

Discussion

[62]

I agree with Mr. Longueépée that the Vice Chairs decisions were
    unreasonable. In essence, after accepting that the University had met what the
    Vice Chair characterized as the procedural duty to accommodate Mr. Longueépées
    inability to comply with its grades criteria for admission due to disability by
    conducting an individualized assessment of his application, the Vice Chair
    concluded that the University met its substantive duty to accommodate when it
    considered only the unaccommodated grades to be relevant to his ability to
    succeed in university. The Vice Chairs reasons do not support her conclusion
    that the University met its obligation to accommodate Mr. Longueépées
    disabilities in its admissions process. As I will explain, the Vice Chair
    ultimately failed to grapple with the core issue, and the effect of her
    decision was to recognize that the University, although embarking on a process
    to provide accommodation, in fact had no duty to carry through with that
    process to accommodate Mr. Longueépée in his application for admission. Further,
    the Vice Chair effectively recognized an undue hardship defence, even though
    the University did not argue or present evidence of undue hardship. These shortcomings
    rendered the Vice Chairs decisions unreasonable.

[63]

As
Vavilov
instructs, the reasonableness review begins with
    the reasons of the decision maker, which must be examined with respectful
    attention, seeking to understand the reasoning process.

[64]

I begin with what is not in dispute.

[65]

The Vice Chair accepted that Mr. Longueépée had established a
prima
    facie
case of discrimination. She determined that [Mr. Longueépées]
    disabilities impacted his ability to meet the [Universitys] admissions
    standard for transfer students and in this way, he was adversely impacted by
    the standard: at para. 35. The finding of
prima facie
discrimination resulting
    from the Universitys grades-based admissions standard was not challenged by
    the University in this court.

[66]

I also note that there is no disagreement between the parties as to the
    proper framework that was to guide the Vice Chairs analysis. Although not
    articulated in her reasons, the three-step test prescribed by the Supreme Court
    of Canada in
British Columbia (Public Service Employee Relations
    Commission) v. BCGSEU
, [1999] 3 S.C.R. 3 (
Meiorin
) and
Grismer
applies to determine whether a
prima
    facie
discriminatory requirement is reasonable and
bona fide
. Under
    the
Meiorin/Grismer

test, the University had the obligation to
    establish:

a.

that the grades standard for transfer students was
    adopted for a purpose or goal that is rationally connected to the function
    being performed;

b.

that it adopted the grades standard in good
    faith in the belief that it was necessary for the fulfilment of that purpose or
    goal; and

c.

that the standard was reasonably necessary to accomplish
    its purpose, in the sense that the University could not accommodate persons
    with the characteristics of Mr. Longueépée without incurring undue hardship.

[67]

There is no question that the first two steps were met by the
    University in this case. This was accepted by the Divisional Court as implicit
    in the Vice Chairs decisions, and the respondent does not take issue with this
    conclusion. The Universitys grades-based admission standard for transfer
    students is rationally connected to the admissions process as a predictor of
    the ability to succeed at university, and the standard was adopted in an honest
    belief that it was necessary to ensure that admitted students would have the
    ability to succeed.

[68]

The issue before the HRTO was whether the University accommodated Mr. Longueépée
    in its admissions process to the point of undue hardship. As McLachlin J. (as
    she then was) stated in
Grismer
:
Failure to accommodate may be
    established by evidence of arbitrariness in setting the standard, by an
    unreasonable refusal to provide individual assessment, or perhaps in some other
    way. The ultimate issue is whether the employer or service provider has shown
    that it provides accommodation to the point of undue hardship: at para. 22.
    Indeed, in this case, the University asserted that it had accommodated Mr. Longueépée
    by providing an individualized assessment of his application by the Admissions
    Committee with a view to determining whether he was likely to succeed at
    university.

[69]

The parties are also in agreement that the duty to accommodate can be
    said to have both procedural and substantive components. This distinction was
    briefly made by McLachlin J., at para. 66 of
Meiorin
, where she wrote,
    in the context of an employment standard, that it may often be useful as a
    practical matter to consider separately, first, the

procedure
, if any, which is adopted
    to assess the issue of accommodation and, second, the
substantive content
, of either a more
    accommodating standard which was offered or alternatively the employers
    reasons for not offering any such standard (emphasis in original).

[70]

The procedural component typically involves the identification of the
    process or procedure to be adopted in providing accommodation to the person who
    would be subject to the discriminatory standard: see
Lane v. ADGA Group
    Consultants Inc.
(2008), 295 D.L.R. (4th) 425 (Ont. Div. Ct.), at para.
    106;
Roosma v. Ford Motor Co. of Canada
(2002), 164 O.A.C. 252 (Div.
    Ct), at para. 210,
per
Lax J. (dissenting, but not on this point).
    Because it requires an understanding of the persons needs, and requires the
    person to provide information,
procedural accommodation is sometimes
    referred to as the accommodation dialogue: see
Liu v.
    Carleton University
, 2015 HRTO 621, at para. 18. O
nce
    the institution has an understanding of the claimants specific needs, it must
    ascertain and seriously consider possible accommodations that could be used to
    address those needs, including
the option of undertaking an
    individualized assessment
in the case of
a discriminatory
    standard
: see
Grismer
, at para. 42;
ADGA
, at
    para 106.
The substantive component of accommodation can refer to the
    steps taken to implement the accommodation to the point of undue hardship. It involves
    the consideration of what was actually done in the accommodation process to
    meet the individuals needs: see
Roosma
, at para.
    210.

[71]

It is sometimes difficult, and not always helpful to the analysis, to
    separate out the procedural and substantive components of accommodation. What
    is identified as
procedural accommodation can shade into substantive
    accommodation because it is the particular measure or method of accommodation
    identified through procedural accommodation that is to be assessed as
    substantive accommodation. In this case there
was no indication
    that the University engaged in an accommodation dialogue with Mr. Longueépée or
    undertook any other measures to assess how his disabilities might impact his
    ability to meet the Universitys grade standard. Instead, it decided that Mr.
    Longueépées application would be assessed by an Admissions Committee to
    determine his ability to succeed in university. This was considered by the Vice
    Chair to have fulfilled the procedural component of accommodation  a
    conclusion that is not challenged by the respondent in this court. How the
    Admissions Committee went about the assessment of Mr. Longueépées application
    was then considered as the substantive component of the Universitys
    accommodation. In the end however the issue was whether the University reasonably
    accommodated Mr. Longueépées disabilities in its admissions process.

[72]

I turn to how the Vice Chair analyzed the issue of accommodation and
    why I consider her decisions to be unreasonable.

[73]

The Vice Chair concluded that the University met the procedural
    component of its duty to accommodate when, in response to his extenuating
    circumstances, it accepted Mr. Longueépées application for consideration even
    after it was submitted late and outside of the normal process, and convened the
    Admissions Committee to determine Mr. Longueépées ability to succeed in
    university: at paras. 23, 38. In her reconsideration decision the Vice Chair observed
    that the University met its procedural duty to accommodate when the Admissions
    Committee conducted an individualized assessment of Mr. Longueépées application
    for admission: at para. 19.

[74]

The Vice Chair then turned to what she identified as the issue in the
    case  whether the University met its substantive duty to accommodate: at para.
    39.

[75]

The Vice Chair concluded that the Admissions Committee met its
    substantive duty to accommodate when it considered
only
Mr. Longueépées
    unaccommodated grades and disregarded the other non-academic materials he had
    submitted with his application. Yet, there was no indication that the
    Admissions Committee made any effort to understand how Mr.
Longueépées
disabilities might have affected his
    Dalhousie grades, or to analyze whether his grades, interpreted in light of his
    disabilities, might assist in showing his ability to succeed at university.

[76]

The Admissions Committees failure to question how it should interpret
    Mr. Longueépées Dalhousie grades amounted to a decision to take those
    grades at face value. This was symptomatic of the underlying contradiction in
    the Committees approach. In the words of the Divisional Court, the Admissions
    Committee professed an accommodation dialogue, but the dialogue was firmly
    anchored to the very grades which [the Admissions Committee] implicitly, if not
    expressly, recognized as not being reflective of Mr. Longueépées abilities: at
    para. 53.

[77]

The fact that the Admissions Committee considered only Mr. Longueépées
    grades was inconsistent with the individualized and holistic (based on
    everything that the student has done) process that was described by the
    Universitys witnesses and relied on by the Vice Chair when she concluded that
    the University met its procedural duty to accommodate.

[78]

The University argues that the Admissions Committee did in fact
    consider all of the materials Mr. Longueépée submitted, and that the Vice-Chair
    did not err in deferring to Waterloos exercise of academic judgment in
    evaluating the
weight
to be given to the
    non-academic materials.

[79]

I disagree. The Admissions Committee did not consider whether
    Mr. Longueépées supplementary materials demonstrated an ability to succeed
    at university. It is true that the Universitys email to Mr. Longueépée
    refusing him admission stated that the Admissions Committee had [undertaken] a
    comprehensive review of [his] supporting documents, references and testimonials
    with a view to determining [his] admissibility, and the Admissions Committees
    summary of its meeting stated that it concluded that Mr. Longueépée was not
    admissible after a comprehensive review of the supporting documents,
    references and testimonials. The Vice-Chair however found at para. 48 that
    there is no indication that [the Admissions Committee] considered [Mr.
    Longueépées] volunteer work on behalf of child abuse survivors and reference
    letters given for that work as
relevant
to his
    ability to succeed in university, which she considered to be a judgment call
    the Committee was able to make. Further, at para. 11 of her reconsideration
    decision, the Vice Chair referred to her finding that the Admissions Committee
    was entitled to disregard reference letters and volunteer work as indicators of
    potential academic success. In other words, she found that the Admissions
    Committee considered everything other than grades to be irrelevant to Mr.
    Longueépées ability to succeed in university, and that the Committee was entitled
    to have done so.

[80]

There is no evidence in the case the University presented to the HRTO
    that the Admissions Committee had actively engaged with the additional material
    provided by Mr. Longueépée in order to determine whether it demonstrated his
    ability to succeed at university. As the Divisional Court correctly observed, while
    the Admissions Committee purported to consider information other than Mr. Longueépées
    grades, the explanation for its decision was bereft of any evaluation of that
    information: at paras. 54-56.

[81]

The core issue before the Vice Chair was the following: if the Admissions
    Committee only considered Mr. Longueépées unaccommodated grades to be relevant
    to his ability to succeed in university, and considered irrelevant the other
    materials that it had undertaken to review, how could the University
    demonstrate that it had reasonably accommodated Mr. Longueépée in the
    admissions process?

[82]

The Vice Chair did not grapple with this core issue. Instead, she
    adopted the Universitys point of view, stating that there was no information
    before the Admissions Committee that Mr. Longueépée could succeed: at para. 49.
    She accepted, at para. 51, that in an academic setting, the ability to succeed
    is measured by grades: there is no other measure to evaluate success. This
    conclusion was incompatible with the Vice Chairs finding that the Universitys
    grades standard was discriminatory because Mr. Longueépées Dalhousie grades
    were achieved when he had unaccommodated disabilities. In the absence of any
    process for interpreting those grades, it was not open to the Vice Chair to
    find that the consideration of
only
those grades could constitute
    reasonable accommodation.

[83]

Based on the record, the Vice Chairs decisions were constrained by
    several facts. First, Mr. Longueépée applied with unaccommodated grades and
    other non-academic materials. The grades were, as the Divisional Court said,
    marks that were the process of an unaccommodated disability. Second, although
    the Faculty had established grade standards for admission, recognizing that Mr.
    Longueépée had a disability and that his grades were unaccommodated, the
    Admissions Committee was meant to use a holistic process to evaluate his
    application. Yet, the Vice Chair concluded that there was substantive
    accommodation based on the finding that the Admissions Committee was entitled
    to rely solely on Mr. Longueépées unaccommodated grades in refusing him
    admission.

[84]

The Vice Chairs decisions do not reflect an internally coherent chain
    of analysis justified on these facts because she simultaneously accepted that
    Mr. Longueépées grades were unaccommodated and that the Admissions
    Committee was entitled to disregard his other application materials and to base
    its decision to deny him admission solely on his unaccommodated grades. Without
    resolving these contradictory findings, her conclusion that there was
    substantive accommodation is unreasonable. It is not in fact a finding that the
    University had reasonably accommodated Mr.
Longueépée
,
    but a finding that there was no duty to accommodate. The Vice Chair in effect
    bypassed the third step of the
Grismer
test when she concluded that it
    was sufficient for the University to consider only Mr. Longueépées grades in
    refusing him admission. Reasonable accommodation could not take the form of
    simply applying the discriminatory grade standard to his unaccommodated grades.
    If the University was going to do so, it needed to establish undue hardship.

[85]

This brings me to the second significant problem with the Vice Chairs
    reasons. In her reconsideration decision the Vice Chair stated, at para. 17: [t]o
    accept [Mr. Longueépées] 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 students
    grades. She observed that in Mr. Longueépées case, because his previous
    grades were obtained at another university, it would effectively require one
    university to sit in review of how another university had accommodated its
    students: at para. 18. Although the Vice Chair did not express her conclusion
    in terms of undue hardship, that is one way of construing what she concluded.

[86]

The University however did not rely on an undue hardship defence before
    the HRTO. Had it done so, it would have had the burden of leading evidence on
    that issue: see
Council of Canadians with Disabilities v. VIA Rail Canada
    Inc.
, 2007 SCC 15, 279 D.L.R. (4th) 1, at paras. 109, 142, and 226;
Grismer
,
    at paras. 41-42. By addressing the issue through the lens of an undue hardship
    analysis, the Vice Chair decided an issue that was not before her and for which
    she had no evidence.

[87]

In summary, the Vice Chairs reasons contain a fundamental gap that
    renders them unreasonable. Rather than inquiring into the steps taken by the
    Admissions Committee in response to the
prima facie
discrimination
    that would result from the application to Mr. Longueépée

of the Facultys
    grade standard, she accepted that Mr. Longueépée had been substantively
    accommodated when the Admissions Committee had based its decision solely on his
    unaccommodated grades. The Vice Chair also effectively gave credit to an undue
    hardship argument when the University did not present evidence on or rely on
    this defence. For these reasons, I conclude that the decisions of the Vice
    Chair that led to her dismissal of Mr. Longueépées application under the Code
    were unreasonable and patently so, such that the Divisional Court was correct
    in setting aside the decisions on judicial review.

[88]

Before leaving this issue, I note that nothing in these reasons is
    intended to discourage or disparage the Universitys grades-based admissions
    standards. The conclusion that the University did not accommodate Mr. Longueépées
    disabilities does not impugn its academic standards or its usual discretion in
    applying such standards. The issue before this court was the reasonableness of
    the Vice Chairs finding in the context of his human rights complaint, that the
    University discharged its duty to accommodate Mr. Longueépées disabilities in its
    admissions process. The finding was unreasonable because the University fell
    short in the performance of its express undertaking to provide accommodation in
    the ways I have described.

(3)

What is the appropriate remedy in the circumstances?

[89]

The order of the Divisional Court allowing the application for judicial
    review of the decisions of the HRTO, states at para. 1:

THIS COURT ORDERS THAT
the application for judicial review is allowed; the decision and
    reconsideration decisions of the HRTO dated 25 May 2017 and 22 December 2017
    (respectively) are set aside; and the matter is remitted to the Admissions
    Committee for consideration by way of an accommodated admissions process that
    is consistent with the Courts reasons.

[90]

In considering the question of remedy, the majority in
Vavilov
held that where a decision reviewed by applying the reasonableness standard
    cannot be upheld, it will most often be appropriate to remit the matter to the
    decision maker to have it reconsider the decision, this time with the benefit
    of the courts reasons: at para. 141. However the court went on to say that
    [d]eclining to remit a matter to the decision maker may be appropriate where
    it becomes evident to the court, in the course of its review, that a particular
    outcome is inevitable and that remitting the case would therefore serve no
    useful purpose: at para. 142. Indeed, this is what the Supreme Court did in
Vavilov.

[91]

By contrast, in
Canadian Broadcasting Corporation v. Ferrier
,
    2019 ONCA 1025, 148 O.R. (3d) 705, leave to appeal refused, [2020] S.C.C.A. No.
    59, this court quashed the decision of the administrative decision maker and
    remitted the matter for reconsideration. An important factor was that the
    administrative decision maker had not had a genuine opportunity to weigh in on
    the issue in question.

[92]

The University argues that it was inappropriate for the Divisional
    Court to bypass the HRTO and to remit the matter directly to the Admissions
    Committee without conducting an analysis as to whether this was an exceptional
    case where such a remedy was warranted. It submits that this approach is
    incompatible with the approach required under
Vavilov
.

[93]

Mr. Longueépée submits that the Divisional Court was right to send the
    matter back to the Admissions Committee. Although the court did not have the
    benefit of the majority reasons in
Vavilov
, this is an exceptional
    case where a particular outcome is inevitable: the University discriminated in
    its admissions process when it relied on Mr. Longueépées unaccommodated grades
    and reasonable accommodation would require the reassessment of Mr. Longueépées
    application without relying on the gap between his prior grades and the 65
    percent grade standard. Mr. Longueépée also notes that because all of the
    parties are publicly funded, the Divisional Courts remedy avoids wasting
    public funds litigating an issue where there is only one possible result.

[94]

The Divisional Court did not explain why, having allowed the
    application for judicial review, it was sending the matter back to the
    Admissions Committee with directions on how to assess Mr. Longueépées
    application, and not to the HRTO to determine the appropriate remedy. I am
    satisfied that the conclusion that the University discriminated against Mr. Longueépée
    in the admissions process is inevitable on the record that was before the Vice
    Chair. That said, the appropriate remedy is not. In my view, in these early
    post-
Vavilov
days, it is preferable to return the matter to the HRTO
    for its further disposition in light of these reasons so that it may fashion
    the remedy that, in its opinion, would promote compliance with the Code.

F.

CONCLUSION AND DISPOSITION

[95]

For these reasons, I would allow the appeal but only to the extent that
    I would substitute for para. 1 of the order of the Divisional Court an order: (1)
    setting aside the decision and reconsideration decision of the HRTO, (2) declaring
    that the University, contrary to the Code, discriminated against
    Mr. Longueépée when it failed to reasonably accommodate his disabilities
    in its admissions process in the 2013-14 academic year, and (3) remitting the
    matter back to a different member of the HRTO to determine, with such
    directions respecting additional evidence and/or submissions as may be required,
    the appropriate remedy under the Code.

[96]

If the parties cannot agree on the costs of this
    appeal, the court will accept written submissions no more than five pages in
    length beginning with Mr. Longueépée, to be served and filed with the
    court at coa.e-file@ontario.ca within two weeks of the release of this
    decision, followed one week later by the respondents costs submissions, and
    any reply within one further week thereafter.

K.
    van Rensburg J.A.

I
    agree. G.R. Strathy C.J.O.


Lauwers J.A. (concurring):

[97]

I concur without reservation with my colleagues reasons. I wish to add
    some reflections on the unique position of universities in the landscape of
    public institutions.

[98]

Universities enjoy a measure of autonomy in the pursuit of their
    mission that must be understood and respected. This consideration forms the
    context of this appeal. In my view, a measure of deference is owed to
    universities with respect to core academic decisions including admissions.
    Deference does not completely insulate academic decisions from public scrutiny,
    including the scrutiny applied by tribunals for compliance with the
Human
    Rights Code
, R.S.O. 1990, c. H.19, but it must inform that scrutiny.

[99]

Courts have treated universities with some caution. The borders of
    university autonomy are implicated by legal debates over the proper limits to
    be placed on executive and judicial oversight into the internal affairs of
    universities, for example, whether and how universities are subject to the
Charter
:
    See
McKinney v. University of Guelph
, [1990] 3 S.C.R. 229;
Harrison
    v. University of British Columbia
, [1990] 3 S.C.R. 451;
Yashcheshen v.
    University of Saskatchewan
, 2019 SKCA 67, leave to appeal to S.C.C.
    refused, [2020] S.C.C.A. No. 320;
BC Civil Liberties Association v.
    University of Victoria
, 2016 BCCA 162, leave to appeal to S.C.C. refused
    [2016] S.C.C.A. No. 289;
Pridgen v. University of Calgary
, 2012 ABCA
    139, 350 D.L.R. (4th) 1. There are also ongoing debates about the degree to
    which university actions are subject to judicial review in accordance with
    administrative law principles: See for example
UAlberta Pro-Life v.
    Governors of the University of Alberta
, 2020 ABCA 1, 441 D.L.R. (4th) 423.
    And this court was recently required to examine the interaction between
    university discipline and labour law principles when the employees in question
    are also students:
Ball v. McAulay
, 2020 ONCA 481.

[100]

There
    are historical and functional reasons for a cautious approach. In Ontario, as
    this court explained in
Ball
, at para. 59, the backdrop was set by the
    seminal
Report of the Royal Commission on the University of Toronto

(Toronto: Queens Printer, 1906). The court noted that

universities in Ontario enjoy a
    considerable measure of self-governance flowing from the principle of
    university autonomy. Affirming that principle, the Report recommended that the
    internal administration of the University of Toronto be separated from the
    provincial government where it had previously reposed. Subsequent university
    legislation in Ontario is built on the same template. As this court noted in
Ball
, the autonomy of
    universities must be taken seriously: at para. 59.

[101]

The
    feature of university autonomy at issue in this case is the admissions process.
    I see the admissions process as a core feature of university autonomy. The
University
    of Waterloo Act
,
1972
,
S.O. 1972, c. 200 invests internal control
    over the admissions process in the Senate, at s. 22(d). That the conditions of
    admission are determined by the Senate confirms that the admissions process is
    at the heart of the universitys
academic
mission and should attract a
    high degree of deference. As this court stated in
Mulligan v. Laurentian
    University
, 2008 ONCA 523, 302 D.L.R. (4th) 546, at paras. 20-21:

[I]t has long been accepted that courts should
    be reluctant to interfere in the core academic functions of universities.
    [Citations omitted.]

Here, the decision whether to admit the
    appellants to the Department of Biology M.Sc. Program was a decision going to
    the core of a universitys functions.

See also
Gauthier c. Saint-Germain
,
    2010 ONCA 309, 325 D.L.R. (4th) 558, leave to appeal to S.C.C. refused, [2010]
    S.C.C.A. No. 257.

[102]

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, as La Forest J. wrote in
McKinney
. In
Harelkin
    v. University of Regina
, [1979] 2 S.C.R. 561, Beetz J. noted, at p. 594:
    The Act incorporates a university and does not alter the traditional nature of
    such an institution as a community of scholars and students enjoying
    substantial internal autonomy.

[103]

In
    my view, tribunals and courts should be equally careful to preserve the
    integrity of the university admissions process. As this court noted in
Mulligan
,
at para. 16:

The school has considerable discretion in
    choosing who among the pool of persons who meet the admission standards will be
    admitted. In exercising that discretion
the school may take into account
    matters that it believes will best enable it to provide the highest quality
    program in the interests of the students and to enhance the calibre and
    reputation of the school itself
. [Emphasis added.]

[104]

Although
    Ontarians have a right to elementary and secondary publicly funded education,
    they do not have the same right to university education. Because admission to
    university is not a right or entitlement, an applicants obligation to
    demonstrate the cognitive capacities and the other competencies to succeed at
    university plays a role throughout the admissions process and is not entirely
    displaced by the positive duty to accommodate that is cast on the university
    under the Code.

[105]

The difficult
    reality is that certain claimants will still fall short of the standards that
    universities have set, even with accommodation. For example, even if every
    possible accommodation were investigated and assessed, a claimant might still
    be evaluated as lacking the cognitive capacity and other competencies necessary
    to succeed at university and would therefore not be eligible for admission.

[106]

The
    deference owed to universities does not completely insulate academic decisions
    from tribunal or judicial scrutiny, but the Human Rights Tribunal of Ontario
    must be cautious not to override the admissions standards of universities in
    its mission to ensure accommodation. In this case, the HRTO was too cautious.
    Other cases will be different and we will be feeling our way on how these
    tensions of deference to university decisions in the core areas of their
    mandates and the duty to accommodate get worked out on the ground. I add these
    observations to explain why I agree strongly with my colleagues statement
    that: nothing in these reasons is intended to discourage or disparage the
    Universitys grades-based admissions standards.

Released: December 21, 2020 (G.R.S.)

P. Lauwers J.A.





[1]
See for example:
Audmax Inc.
    v. Ontario Human Rights Tribunal
, 2011 ONSC 315, 328 D.L.R. (4th) 506
    (Div. Ct.), at para. 32;
Stepanova v.
    Human Rights Tribunal of Ontario
, 2017 ONSC 2386 (Div. Ct.), at para. 18,
    leave to appeal to Ont. C.A. refused, M47977 (January 19, 2018);
Abbey v. Ontario (Community and Social Services)
,
    2018 ONSC 1899, 408 C.R.R. (2d) 219 (Div. Ct.), at para. 20; and
Konesavarathan v. Middlesex-London Health Unit
,
    2019 ONSC 3879 (Div. Ct.), at para. 42, leave to appeal to Ont. C.A. refused, M50638
    (November 26, 2019).


