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Human Rights (Ont) - Remedies. University of Waterloo v. Roch Longueépée
In University of Waterloo v. Roch Longueépée (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an HRTO JR, here after a previous HRTO was remitted back down "to fashion an appropriate remedy" where the issue was discrimination "with respect to the receipt of educational services due to his learning disabilities".
The court considers HRTO remedies, particularly here a 'systemic' remedy:An Admissions Standard that Violates the University Senate’s Authority
[50] The University submits that the remedy ordered significantly interferes with its independence and autonomy with respect to its admissions process, a core feature of its institutional autonomy. The University of Waterloo Act empowers the University Senate to determine admissions standards. As such, the University submits that the remedy ordered by the Tribunal imposes admissions criteria outside the Senate’s authority because the PLAR pilot project ordered creates an admissions process not approved by the University Senate. The Tribunal, though stating it was trying to strike a balance as advised by the Ontario Court of Appeal, fails to explain or provide any analysis regarding the basis for such a remedy.
[51] The Intervenor supports the University’s position on this. It submits that the Tribunal’s remedy disrupts the established law that mandates individualized accommodation methods, creates uncertainty, and forces universities to determine whether the PLAR pilot project supersedes their own lawful, but institutionally diverse accommodation processes. The Intervenor objects to the Tribunal’s specific commentary that other universities may learn from the PLAR pilot project as implying their current accommodation processes are suboptimal and may not comply with the Code. The Intervenor submits that the remedy ordered is contrary to the Court of Appeal’s direction and encroaches on university autonomy.
[52] I do not accept that the remedy fails to respect the autonomy or independence of the University regarding its admissions process or that the failure to provide further analysis renders the Decision unreasonable for the following reasons.
[53] First, the Tribunal was very mindful of the balancing required and the fundamental nature of the University’s ability to exercise its autonomy in the admissions process. The Tribunal referred to the Ontario Court of Appeal’s decision at length, in particular Lauwers J.A.’s concurring reasons where he opined that although the deference owed to universities did not completely insulate academic decisions from tribunal or judicial scrutiny, tribunals and courts must be careful to preserve the integrity of the university admissions process and not to unduly override admissions standards of universities in the mission to ensure accommodation. In fashioning its remedy, the Tribunal states, at para. 134:My decision in this case, and only in this case, is aimed at creating the balance that the Court advises, and the Code allows. In other words, I must be and am cognizant of the Court of Appeal’s warning set out in para. 106, that “nothing in these reasons is intended to discourage or disparage the University’s grades-based admissions standards”. [54] Second, as Mr. Longueépée points out, the University led little by way of evidence of any potential adverse effects of the remedial order nor did it make any argument based upon undue hardship. Rather, the University argued for its own currently modified admissions process for applicants with similar disabilities – one that the Tribunal questioned as being fully compliant with the Code – and from its principled position defending institutional autonomy and independence. It is in that context that the court must assess the adequacy of the Tribunal’s reasons.
[55] Third, the nature of the remedy decision provides significant deference to the University. The Tribunal did not direct the University to alter its admissions process with the actual implementation of PLAR as requested by Mr. Longueépée. The remedy left the establishment of academic standards for admissions to the University, subject to the pilot project. Further, the Tribunal left the development and evaluation of the pilot project to the University to ensure that it maintained its autonomy as well as the academic vigour of its programs. Finally, the remedy allows the University Senate the final say in what would be implemented from the results of the PLAR pilot project when the Tribunal directed that the “pilot project must then be considered and implemented as appropriate as a further step in the University’s Undergraduate Admissions Process Review Project” [emphasis added] and the Tribunal, though it directed a report back, did not remain seized of the matter.
[56] Fourth, I must afford significant deference to the Tribunal’s Decision regarding remedy. As stated by the Court of Appeal in Hamilton-Wentworth District School Board v. Fair, 2016 ONCA 421, 400 D.L.R. (4th) 526, at paras. 92-93, “the Code provides the Tribunal with broad remedial authority to do what is necessary to ensure compliance with the Code”, and that the Tribunal’s remedial decisions fall at the very heart of its expertise and are entitled to an “extremely high degree of deference”. This deference applies to the balancing of the interests conducted by the Tribunal in fashioning this specific remedy.
Departure from Established Caselaw on Remedies
[57] Lastly, the University takes the position the Decision is unreasonable for a number of other reasons: the wide-reaching remedy conflicts with the Tribunal’s established caselaw without justification; the systemic remedy does not “flow from the factual findings of discrimination in the particular case” since it was a singular finding of liability that the University discriminated against Mr. Longueépée and there was no evidence it was a regular occurrence or systemic in nature; the systemic remedy was overbroad and not responsive to the breach the Tribunal was dealing with; the remedy was inappropriate given that there is already significant oversight of University admissions processes and the costs of the remedy ordered are unknown or speculative; and, the remedy would negatively impact the administration of justice given its departure from established caselaw.
[58] The Intervenor also submitted that remedies must be proportional, evidence-based, effective, and specific to proven harm in line with the leading case of Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360, at paras. 64-66.
[59] In oral submissions, the University focused on the issue that HRTO remedies must not be overreaching and must be connected to the Tribunal’s factual findings. It submitted that the systemic remedy ordered was unconnected to Mr. Longueépée’s circumstances and did not flow from the discrimination committed against him as required from the authorities. The Decision was unreasonable as the Tribunal failed to justify its departure from this caselaw.
[60] To begin the analysis, section 45.2 of the Code provides the HRTO with the discretionary authority to order a broad range of remedies if the HRTO determines that a party to an application has discriminated against the other party including systemic remedies directed at future practices.
[61] Next, regarding the reliance on the unjustified departure from past authorities and practices, an argument not pressed in oral submissions, the crafting of a HRTO systemic remedy is dependent upon the specific issues and evidence in each individual case. It is difficult to establish the HRTO’s past practices or decisions within the meaning of Vavilov, at paras. 129-132, where the HRTO is obligated to explain its departure. A similar conclusion was made by the Divisional Court in Robinson-Cooke, at para. 91, on the facts before it.
[62] On this point, I observe that the Tribunal was aware that the HRTO has denied requested systemic remedies rather than individual remedies: see Hatimy v. McMaster University, 2020 HRTO 899. However, the Tribunal was satisfied in the case at bar that a systemic remedy was appropriate. It referenced the fact that given the long time between Mr. Longueépée’s application for admission to the University and the remedy decision, due to his personal health circumstances, an individual remedy of restoring him as far as reasonably possible to the position that he would have been in, had the discriminatory act had not occurred could not be fashioned: Piazza v. Airport Taxicab (Malton) Assn. (1989), 1989 CanLII 4071 (ON CA), 69 O.R. (2d) 281 (C.A.).
[63] Both the University and the Intervenor rely on Moore and argue that the Tribunal’s remedy is a significant departure from the principles set out therein. In Moore, a young student, Jeffrey, suffered from severe dyslexia for which he received special education at his public school. In Grade 2, a psychologist employed by the school district recommended that since he could not get the remedial help he needed at his school, he should attend the local Diagnostic Centre to receive the necessary remediation. When the school district closed the Diagnostic Centre, the student transferred to a private school to get the instruction he needed. His father filed a complaint with the British Columbia Human Rights Tribunal on his son’s behalf against the school district and the province on the grounds that he had been denied a “service ... customarily available to the public” under s. 8 of British Columbia’s Human Rights Code, R.S.B.C. 1996, c 210. The Tribunal concluded that there was discrimination against the student by the district and the province and ordered a wide range of sweeping systemic remedies against both.
[64] At the Supreme Court of Canada, Abella J. upheld the finding of discrimination but struck down the remedies imposed by the Tribunal. The reason for this she said was the following, at para. 64:But the remedy must flow from the claim. In this case, the claim was made on behalf of Jeffrey, and the evidence giving concrete support to the claim all centred on him. While the Tribunal was certainly entitled to consider systemic evidence in order to determine whether Jeffrey had suffered discrimination, it was unnecessary for it to hold an extensive inquiry into the precise format of the provincial funding mechanism or the entire provincial administration of special education in order to determine whether Jeffrey was discriminated against. The Tribunal, with great respect, is an adjudicator of the particular claim that is before it, not a Royal Commission. [65] The Tribunal in the case at bar was very cognizant of this principle. It stated, at para. 131:The goal of the matter before the Tribunal is not to create whole scale systemic change throughout the Canadian educational system by eliminating all references to grades and marks, but to determine the appropriate remedy in this case. [66] Moreover, the remedy of a PLAR pilot project is very different in nature and scope from the remedies that were struck down in Moore. In Moore, the B.C. Human Rights Tribunal ordered the province to allocate funding and to establish mechanisms and services to ensure appropriate accommodations were made. As well, in Moore, the Tribunal seized itself to oversee the implementation of the remedial orders. Justice Abella found these remedies were too remote from the scope of the complaint as well as redundant: at paras. 57-70.
[67] Such is not the case here. The PLAR pilot project direction flows from Mr. Longueépée’s claim.
[68] First, there is a close nexus to his claim and personal circumstances. The PLAR pilot project would provide information to the University that would assist in providing Mr. Longueépée, were he in a situation in his life to do so, a fair and equal opportunity to gain admission despite his disabilities. The Tribunal’s public interest remedy responds to Mr. Longueépée’s personal discrimination but also paves the way for other students living with similar learning disabilities to access an admissions process that does not rely solely on grades.
[69] Second, the criticism levied against the Tribunal that its remedy is overly broad and casts a net so wide as to include any potential student who has any disability in accessing the PLAR process is unsubstantiated when one views the reasons and the evidence closely.
[70] The evidence led at the hearing establishes that PLAR itself can potentially screen and evaluate persons before they are accepted. For instance, Memorandum 132 explains that there is a “challenge” process whereby the student must present evidence that they “can provide reasonable evidence to the principal that they would be likely to be successful in the challenge process, in accordance with criteria established in this memorandum, and with policies and procedures established by the board.” Therefore, the process itself can have evaluative criteria. The Tribunal’s direction leaves the determination of the exact nature of the criteria to the University.
[71] The Decision of the Tribunal is expressly tailored to the specific discrimination complaint. The PLAR pilot project involves the creation of a process to evaluate the effectiveness of PLAR “for the purposes of admission of students who may not be admitted on the basis of the respondent’s current admission and evaluation process”: at para. 136 of the Decision. In other words, the Tribunal leaves in place the University’s current accommodation process and requires the PLAR pilot project to only capture those students with disabilities who may not be admitted using the current process. As well, the Decision refers to the PLAR pilot project “as a way of satisfying the accommodation needs of students with disabilities whose disabilities were not perhaps fully recognized and/or accommodated”: at para. 138. In the Order itself the Tribunal directs at para. 139:As set out above, the respondent must initiate, implement and evaluate a PLAR pilot project for the purposes of facilitating the potential admission of students whose disabilities and past accommodations and experiences would make them ineligible for admission on the basis of a purely grades-based basis. [Emphasis added.]
Thus, although PLAR as a general assessment tool can be used for diverse groups of applicants for admission to an educational institution, the PLAR pilot project ordered in the Decision is constrained to involve only those students that are in the same position as Mr. Longueépée: potential students who because of their disability and lack of previous accommodations and experiences were unable to gain admission under a grades-based process or the University’s current admission processes. Even then, provided the University’s decision is compliant with the Code, the ultimate decision regarding the admission of a student remains with the University. [72] Read accurately, the Decision does not overshoot the Divisional Court and Court of Appeal’s findings. Specifically, the University’s obligation is to assess Mr. Longueépée’s candidacy without recourse to his unaccommodated marks and to consider other relevant information: Longueépée v. University of Waterloo, 2019 ONSC 5465, at para. 57; Longueépée v. University of Waterloo, 2020 ONCA 830, 153 O.R. (3d) 641, at paras. 72-84. The PLAR pilot project supplies valuable information to permit this.
[73] In light of this specific remedy crafted by the Tribunal, a body recognized to have expertise in the substance, the legal analysis, and the procedure of statutory human rights law, both through their backgrounds and experience hearing applications and mediating in a high volume, direct-access system, the need to show deference is important. Additionally, the Supreme Court of Canada has stressed the necessity for flexibility and imagination in crafting remedies for infringements of fundamental human rights: Quebec (Commission des droits de la personne et des droits de la jeuness) v. Communaute urbaine de Montreal, 2004 SCC 30, [2004] 1 S.C.R. 789, at para. 26. And as Mr. Longueépée argued, the Supreme Court of Canada cautioned against minimizing people’s rights under the Code and enfeebling their impact: CN v. Canada (Canadian Human Rights Commission), 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114, at p. 1134.
[74] When viewed as a whole, I find that the Decision on remedy is reasonable.
[75] A parting comment. While it was superfluous for the Tribunal to direct that the results of the PLAR pilot project be made public for the edification of other universities, this does not impact the central aspects of the Tribunal’s reasons to the extent it is rendered unreasonable. . Zoghibi v. Air Canada
In Zoghibi v. Air Canada (Fed CA, 2024) the Federal Court of Appeal considered an appeal of a JR challenging a CHRC decision, here stemming from a discrimination complaint by an airline passenger that sought 'financial relief'.
Here the court considered whether the CHRC remedial provisions were overridden by those of an international treaty (the Montreal Convention) - which expressly provides that "punitive, exemplary or any other non-compensatory damages shall not be recoverable" [Art. 29] and it's implementing federal statute (the Carriage by Air Act) (it strikes me that but for the SCC precedent, this case should have been dealt with under 'paramountcy' doctrine):[14] Soon after the appellant filed his complaint, the Commission informed him that it was going to screen his complaint under ss. 40 and 41 of the Canadian Human Rights Act. Due to the Carriage by Air Act, the Commission was concerned that it would not have jurisdiction to give him financial compensation. After receiving submissions on point, the Commission found that the Tribunal had no jurisdiction to award damages. It screened out the entire complaint.
....
[20] However, as mentioned above, the Federal Court found (at paras. 46 and 52) that the appellant might be entitled to other human rights remedies not barred by the Montreal Convention and the Carriage by Air Act. For example, Air Canada might be subject to an order to take "“measures to redress the alleged discriminatory practice or prevent similar practices from occurring in future”" (at para. 52), for example by training its staff to handle circumstances such as this in a more rights-friendly way. It returned the matter to the Commission to decide these issues.
....
(3) As a matter of interpretation, did the Montreal Convention and the Carriage by Air Act bar the appellant’s human rights claim?
[51] The Commission answered this in the affirmative. In doing so, it acted reasonably.
[52] In its reasons, the Commission adopted paragraphs 60-68 of the investigation report. The report began (at para. 60) by reviewing the Montreal Convention and the Carriage by Air Act. It noted, as mentioned above, that article 17 of the Montreal Convention allows only for monetary compensation in cases of "“death or bodily injury of a passenger”" where "“the accident ... took place on board the aircraft or in the course of any of the operations of embarking or disembarking”".
[53] However, the report did not leap to the conclusion that the appellant’s claim was excluded. It asked itself whether there was any room under the Montreal Convention for claims based on "“fundamental, quasi-constitutional rights”" (at para. 62).
[54] Here, it found (at para. 62) that the Supreme Court had already decided that issue: Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340. The Supreme Court found that damages for breaches on aircraft of language rights — fundamental, quasi-constitutional rights — could not be claimed because of the Warsaw Convention, the predecessor to the Montreal Convention.
[55] The report went further (at paras. 64-65) and examined the Supreme Court’s reasoning in support of that conclusion. The Supreme Court had examined a case where a couple alleged that they were bumped from a flight because of their race: King v. American Airlines, Inc., 284 F.3d 352 (2d Cir. 2002). In that case, like here, the couple enjoyed statutory human rights protections against racial discrimination. Sotomayor J. (as she then was) concluded that the claim was caught by the Warsaw Convention which, like the Montreal Convention, exhaustively covers claims for injuries suffered while "“in the course of [one of] the operations of embarking”": Thibodeau at para. 68. The Supreme Court agreed with the analysis in King: Thibodeau at paras. 67-73.
[56] On the authority of Thibodeau, King (adopted by the Supreme Court) and the specific wording of the Montreal Convention and the Carriage by Air Act, the report concluded that the appellant’s human rights damages claim was barred.
[57] The Commission’s decision to adopt this part of the report and its reasoning is reasonable. The outcome is fully consistent with an authoritative decision of the Supreme Court and the meaning of the Montreal Convention and the Carriage by Air Act. As well, there is a clear, sufficiently articulated chain of reasoning leading from the facts of the case to the outcome. . Ontario (Minister of Children, Community and Social Services) v. Robinson-Cooke [HRC Overrides Statute and Regulatory Law]
In Ontario (Minister of Children, Community and Social Services) v. Robinson-Cooke (Div Court, 2024) the Divisional Court dismissed a Crown JR respecting a claimant-successful (and unusual) ODSP 'guide dog benefit' (GDB) HRTO 'disability' decision.
Here the court considers (and dismisses) the remedial argument that the HRC cannot override statutory or regulatory law:Issue 5 – Was the Tribunal’s remedy reasonable?
[105] Ontario argues that the Tribunal’s remedy unreasonably departed from the principles that govern public interest orders. Ontario submits that despite the Tribunal’s reliance on Ball v. Ontario (Community and Social Services), 2010 HRTO 360 to essentially direct the development of a new public policy, that case actually stands for the proposition that the HRTO ought to avoid making such orders since it is unnecessary and inconsistent with the role of the HRTO in relation to the Legislature and the Executive, and because the Tribunal failed to adequately justify the Decision’s departure from this previous case.[18]
The Tribunal’s remedy was reasonable
[106] The Code provides the HRTO with a broad remedial discretion to order remedies that are fair, effective, and responsive to the circumstances of the case.[19] Pursuant to ss. 45.2(1)3 and 47 of the Code, the HRTO may direct the respondent (Ontario in this case) not to follow the offending legislation or scheme, not only with respect to the applicant in a given case (Ms. Robinson-Cooke in this case), but also with respect to those similarly situated to the applicant.[20]
[107] The Supreme Court has directed human rights tribunals to ensure that their remedies are effective, creative when necessary, and respond to the fundamental nature of the rights in question.[21] Human rights tribunals must also be sensitive to their role as quasi-judicial arbiters and not fashion remedies which usurp the role of the other branches of governance by taking on tasks to which other persons or bodies are better suited.[22] The HRTO therefore has the authority to direct Ontario to take positive remedial steps to effective Code compliance.[23] The Supreme Court of Canada has “stressed the need for flexibility and imagination in crafting remedies for infringements of fundamental human rights”. This court has declined to disturb the Tribunal’s public interest remedies, unless an order is overbroad or overreaching, or where there are practical difficulties related to implementation.[24]
[108] Remedial awards under the Code are both compensatory and restorative. The recognition of the quasi-constitutional right must be accompanied by a closely linked remedy. The focus of the analysis is on whether the remedy is consistent with the goal of enforcing and restoring fundamental rights.[25]
[109] As the Court of Appeal for Ontario stated succinctly in Piazza v. Airport Taxi (1989), 1989 CanLII 4071 (ON CA), 69 O.R. (2d) 281 (C.A.) “[t]he purpose of the compensation is to restore a complainant as far as is reasonably possible to the position that the complainant would have been in had the discriminatory act not occurred.” Piazza has been applied consistently by both Ontario courts and tribunals and adopted by other Canadian jurisdictions.[26]
[110] The Court of Appeal for Ontario has affirmed that the “Code provides the Tribunal with broad remedial authority to do what is necessary to ensure compliance with the Code”, and this Court has found that the HRTO’s remedial decisions fall at the very heart of its expertise and are entitled to an “extremely high degree of deference”.[27]
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