Danychuk v University of Regina, 2022 SKCA 146

Court of Appeal for Saskatchewan Docket: CACV3987 Citation: Danychuk v University of Regina , 2022 SKCA 146 Date: 2022-12-21 Between: Chase Danychuk Appellant (Applicant) And The University of Regina Respondent (Respondent) Before: Leurer, Tholl and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Mr. Justice Tholl The Honourable Mr. Justice Kalmakoff On appeal from: 2022 SKQB 35 , Regina Appeal heard: December 1, 2022 Counsel: Daniel LeBlanc for the Appellant Erin Kleisinger, K.C. for the Respondent Leurer J.A. I.

INTRODUCTION [ 1 ] This is an appeal from an unsuccessful application for judicial review. [ 2 ] For several years, Chase Danychuk was enrolled as a student at the University of Regina [University] through its Faculty of Social Work [Faculty]. In 2020, he was removed from his program of study and the University. Mr. Danychuk challenged that decision at several levels internally within the University. The last step in that process was an appeal to the University’s Senate Appeals Committee [SAC]. That appeal was dismissed in October of 2020 [ SAC Decision ]. [ 3 ] Since Mr.

Danychuk was dissatisfied with this outcome, he applied for judicial review of the SAC Decision . His application was dismissed by a Court of Queen’s Bench judge sitting in Chambers: Danychuk v University of Regina , 2022 SKQB 35 [ Chambers Decision ]. [ 4 ] Mr. Danychuk now appeals from the Chambers Decision . At the root of Mr.

Danychuk’s appeal is the contention that he suffers from a mental disability and the Chambers judge erred by failing to identify that University decision-makers had a duty to accommodate his disability to the point of undue hardship, in accordance with The Saskatchewan Human Rights Code, 2018 , SS 2018, c S-24.2 [ Human Rights Code ]. [ 5 ] I have concluded that the Chambers judge committed no such error. Accordingly, Mr. Danychuk’s appeal to this Court must dismissed. These are my reasons. II. BACKGROUND A. University proceedings [ 6 ] Mr. Danychuk began his academic career at the University in 2016.

In 2017, he was admitted to a program of study working towards a Bachelor of Social Work [Program]. One of the Program requirements is that students adhere to certain standards of professional conduct [Professional Suitability Policy]. [ 7 ] On February 20, 2019, Dr. Miguel Sanchez, the Associate Dean of the Faculty, wrote to Mr. Danychuk. Dr. Sanchez identified specific concerns with Mr. Danychuk’s conduct and advised him that, under the Professional Suitability Policy, “the Faculty may take action to address unsatisfactory performance of professional responsibilities”. Mr.

Danychuk was told that, if these concerns were not addressed, Dr. Sanchez would “have no choice but to engage the process under the Professional Suitability Policy and establish a review panel to review [his] performance”. Mr. Danychuk was also advised that one of the outcomes of that process could be that he would be required to leave the Program. [ 8 ] In the final part of the February 20, 2019 letter, Dr. Sanchez expressed his preference “not to engage the Professional Suitability Policy process”. Rather, he said he “would like to develop a plan that would allow [Mr.

Danychuk] to deal with [his] personal issues (which are manifesting in unprofessional conduct)”, so Mr. Danychuk could continue in the Program with the best chance of success. Dr. Sanchez added that, given that Mr. Danychuk “appear[ed] to be suffering with certain personal and mental health issues”, he was prepared to grant Mr. Danychuk a medical withdrawal from his current classes, conditional upon Mr. Danychuk providing “appropriate documentation from [his] medical practitioner”. These parts of the letter featured heavily in the arguments made by Mr.

Danychuk before the Chambers judge and in this Court, as they form one of the bases for his contention that the University failed to accommodate his mental disability to the point of undue hardship.

[ 9 ] Mr. Danychuk did not address the concerns expressed in the February 20, 2019 letter to Dr. Sanchez’s satisfaction. He also did not accept Dr. Sanchez’s invitation to present medical evidence to support a claim that he suffered from mental health issues. [ 10 ] Accordingly, a review panel was established pursuant to the Professional Suitability Policy to review Mr. Danychuk’s continued enrollment in the Program. A hearing took place on February 22, 2020, which Mr. Danychuk and his mother attended. Submissions and evidence were presented prior to, and at, the hearing. Mr.

Danychuk did not dispute that the events which the University relied upon in support of the complaint against him had occurred. Instead, he took the position that “ by engaging in this behaviour, he did nothing wrong or anything that warranted dismissal from the Faculty and the University” ( Chambers Decision at para 16). [ 11 ] The review panel delivered its written report on March 11, 2020. In it, the review panel expressed the “ unanimous opinion that Mr.

Danychuk has demonstrated that he is not suitable for professional practice, and that he is unable to meet the requirements and professional responsibilities required of the [Program]”. The review panel described the basis of its concern as being how Mr. Danychuk “interacts with faculty, students, and university staff, and his lack of self-awareness on how he impacts others, including his inability to integrate feedback or direction”. In the result, the review panel recommended that “Mr.

Danychuk be required to discontinue from the [Program], and the University, for a specified period of time, or indefinitely in accordance with the regulations of the University of Regina”. [ 12 ] According to University procedures, the decision as to Mr. Danychuk’s continued enrollment in the Program was to be made by the Faculty’s Dean. Because Mr. Danychuk contended that the Faculty’s Dean was not impartial in the matter, the review panel’s report and recommendations were considered by the Dean of the Faculty of Nursing, Dr. david Gregory. In a letter dated March 31, 2020, Dr.

Gregory accepted the review panel’s recommendation and ordered Mr. Danychuk’s withdrawal from the Program for a minimum of two years [ Dean’s Decision ]. Mr. Danychuk was advised that he could petition the University for readmission on or after April 1, 2022. [ 13 ] Mr. Danychuk was dissatisfied with the Dean’s Decision . He appealed from it to the University’s Council Committee on Student Appeals [CCSA]. The CCSA held a hearing. On June 25, 2020, it communicated its decision to uphold the Dean’s Decision and therefore to deny Mr. Danychuk’s appeal [ CCSA Decision ]. [ 14 ] Mr.

Danychuk further appealed the CCSA Decision to the SAC. The SAC held a hearing, following which it dismissed Mr. Danychuk’s further appeal to it. The reasons for this were communicated to Mr. Danychuk in the SAC Decision dated October 7, 2020. [ 15 ] For a proper understanding of these reasons, it is important to have a clear focus on the position taken by Mr. Danychuk at each stage of the University proceedings. These were summarized in the Chambers Decision , as follows: [17] Mr.

Danychuk determined to defend himself at all levels of these proceedings on the basis that he was in pursuit of justice against the University. He continued to assert that the various University personnel had acted wrongly against him. He further, with his mother assisting him, asserted essentially that he had the right to deal with the individuals as he did as he was attempting to right wrongs which had been done to him. This approach continued through the various stages of appeal taken by him, really without variation or change in focus. [18] At no stage of this matter, either in discussions with Dr.

Sanchez, any other University personnel, or at the various hearings, did Mr. Danychuk advance evidence, or discussion, concerning any disabilities which either affected him or should have impact on any University related decisions to be made about him. [ 16 ] Mr. Danychuk was not satisfied with the SAC Decision. He applied to the Court of Queen’s Bench for an order quashing it and reinstating him as a student in the Program, as well as costs. His application was dismissed in the Chambers Decision . B. The Chambers Decision [ 17 ] The Chambers judge identified Mr.

Danychuk’s argument before him to be “ that the SAC’s decision was unreasonable, and further that it failed to consider the University’s obligation to accommodate his disabilities” ( Chambers Decision at para 1). After a detailed examination of the facts that led to the request for judicial review, he summarized Mr. Danychuk’s argument to be “ that he suffers from attention deficit hyperactivity disorder and generalized anxiety disorder” and, for this reason, “the University had a duty to accommodate him to the point of undue hardship” . With more specific reference to the SAC Decision itself, Mr.

Danychuk argued that “ the University did not interpret the [Professional] Suitability Policy reasonably and did not determine his suitability to be involved in the profession of social work”, and that its reasons were insufficient (at para 25). [ 18 ] For its part, the University defended the SAC Decision before the Chambers judge as being reasonable. It specifically argued that the issue of the duty to accommodate had not been presented by Mr. Danychuk at any stage of the proceedings prior to the application for judicial review.

It observed that no evidence had been called by him about it, meaning that the University also did not adduce the evidence which it might have presented had the issue been raised at any of the prior stages. For all these reasons, the University argued that it was inappropriate that its alleged breach of the Human Rights Code be considered in the context of the judicial review. [ 19 ] Following an overview of these matters, the Chambers judge structured his substantive analysis under two major headings: “1. Human rights concerns and the allegation of a duty to accommodate” and “2.

Is the decision reasonable?” [ 20 ] Under the first of these headings, the Chambers judge referred to various parts of the record which supported Mr. Danychuk’s assertion that the University was aware of his alleged disability. The Chambers judge also observed that Mr. Danychuk had “summarily rejected any notion that his health was, in any way, an issue in his disputes with the various University personnel” (at para 32). The Chambers judge noted instead that “Mr.

Danychuk fashioned his entire presentation before the Review Panel and his subsequent presentations [to the CCSA and SAC], on the basis that the University was entirely and completely at fault for what had happened to him” and he “did not provide evidence from himself or others on any mental health difficulties warranting accommodation” (at para 34). The Chambers judge then inventoried the arguments before him that “the complained-of behaviour concerns flowed from [his] well- documented disabilities” (at para 35, quoting from Mr. Danychuk’s brief of law filed in the Court of Queen’s Bench).

The Chambers judge observed that there “was no evidence in support of such a bold assertion presented at any stage of the proceedings before the University”

(at para 36). [ 21 ] The Chambers judge found it was not incumbent on University officials to raise the question as to whether Mr. Danychuk’s conduct was a product of his alleged disability. He said it was “not their function” to “become medical experts able to diagnose mental health issues, provide advice on treatment, and be accommodation experts based on such diagnosis and treatment”. He added that “more fundamentally these things are not in any way connected to the case [Mr. Danychuk] presented” at the various stages of the University proceedings (at para 38).

The Chambers judge then continued, with apparent reference to the review panel and the SAC: [39] In the case of the deliberative bodies, they are established to provide the engaged participants with a fair, unbiased, and considered hearing, in determining the dispute between the student and the University. To those panels, the opposing sides will tender both their evidence and their submissions in support of the remedy they seek.

The bodies are not at liberty to then determine it appropriate to simply proceed on their own analysis in complete contradistinction to that provided by the parties when appearing before them. The bodies are not entitled to say, in effect, we know what you think the problem is but we have determined to ignore that which is presented and tell you what the real problem is.

Said differently, they are not entitled to then say that they know better and will therefore take an entirely different tack than that presented to them. [40] And they are not entitled to complete their own investigation to ferret out any such potential information. They are not entitled to ignore that which is presented and proceed with a completely different hearing. To do so would be to ignore all that the applicant presented to them in support of the case he sought to advance. [41] Here, Mr.

Danychuk made a decision to advance his opposition to the University’s recommendation by asserting what he had done was right and just, and what they were doing was interfering in his pursuit of such justice. This, of course, he was entirely entitled to do. Having been unsuccessful in that course of action, he is not then entitled to change course on this judicial review and attempt to advance something completely different.

He is not entitled, after everything is concluded, to seek essentially a de novo hearing by way of this judicial review application. [42] Having presented no evidence, submissions, argument, or alternatives with respect to his mental health concerns, the present forum is not an opportunity for a “do-over.” He laid out his substantive course of action in response to the procedural course of action taken by the University. Now is too late to consider this line of attack. It may be he seeks to pursue this issue by way of complaint to the Saskatchewan Human Rights Commission if that is appropriate to do.

That is a decision for him to make quite separate and apart from this judicial review application. [ 22 ] Finally, in his analysis under his first heading, the Chambers judge referred to case law relied on by Mr. Danychuk “where a student’s mental health concerns were specifically dealt with by an institution and accommodation was discussed” (at para 43).

He distinguished Haghir v University Appeal Board , 2019 SKCA 13 , 54 Admin LR (6th) 24, University of British Columbia v Kelly , 2016 BCCA 271 , 87 BCLR (5th) 313, and Longueépée v University of Waterloo , 2019 ONSC 5465 , 439 DLR (4th) 326, on the basis that, in these cases, “the issue of the student’s disability was front and centre before the panel charged with making a decision”, and they “also had before them evidence on what might be appropriate to allow the student to continue, and cope with the disability” (at para 44).

He said that this was not the situation before him. [ 23 ] The Chambers judge then turned to consider Mr. Danychuk’s second broad argument, under the heading “2. Is the decision reasonable?” He said this required him to “first review the court’s standard of review” and, second, “to consider the nature of the Review Panel and the ultimate decision by the SAC” (at para 46).

In these contexts, he discussed Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , [2019] 4 SCR 653 [ Vavilov ] , as well as several authorities specific to the review of decisions made by university bodies in relation to academic and other matters.

The Chambers judge took from Vavilov the instruction that “in addition to the written reasons, the record should be viewed to supplement those reasons and add any additional explanation” (at para 62). [ 24 ] Following all of this, the Chambers judge expressed his conclusion on the second issue, as he had framed it: [63] To be more precise, the decision of the SAC is more than simply the written reasons provided. It is supplemented and informed by the materials, submissions and presentations at the Suitability Review. It is added to by the report of Dr. Gregory and that which took place before the CCSA.

It is further added to be [ sic ] the written and oral submissions before the SAC. [64] The totality of this material sets forth that which was before the tribunal to inform its decision. That record, in my view, quite clearly establishes the behaviours of Mr. Danychuk that were of concern and how those impacted on the question of his suitability for the profession of social work. I determine all of that material provides a basis for reviewing and understanding the basis for the decision taken here. [65] The totality of those materials clearly illustrates the basis upon which the Review Panel made its decision.

Those materials illustrate the entirety of that which informed the decision made. For all of these reasons, I am unable to conclude the reasons given are inadequate in any respect. [ 25 ] In the result, the Chambers judge dismissed Mr. Danychuk’s application for judicial review. It is from this decision that Mr. Danychuk now appeals to this Court. III. ISSUES [ 26 ] Broadly speaking, in an appeal of this nature, there are two issues. The first is whether the Chambers judge identified the correct standard pertaining to the review of the administrative body whose decision is under appeal.

The second is whether the Chambers judge correctly applied the applicable standard of review: see, Dr. Q v College of Physicians and Surgeons of British Columbia , 2003 SCC 19 at paras 43–44 , [2003] 1 SCR 226. [ 27 ] Mr. Danychuk agrees that the Chambers judge correctly identified reasonableness as the applicable standard of review.

Accordingly, although Mr. Danychuk defined the issues differently in his factum, given the nature of his challenge, the sole issue in this appeal is whether the SAC Decision is reasonable. In effect, we step into the shoes of the Chambers judge and conduct our own review of the SAC Decision to determine if it is reasonable: see, Teamsters Canada Rail Conference v Canadian National Railway Company , 2021 SKCA 62 at para 41 , 327 LAC (4th) 322. IV.

ANALYSIS [ 28 ] It is important to an understanding of these reasons to re-emphasize that the application before the Chambers judge was for a judicial review of the SAC Decision . It was not a request to judicially review the recommendation of the hearing panel, the Dean’s Decision or the CCSA Decision . [ 29 ] I identify this fact because many of the arguments made by Mr. Danychuk seek to explain why the recommendation of the hearing panel, and both the Dean’s Decision and the CCSA Decision , failed to properly account for the University’s duty to accommodate his alleged disability.

While one of the University’s submissions before us was that there was no evidence presented by Mr. Danychuk to the review panel or to the CCSA that he suffered from a disability that required accommodation, this is very much beside the point, except to the extent that the absence of evidence on this subject bears on whether the SAC committed a reviewable error. As I will explain, in my respectful view, the presence or absence of evidence that Mr.

Danychuk suffered from a disability ultimately has very little to do with this latter issue. [ 30 ] With this essential point having been made, I will structure my reasons by first briefly reviewing some of the important features of a reasonableness review. I will then discuss the legal and factual constraints on the authority of the SAC. Following this, I will analyze the SAC Decision to assess whether it is reasonable, having regard to these constraints. A.

The reasonableness framework [ 31 ] It is neither necessary, nor appropriate, to canvass all the learnings that can be derived from Vavilov and the voluminous body of case law that has been developed since it was rendered. However, several key principles direct the outcome of this appeal. [ 32 ] As described in Vavilov , at its core, “ 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 para 85).

Vavilov tells us that, where reasons are required – and, in this case, the parties agree that they were both required and given – “it is not enough for the outcome of a decision to be justifiable … the decision must also be justified , by way of those reasons, by the decision maker to those to whom the decision applies” (at para 86, emphasis in original). [ 33 ] Finally, I would emphasize Vavilov ’s direction that a “reviewing court must develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable”.

Vavilov instructs that, to make this determination, “the reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (at para 99, citing to Dunsmuir v New Brunswick , 2008 SCC 9 at paras 47 and 74 , [2008] 1 SCR 190, and Catalyst Paper Corp. v North Cowichan (District) , 2012 SCC 2 at para 13 , [2012] 1 SCR 5). [ 34 ] In several places, the Chambers judge made statements that might seem to be at odds with these principles.

For example, at one point, he described his role as being to “assess the material and determine whether such decision was reasonable and within the available resolutions” ( Chambers Decision at para 56). At another place, he said that one of the decisions was “supportable on the evidence” (at para 58). These statements are consistent with a pre- Vavilov approach to assessing reasonableness, but do not directly form part of a reasonableness review under the Vavilov test. Nonetheless, ultimately, these comments do not seem to have played a role in the Chambers judge’s reasoning.

In any event, as I have noted, we are able to step into the Chambers judge’s shoes and assess the reasonableness of the SAC Decision ourselves. [ 35 ] Against this basic framework, I will review the constraints that bore on the SAC’s authority. Following this, I will assess whether, having regard to these constraints, the SAC Decision is justified, transparent and intelligible. B. Legal constraints: the role and powers of the SAC [ 36 ] Before entering into a consideration of the SAC Decision , it is appropriate to situate the SAC in relation to matters such as this.

In this regard, as has already been noted, before Mr. Danychuk’s appeal to the SAC, his situation had been considered by a review panel, Dr. Gregory (who made the decision to order Mr. Danychuk removed from the Program and the University) and the CCSA (which had dismissed the appeal from the Dean’s Decision ). Therefore, depending on how one chooses to look at it, the SAC can be considered the third or fourth decision-maker in connection with Mr. Danychuk’s situation.

Of most immediate concern in this appeal is the authority of the SAC, and that of the CCSA that made the decision that was appealed to the SAC. [ 37 ] The CCSA is a committee of the University’s council. The council is established pursuant to s. 75 of The University of Regina Act , RSS 1978, c U-5 [ Act ]. The CCSA is constituted pursuant to s. 78(1) (

c) of the Act “to hear and decide upon, subject to an appeal to the senate, all applications and memorials by students or others in connection with any faculty of the university”. It consists of members of the University’s council holding academic appointments, student representatives and several ex officio members holding administrative positions. The CCSA’s terms of reference set out possible grounds of appeal to it, as follows: 3. Grounds for an appeal to the Council Committee on Student Appeals should be based on one or more of the following:

a) There is additional relevant information which was not considered at the Faculty level.

b) There was a problem in procedure at the Faculty level.

c) The substance of the case was not considered correctly at the Faculty level. For example, relevant rules and regulations were applied incorrectly.

d) Even if relevant rules and regulations were applied correctly the resulting decision is unfair or unreasonable in the circumstances. [ 38 ] As part of the CCSA’s hearing process, an appellant is entitled to supplement the record with additional evidence that goes beyond that which was before the decision-maker from whom appeal is taken.

In this regard, the CCSA’s terms of reference allow the parties to provide a “written submission making their respective cases, along with any supporting documents, the name of their representative (if any), and a statement about the evidence to be presented by witnesses (who must also be named)”. [ 39 ] The evidence before the Chambers judge was that an “appeal to the CCSA is a de novo hearing”. It was common ground before us that this means the CCSA is not required to show deference to a decision-maker – such as, in this case, Dr. Gregory – when a matter comes before it.

To this extent, while a hearing before the CCSA is described as an appeal, as a deliberative body it has some characteristics of a first-level decision-maker. [ 40 ] The role, and terms of reference, of the SAC are different than those of the CCSA. In contrast to the CCSA, the SAC is a true appellate body. It is a committee of the University’s senate. The SAC is established pursuant to s. 33(1) (

e) of the Act “to hear and decide upon appeals by students and others from decisions of the council” (emphasis added). [ 41 ] The SAC’s terms of reference require that a request for a hearing before it be made “in the form of a notice of appeal” which must be in writing and “specify the grounds upon which the appeal is based”.

The terms of reference also describe the standard of review that the SAC will apply, stating that it “will uphold the decision of the Committees being appealed from unless the appellant can demonstrate that the decision was contrary to the evidence presented or manifestly unfair to the appellant”. Parties to an appeal to the SAC are entitled to file a “written submission outlining the basis for the appeal (i.e. how the decision of the preceding Committee was contrary to the evidence or manifestly unfair)”.

Finally, the terms of reference make clear that “no new information will be considered: the appeal is an appeal on the record from the preceding Committee hearing”. C. Other constraints: the case presented to the SAC [ 42 ] Since an appeal to the SAC is on the record that comes to it from the committee from which an appeal is taken it is important to identify, in this case, what information was before the CCSA for it to make its decision. In this regard, the Chambers judge summarized the case that Mr.

Danychuk presented to the review panel, and then to the CCSA, as follows: [33] At the hearing before the Review Panel, Mr. Danychuk did not at any time seek to rely upon any medical or mental health reasons for the behaviours and personal interactions he had engaged in. Indeed, the submissions in their entirety were quite to the contrary. According to Mr. Danychuk, he had neither done anything wrong nor had he reacted in any inappropriate manner. Rather, those with whom he was interacting had performed badly. The submissions of Mr.

Danychuk in his memo for the CCSA appeal perhaps best encapsulates his approach: The Review panel concluded that I am subsequently not fit to practice social work – that I have violated the Social Worker’s Code of Ethics. This is obviously a subjective

interpretation, I do not agree with. I actually see my actions as directly informed by the Code of Ethics in their call for Social Workers to be committed to social justice; there was a wrong committed when my practicum placement was unceremoniously and surreptitiously terminated, and I was not informed of the specific reasons for this, thus could not refute them. I subsequently sought further information about this and queried the lack of adherence to policy, which is my right as a student. In short, no part of the case that Mr.

Danychuk presented to the review panel or, as he supplemented it, to the CCSA, included that he suffered from a disability that required accommodation by the University. [ 43 ] The record that came forward to the SAC also included the CCSA Decision .

The core of it was as follows: The Committee determined that the evidence presented at the hearing supported the decision of the Dean: • No additional relevant information was presented at the hearing which was not considered by the Professional Suitability Panel and the Dean, Faculty of Nursing; • There was not a problem in procedure; • The substance of the case was considered correctly; and • The relevant rules and regulations were applied correctly and the resulting decision was fair and reasonable.

On the basis of the evidence presented at the hearing, the Committee unanimously upheld the decision of the Dean, Faculty of Nursing. Therefore, your appeal has been denied . … (Emphasis in original) [ 44 ] The final constraint upon the SAC was the grounds of appeal to it. These grounds defined the issues the SAC was required to consider. Mr. Danychuk’s notice of appeal against the CCSA Decision is not found in the record filed in the Court of Queen’s Bench. However, the parties proceeded in argument before us on the basis that his grounds of appeal were identified in the written submission he filed with the SAC.

In that written submission, Mr. Danychuk offered a detailed chronology of events. He then asserted that the CCSA

“did not comment on the evidence presented, nor provide a rationale for their decision to uphold the decision of the Professional Suitability Review panel”. He asserted, therefore, that the CCSA Decision “was contrary to the evidence presented and manifestly unfair”. Following this, Mr. Danychuk “listed facts of the matter that were either misunderstood or left unacknowledged by both the Professional Suitability Review panel and/or the [CCSA]”. Also of interest is what grounds of appeal were not raised by Mr. Danychuk, in his written submission or, for that matter, in his oral submission to the SAC.

Specifically, Mr. Danychuk did not argue before the SAC that the CCSA Decision was in error because it failed to find that he suffered from a disability that required accommodation or that there was an underlying human rights concern with the order removing him from the Program and the University. [ 45 ] Wrapping all of this up, there was nothing before the SAC that raised an issue with a failure by any University actor to accommodate Mr. Danychuk’s alleged disability. D.

The SAC Decision [ 46 ] The SAC Decision responded to the case that was presented to it with reasons that stated, in their material parts, as follows: … After considering the evidence adduced at your hearing before the Council Committee on Student Appeals, taking into account your written submission and hearing arguments directly from you, your representative, Dr. Gregory, and Dr. Sanchez, the Senate Appeals Committee concluded that the said decision of the Council Committee on Student Appeals was neither contrary to the evidence nor manifestly unfair.

Accordingly, the Senate Appeals Committee voted unanimously to deny your appeal. In coming to this decision, the Senate Appeals Committee noted the following: • After careful study of the materials provided to the CCSA and the transcript of the CCSA hearing (the “ CCSA Materials ”), it was clear that the CCSA considered the evidence provided, asked relevant questions, and came to a reasonable conclusion.

The rationale for their decision was provided to you in the letter sent to your attention on 25 June 2020. • In your written submission to the Senate Appeals Committee, you list a number of items that you assert “were either misunderstood or left unacknowledged by both the Professional Suitability Review panel and /or the Council Committee.” Upon review of the CCSA Materials, the Senate Appeals Committee did not see evidence of a lack of understanding or failure to consider this information. • During the Senate Appeal hearing on 2 October 2020, you and your representative argued repeatedly that you were not provided reasons for the termination of your practicum placement at CLASSIC.

The Senate Appeals Committee noted that evidence was provided to the CCSA of two meetings with CLASSIC prior to the termination of your practicum, in which feedback was provided to you in regards to your unsatisfactory performance. • In addition, the corpus of the evidence regarding other concerns with your behaviour (in addition to those related to your CLASSIC practicum) support the decision of the CCSA to uphold the determination of Dr.

Gregory that you be required to withdraw from the BSW program indefinitely due to lack of satisfactory performance of professional social work responsibilities. … (Emphasis in original) [ 47 ] Considered in the context of the record that came before it, and the arguments made to it, I have no difficulty in concluding that the SAC Decision is reasonable. It is justified, in that it identifies and answers the grounds of appeal that were raised with it. More specifically, the SAC Decision considers those grounds in the context of the record as it was presented.

It evaluates them against the applicable standard of review. The reasons themselves are clear and direct and are plainly referrable to the legal and factual matters that constrain the SAC as a decision-maker. All of this satisfies me that the SAC Decision “bears the hallmarks of reasonableness — justification, transparency and intelligibility” and is “justified in relation to the relevant factual and legal constraints that bear on the decision”, to quote again from Vavilov (at para 99 ). [ 48 ] Finally, although Mr.

Danychuk argued before the Chambers judge that the reasons were not sufficient, this is not a ground of appeal that was advanced in the submissions made to this Court, assuming that insufficiency of reasons as a ground for judicial review is not simply subsumed into a reasonableness review under Vavilov (see: Manitoba Government and General Employees’ Union v The Minister of Finance for the Government , 2021 MBCA 36 , at paras 71 –​77, [2022] 2 WWR 100). [ 49 ] Notwithstanding all of this, Mr.

Danychuk argues that, because certain University employees or decision-makers had surmised there to be a connection between his conduct that led to the removal order and a mental disability and his “personal issues” (to use the phrase found in Dr. Sanchez’s February 20, 2019 letter), the duty to accommodate arose as an issue before the SAC. I will leave to the side, for the moment at least, the absence of evidence that Mr. Danychuk actually suffered from a disability that required accommodation, or, if he did, what accommodation would be appropriate in the circumstances. Mr.

Danychuk’s argument fails to engage with the implications of the fact that none of this was part of the case he presented to the SAC. [ 50 ] Not only was the record before the SAC devoid of any mention that the University had breached its obligations under the Human Rights Code , but Mr. Danychuk’s own submissions did not suggest that he suffered from a disability that required an accommodation. Indeed, the closest that the submissions made to the SAC came to mentioning Mr. Danychuk’s alleged disability was a comment that he “suffer[s] from anxiety and [is being] treated for the same”.

He made a similar submission in his oral remarks to the SAC. Against this background, and given the SAC’s role as an appellate body, it is hardly surprising that the SAC Decision is silent about whether the University had an obligation to accommodate Mr. Danychuk’s alleged disability. Therefore, I cannot find the SAC Decision to be unreasonable because of its failure to address the point.

[ 51 ] I do not need to consider if an argument could have been made to the CCSA that the Dean’s Decision should have been set aside because of the human rights arguments that Mr. Danychuk brought forward in the context of his judicial review application. As the University points out, the evidence before the CCSA might well have been different had the issue been raised at that juncture in the proceedings. For example, the University would have had to consider such matters as whether to accept that Mr. Danychuk suffered from a disability and, if he did, what accommodations might be required.

More to the point, the CCSA Decision is not itself directly under judicial review. Instead, as I have emphasized several times, it is the SAC Decision that is the subject of the judicial review. [ 52 ] I also do not need to consider what the situation would be if, notwithstanding that this issue was not brought before the CCSA, Mr. Danychuk had raised as a ground to the SAC that the CCSA had nonetheless erred because the evidence was sufficient to invoke the duty to accommodate. Some of the comments made by the Chambers judge can be seen as opining on that issue.

Respectfully, that is a decision to be made, in first instance at least, by the SAC itself. Absent the argument being presented to the SAC about this, given its appellate role, I cannot find fault for it not raising the issue on its own initiative. [ 53 ] The fact that the SAC is an appellate body renders distinguishable the line of cases cited by Mr.

Danychuk, represented by Holstrom v Alberta (Human Rights Commission) , 2021 ABQB 400 , Serge Lafrenière v Via Rail Canada Inc. , 2019 CHRT 16 , Krieger v Toronto Police Services Board , 2010 HRTO 1361 , 83 CCEL (3d) 204, and Dupuis v Canada (Attorney General) , 2010 FC 511 , 368 FTR 269. In one way or the other, in each of these cases it was held that a first-level decision-maker should have identified that the evidence established the need to accommodate a person with a disability.

However, apart from many other points of distinction, none of these cases involved a decision of an appellate body where the issue of a failure to accommodate had not been raised in the court or tribunal from which an appeal was taken. [ 54 ] For a similar reason, Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 SCR 654, provides no assistance to Mr. Danychuk. This is because, unlike in that case, here the CCSA had not implicitly decided the issue of Mr.

Danychuk’s alleged disability, nor was there adequate evidence to allow this issue to be decided in a fair way when it was raised for the first time on judicial review (see: Alberta at para 5). [ 55 ] For all these reasons, in my respectful view, the Chambers judge did not err in his conclusion that the SAC Decision was reasonable. V. CONCLUSION [ 56 ] Mr. Danychuk’s appeal must be dismissed. I would order costs to the University in the fixed amount of $2,000. “Leurer J.A.” Leurer J.A. I concur. “Tholl J.A.” Tholl J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.