Early Dismissal of Applications by HRTO Critiqued by Ontario’s Divisional Court

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Erin Schachter: Hi, everyone, and welcome back to another episode of Ogletree Deakins Canada Employment Law Insights. So, today we’re looking at a recent divisional court decision that is actually a judicial review of a Human Rights Tribunal decision. And joining me today is Kathryn Bird, our office managing shareholder in the Toronto office. Thank you so much for being here.

Kathryn Bird: You’re very welcome. Thank you for having me. I’m excited to talk about this case.

Shir Fulga: Maybe what we can do is just kind of dive in, and you can just kind of give us a little bit of information about the case and just kind of give us a bit of background. I understand the name is Bokhari v. Top Medical Transportation Services, and it’s 2025 decision from the Ontario Superior Court. So, what can you tell us about this case?

Kathryn Bird: So, the Human Rights Tribunal has a process under Rule 13, where they can preliminarily dismiss applications that come before the tribunal that don’t fall within their jurisdiction. And so, what happened here is Mr. Bokhari brought forth a Human Rights Tribunal application in which he alleged that he had been discriminated against on the protected grounds of disability. In particular, he alleged that he had injured his ankle, provided a note to his employer indicating that he would be off for two weeks and that the employer had written back essentially saying, “I consider this to be you quitting. Thank you for your time, goodbye,” and terminated his employment. And Mr. Bokhari asserted that this was discrimination on the basis of disability. He filed an application with the Human Rights Tribunal of Ontario asserting he had been discriminated against, and the tribunal conducted an assessment under Rule 13, which the tribunal said allowed it to determine whether or not Mr. Bokhari’s application fell within its jurisdiction.

It’s important to know that in most cases, where the tribunal invokes its right to consider applications on a preliminary basis, that it does not invite the employer to provide a response. So, these things go on, these preliminary reviews go on without notice to the responding party or responding parties. So, it’s an evaluation done by the Human Rights Tribunal of Ontario, not necessarily with input from the respondent party. The tribunal dismissed Mr. Bokhari’s application indicating that he did not have a disability. His ankle injury was not a disability for the purposes of the Human Rights Code and therefore he had not been discriminated against, leading to a finding that his application was dismissed on a preliminary basis.

Erin Schachter: So, essentially the tribunal, if I recall correctly, the tribunal mentioned that because the injury to the ankle was temporary, it didn’t constitute a disability and it really seems to be that that was the core issue in connection with this case. Is that right?

Kathryn Bird: That’s right. So, the tribunal assessed whether or not the ankle injury was a disability under section 10 of the Human Rights Code and it determined that it was not because it was a transitory short-term illness. And there are two lines of cases before the Human Rights Tribunal are coming out of the Human Rights Tribunal related to the definition of disability and its interrelationship with transitory or short-term interests. And the tribunal preferred one line of case law in this determination and said that that line of case law indicated that short term transitory illnesses and injuries were not disabilities. There was no evidence that Mr. Bokhari’s ankle injury was anything other than a transitory illness and therefore he had not made out or he had not established that he had a disability that was protected by the code.

Shir Fulga: So how did Mr. Bokhari accept this decision? Did he just kind of go along with it? Did he request any type of reconsideration? What steps did he take?

Kathryn Bird: So, the first process for appeal at the Human Rights Tribunal is a request for reconsideration. And Mr. Bokhari brought a request for reconsideration on the basis that the tribunal had improperly applied its jurisdiction or improperly assessed its jurisdiction, and he asserted that the initial decision was incorrect and ought to be revised and he was unsuccessful. So, the tribunal issued a second decision saying, no, we believe we’re correct. We believe that you have not established a disability under the code, and we believe that we can dismiss your claim on this preliminary jurisdictional review.

Shir Fulga: Okay. And then that led to the judicial review application before the divisional court?

Kathryn Bird: That’s right. So, Mr. Bokhari brought what’s known as an application for judicial review in front of the divisional court. By that point, Mr. Bokhari was no longer an unrepresented litigant. He had support from a variety of legal support centers and there was a large number of interveners, many legal clinics and in addition, the Ontario Human Rights Commission, all of whom were bringing forward concerns with this jurisdiction assessment, this preliminary assessment done by the tribunal. So, by the time Mr. Bokhari’s application comes before the court, he is no longer a self-represented litigant. He has support and there are additional legal clinics and other entities that are seeking review on his behalf or at least seeking to intervene in the review. I think it’s important to note for our listeners that the Human Rights Tribunal of Ontario is a social justice tribunal, falls within the social justice tribunals of Ontario and a significant number of the applications brought before the tribunal are brought by unrepresented litigants.

The process is meant to be easily accessible. It is not supposed to be as complicated as bringing a civil claim before the court system in Ontario or the court system and any other province in Canada. And so, part of what the legal clinics were raising and what the Ontario Human Rights Commission was raising at the divisional court assessment of this judicial review application was whether or not given the nature of the Human Rights Tribunal and given the types of cases that appear before the Human Rights Tribunal, is this jurisdictional dismissal approach appropriate in the circumstances?

Erin Schachter: And one of the pieces that came out in the reconsideration decision was that the application was dismissed on the balance of probabilities as opposed to it being plain and obvious that the complaint did not fall within the jurisdiction of the tribunal, right? So, what’s the significance of that?

Kathryn Bird: So, there were two or maybe three significant findings by the tribunal, but certainly two. So, the second finding of the tribunal was that where the majority of judicial or quasi-judicial bodies take what’s known as a plain and obvious test approach to the dismissal of applications or claims, or actions or complaints if they are not being determined on their full merits. The Human Rights Tribunal had made a decision in 2022 to change its practice direction so that where the tribunal was making a determination of whether or not allegations fell within its jurisdiction, it would take the approach of determining whether on a balance of probabilities the matter fell within its jurisdiction and the court said the majority of quasi-judicial and judicial bodies take a plain and obvious test, meaning it’s a fairly low hurdle. All the individual has to prove is that they have some case.

It’s not plain and obvious that they have no case at all. They can prove based on the allegations that they’ve prepared that they have some case, that there is a chance that they will be successful. The tribunal’s change in 2022 was to say, no, you have to prove on a balance of probabilities or a 50% plus one standard that your case will be successful or that you will have a case that will proceed in front of the Human Rights Tribunal and we will make that assessment on a preliminary basis. And what the judicial review panel said the divisional court panel said, which is a court, it’s three judges, the decision written by one but co-authored by the other two, the court said that’s not appropriate at that early stage. So, the balance of probabilities test is not appropriate at a preliminary hearing, largely because at a preliminary hearing, the court has no evidence.

They’re not making any evidentiary findings. They don’t have anything before them. In this case, they didn’t even have a response from the respondent. It is a very, very early preliminary stage. And so, the divisional court said that’s not appropriate. The Tribunal A has had a long history of applying the plain and obvious test to these types of jurisdictional cases and B, that it was out of step with the other quasi-judicial and judicial bodies that apply the plain and obvious test. So, they determined that that was not an appropriate standard for a judicial screening stage. And the first finding, just fill this out. The other piece was really, and it fits in with this idea of the plain and obvious test is really the court said, “We have found that you are conducting a merits assessment under the guise of jurisdictional screening.” So, what they said is by lowering this standard to balance of probabilities, you are really engaging with the merits of the case.

In this particular case, they were engaging with the merits of whether or not this individual had a disability, whether or not that disability or whether or not the injury could fall within the protected ground of disability, what was the nature of his illness, so on and so forth, all of which is an engagement with the merits. And the court said that’s not appropriate at a preliminary screening stage. That’s a merits assessment. You’re supposed to be doing jurisdiction. Jurisdiction needs a very high standard. You can’t keep dismissing or you can’t dismiss this application on the basis of a jurisdictional objection that requires you to engage with the merits.

And so those were the two key findings. The third one, which also influences the first two, is they ultimately go on to find that the tribunal’s assessment of this individual’s illness as not being a disability was unreasonable. The court says, “We didn’t necessarily need to get into that issue. We didn’t necessarily need to make a finding that your determination that his illness or injury didn’t constitute a disability was unreasonable,” but they engaged in it nonetheless.

Shir Fulga: Yeah. If we could just talk about that last point a bit more, because I mean, there’s so many things that you brought up that’s really, really interesting, but on the question of disability, is there any type of specific definition of disability that comes out of the legislation?

Kathryn Bird: Sure. So, section 10 of the code defines disability as any degree of physical disability, infirmity, malformation, or disfigurement that is caused by bodily injury, but there’s quite a long line of case law that really says that’s not sufficient. In interpreting the language under the human rights code, you also need to look at a multidimensional analysis of the individual’s participation in society, the severity of the condition, the duration of the condition, whether or not this condition will preclude them from active participation. It’s a broader assessment than just, is this short or long term, is this minor or major? You really need to engage in a more multifaceted evaluation.

And that is important, of course, because the Human Rights Code is a rights advancing piece of legislation. It’s supposed to expand the participation of individuals in society under contract, under services, under employment, under accommodation. And so, you have to purposively interpret these definitions to ensure that you’re protecting as many people as possible as opposed to interpreting them narrowly, which is largely what the tribunal was positing to do in this case.

Erin Schachter: This case made quite the splash in the kind of human rights community and the legal community. Can you explain to our listeners what the takeaways can be for employers here?

Kathryn Bird: So, the Human Rights Tribunal, like many judicial bodies both in Canada and across the world, really struggled coming out of the pandemic with a significant backlog. They had a large number of cases that had not been evaluated. They were having major changes to the way that they heard cases and dealt with applications and staffing issues, and technology issues and all the things that plagued all decision-making bodies. And one of the ways that the tribunal proposed to deal with that was that they lowered this standard the way that they were dealing with jurisdictional objections. And they also brought in a significant number of adjudicators to review cases on a preliminary basis for a variety of reasons, not just jurisdictional objections, but a large number of adjudicators who were doing paper reviews of files with an eye to determining the appropriate next steps. So as a result, there were huge numbers of decisions coming out of the tribunal dismissing applications at an early phase for a variety of reasons.

And as I said at the beginning, sometimes employers receive notice of those decisions and sometimes they didn’t. And there has been considerable concern on behalf of the rights advancing or applicant or plaintiff community that many of these applications are being dismissed unmeritoriously. And from the employer perspective, I think there is also concern that these applications get dismissed very early on without the involvement or engagement or notice to employers. And then we find out about them, like in this case, when they’re appealed two and three years down the road after the application has been heard and the judicial review has been formed. So, generally speaking, there is concern about this approach at the Human Rights Tribunal. There are a lot of cases at the Human Rights Tribunal that are being determined in this manner. And so depending on the tribunal’s response to this decision, we could see either a continuation of the same process, which will likely lead to more judicial review activity or in the alternative and amendment to the process that’s currently being undertaken such that we’re seeing less administrative dismissals, which will require a greater number of merits, hearings and adjudication processes.

So, I think more to come, certainly a lot of activity out of the Human Rights Tribunal at this point.

Shir Fulga: So, in theory, at this moment, some employers might have decisions that could come up for judicial review that they wouldn’t necessarily know about and will find out about shortly and you just kind of get blindsided with that if I understand correctly.

Kathryn Bird: It seems to be the case where the applications were dismissed at a preliminary phase, and the applicant has applied for judicial review, and the divisional court has directed the applicant to serve the responding employer with the materials. And in some cases, that is the first time our clients are hearing about these files, because they don’t get served in the initial phases by the tribunal on the respondents, which is the standard form process at the tribunal for giving notice to respondents of applications. So that’s another wrinkle for another day for another podcast, but certainly this decision, the tribunal’s response to this decision will have impact on employers and service providers, and those who provide accommodation in terms of housing to individuals, all of whom have protections under the code.

Erin Schachter: Thank you so much, Kathryn. That was really informative.

Shir Fulga: And that’s it for our episode today and we hope that you continue to join us and keep paying attention to our updates on everything interesting happening in Canada.

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