Summary
In Bokhari v Top Medical Transportation Services, 2026 ONSC 1073, the Ontario Divisional Court set aside a decision of the Ontario Human Rights Tribunal (the “Tribunal”) that dismissed a human rights application at the jurisdictional screening stage without a hearing. The Court held that the Tribunal unreasonably applied a balance of probabilities standard and improperly engaged in a merits analysis without an evidentiary record. The decision signals that the Tribunal’s practice of screening out human rights applications at the jurisdictional screening stage may result in less frequent early dismissals going forward.
The Facts
The Applicant was employed as an ambulance driver. He alleged that after injuring his right ankle, he provided his employer with a medical note and requested two weeks off so that he could recover. In response, his employer terminated his employment.
The Applicant commenced an application before the Tribunal alleging discrimination based on disability. Seven months after receiving his application, the Tribunal sent the Applicant a Notice of Intent to Dismiss stating that an adjudicator had reviewed his application and determined that it was outside of the Tribunal’s jurisdiction. In particular, the Notice alleged that the application failed to disclose any specific acts of discrimination within the meaning of the Human Rights Code (the “Code”), and that the Tribunal does not have jurisdiction over general allegations of unfairness.
In response to the Notice, the Applicant filed submissions setting out what he alleged were the specific acts of discrimination within the meaning of the Code, and explaining why his application came within the jurisdiction of the Tribunal. Two months later, the Tribunal issued a decision dismissing the application without a hearing (the “Jurisdictional Decision”). The Tribunal concluded that there was nothing in the application or the Applicant’s submissions in response to the Notice that indicated a connection to the Code and that the application did not fall within the Tribunal’s jurisdiction.
The Applicant filed a Request for Consideration, which was dismissed by the Tribunal. Thereafter, the Applicant brought an application for judicial review.
The Divisional Court’s Decision
On judicial review, the Divisional Court determined that the Jurisdictional Decision was unreasonable for three reasons.
1. Improper Merits Analyis at Jurisdictional Stage
First, the Court held that the Tribunal improperly conducted a merits assessment under the guise of a jurisdictional screening. While the Tribunal clearly has authority to determine whether an alleged injury constitutes a disability under the Code, the Court held that the Tribunal’s screening approach denies applicants the opportunity to adduce at a hearing the necessary factual context and evidence as to why they have a disability within the meaning of the Code. The Court cautioned that this approach “hinders the achievement of the Code’s objectives and potentially deprives applicants who have been discriminated against the Code’s protections.”
2. Application of the Wrong Legal Standard
The Court also held that it was unreasonable for the Tribunal to apply a balance of probabilities standard to jurisdictional screening. Historically, the Tribunal has considered whether it was “plain and obvious” that an application is outside of its jurisdiction. However, pursuant to a December 2022 Practice Direction, the Tribunal shifted to applying the balance of probabilities standard to assess jurisdictional determinations. The Court observed that the balance of probabilities standard is typically reserved for findings of fact based on evidence, yet no evidence is before the Tribunal at the jurisdictional screening stage.
The Court held that applying the balance of probabilities standard to jurisdictional questions inevitably results in screening out, at a threshold stage, applications that could ultimately be determined to be within the Tribunal’s jurisdiction with the benefit of a factual record and argument. The Court held that this was unreasonable, and risks denying access to the Code’s protections.
3. The Applicant Demonstrated an Arguable Case of Disability under the Code
Finally, the Court concluded that it was unreasonable for the Tribunal to find that there was no arguable case that the Applicant’s ankle injury was a disability under the Code on the facts alleged and the law. The Court noted that section 10 of the Code defines “disability” to include “any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury.” The Tribunal had concluded that the Applicant had not provided a factual basis to indicate that his injury was so serious as to cause “substantial ongoing limits” to his activities, or that he could not perform his job “for a significant period of time”.
The Court rejected this analysis, observing that while minor ailments such as the common cold will generally not constitute a disability, there is no hard and fast rule excluding transitory injuries as a disability. Rather, the jurisprudence requires a multidimensional analysis focused on barriers to full participation in society, not solely the duration or severity of the individual’s condition. The Court held that on the facts alleged by the Applicant, it was arguable that his ankle injury was a disability under the Code and that the Tribunal’s decision to the contrary was unreasonable.
Takeaways
Over the past several years, the Tribunal has dismissed a number of human rights applications at the jurisdictional screening stage, likely in response to its growing backlog of cases. This decision signals that such early dismissals will be closely scrutinized by the courts.
Most notably, this decision confirms that the Tribunal cannot rely on a balance of probabilities standard to screen out cases on a preliminary basis where there is no evidence on the record to determine whether the application is outside of the Tribunal’s jurisdiction. The Divisional Court has also made clear that jurisdictional screening is not a substitute for a hearing on the merits.
For employers, this decision underscores that human rights applications alleging discrimination – particularly disability-related claims arising from injuries or medical absence – are more likely to proceed to a hearing, even where the alleged impairment appears temporary or limited. Early dismissals at the jurisdictional screening stage may now be harder to sustain, reinforcing the need for thoughtful accommodation assessments.
Need More Information?
For more information or assistance with responding to human rights applications, contact Catherine Phelps at cphelps@filionlaw.com or your regular lawyer at the firm.