In the recent decision of Bokhari v. Top Medical Transportation Services1, the Divisional Court granted an applicant’s request for judicial review of a decision of the Ontario Human Rights Tribunal (the “HRTO“) which dismissed his application as being outside of the HRTO’s jurisdiction. Bokhari addresses how the HRTO must approach questions of jurisdiction and, in particular, makes it clear that whether an individual has a disability under the Human Rights Code (the “Code“) is a question of law, not jurisdiction.
Background
The applicant alleged that his employment had been terminated shortly after emailing his employer a medical note requesting two weeks off due to an injured ankle. He commenced an application with the HRTO, alleging discrimination in employment based on disability. The HRTO dismissed the application without an oral hearing, finding that it was outside its jurisdiction.
Specifically, the HRTO held that while a Code-protected disability could result from an injury, there was nothing in the applicant’s materials to indicate that the injury was not a transitory condition expected to resolve in two weeks. The HRTO noted that there are conflicting decisions on whether transitory injuries can constitute a disability, but ultimately found that the applicant’s injury was consistent with cases which did not find such conditions to be Code protected. Applying a “balance of probabilities” standard, the HRTO concluded it was more likely than not that the application fell outside its jurisdiction.
The applicant filed a request for reconsideration, which was also denied by the HRTO. The applicant then sought judicial review of both HRTO decisions.
Key Points from the Divisional Court’s Decision
The Divisional Court agreed with the applicant that the HRTO’s decisions were unreasonable for three main reasons:
1) Merits Review Mistaken for Jurisdictional Analysis
The Divisional Court held that the HRTO erred by moving directly from a preliminary jurisdictional review to determining whether the application would ultimately succeed. Specifically, the Court held that the question of whether the applicant’s ankle injury constituted a disability under the Code was not a threshold jurisdictional issue, but a question for the merits of his application. It was not open to the HRTO as part of a jurisdictional analysis to choose between two lines of cases to decide this question.
The Court also noted that the HRTO has other methods available to dismiss applications that should not proceed to a full hearing, such as a summary hearing, at which the HRTO can properly assess whether there is no reasonable prospect an application will succeed.
2) Applying a Balance of Probabilities Standard was Unreasonable
The Divisional Court noted that prior to 2021, the HRTO had consistently only dismissed applications where it was “plain and obvious” that the application was outside the jurisdiction of the HRTO. Pursuant to a protocol and subsequent Practice Direction introduced in 2021-2022, the HRTO began applying a “balance of probabilities” standard to jurisdictional issues. The Divisional Court found that the HRTO had failed to provide adequate justification for this change in its longstanding practice, and that lowering this standard would inevitably result in the screening out of applications that could, with the benefit of a factual record and argument, ultimately be deemed to fall within the HRTO’s jurisdiction.
3) The Need for a Socio-Political Analysis of Disability
The Divisional Court found that the HRTO’s analysis of the applicant’s injury was unreasonable because it adopted a biomedical model of disability only. The Court noted that the analysis of whether or not an individual has a disability must look beyond the medical condition to consider the socio-political dimensions, such as whether an actual or perceived ailment causes the applicant to experience a loss or limitation of opportunities.
Outcome
The Divisional Court granted the application for judicial review and set aside the HRTO’s decision. Having concluded that the application was within the jurisdiction of the HRTO, the Court ordered that the application should proceed to the next stage in the HRTO’s process, rather than being remitted for a new hearing on the jurisdictional issue.
Key Takeaways
There are several important takeaways from this decision for both employers and employees.
For employers, it is crucial to understand that the question of what constitutes a disability under the Code is a fact-based analysis which is assessed in the context of the circumstances. Employers should not assume that a short-term or transitory illness or injury is not a disability simply because it is not expected from a purely medical perspective to have a long-term impact on the individual. Instead, all requests for accommodation should be approached in good faith. Similarly, employers should be alert to their duty to inquire about an employee’s accommodation needs once they become aware that an employee may be experiencing a disability, such as upon receiving a medical note requesting time off due to an injury.
For employees, this case confirms that the definition of disability is interpreted broadly under the Code. If your injury or condition, even a short-term one, leads to discrimination or a lack of accommodation, you may be entitled to damages.
We frequently work with both employers and employees to navigate Code related issues. If you have questions about the duty to accommodate or concerns that you may be experiencing discrimination, please contact us.
Sources
- Bokhari v. Top Medical Transportation Services, 2026 ONSC 1073 (CanLII), <https://canlii.ca/t/kjc6x>, retrieved on 2026-02-27
