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Fairness - Limiting 'Jurisdictionally'
COMMENT
At July 2026 I've added this 'jurisdictional-limiting' to my 'Procrustes' analogy which - unsurprisingly, I've first detected robustedly in the HRC context. In future I may locate here what are - IMHO - cases on undue procedural limiting, these using 'jurisdiction' as the doctrinal vehicle.
. Georgiou v. Unity Health Toronto et al.
In Georgiou v. Unity Health Toronto et al. (Ont Div Ct, 2026) the Ontario Divisional Court dismissed an JR, this brought against an HRTO order "dismissing his application before the HRTO for lack of jurisdiction" (the “Decision”). Specifically, the HRTO dismissed the application because it lacked any alleged link between the impugned conduct and a protected ground under the Human Rights Code".
Here the court considered the applicant's argument that he "was denied procedural fairness because the matter was dismissed without mediation, without an oral hearing, without a summary hearing under r. 19A and without an opportunity to address the Tribunal’s concerns though an established process. ....", essentially a case of 'jurisdictional screening' (it extensivdely considers the recent Divisional Court Bokhari case) - which I will also locate under my fairness 'Procrustes'-analogy sub-topic:The procedure was fair:
[18] The Applicant alleges that the HRTO denied him procedural fairness because the application was dismissed at the screening level.
[19] With respect to procedural fairness, the court must determine whether the required level of procedural fairness was accorded: Graham v. New Horizon System Solutions, 2023 ONSC 310(Div. Ct.), at para 9. The factors relevant to assessing procedural fairness include: (i) the nature of the decision being made and the process followed in making it; (ii) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (iii) the importance of the decision to the party; and (iv) the choice of procedure selected by the administrative tribunal. A court must give weight to a tribunal’s choice of procedures and institutional constraints. Baker, at paras. 23-28.
[20] Section 41 of the Code grants the HRTO the ability to “adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the HRTO will facilitate fair, just and expeditious resolution of the merits of the matters before it.”
[21] The procedural requirements when the HRTO dismisses a proceeding relating to matters outside of its jurisdiction are governed by the SPPA, the HRTO's Rules of Procedure, and the HRTO's Practice Direction on Jurisdiction.
[22] The HRTO proceeded under r. 13 of the Tribunal’s Rules of Procedure. Rule 13.1 provides:The Tribunal may, on its own initiative or at the request of a Respondent, filed under Rule 19, dismiss part or all of an Application that is outside the jurisdiction of the Tribunal. [23] The Tribunal's Practice Direction on Jurisdiction further states that "jurisdictional issues can be raised and addressed by the HRTO at any time during the process”. Contrary to the Applicant’s submissions, there is no requirement that mediation take place before determination of jurisdictional issues. Either the tribunal has jurisdiction, or it does not. If there is no jurisdiction, then mediation would not be necessary or justified.
[24] The HRTO followed its process in bringing the matter back before the panel for a determination of whether it had jurisdiction in this case. The HRTO must provide the parties with notice of its intention to dismiss the proceeding, which must set out the reasons for the proposed dismissal, and an opportunity to make submissions. The Applicant was given notice of the Tribunal’s intentions, noting that the Applicant failed to identify any specific acts of discrimination within the meaning of the Code, beyond general allegations of unfairness, and was given an opportunity to respond and provide written submissions. The Applicant had full opportunity to explain why the conduct pleaded in his application was connected to his disability and within the HRTO’s jurisdiction.
[25] The Tribunal’s Practice Direction stipulates that “[a]n oral hearing will only be ordered in exceptional circumstances”. As set out in the SPPA and confirmed by this Court, an oral hearing is not required where the HRTO dismisses a proceeding on jurisdictional grounds: Iyirhiaro v. Human Rights Tribunal of Ontario, 2012 ONSC 3015, 294 O.A.C. 386, at para. 12; Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 4.6(1)(b); Wu v. City of Toronto and Toronto Ombudsman, 2023 ONSC 6192 at paras. 40-41. As such, the matter was determined in writing.
[26] A copy of the decision was sent to the parties, as required under the practice direction.
[27] The HRTO followed its process and procedures. The Applicant was given notice of the issue and given an opportunity to provide submissions. There was no obligation for the matter to be determined by way of an oral hearing. I find there was no procedural unfairness.
The decision was reasonable:
[28] The appellant [sic] spent a lot of time during his submissions addressing this Court’s decision in Bokhari. In Bokhari the Divisional Court quashed a decision by the HRTO to dismiss an application for lack of jurisdiction finding that the HRTO had actually engaged in a merits review under the guise of a jurisdictional question, and that it had inappropriately applied the “balance of probabilities” standard, rather than asking whether it was “plain and obvious” that the HRTO lacked jurisdiction. As a result, the Court found that the decision was unreasonable.
[29] The appellant argues that the HRTO’s decision in this case is unreasonable for the same reasons. I find however that this decision is distinguishable from Bokhari and the HRTO’s decision was reasonable based on the following.
The Decision was a proper jurisdictional analysis not a disguised merits review
[30] Mr. Bokhari injured his ankle at work and his employment as an ambulance driver was terminated when he asked for time off work to recover. He alleged discrimination based on disability. As in this case, the matter proceeded in writing, under r. 13. The HRTO dismissed his application at an initial stage, finding it lacked jurisdiction because he had not established that his ankle injury amounted to a “disability”, and therefore it was not a protected ground under the Code.
[31] Mr. Bokhari brought an application for judicial review. This Court granted the application, finding that the issue of whether Mr. Bokhari’s infirmity was a “disability” within the meaning of the Code was a substantive question requiring a hearing on the merits. This Court held that the HRTO has jurisdiction to assess the question of whether the ankle injury constitutes a disability under the broad jurisdiction it is granted in s. 39 of the Code to determine questions of law and fact: Bokhari, at para 23. Therefore, it was unreasonable to dismiss the claim at the jurisdictional screening stage.
[32] Unlike in Bokhari, the focus and analysis of the HRTO in this case was one of jurisdiction and did not shift to a merits-based review. Bokhari does not stand for the principle that the HRTO can never dismiss a claim for lack of jurisdiction where the applicant has failed to link the alleged adverse treatment to a Code protected ground. Rather, Bokhari requires the HRTO to take a generous reading of the material facts as alleged in the pleadings, and where those material facts could establish the requisite nexus between the adverse treatment and a Code protected ground, the applicant must be afforded an oral hearing.
[33] Here, the HRTO repeatedly found that the applicant had not pled facts that would establish this nexus in his claim. While these findings are repeated for each of the applicant’s claims, they are summarized by the HRTO’s comments at para. 18 of the decision:I find that the applicant has failed to provide a factual basis beyond mere assertions which could link his enumerated ground of disability to the respondent's alleged deceptive conduct. While it is apparent that the applicant is unhappy with his then- relationship with the respondent, the applicant must provide some factual basis which could link the respondent's conduct to the applicant's Code-enumerated ground. An assertion that the adverse treatment he received was owing to his enumerated ground of disability is not enough to provide the required factual basis. The fact that the applicant identifies as a member of a protected group does not mean that he has suffered discrimination as provided under the Code. [34] I find this case is easily distinguishable from Bokhari and that the HRTO conducted a jurisdiction analysis. This is not a case where the HRTO decided between two competing lines of authority on the law. Nor is it a case where the HRTO was required to assess the parties’ evidence, assess credibility or make findings of fact. It is simply a case where the pleadings, even read generously, do not disclose material facts that, if accepted, would demonstrate a nexus between the adverse treatment and a Code protected ground. As such the HRTO was within its statutory authority to dismiss this claim for lack of jurisdiction without an oral hearing.
[35] The Applicant submits that the decision was unreasonable because instead of accepting the pleaded facts, the HRTO imposed a burden of proof on the Applicant. The only burden placed on the Applicant was to show, in his submissions or pleadings, some nexus between the conduct and the protected grounds under the Code. Simply reiterating that he suffers from disabilities and he was denied service, does not create a nexus.
[36] For example, the Applicant’s statement that the patient-physician relationship was terminated because the breakdown occurred in the context of him having a disability, does not create a nexus between the actions and the protected ground. There are no actions or facts to suggest that the relationship was terminated because of his disability. He terminated the relationship himself.
[37] Likewise, the Applicant submits that the refusal to process his colon cancer test placed him at heightened risk. There is no nexus between the denial to run the test and the protected ground. The Applicant assumes that because he was being denied services related to his illnesses, that it automatically creates a nexus to discrimination on the grounds of his disabilities. This is not correct.
[38] He submits that contradictory communications caused disability related care disruptions. But nothing to suggest that the contradictory communication was because of an enumerated ground.
[39] The decision that the application was not within the HRTO’s jurisdiction was reasonable. As set out in Mehedi v Mondalez Bakery, 2023 ONSC 1737:[15] The HRTO “does not have the jurisdiction over general allegations of unfairness unrelated to the Code”: Hay v. Ontario (Human Rights Tribunal), 2014 ONSC 2858; Bello v. Toronto Transit Commission, 2014 ONSC 5535. To fall within the HRTO’s jurisdiction, “an Application must provide some factual basis beyond a bald assertion which links their ground(s) to the respondents’ actions and explains why they think that these actions are discriminatory in nature”: Hay, at para. 8.
[16] In Xia v. Board of Governors of Lakehead University, 2020 ONSC 6150 (Div. Ct.), this Court upheld the HRTO’s dismissal of an application for lack of jurisdiction on the basis that the applicant had failed to establish a basis “beyond mere speculation and accusations” that the respondent’s conduct was discriminatorily linked to an enumerated ground. In this case, the Applicant’s submissions to the HRTO did not even go that far. The Applicant stated only that he was a “Bengali man” and that he believed that Mr. Ullah was also Bengali. The Applicant’s submissions were devoid of any allegations linking a protected ground to the alleged assault by Mr. Ullah or to the Applicant’s subsequent dismissal. The Applicant failed to allege any nexus between a ground protected under the Code and the alleged discriminatory conduct committed by the Respondents.
[17] Having carefully examined the application and the Applicant’s written responses to the two notices delivered by the HRTO, the HRTO held that the Applicant failed to provide a factual basis that linked the conduct of the Respondents to an enumerated protected ground under the Code. The Decision clearly reflects “an internally coherent and rational chain of analysis” that was “justified in relation to the facts and law”: Vavilov, at paras. 83 and 85. [40] On the claim of reprisal, having found that there was no nexus between the conduct and the enumerated ground, it was reasonable for the HRTO to find that they do not have jurisdiction to consider allegations of reprisal for conduct not captured by s.8 of the Code.
[41] However, before I move on, I would like to address one point in the HRTO’s decision. In describing the scope of the HRTO’s jurisdiction, the Decision states at para. 8:The Tribunal only has the power to deal with discrimination, harassment or reprisal that is prohibited by the Code. Discrimination in the legal sense requires proof that the respondent's alleged adverse treatment of the applicant is differential and is based, at least in part, on the applicant's disability. While I accept that the HRTO was not performing an assessment of the applicant’s evidence in this matter, it is worth stating unequivocally that the applicant is not required to provide proof of the elements of their claim at the jurisdictional screening stage. It is sufficient that they plead the material facts that would demonstrate their claim falls within the scope of the Code. If the HRTO had been assessing the applicant’s evidence at this stage I would find the decision to be unreasonable. However, it is clear from the balance of the decision that the HRTO focussed on whether the pleadings, read generously, disclose a factual basis for the claim to fall within the jurisdiction granted by the Code.
The HRTO did not apply the “balance of probabilities” standard instead of the “plain and obvious” test:
[42] The Applicant submits that, like the tribunal in Bokhari, the HRTO erred in using the “on a balance of probabilities” standard instead of the “plain and obvious” standard in accordance with its December 2022 Practice Direction on Jurisdiction. In Bokhari, the Divisional Court found that the Tribunal erred because it dismissed the application under r. 13 by concluding that it was more likely than not that an application is outside of its jurisdiction, as opposed to finding that it was plain and obvious that it was outside of its jurisdiction.
[43] As set out in in paragraph 42 of the Court’s decision in Bokhari:Applying the balance of probabilities standard to jurisdictional questions inevitably results in screening out, at a threshold stage, applications that appear unlikely to fall within the jurisdiction of the Tribunal but which, with the benefit of a factual record and argument, would ultimately be determined to be within the Tribunal’s jurisdiction. This results in applicants who have been discriminated against being denied the Code’s protection. Managing workload and efficiency cannot justify this result. A higher threshold must be met before the Tribunal can reasonably close its doors to applicants on jurisdictional grounds under r. 13. [44] While the Tribunal in this case did not articulate the test in its reasons, from reading the decision it is clear that the HRTO found that the Applicant failed to offer any factual basis, beyond his mere allegations, of any nexus between the actions and a protected ground of discrimination under the Code. I find this supports the proposition that it was plain and obvious that his allegations were outside of the HRTO’s jurisdiction.
[45] In any event, I find that the facts of this case would meet the “plain and obvious” threshold. There is no dispute that the Applicant can establish he has disabilities, as defined by the Code. There is no dispute that he was denied services by Unity Health. While he clearly views it as unfair that he was denied services, he points to no link between his disabilities and the denial of services. It is plain and obvious on the face of the Applicant’s pleadings and subsequent submissions that he cannot succeed in linking the actions to disabilities under the Code, for the reasons set out in the HRTO decision, and therefore the HRTO lacks jurisdiction to hear the matter.
[46] The Decision by the HRTO was justified, transparent and intelligible, follows a rational chain of reasoning and is consistent with the applicable legal and factual constraints. As such, I find that the Decision was reasonable.
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