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Human Rights (Ont) - Jurisdictional Screening [R13]. Bokhari v. Top Medical Transportation Services [jurisdictional screening R13]
In Bokhari v. Top Medical Transportation Services (Ont Div Ct, 2026) the Ontario Divisional Court allowed an HRTO JR, here brought against the dismissal of an application where the HRTO alleged by Notice of Intent to Dismiss [R13, HRTO Rules of Procedure] "that his application failed to identify any specific acts of discrimination within the meaning of the Code and also stated that the Tribunal does not have jurisdiction over general allegations of unfairness".
Here the court analyses the HRTO's Rule 13 ['Dismissal of an Application Outside the Tribunal's Jurisdiction'] 'jurisdictional-screening' decision, and finds that it erred in assessing the factual merits rather than conducting a jurisdictional screening:C. The Tribunal’s Jurisdictional Decision was unreasonable
(a) The Tribunal performed a merits review, not a jurisdictional analysis
[21] Although the Tribunal framed the issue as being one of jurisdiction, its analysis shifted to a merits review based on Mr. Bokhari’s application and submissions in response to the Notice. The Tribunal moved almost immediately from assessing whether Mr. Bokhari’s pleadings fell within the Tribunal’s jurisdiction to determining whether he could succeed in his application. The Tribunal foreclosed Mr. Bokhari’s claim by choosing the narrower of two lines of authority in deciding whether the type of ankle injury sustained by Mr. Bokhari qualified as a disability under the Code.
[22] This is not a proper jurisdictional analysis; it is a disguised merits review. This approach impermissibly collapses the merits of the claim—as pleaded—into the threshold question of whether an application is within the Tribunal’s jurisdiction.
[23] The Legislature gave the Tribunal broad jurisdiction under s. 39 of the Code “to exercise the powers conferred on it by or under this Act and to determine all questions of fact or law that arise in any application before it.” Whether an applicant has a disability within the meaning of the Code—that is, the interpretation of the Code and its application to the facts—is the very essence of a question of law that arises in an application before the Tribunal.
[24] The Supreme Court has held that whether the elements of a statutory human rights claim are made out is not a jurisdictional question: Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31, [2018] 2 S.C.R. 230 [CHRC]. The court considered this in the context of a decision by the Canadian Human Rights Tribunal about whether alleged discriminatory conduct had occurred in the context of a “service” available to the public. Like the Code, the Canadian Human Rights Act, R.S.C., 1985, c. H-6 only permits the Canadian Human Rights Tribunal to order remedies where discrimination occurs within a prescribed social area, such as services. The court held that what falls within the meaning of “services” was not a jurisdictional question: “There is no question that the Tribunal had the authority to hear a complaint about a discriminatory practice. …Plainly, the definition of a service under the CHRA is not a true question of vires”: at para. 33. In my view, Vavilov does not affect the conclusion that the meaning of “services” was not a jurisdictional question.
[25] This reasoning applies with equal force to whether Mr. Bokhari’s ankle injury is a disability within the meaning of the Code. There is no question that the Tribunal has the authority to hear Mr. Bokhari’s application about discrimination in his employment. Whether Mr. Bokhari’s injury constitutes a disability under the Code is not a question of jurisdiction. Rather, it is a question for the merits of his application.
[26] To be clear, it was not open to the Tribunal on a jurisdictional analysis to choose between two lines of Tribunal authority to decide whether Mr. Bokhari has a disability under the Code. Once it is understood that the claimed infirmity could arguably be a “disability”, there is no jurisdictional basis to dismiss the claim. This is because determining whether someone has a disability under the Code requires a contextual rights-based inquiry, which considers the socio-political dimensions of discrimination: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27, [2000] 1 S.C.R. 665 [Boisbriand]; Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28, [2000] 1 S.C.R. 703. This is inherently a contextual, fact-based inquiry, not a jurisdictional one. I will return to this point below.
[27] A technical or narrow reading of the Tribunal’s jurisdiction that moves the determination of disability as a protected characteristic from the merits of an application to the jurisdictional stage is unreasonable. The approach adopted by the Tribunal hinders the achievement of the Code’s objectives and potentially deprives applicants who have been discriminated against of the Code’s protection. It denies applicants the opportunity to adduce at a hearing the necessary factual context as to why they have a disability and creates a barrier to accessing a remedy under the Code. Applicants must be permitted to demonstrate through evidence that they have a disability within the meaning of the Code.
[28] This is not to say that every application must proceed to a full hearing. There are various tools available to the Tribunal that permit it to dismiss applications that should not proceed to a full hearing: see e.g. Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, at paras. 13-18.
[29] One mechanism is the summary hearing under r. 19A to determine whether an application should be dismissed in whole or in part because there is no reasonable prospect it will succeed. In this respect, this court has recognized that “Rule 19A is a responsible and rational attempt by the Tribunal to prudently use its limited resources to facilitate access for persons bringing applications that might reasonably succeed”: Gill v. Human Rights Tribunal of Ontario et al., 2014 ONSC 1840 (Div. Ct.), at para. 12, leave to appeal to Ont. C.A. refused, CA M43732 (September 5, 2014), leave to appeal to S.C.C refused, [2014] S.C.C.A. No. 483. It goes without saying that any decision under r. 19A must itself be procedurally fair and reasonable given the applicable constraints.
[30] That said, summary hearings on the merits are distinct from jurisdictional screening under r. 13. Here, assessing whether Mr. Bokhari’s ankle injury qualified as a disability was not the appropriate question when screening for jurisdiction.
(b) Applying a balance of probabilities standard to jurisdictional screening was unreasonable
[31] Mr. Bokhari argues that the balance of probabilities standard applied by the Tribunal in its Jurisdictional Decision was unreasonable. I agree.
[32] Mr. Bokhari learned for the first time from the Tribunal’s Reconsideration Decision that it applied a balance of probabilities standard to the question of its jurisdiction. The Reconsideration Decision points to a January 2021 protocol and the December 2022 Practice Direction, which was released about a week after the Tribunal’s Jurisdictional Decision.
[33] The Tribunal’s Jurisdictional Decision does not explain why it applied a balance of probabilities standard. Nor does the Tribunal’s Reconsideration Decision, beyond pointing to the Practice Direction and protocol. The Practice Direction does not explain the reason for changing the standard for finding that it is “plain and obvious” that an application is outside of its jurisdiction to the new standard of determining jurisdictional issues on a balance of probabilities. We were not pointed to any other decision justifying the use of the new standard.
[34] It is not apparent what the Tribunal’s balance of probabilities standard means in this context. The balance of probabilities standard is normally understood as the civil standard of proof that applies to fact-finding based on evidence: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41.
[35] This, however, cannot be what is meant because the balance of probabilities standard was applied in the context of a r. 13.2 Tribunal-initiated preliminary consideration of jurisdiction, and there is no evidence before the Tribunal at this stage. The determination was made solely based on the application and Mr. Bokhari’s submissions. He did not have an opportunity to marshal a record to support his claim. It follows that the Tribunal is dismissing applications under r. 13 when it concludes that it is more likely than not that an application is outside of its jurisdiction.
[36] The Tribunal departed from its long-settled practice and established internal authority, and the Tribunal did not meet its justificatory burden for doing so.
[37] A review of Tribunal decisions before the 2021 protocol was implemented reveals that the plain and obvious standard was overwhelmingly applied under r. 13. This standard became firmly rooted in the Tribunal’s internal jurisprudence after the Code’s 2006 amendments: see e.g. Masood v. Bruce Power, 2008 HRTO 381; Morin v. Alliance de la function publique du Canada, 2008 HRTO 58; Hotte v. Ontario (Finance), 2008 HRTO 63; Battaglia v. Maplehurst Correctional Complex, 2009 HRTO 1167, at para. 5. Indeed, some adjudicators continue to apply the plain and obvious standard after the adoption of the protocol and the release of the Practice Direction: see e.g. Burnside v. Service Ontario, 2021 HRTO 263, at para. 4; Rachel Sword v. Exceldor Foods, 2022 HRTO 706, at para. 4; Pal v. Toronto District School Board, 2022 HRTO 875, at para. 4; and L.L. v. Dollarama Inc., 2022 HRTO 974, at para. 4.
[38] Of course, a tribunal may implement tribunal-wide policies or practices provided they do not compel or induce decision makers to decide against their own conscience or opinion: Iwa v. Consolidated-Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), [1990] 1 S.C.R. 282, at pp. 327-328, 332-333. But the protocol and Practice Direction were not examples of the Tribunal seeking to foster coherence and avoid conflicting results: Vavilov, at para. 130. Coherence already existed within the Tribunal’s precedent. Rather, it is the protocol and Practice Direction which break with settled practice.
[39] While the Tribunal is not bound by its previous decisions, consistency with past decisions is a constraint on whether a decision is reasonable: Vavilov, at paras. 129 and 131. Where a decision maker departs from longstanding practices, it bears the justificatory burden of explaining that departure in its reasons. This reduces “the risk of arbitrariness, which would undermine public confidence in administrative decision makers and in the justice system as a whole.” Failing to do so renders the decision unreasonable: Vavilov, at para. 131.
[40] The plain and obvious standard is consistent with the test applied by the courts on motions to strike civil claims for disclosing no reasonable cause of action. The plain and obvious standard has also been applied to assess whether a proceeding should be struck because a court lacks the jurisdiction to hear it: e.g. Benarroch v. Abitbol, 2018 ONCA 203, at para. 7 (appeal brought in the wrong court); and Windsor (City) v. Canadian Transit Co., 2016 SCC 54, [2016] 2 S.C.R. 617, at para. 24 (application brought in the wrong court).
[41] The plain and obvious standard responds to the policy concern that “if there is a chance that the plaintiff might succeed, then the plaintiff should not be ‘driven from the judgment seat’”: Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, at p. 980. This policy concern applies with even greater force in the context of human rights legislation, given its quasi-constitutional nature and its objective of eliminating discrimination.
[42] 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.
[43] Jurisdictional issues may arise outside of r. 13 screening, for example at a summary hearing or at a hearing on the merits. In some instances, deciding a jurisdictional question may require the Tribunal to resolve a factual dispute. For example, there may be a factual dispute as to whether the application was brought within one year after the incident to which the application relates under s. 34(1)(a) of the Code. Another example would be where there was a dispute about whether the alleged discrimination occurred in Ontario or, for instance, Alberta. These factual determinations would properly be decided on a balance of probabilities at a summary hearing or at a hearing on the merits.
[44] In sum, the Tribunal’s application of the balance of probabilities standard to r. 13 jurisdictional screening was unreasonable.
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