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Human Rights (Ont) - Jurisdictional Screening [R13]. 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 extensively 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. . D’Angelo v. Landlord and Tenant Board
In D’Angelo v. Landlord and Tenant Board (Ont Div Ct, 2026) the Ontario Divisional Court dismissed two HRTO JRs, this where the applicant filed complaints "under the Human Rights Code ... against the Landlord and Tenant Board (LTB) and two of the LTB adjudicators who dealt with the Applicant’s proceedings under the Residential Tenancies Act" (that is, the HRC complaint seems to have been made against the LTB as a tribunal and it's adjudicators themselves).
The court considers the immunity of a tribunal (here the LTB) against being named as a respondent in an HRTO application:[11] The HRTO dismissed the Application. It concluded that it had no jurisdiction to consider the Application as against the LTB, the Adjudicator and the Vice Chair of the LTB, because any claims against the LTB must be pursued through the appropriate judicial channels, either by statutory appeal under s. 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (RTA) or by application for judicial review.
[12] This decision of the HRTO is consistent with previous decisions confirming that the HRTO has no jurisdiction to review the decisions of the LTB. See, for example, Peever v. Landlord and Tenant Board, 2023 HRTO 1539; King v. Landlord and Tenant Board, 2025 HRTO 3150; Fernandes v. Landlord Tenant Board, 2025 HRTO 3078. The HRTO has consistently held that it has no jurisdiction to hear applications against courts and tribunals based on the execution of adjudicative duties or decision-making because of the doctrine of judicial or adjudicative immunity: see Cartier v. Nairn, 2009 HRTO 2208; Hazel v. Ainsworth Engineered Corp., 2009 HRTO 2180; Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115.
[13] In Peever, the HRTO relied on the decision of the Superior Court in Daly v. Landlord and Tenant Board, 2022 ONSC 2434 (affirmed by the Court of Appeal in 2023 ONCA 152), which found that the LTB could not be sued except by way of judicial review or the extraordinary remedies of certiorari, mandamus and prohibition.
[14] Technically, a proceeding before the HRTO is not the same as a civil suit, and it is theoretically possible for the legislature to give the HRTO supervisory authority over other provincial tribunals, but it is clear from the Human Rights Code, R.S.O. 1990, c. H. 19 that the HRTO has no such jurisdiction. As the HRTO explained in Peever, at paras. 18 - 21:I note that my determination that the Tribunal has no jurisdiction to consider the Application is further supported by the provisions of the Code itself. The Code defines who is a “person” and who therefore may be a party to an Application under section 36.
Pursuant to section 46 of the Code, the term “person,” in addition to the extended meaning given it by Part VI (Interpretation) of the Legislation Act, 2006, includes an employment agency, an employers’ organization, an unincorporated association, a trade or occupational association, a trade union, a partnership, a municipality, a board of police commissioners established under the Police Act, being chapter 381 of the Revised Statutes of Ontario, 1980, and a police services board established under the Police Services Act.
Part VI (Interpretation) of the Legislation Act, 2006 extends the definition of “person” to include a corporation.
Notably, neither the definition of “person” under the Code nor the extended meaning given it by the Legislation Act, 2006 includes a tribunal or cluster of tribunals.
Moreover, section 36 of the Code sets out who the parties to an Application are. With the exception of the Ontario Human Rights Commission, each party is described as a “person.” As the respondents are not “persons,” they cannot be parties to an Application. [15] This conclusion does not, as argued by the Applicant, insulate the LTB from scrutiny if it fails to consider disability-related needs. Pursuant to s. 210 (1) of the RTA, a party to an LTB proceeding has the right to appeal a decision of the LTB on a question of law. In addition, a party may also bring an application for judicial review: Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8. Either (or, as in this case, both) proceed to the Divisional Court, which may consider any allegation that the LTB failed to appropriately accommodate a party to the proceeding.
[16] Indeed, that is exactly what the Applicant did in this case: D’Angelo v. Dahmer, 2026 ONSC 1428. The Applicant appealed and sought judicial review of the LTB decision that was also the subject of her complaint before the HRTO. That was her opportunity to raise any concerns about the LTB process. The Divisional Court held, at para. 10, that there was no procedural unfairness in the hearing before the LTB and dismissed her appeal and application for judicial review. The Court stated, at para. 12:We also note the pattern of litigation conduct by Ms D’Angelo, which has included multiple applications to the LTB, a claim to the Small Claims Court, and a claim to the Human Rights Tribunal, all arising out of the same events. Pursuing so many proceedings in respect to the same, or overlapping issues, is a sign of vexatiousness. [17] It is an abuse of process to ask the HRTO to consider the same LTB decision that was reviewed by the Divisional Court. . 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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