Simon's Megalomaniacal Legal Resources

Human Rights (Ont) - Discrimination - General

. Blair v. University of Waterloo et al

In Blair v. University of Waterloo et al (Ont Div Ct, 2026) the Ontario Divisional Court dismissed an HRTO JR, this brought against the dismissal of their claim that "the university discriminated against them on the basis of disability for failing to administer a disability-related bursary to provide funding for a motorized mobility device, which they described as a powerchair".

Here the court considers a test for 'discrimination':

Was the Tribunal’s application of the test for discrimination reasonable?

[18] The applicant next submits the Tribunal erred in applying the test for discrimination They rely, for example, on Peel Law Association v. Pieters, 2013 ONCA 39 to say the onus shifted to the university to explain why the applicant was treated differently when their documents were marked as “approved.” The applicant also relies on Moore v. British Columbia (Education), 2012 SCC 61 to say they were discriminated against when they were denied access to the bursary because their disability was temporary. Finally, they submit they were discriminated against based on the intersecting grounds of race, colour, ethnic origin, sex, gender expression, sexual orientation, and age.

[19] In my view, the Tribunal reasonably applied the test for discrimination. It stated the denial of a benefit that does not apply to the applicant does not constitute prima facie discrimination. The applicant’s challenge in their case before the Tribunal was narrow. They were not and could not have been challenging the benefits scheme as a whole since the university was the administrator but not the funder of the bursary. Their challenge was only to the denial of the funding for the powerchair. As set out above, the Tribunal reasonably found it could not review whether the manual applied to powerchair funding. There is also no basis to interfere with the Tribunal’s conclusion that the university staff’s initial error in stating the BSWD only applied to permanent disabilities did not constitute discrimination.

[20] This case is distinguishable from Pieters. In Pieters, a Black lawyer was asked for identification in a lawyers’ lounge. A prima facie case of discrimination was made out because there was sufficient evidence of discrimination that the respondent was called upon to explain their actions. In this case, the Tribunal reasonably found that no prima facie case of discrimination was established because the explanation for denying funding was clear on its face: according to the university, funding for a powerchair was not covered by the bursary as set out in the manual.

[21] Similarly, in Moore v. British Columbia (Education), 2012 SCC 61, prima facie discrimination was established in very different circumstances. The Supreme Court upheld the British Columbia Human Rights Tribunal’s conclusion that a school board discriminated against a student with severe dyslexia because it failed to meet his educational needs. The discrimination was caused in part by the school board failing to provide sufficient remediation and the closing of a local diagnostic centre. The case did not relate to the administration of a benefits scheme. That application was brought against the province and the school board, who were responsible for funding and providing education to elementary school students, not against the administrator of a benefits plan. As the Tribunal stated in this case, at para. 33: “Administrators of benefit programs routinely deny benefits to claimants or request more information. These actions are not, in and of themselves, discriminatory. The applicant must adduce evidence that the respondent’s actions were linked to her Code grounds. Her subjective belief that discrimination occurred, in the absence of any supporting evidence, is not sufficient”.

[22] Finally, although the applicant referred to potential intersectional grounds of discrimination, they did not identify any factual basis linking the denial of the bursary to those grounds. The Tribunal reasonably rejected these allegations, stating that the applicant had made a bare assertion, but presented no evidence showing their protected grounds under the Human Rights Code, R.S.O, 1990, c. H. 19 were a factor in the university’s actions. I find this analysis to be reasonable.

[23] In sum, the Tribunal reasonably applied the established test for discrimination to the circumstance of this case. There is no basis for the court to interfere in its analysis or conclusion.

. Ontario (Minister of Children, Community and Social Services) v. Robinson-Cooke

In Ontario (Minister of Children, Community and Social Services) v. Robinson-Cooke (Div Court, 2024) the Divisional Court dismissed a Crown JR respecting a claimant-successful (and unusual) ODSP 'guide dog benefit' (GDB) HRTO 'disability' decision.

Here the court considers the flexibility of the HRC discrimination test, and it's relation to the Charter s.15 equality test:

The Tribunal applied the correct test for discrimination

[95] At paras. 108-110 of the Decision, the Tribunal stated:

[108] I note that the analysis of discrimination under the Code is flexible and contextual: the stringency of the evidence and the test to establish discrimination varies and depends significantly on the context. See Tranchemontagne ONCA, above, at para. 84. Thus, in most human rights cases, disadvantage can be inferred from adverse treatment based on a prohibited ground. Tranchemontagne ONCA clarifies at para. 104 that “the goal of protecting people from arbitrary or stereotypical treatment or treatment that creates disadvantage by perpetuating prejudice is actually incorporated into two stages of the prima facie case analysis: (i) determining whether the treatment in issue truly creates a disadvantage; and (ii) determining whether the protected ground or characteristic truly played a role in creating the disadvantage.

[109] Both parties addressed this issue in their closing statements and legal arguments. Both agree on the significance of section 15(1) of the Charter, when the Tribunal considers a law or a policy of general application. They described this step somewhat differently but relied on essentially some of the same jurisprudence.

[110] The test under section 15(1) of the Charter requires an applicant to show that the law or policy in question creates a distinction on an enumerated ground and it impose a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage.

[96] In accordance with Ontario’s submission, the Tribunal found that in a challenge to a law or policy of general application, the test for discrimination under the Charter and the Code is essentially the same. The focus of the inquiry, whether the Code or Charter test applied, is whether there was adverse treatment based on a prohibited ground that resulted in disadvantage.[11] Both tests are focused on substantive equality by recognizing persistent systemic disadvantage that limits opportunities available to certain groups (here, those with mental health disabilities), and seeking to prevent conduct that perpetuated those disadvantages (here, denial of a benefit that would improve Ms. Robinson-Cooke’s capacities and abilities as a person with mental health disabilities).[12]

[97] Ontario argues that, following Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657, the GDB did not create a distinction based on disability because no one received the GDB without an ADI-trained and certified service dog: Decision, at para. 112. However, the Tribunal reasonably found that the GDB was provided to a subclass of ODSP recipients and was not a benefit that was not provided to any ODSP recipient as required by Auton.

[98] The Tribunal found at para. 115:

I find that the definition of “disadvantage” in Al-Turki v. Ontario (Transportation) 2020 HRTO 392 at para 83 is applicable to the current case as well. That decision cites the limiting or withholding of a benefit or the imposing of burdens, obligations or disadvantages that are not imposed on others as examples of discrimination.

[99] While the ADI Requirement was neutral on its face, it had the effect of excluding all ODSP recipients whose disabilities did not fall within the disabilities that were served by ADI organizations in Ontario. The Tribunal reasonably concluded that Ms. Robinson-Cooke was only adversely impacted by the ADI Requirement because of the nature of her disabilities. She had a service dog who was specially trained to mitigate her disabilities. She was only excluded from eligibility because no Ontario ADI member organization would train and certify a dog for her specific mental health disabilities.

[100] There is considerable jurisprudence that supports that in human rights cases, an inference of perpetuating disadvantage, prejudice or stereotyping can generally be found in the evidence establishing a distinction on a Code ground that creates a disadvantage by withholding a benefit available to others or imposing a burden not imposed on others.[13] Nevertheless, there remains uncertainty in the jurisprudence as to whether the test under section 15(1) of the Charter is a separate part of the test for discrimination under human rights legislation.[14]

[101] The Tribunal considered Ontario’s submissions that Ms. Robinson-Cooke had not met the s. 15(1) test. The Tribunal reasonably explained why it found that the benefit Ms. Robinson-Cooke was seeking fell within the scope of the GDB, that she was denied the benefit because of her disabilities and that the denial of this benefit exacerbated her disadvantage.

[102] Ms. Robinson-Cooke, as an ODSP recipient, was a disadvantaged person.[15] The ODSP is the program of last resort for disabled persons in financial need and serves the most economically vulnerable persons in Ontario society. The denial of the GDB, linked to Ms. Robinson-Cooke’s mental health disabilities, further disadvantaged her vulnerable status in society.

[103] The Tribunal reasonably followed established authority[16] in finding that Ms. Robinson-Cooke proved that she suffered disadvantage when she was denied the GDB, concluding that disadvantage means imposing burdens, obligations or disadvantages on an individual or group not imposed on others, or withholding or limiting access to opportunities, benefits and advantages available to other members of society: Decision, at para. 113.

[104] Whether the Code or the Charter test applies, the focus of the inquiry in this case is identical: is there adverse treatment based on a prohibited ground that results in disadvantage?[17] There is no merit to Ontario’s argument that the Tribunal failed to apply the correct test for discrimination.