|
Human Rights (Ont) - Discrimination - Disability. Bokhari v. Top Medical Transportation Services
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 considered the interpretation of 'disability' under the HRC:(c) It was unreasonable to conclude that there was no arguable case that Mr. Bokhari’s ankle injury is a disability under the Code on the facts alleged and the law
[45] I have already concluded that the decision was unreasonable because it engaged in a disguised merits review rather than a jurisdictional analysis. But I cannot leave unaddressed the Tribunal’s analysis of the merits of whether Mr. Bokhari’s ankle injury was, based on the facts alleged, a disability under the Code.
[46] The Code defines “disability” to include, “any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury…”: s. 10(1)(a).
[47] Here, the Tribunal held that while a Code-protected disability may result from an injury, there was nothing in the application or submissions in response to the Notice to indicate that the applicant’s injury was not a transitory condition expected to resolve in two weeks. It identified two lines of Tribunal authority on whether transitory injuries are Code-protected and chose the narrower one. It held that Mr. Bokhari’s injury fell within the line of cases which do not find such transitory conditions to be Code-protected.
[48] The Tribunal’s analysis focused on the nature of the injury itself. It reasoned that “the applicant’s injured state was of short duration; they asked for two weeks off to recover. It does not appear from the information provided, that the ankle was broken”. The Tribunal concluded that “[t]here is no factual basis provided to indicate that the injury was so serious as to cause ‘substantial ongoing limits’ in the applicant’s activities or that they could not perform their job ‘for a significant period of time’”.
[49] The Tribunal’s analysis of Mr. Bokhari’s ankle injury was unreasonable because it adopted a biomedical model of disability and did not engage in a socio-political analysis of disability, as required by the governing jurisprudence.
[50] Over 25 years ago, the Supreme Court of Canada rejected the exclusive application of the biomedical model of disability and held that human rights legislation requires a socio-political dimension to the analysis: Boisbriand, at para. 77. This is also referred to as a multidimensional model or analysis of disability. As the court explained:This is not to say that the biomedical basis of “handicap” should be ignored, but rather to point out that, for the purposes of the [Quebec] Charter, we must go beyond this single criterion. Instead, a multi-dimensional approach that includes a socio-political dimension is particularly appropriate. By placing the emphasis on human dignity, respect, and the right to equality rather than a simple biomedical condition, this approach recognizes that the attitudes of society and its members often contribute to the idea or perception of a “handicap”. In fact, a person may have no limitations in everyday activities other than those created by prejudice and stereotypes. [51] According to the Supreme Court, it follows that a disability may be the result of “a physical limitation, an ailment, a social construct, a perceived limitation or a combination of all of these factors. It is the combined effect of all these circumstances that determines whether the individual has a [disability]”: Boisbriand, at para. 79. See also Granovsky, at paras. 26-7, and 29.
[52] Examining these factors requires a careful contextual analysis in which the alleged discrimination occurred. This is necessary to determine whether an actual or perceived ailment causes the applicant to experience the loss or limitation of opportunities to take part in the life of the community on an equal level with others: Boisbriand, at para. 80. This is a highly fact-based evaluation.
[53] The Tribunal engaged in none of this analysis—and could not have done so in the absence of a factual record. It was bound by the Supreme Court’s jurisprudence to do so.
[54] And while the Supreme Court in Boisbriand acknowledged that “normal ailments” like a cold “will generally not” constitute a disability because there is “normally not a negative bias” against these ailments, the court did not lay down a hard and fast rule that transitory injuries were necessarily excluded from the meaning of disability. In this regard, the court was careful to emphasize that the multidimensional analysis of disability required under human rights legislation focuses on “obstacles to full participation in society rather than on the condition or state of the individual”: at para. 82.
[55] None of this is new ground for the Tribunal. There is a long line of Tribunal authority that is consistent with the multidimensional analysis of disability. See e.g. Boodhram v. 2009158 Ontario Ltd (A Buck or Two #342), 2005 HRTO 54, at para. 19; Hinze v. Great Blue Heron Casino, 2011 HRTO 93, at para. 22; and Hill v. Spectrum Telecom Group Ltd., 2012 HRTO 133, at paras. 23-4. The Tribunal has also recognized that the determination of whether an applicant has a disability requires evidence and is a fact-based inquiry: Avati v. Inter-Ontario Equipment Rental and Repair Ltd., 2025 HRTO 1870, at para. 34.
[56] On the facts alleged, it is arguable that Mr. Bokhari’s ankle injury is a disability under the Code. It follows that it was unreasonable for the Tribunal to conclude that there was no arguable case that Mr. Bokhari’s ankle injury is a disability under the Code on the facts alleged and the law.
[57] Before leaving this point, I observe that Mr. Bokhari’s application form and submissions also provide an arguable basis that his employer knew or ought reasonably to have known that Mr. Bokhari was a person with a disability, triggering the duty to inquiry. . McCready v. Toronto Community Housing Corporation
In McCready v. Toronto Community Housing Corporation (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a motion to extend time to commence an RTA s.210 appeal.
A social housing tenant unsuccessfully argues disability bias and lack of fairness:[9] The tenant’s second argument is that the Board likely had “some unconscious but well-meaning bias” against her because she was disabled and unable to appear competent. She argues that although she had been paying full rent plus an additional amount towards arrears since January 2024, the Board’s likely biased view of her led it to find her incapable of continuing to pay rent plus a payment arrangement. The tenant relies on “crip time,” which she explains is a concept reflecting the non-linear and protracted pace of progress for disabled individuals. She also underscores the progress she has made since January 2024 in consistently paying her rent and in pursuing various avenues that will increase her ability to obtain a job and to have additional supports to assist her.
[10] In her additional submissions, the tenant also states that her ability to participate in the June 2024 Board hearing was “severely limited” and that she did not formally request accommodation because unsupported disability affects communication and self-advocacy.
[11] I agree with the landlord that the tenant does not have a tenable appeal. My conclusions are not meant to undermine the struggles the tenant has faced, nor the efforts she is making to move forward. But the court’s task is not to assess the tenant’s challenges, intentions, or efforts in isolation. It is instead to review the decision of the Board for errors of law.
....
Bias/Procedural Fairness
[17] There is also no plausible likelihood the tenant will succeed in her submission that the Board was biased or breached procedural fairness. The tenant’s submission that the Board member was likely biased is a bald statement without factual basis. Establishing bias requires meeting a stringent standard. In this case, the Board provided detailed reasons for not permitting the tenant to proceed with a proposed repayment plan. These reasons included that the arrears owing were substantial and exceeded the Board’s monetary jurisdiction; the arrears of rent dated back more than 6 years; and the landlord had attempted to work with the tenant on multiple occasions but the arrears only seemed to increase after each repayment plan was entered into. In recognition of the tenant’s circumstances, the Board also found it would not be unfair to delay the termination of the tenancy. Considering the Board’s detailed reasons and the absence of a factual basis to demonstrate bias, there is no prospect of the tenant succeeding on this ground.
[18] The tenant also asserts she was denied procedural fairness because she was severely limited from participating in the June 3, 2024 hearing that led to the order she seeks to appeal. She states that at that time, she did not have a wheelchair and had only been receiving consistent income supports for six months. However, she does not dispute that she attended and participated in the hearing, which occurred by videoconference. She also acknowledges she did not raise any request for accommodation at the hearing. It does not appear that she raised any issue of procedural unfairness at the hearing, which means this argument would be raised for the first time on appeal. In all of the circumstances, there is no reasonable prospect of success on this argument on an appeal.
Additional Information about Personal Progress and Readiness for Employment
[19] The tenant is to be applauded for the efforts she has made to pursue her studies and health recovery. However, much of the information she provides arose after the Board’s order and could only be considered by the court if the tenant were successful in introducing it through a motion for fresh evidence. The Board was entitled to weigh the relevant circumstances at the time and grant the order terminating the tenancy. The additional information provided by the tenant, even if it were admitted on appeal, would not provide a basis for the court to find an error of law in the Board’s decision. . Ovwodorume v. Human Rights Tribunal of Ontario [COVID]
In Ovwodorume v. Human Rights Tribunal of Ontario (Ont Divisional Ct, 2025) the Divisional Court dismissed a JR, here against a dismissed "reconsideration decision of the Human Rights Tribunal of Ontario" in a claim which "alleged discrimination and reprisal with respect to employment because of disability":[7] Mr. Ovwodorume submits the Tribunal misapplied the law by ignoring that he was terminated for the perceived disability of having COVID-19. We disagree. It was reasonable for the Tribunal to conclude Mr. Ovwodorume’s termination was based on the contravention of workplace policies and procedures rather than a perceived disability. The Tribunal relied on the portion of the termination letter stating Mr. Ovwodorume was being terminated “for serious violations of Vita’s policies and procedures.” The letter stated it was a violation of policy and procedure for Mr. Ovwodorume not to inform his wife that he was removed from his shift because he was in contact with staff who had tested positive for COVID-19. It stated this resulted in his wife continuing to work and that he had thereby put Vita members and staff at a severe potential health risk. In the circumstances of this evidence, it was reasonable to conclude the termination was not due to a perceived disability.
|
