Bokhari v. Top Medical Transportation Services, 2026 ONSC 1073
In 2021, the applicant filed an application alleging discrimination based on disability when he was terminated from his employment as a driver after injuring his ankle and asking for two weeks to recover. In dismissing the application in 2022, the HRTO applied a new test for jurisdiction, rejecting the former “plain and obvious” standard for assessing its jurisdiction and applying a new “balance of probabilities” standard. It concluded that there was nothing in the application or subsequent submissions to indicate a connection to the Code. The applicant filed an application for reconsideration within the 30-day period. Over a year later, in 2024, the HRTO dismissed the reconsideration application.
The Court granted the application for judicial review and found that the HRTO had applied a “technical or narrow reading” of its own jurisdiction and that this approach “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”.
The Court held that applying a new balance of probabilities standard to jurisdictional screening was unreasonable. It found that the Tribunal had departed from its long-settled practice and established internal authority” without meeting setting out a justification for doing so. Further, it found that applying a balance of probabilities standard “inevitably screens out, at a threshold stage”, applications that could have merit.
The Court further found that the question of whether Mr. Bokhari’s physical infirmity is a “disability” within the meaning of the Code is an arguable substantive question requiring a hearing on the basis of the full factual record. The Court found that, in dismissing the application at a threshold stage, the HRTO had failed to conduct a contextual analysis of the impact of the injury, in accordance with the governing jurisprudence.