Community Legal Clinics Win Major Human Rights Decision at Divisional Court of Ontario
Decision removes a serious access to justice hurdle for applicants alleging discrimination at the Human Rights Tribunal
Toronto, ON. – The Divisional Court of Ontario has released a new decision, Bokhari v. Top Medical Transportation Services, 2026 ONSC 1073, with significant implications for individuals with claims before the Human Rights Tribunal of Ontario.
The Human Rights Tribunal has struggled in recent years with a significant backlog of cases. In 2021, the Tribunal adopted a new protocol for “jurisdictional screening” that lowered the standard for dismissing an application without a hearing. Thousands of complaints have been screened out on this basis since then, without an oral hearing and without evidence.
A judicial review to Divisional Court, led by lawyers from Don Valley Community Legal Services (Richa Oza), the Income Security Advocacy Centre (Nabila F. Qureshi), and the Clinic Resource Office (Anna Rosenbluth), challenged this practice. The Tribunal decision before the Court had dismissed a discrimination complaint without an oral hearing because the Tribunal’s view was that the complaint was “outside of its jurisdiction” to consider.
The applicant, Mr. Bokhari, was fired after requesting time off due to an injury. He applied to the Tribunal asserting that this constituted discrimination on the basis of disability. However, the Tribunal held that his impairment was not a disability because it was only temporary. It then found that the application was outside of its jurisdiction because the applicant was not disabled, so no oral hearing was required. It made these findings without any evidence.
In a major win for the applicant and for the many individuals who rely on the Human Rights Tribunal to adjudicate fairly, the Divisional Court overturned the Tribunal’s decision, finding that the Tribunal had engaged in a “disguised merits review” and that the issue of whether Mr. Bokhari had a disability should have been determined at an oral hearing.
The Divisional Court decision makes three important determinations. Firstly, it rejects the Tribunal’s practice of using its jurisdictional screening process to dismiss applications on their merits without an oral hearing. Second, it rejects the Tribunal’s use of the “balance of probabilities” standard to assess whether an application falls within its jurisdiction. Finally, it re-affirms that the assessment of what constitutes a disability includes the perceptions and barriers that an individual faces, and not just their physical limitations.
“This is a significant victory for access to justice and the protection of human rights in Ontario,” said Richa Oza, Staff Lawyer at Don Valley Community Legal Services. “Over the last five years, advocates have been sounding the alarm about the Tribunal’s use of “jurisdictional” screening to dismiss cases that it was actually required to hear. This decision has unequivocally told the Tribunal that this practice is contrary to the law and the Human Rights Code, and it has to stop.”
“Discrimination is a painful and complex experience,” Oza added. “Those who chose to seek legal remedies for it at the Tribunal deserve to have a fair shot at their allegations actually being heard and processed at the Tribunal, rather than having to prove their allegations right out of the gate.”
Five organizations intervened in the case to help explain the broader systemic importance of the case, and how the Tribunal’s jurisdictional screening process was harming marginalized communities: the Ontario Human Rights Commission, ARCH Disability Law Centre, Black Legal Action Centre, the Migrant Workers Coalition, and the Human Rights Legal Support Centre.
“The Tribunal was engaging in disguised merits reviews of these cases at a preliminary stage where parties did not have the benefit of an oral hearing or the opportunity to provide evidence,” said Saneliso Moyo, one of the lawyers who represented Black Legal Action Centre. “While Mr. Bokhari’s case was about disability, this approach imposed a barrier to justice for all discrimination complaints, especially race-based discrimination complaints. Racism is often subtle and systemic, so documentary disclosure and testimony from witnesses are crucial to establishing racism. But applicants who experienced racism simply couldn’t get that far, especially the many who did not have a lawyer. The result is that countless applicants have been deprived of their rights to an oral hearing, and of possible remedies for discrimination.”
The Court also found that the Tribunal should have assessed whether a matter was within its jurisdiction using a “plain and obvious” standard, rather than on a “balance of probabilities.”
“Historically, there was a very high bar for the Tribunal to dismiss a case on jurisdictional grounds – it had to be “plain and obvious” that the case was outside its jurisdiction,” said Nabila F. Qureshi, Staff Lawyer at the Income Security Advocacy Centre. “In 2021, the Tribunal lowered the bar to the “balance of probabilities” standard, which made it much easier for the Tribunal to dismiss cases without an oral hearing. The Court’s confirmation that the Tribunal must return to using the “plain and obvious” test is an important protection to ensure applications can proceed and get a fair chance at a hearing and human rights remedies.”
The decision removes a significant access to justice hurdle for applicants at the Tribunal. The decision may also be applicable to other administrative tribunals in Ontario, serving as a warning to avoid compromising the rights of litigants over early dismissals.
“We are thrilled with the decision,” said Qureshi. “The court’s decision should put an end to the Tribunal’s misuse of “jurisdictional screening” that has essentially forced individuals who experienced discrimination to prove their case before they’ve even set foot through the Tribunal’s doors. This is a big win for human rights and access to justice.”
For media inquiries, contact:
• Claudia Calabro, Communications Specialist, Income Security Advocacy Centre (ISAC) // claudia.calabro@isac.clcj.ca // 437-245-9457
• Richa Oza, Staff Lawyer and Employment Law Team Leader, Don Valley Community Legal Services (DVCLS) // richa.oza@dvcls.clcj.ca