Court Condemns Tribunal for Holding a Disguised Merits Review in its Jurisdictional Analysis

Ontario Court rules that the Human Rights Tribunal of Ontario improperly used a “balance of probabilities” test for early jurisdictional dismissals. The Court found that the tribunal cannot prematurely evaluate the merits of a disability claim under the guise of preliminary screening. The Tribunal’s decision was set aside, and the Court ordered the petitioner’s application to proceed to the next stage in the Tribunal’s process before a different adjudicator.

Administrative law – Decisions reviewed – Human Rights Tribunal – Judicial review – Natural justice – Procedural requirements and fairness – Standard of review – Reasonableness; Human rights complaints – Jurisdiction – Discrimination – Disability; Employment law – Termination. 

Bokhari v. Top Medical Transportation Services, [2026] O.J. No. 640, Ontario Superior Court of Justice – Divisional Court, February 20, 2026, N.L. Backhouse, D.L. Corbett and O. Rees JJ.

The petitioner was an ambulance driver who allegedly injured his right ankle. After seeking medical attention, he contacted his employer with a medical note asking for two weeks off in order to recover. The petitioner’s employer terminated his employment a week later. The petitioner commenced an application before the Ontario Human Rights Tribunal (the “Tribunal”) alleging discrimination based on a disability.

The Tribunal sent the petitioner a Notice of Intent to Dismiss for lack of jurisdiction. The notice stated that the application failed to identify any specific acts of discrimination within the meaning of the Human Rights Code (the “Code”) and also stated that the Tribunal does not have jurisdiction over general allegations of unfairness.

The petitioner filed a further submission setting out what he alleged were the specific acts of discrimination and explained why his application came within the jurisdiction of the Tribunal. The application was dismissed by the Tribunal. In its dismissal, the Tribunal indicated that it had made its jurisdictional decision based on a “balance of probabilities”, consistent with a January 2021 protocol and subsequent December 2022 Practice Direction on Jurisdiction. The Tribunal acknowledged that it had not applied the test which it historically used in jurisdictional screening, in which the Tribunal would only dismiss the application for lack of jurisdiction if it were “plain and obvious” that the application is outside the Tribunal’s jurisdiction.

The Court granted the petitioner’s application for judicial review for three reasons. First, dismissing his application as a matter of jurisdiction was unreasonable. The question of whether the petitioner’s physical infirmity is a “disability” within the meaning of the Code is an arguable substantive question requiring a hearing on the merits. Second, it was unreasonable for the Tribunal to lower the test for jurisdictional screening from “plain and obvious” to a balance of probabilities. The Tribunal effectively conducted a disguised merits review. Third, it was unreasonable to conclude that there was no arguable case that the petitioner’s ankle injury is a disability under the Code on the facts alleged and the law.

The Court set aside the Tribunal’s decision and ordered the petitioner’s application to proceed to the next stage in the Tribunal’s process before a different adjudicator. This case was digested by Eric Mo of Harper Grey LLP.  If you would like to discuss this case further, please feel free to contact him directly at [email protected].