Summary

Keywords

Administrative law — Judicial review — Standard of review — Human rights — Right to equality — Whether Divisional Court applied correct standard of review — Whether Divisional Court applied correct test for prima facie discrimination — Duty to accommodate — Whether Divisional Court applied correct test for duty to accommodate to point of undue hardship.

Summary

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The applicant is a child with a genetic condition that renders him unable to communicate verbally. He relies on gestures, vocalizations, and touch to communicate with others, including his parents. The respondent, Empower Simcoe (“Empower”), a not-for-profit funded by the Ontario Ministry of Children, Community, and Social Services (“MCCSS”), operates the group home where the applicant lives.

During the COVID-19 pandemic, against the backdrop of frequently-updated guidelines and recommendations from Ontario’s Ministry of Health and MCCSS, Empower restricted visitation for residents of its group homes in a manner that effectively prohibited physical contact between the applicant and his family for approximately six months despite persistent advocacy and requests from the applicant’s parents during this time. The applicant’s parents declined visitation options that did not include physical contact.

The applicant, by his litigation guardian, complained to the Human Rights Tribunal of Ontario (“HRTO”) that the policy prohibiting physical contact with his family during this period amounted to adverse impact discrimination against him on the basis of a disability.

The HRTO upheld the applicant’s complaint. The applicant’s disability is a protected characteristic; he experienced an adverse effect from Empower’s policy because he could not have physical contact with his parents, and, because the policy in question applied exclusively to residents of group homes, all of whom are disabled, the applicant’s disability was a factor in the adverse treatment. While the policy in question was rationally connected to a public health purpose and adopted in good faith for that purpose, Empower applied non-binding guidelines from MCCSS rather than investigating the real risk posed by the applicant’s requested accommodation. It therefore failed to accommodate the applicant to the point of undue hardship.

The Divisional Court found multiple key conclusions of the HRTO to be unreasonable. The impugned policy was not the reason the applicant did not see his family; his family declined alternatives. There was no link between the applicant’s disability and the impact he experienced; the impugned policy was adopted in the unfortunate circumstances of a general medical catastrophe. The HRTO was bound by the Divisional Court’s decision in Sprague v. Her Majesty the Queen in right of Ontario, 2020 ONSC 2335, on this point. It was also unreasonable to conclude that Empower failed in its duty to accommodate when it made reasonable efforts to do so in the circumstances. The HRTO’s decision was set aside.

The Court of Appeal denied leave to appeal.

Lower Court Rulings