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| Brian Cook |
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| Kathy Laird |
In Bokhari v. Top Medical Transportation Services, [2026] O.J. No. 640, released on Feb. 20, the court overturned a Human Rights Tribunal of Ontario (HRTO) decision dismissing a claim without a hearing, saying the tribunal misapplied the law, wrongly restricting access to a discrimination hearing. The tribunal has been using this restrictive interpretation of its authority to terminate hundreds of files annually since 2021.
Tribunal Watch Ontario welcomes the decision, which confirms many of our criticisms of the HRTO. The ruling requires significant changes at the tribunal, which has become dysfunctional since coming under new leadership under the Tribunals Ontario umbrella in 2020.
The Bokhari case involved a man who was fired from his job as an ambulance driver after he asked his employer for two weeks off work to recover from an ankle injury. Even though the Human Rights Code prohibits negative treatment on the basis of disability, the HRTO’s decision says it was “unclear to the Tribunal how the Code may be relevant to [the applicant’s] complaints about the respondent.”
The court concluded that in 2021 the HRTO had abruptly changed its test for determining whether claims could go forward to a hearing, refusing to accept cases as within its authority — known as jurisdiction — based only on a preliminary assessment of the case’s merits, without giving the claimant the chance to introduce any factual evidence.
In Bokhari, the HRTO decision noted there were competing previous decisions on the question of whether a temporary ankle injury falls under the legal definition of “disability” under the Code. It chose the narrower interpretation and dismissed the case, finding that it did not have jurisdiction to deal with the case because it was not likely to be successful.
But the court said this conclusion required an assessment of the evidence, such as the nature of the person’s work, how bad the injury is and what limitations it creates:
The Tribunal moved almost immediately from assessing whether Mr. Bokhari’s pleadings fell within the Tribunal’s jurisdiction to determining whether he could succeed in his application. The Tribunal foreclosed Mr. Bokhari’s claim by choosing the narrower of two lines of authority in deciding whether the type of ankle injury sustained by Mr. Bokhari qualified as a disability under the Code.
The court said, “This is not a proper jurisdictional analysis; it is a disguised merits review,” adding:
The approach adopted by the tribunal 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 HRTO’s casual dismissal of Bokhari’s case and hundreds of others without hearing any evidence was enabled by the tribunal’s change in how it assessed its own jurisdiction. As the court said, the traditional standard used by courts and the HRTO itself prior to 2021 for dismissing cases for lack of jurisdiction is whether it is “plain and obvious” that the case was outside the tribunal’s authority. Instead, the HRTO substituted a “balance of probabilities” standard, empowering itself to throw out hundreds more cases without a hearing. In the Bokhari ruling, the court declared that this change was unreasonable and unjustified.
Why does the tribunal care about the test for jurisdiction? The answer is simple. The Human Rights Code says the tribunal’s rules must ensure that “[a]n application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions in accordance with the rules.” So, what better way to get rid of human rights claims without the time-consuming task of hearing any evidence than by restricting the scope of its own jurisdiction — even though the job of hearing and deciding discrimination cases is supposed to be the core mandate of the HRTO.
The case has far wider implications than just for Bokhari. An analysis by Tribunal Watch of the HRTO’s own figures on dismissed cases in the first nine months of 2025 (the latest statistics available) shows that 676 files were dismissed because the tribunal said it had no jurisdiction. The largest reason for dismissing cases for lack of jurisdiction was that the Human Rights Code “does not apply” — exactly the reason for the dismissal of Bokhari’s claim. Similar high rates of premature dismissal for supposed lack of jurisdiction have been evident for several years. Altogether, thousands of cases have been dismissed by a process that the court has now ruled is unreasonable.
The HRTO has been so focused on tossing cases without a hearing that it has reached the point that nearly 97 per cent of its final decisions are dismissals without a hearing (1,934 out of 1,997 final decisions in the first nine months of 2025). About one-third of these are dismissals for supposed lack of jurisdiction. Most of the rest are abandonments.
It is worth noting that a large majority of claimants at the HRTO are self-represented — about 84 per cent according to the tribunal’s own figures for the first nine months of 2025. Many of the massive number of cases dismissed because the tribunal has deemed that the case has been abandoned are undoubtedly cases where the HRTO has asked for legal submissions on its jurisdiction but the applicant — who may not understand what is being requested — simply doesn’t respond and is deemed to have dropped their case. So, the extent of the problem highlighted in the Bokhari case goes well beyond the number of cases where the tribunal dismisses for lack of jurisdiction.
Since the HRTO came under Tribunals Ontario, its backlog has spiked, and it has suffered from the appointment of many adjudicators with no experience in running hearings or expertise in human rights law. The tribunal’s response has focused on how to get rid of files, no matter how unfair the process becomes. This includes placing so many obstacles in the way of claimants that most of them, faced with long delays and requests for submissions that may require a lawyer, just give up.
The Divisional Court has now ruled that the HRTO’s practice of routinely dismissing cases without an oral hearing for supposed lack of jurisdiction is wrong. Something must now be done to remedy the injustice that the HRTO has created by improperly and unreasonably dismissing thousands of cases, and to ensure that the practice stops.
Tribunal Watch Ontario calls for the following actions:
1. The HRTO must immediately amend its rules to restore the past approach, endorsed by the court, and dismiss cases for lack of jurisdiction only if it is plain and obvious that the tribunal lacks jurisdiction. All adjudicators must be trained to ensure that there are no more improper and unfair dismissals.
2. The Attorney General should provide extra funding to the HRTO to allow the appointment of human rights experts to review cases dismissed for supposed lack of jurisdiction and determine if those dismissals should be reconsidered.
3. The Attorney General should appoint a qualified auditor to review all the practices and procedures of the HRTO to ensure they comply with the Code.
2. The Attorney General should provide extra funding to the HRTO to allow the appointment of human rights experts to review cases dismissed for supposed lack of jurisdiction and determine if those dismissals should be reconsidered.
3. The Attorney General should appoint a qualified auditor to review all the practices and procedures of the HRTO to ensure they comply with the Code.
Brian Cook is the co-ordinator of Tribunal Watch Ontario.
A member of Tribunal Watch Ontario, Kathy Laird is a retired human rights lawyer and former counsel at the Human Rights Tribunal of Ontario. She is the former director of the Advocacy Centre for Tenants Ontario and the Human Rights Legal Support Centre.
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