Critics say the ruling removes a significant barrier for complainants to access the Human Rights Tribunal
An Ontario court has told the province’s human rights tribunal that the legal standard it uses to determine whether it has jurisdiction over a human rights complaint is unreasonable, stating that applying that standard results in fewer protections for individuals who have faced discrimination.
For some critics of the Human Rights Tribunal of Ontario, the court’s Feb. 20 decision is a significant victory, validating their concerns that the difficult-to-clear legal standard has led the strained tribunal to hear fewer human rights complaints.
“This is a really important decision that corrects some fundamental injustices that have been happening at the HRTO,” says Brian Cook, who serves on the steering committee of Tribunal Watch Ontario, a watchdog that monitors the province’s tribunal system. Cook was one of the HRTO’s vice chairs from 2008 to 2018.
Cook notes that the legal standard, known as the “balance of probabilities” test, has prompted the tribunal to demand supporting evidence from applicants. He argues that these information requests are often so burdensome and unrealistic that many litigants struggle to meet them, leading the tribunal to dismiss their cases.
Many others – especially if they’re self-represented and have already been contending with long wait times – opt to abandon their cases altogether.
From Jan. 1, 2020, to Sept. 30, 2025, self-represented litigants filed between 75 and 90 percent of the new complaints that the HRTO received, according to quarterly data from the tribunal.
The court decision in Bokhari v. Top Medical Transportation Services is “a really significant victory for the protection of human rights in Ontario and for access to justice,” says Nabila Qureshi, a staff lawyer with the Income Security Advocacy Center, an Ontario legal clinic.
“It removes a really significant barrier to accessing the Human Rights Tribunal – to having your claim being actually able to proceed past the very threshold of the tribunal and actually go to an oral hearing,” Qureshi adds.
Asked to comment on the decision and whether the HRTO will continue to apply the balance of probabilities standard to jurisdiction issues, a spokesperson for Tribunals Ontario told Law Times that the HRTO is reviewing the court’s decision and “will apply the court’s direction as appropriate.
“The HRTO welcomes this clarification and guidance from the Divisional Court, which will assist us in improving our process,” the spokesperson added.
The Income Security Advocacy Center was one of three legal clinics that represented the complainant in Bokhari. Ali Bokhari was an ambulance driver who asked his employer to take two weeks off work after he allegedly injured his ankle. His employer terminated him a week later, prompting Bokhari to file a complaint with the HRTO.
The tribunal responded seven months later, stating that it intended to dismiss Bokhari’s complaint for being outside the tribunal’s jurisdiction. After he responded to the notice, the tribunal dismissed his complaint. Bokhari asked the tribunal to reconsider its decision, but the tribunal again dismissed his request and disclosed, for the first time, that the dismissal was based on the balance of probabilities test.
The HRTO told Bokhari that in January 2021, it had stopped applying its longstanding “plain and obvious” standard to determine whether a complaint fell within its jurisdiction. Under the plain and obvious standard, the tribunal could toss out complaints that were clearly outside its jurisdiction, such as those filed by federally regulated employees or those involving events that occurred outside Ontario.
Instead, the tribunal adopted the balance of probabilities standard to assess jurisdiction, formalizing the change in a December 2022 practice direction. That standard requires that an allegation is “more likely than not” to have happened, based on available evidence.
Bokhari asked the Ontario Superior Court of Justice’s Divisional Court to review the tribunal’s rulings.
In its decision, the court questioned how the tribunal was applying the balance of probabilities standard to assess jurisdiction, given that the standard is used to evaluate evidence. However, jurisdiction is determined at the preliminary stage of the tribunal process, before the HRTO has any evidence to consider.
“The determination was made solely based on the application and Mr. Bokhari’s submissions. He did not have an opportunity to marshal a record to support his claim,” the court said, adding that the HRTO also failed to justify departing “from its long-settled practice” of using the plain and obvious standard to assess jurisdiction questions.
“Applying the balance of probabilities standard to jurisdictional questions inevitably results in screening out, at a threshold stage, applications that appear unlikely to fall within the jurisdiction of the tribunal but which, with the benefit of a factual record and argument, would ultimately be determined to be within the tribunal’s jurisdiction,” the court said.
“This results in applicants who have been discriminated against being denied the [Ontario Human Rights] Code’s protection. Managing workload and efficiency cannot justify this result,” the court added.
For years, Tribunal Watch – whose members include several former HRTO adjudicators – have flagged the backlogs that ballooned at Ontario’s various tribunals after Premier Doug Ford consolidated 12 of the province’s tribunals, including the HRTO, under Tribunals Ontario in 2019.
In recent years, Tribunals Ontario has hired new adjudicators and staff and implemented new technology to reduce application processing times and address backlogs.
However, Cook argues that the HRTO’s shift to using the balance of probabilities standard was also a strategy for managing the tribunal’s workload.
“The simplest thing to do when you have a huge backlog is create gates that people have to get through to have their case continue,” Cook says.
Last summer, Tribunal Watch flagged at least 28 cases in which Ontario courts overturned rulings by various tribunals, citing procedural unfairness, inadequate reasoning, and more. While the watchdog accused the tribunals of using flimsy reasons to dismiss cases and address backlogs, Tribunals Ontario noted that, between January 2021 and December 2024, the Divisional Court upheld, at an aggregate level, 93.3 percent of the rulings appealed at the three tribunals with the highest volume of appeals, including the HRTO.
Qureshi points to HRTO data showing that the majority of cases the tribunal marks as resolved each quarter are either complaints dismissed for lack of jurisdiction or those abandoned by the complainants.
Like Cook, she’s observed instances of self-represented complainants giving up at the jurisdiction stage, after receiving tribunal notices requesting more information or indicating an intent to dismiss their case.
“It’s too legally complicated for them. They don’t have the time or the energy, especially if they’re vulnerable individuals with a lot of other things going on in their lives,” Qureshi says. “This means that people who have experienced discrimination are not able to take their cases forward, and that really undermines the core protections of the Human Rights Code.”
Qureshi says that while she agrees with the court’s assessment that it is problematic for the HRTO to use the balance of probabilities test, she believes it was also problematic that the tribunal used the standard between January 2021 and December 2022 – when it published its practice direction – without informing the public.
The lawyer says she’s hopeful that the precedent set in Bokhari will remove a significant hurdle for complainants.
“We really hope that the tribunal makes significant changes to its processes to ensure that cases can fairly proceed,” she says.
