First merits decision on role of human rights in COVID pandemic: Human Rights Tribunal of Ontario

Tribunal found care home discriminated against resident with visitor restrictions

First merits decision on role of human rights in COVID pandemic: Human Rights Tribunal of Ontario
Mariam Shanouda, Jessica De Marinis: ARCH Disability Law Centre

In its first merits decision on the role of human rights in the COVID pandemic, the Human Rights Tribunal of Ontario has found visitor restrictions at a care home for youth with disabilities discriminated against a resident.

The applicant – referred to as JL in the case – lives in a group home operated by Empower Simcoe. JL claimed the housing provider had violated his rights, under s. 1 of the Human Rights Code, not to be discriminated against in the delivery of a service. Empower Simcoe provides housing support for children and adults with intellectual disabilities, operates 41 group homes and is funded by the Ministry of Children, Community and Social Services.

“In a number of different areas, the way that the pandemic responses are affecting our communities is that individual human rights are just kind of being swept aside in the name of safety, without a lot of justification,” says Jessica De Marinis, staff lawyer at ARCH Disability Law Centre, who acted for the applicant.

“And so that issue came up in a big way in this case. And our arguments were that human rights continue to exist in a pandemic, and the pandemic is just contextual… And the tribunal agreed with us on that point.”

The case was heard on an expedited basis, which is uncommon for the HRTO, says Mariam Shanouda, who also acted for JL and is also a staff lawyer at ARCH Disability Law Centre.

Shanouda and De Marinis filed the application in June and had a hearing in November. They moved quickly because JL had not seen his parents since March and, ultimately, he did not have any contact with them until the end of August, she says.

“It's very difficult to convince the HRTO to hear something on an expedited basis, and in the pandemic, especially so, because they are quite overwhelmed with a lot of cases,” she says. “But I think the merits of the case were so resounding and systemic, that the tribunal saw fit to hear it quite quickly.”

The claim arose from the respondent’s restrictions on in-person meetings and social distancing policies, which prevented JL from communicating with his family. JL is a non-verbal communicator, using gestures, touch and physical direction to communicate and connect with family, says De Marinis.

Following instructions from Ontario’s Chief Medical Officer, Empower Simcoe ceased in-person visits on March 19, 2020. It resumed outdoor family visits June 18 and indoor visits, July 22. During the cessation of in-person visits, videoconferencing was available. And for indoor and outdoor visiting, physical distancing was required. These alternatives were insufficient, JL argued, and effectively prohibited him from interacting with visitors.

The respondent’s position was that JL’s parents refused to consider the alternative methods for visiting with their son. They insisted on in-person meetings without physical distancing, which was in contravention of public health guidelines.

Empower Simcoe “took a very stringent position” and refused to vary from public health guidelines, says De Marinis.

The HRTO found that videoconferencing was not a reasonable accommodation, and that Empower Simcoe was obligated to do an assessment of what risk would result from JL’s parents visiting him without physical distancing. Empower Simcoe should also have considered alternative COVID precautions that would have applied the guidelines in a non-discriminatory way.

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