Ont. court set aside human rights tribunal decisions on multiservice residential facility policy
The Ontario Divisional Court has set aside decisions of the Human Rights Tribunal of Ontario (HRTO) after finding that a multiservice residential policy did not discriminate against a 14-year-old boy with multiple disabilities and had not failed in its duty to accommodate him.
In Empower Simcoe v. JL, 2022 ONSC 5371, the applicant, Empower Simcoe, is a multiservice residential facility publicly funded by the Ontario Ministry of Children, Community and Social Services (MCCSS). It provides housing support for children and adults with intellectual disabilities and operates two homes for children under 18.
Meanwhile, the respondent, JL, is a 14-year-old boy with multiple disabilities, including intractable epilepsy and global developmental delay. Since the age of seven, he has been living in a group-living home operated by the applicant, where he receives round-the-clock care. Throughout his time at the facility, his parents have continued to parent him, make medical decisions, and visit him regularly on weekends and holidays.
In March 2020, the Chief Medical Officer of Health for Ontario responded to concerns about the threat posed by COVID-19 by issuing a memorandum strongly recommending that only essential visitors should be allowed in all congregate care settings for ill residents. Accordingly, the applicant adopted a temporary policy prohibiting anyone visiting its group-living homes other than essential personnel.
Given the risks posed by COVID-19, the applicant maintained the reasonableness of its temporary visitation policy. It provided the respondent’s family with the option of video conference visits with him. It also offered to schedule in-person visits during which he would be separated from his family members by a gate. However, the family rejected those suggestions.
In June 2020, the respondent’s family lodged a complaint with the HRTO on his behalf. The complaint alleged that the respondent was being discriminated against on the basis that the applicant had not permitted him to engage in in-person interaction with his family, and such discrimination was founded on the prohibited ground of his disability.
In its decisions, the HRTO ruled that the applicant discriminated against the respondent and failed in its duty to provide reasonable accommodation to him. It awarded $10,000.00 in damages to the respondent as a result. The applicant applied for a judicial review of the HRTO decisions with the Divisional Court, alleging that the decisions are unreasonable and should be set aside.
The Divisional Court found that the decisions under review are “unreasonable in several respects,” and the application for judicial review should be granted.
The court first determined whether the HRTO decision that the applicant discriminated against the respondent was unreasonable. Ultimately, it disagreed with the HRTO’s finding that the respondent experienced adverse effect discrimination when the visitation policy suspended the regular in-person visits with his family.
“In order to arrive at this conclusion, the HRTO made the leap of making the visitation policy the reason why JL did not visit with his family and found that JL could not visit meaningfully with his parents without physical touch when there was medical evidence to demonstrate that gestures, vocalizations and TechTalk for technology-assisted communication would have assisted with achieving this goal,” Justice Elizabeth Stewart wrote.
The court also found that it was unreasonable for the HRTO to conclude that the respondent successfully established that discrimination had occurred.
“In this case, there is no link between group membership and the impact on JL. Empower Simcoe’s visitation policy was founded on sound medical, scientific and epidemiological evidence, and not on any presumed characteristics of persons suffering historical disadvantage,” Justice Stewart wrote.
Additionally, the court determined that the applicant’s temporary visitation policy did not create a distinction based on an enumerated or analogous ground, nor did it reinforce, perpetuate, or exacerbate a disadvantage. The court described the policy as a recommended precaution against a threatening and mysterious viral pandemic.
The court then determined whether the HRTO decision that the applicant failed to satisfy its duty to accommodate the respondent was unreasonable. It eventually held that it was unreasonable for the HRTO to conclude that as of June 2020, the applicant could and should have accommodated the respondent in the manner requested by his family.
“Empower Simcoe proposed a number of reasonable alternatives that allowed for visitation that accorded with the provincial guidelines at the time,” Justice Stewart wrote. “In crafting these accommodations, Empower Simcoe balanced the individualized needs of JL as well as the MCCSS and [Ministry of Health] guidelines in effect at the time.”
In failing to find that these proposals satisfied the applicant’s duty to accommodate, the HRTO decisions ignored the rule that “duty to accommodate requires reasonable efforts, not perfection,” the court concluded.