On September 22, 2022, the Ontario Divisional Court (Court) released Empower Simcoe v. JL, in which the Court set aside decisions of the Human Rights Tribunal of Ontario (Tribunal).
The Court held that Empower Simcoe's COVID-19 visitor policy (Policy), which temporarily limited visits to essential personnel and was later updated to allow outdoor family visits with physical distancing measures in place, was not prima facie discriminatory.
In coming to this conclusion, the Court observed that reasonable public health measures, like that of Empower Simcoe's Policy, could not be seen as presenting an affront to dignity. The Court also accepted that the Policy was founded on available medical opinion and was established as a recommended precaution against "a threatening and mysterious viral pandemic."
The Applicant, Empower Simcoe, is a charitable, non-profit organization that offers programs and services for people who have developmental disabilities, including housing support for children and adults. JL is a 14-year-old boy with multiple disabilities who lives in a group-living home operated by Empower Simcoe where he receives around-the-clock care.
In June 2020, JL's litigation guardian filed a complaint with the Tribunal. The complaint alleged that JL was being discriminated against on the basis that Empower Simcoe had not permitted JL to engage in in-person interaction involving physical contact and touch with his family, and that such discrimination was founded on the prohibited ground of his disability.
The Tribunal held that JL had established a prima facie case of discrimination and that Empower Simcoe had failed in its duty to accommodate him. It later denied Empower Simcoe's request for reconsideration concluding that Empower Simcoe had not shown any new evidence or other basis upon which to justify reversal of the original decision.
At the Divisional Court
The Divisional Court allowed Empower Simcoe's Application for judicial review and set aside the decision by the HRTO. It concluded the decisions of the HRTO were unreasonable in several respects and did not sufficiently account for the context of the public health emergency and the evolving nature of public health pronouncements in which Empower Simcoe was forced to make its decisions.
In its application for judicial review of the Tribunal decisions, Empower Simcoe raised the following two questions: 1. Was the Tribunal's finding that Empower Simcoe discriminated against JL unreasonable?, and 2. Was the Tribunal's conclusion that Empower Simcoe had failed to satisfy its duty to accommodate JL unreasonable?
1. Was the Tribunal's finding that Empower Simcoe discriminated against JL unreasonable
With respect to the first question, the Court held that that it was unreasonable for the Tribunal to conclude that JL had established a prima facie case of discrimination.
The Court examined the law as it relates to discrimination stating that membership in a protected group does not, without more, justify access to a human rights remedy. Rather, a link between group membership and the disadvantaging conduct is required to trigger a potential claim to such a remedy. The Court agreed with Empower Simcoe that no such link existed between group membership and the impact on JL, noting the Policy "was founded on sound medical, scientific and epidemiological evidence, and not on any presumed characteristics of persons suffering historical disadvantage."
As a result, the Court concluded that the Policy was not, on its face, discriminatory against JL.
The Court then considered the argument advanced by JL's litigation guardian: that the Policy had a disproportionate effect on JL due to his unique challenges and requirement for physical touch. As part of its analysis, the Court highlighted the similarities between the case before it and Sprague v. Her Majesty the Queen in right of Ontario, which involved a hospital that had introduced COVID-19-related visitor restrictions in accordance with a Chief Medical Officer of Health for Ontario memorandum. The Court noted that, as in Sprague, the key question was not just whether the adverse effects felt by JL were greater than they were for others to whom the policy applied, but whether this would be felt as an affront to his dignity. On this question, the Court found no reason to justify distinguishing the analysis in Sprague, wherein it was held that reasonable public health measures could not be reasonably seen as presenting an affront to dignity but, rather, as being an unfortunate consequence of the pandemic.
The Court affirmed that Empower Simcoe's Policy was founded on available medical opinion and not on presumed characteristics of persons suffering historical disadvantage. Accordingly, it held that it was not reasonable for the Tribunal to conclude that JL had established a prima facie case of discrimination.
2. Was it unreasonable for the Tribunal to conclude that Empower Simcoe had failed to satisfy its duty to accommodate JL
With respect to the second question, the Court held that Empower Simcoe had taken the steps reasonably necessary in the circumstances to accommodate JL. This, the Court stated, afforded Empower Simcoe a full defence, even where it might be found that the Court was wrong in its conclusion that prima facie discrimination had not been established.
The Court reviewed Empower Simcoe's substantive accommodation efforts and held it was unreasonable for the Tribunal to conclude that the accommodation alternatives offered to JL's family were insufficient. The Court found that Empower Simcoe proposed a number of reasonable alternatives that balanced JL's individualized needs with the provincial guidelines in effect at the time. In failing to find that these proposals satisfied Empower Simcoe's duty to accommodate, the Tribunal was found by the Court to have neglected the principle that the duty to accommodate requires reasonable efforts, not perfection.
The Court found Empower Simcoe's efforts regarding the procedural aspect of its duty to accommodate had been similarly disregarded by the Tribunal. It stated that in the context of a pandemic, the extent to which Empower Simcoe was permitted to deviate from public health or ministry guidelines was unclear. The Court held that Empower Simcoe had made reasonable efforts to explore its ability to exempt JL from physical distancing requirements.
The Court also agreed with Empower Simcoe that it was unreasonable for the Tribunal to conclude that Empower Simcoe should have accommodated JL in the manner requested, at the time (June 2020) the request had been made. The Court found that the Tribunal did not give adequate attention to the considerations of public protection and urgency that formed the context within which Empower Simcoe was required to act. This, the Court decided, was "ultimately a flaw that infect[ed] the internal rationale of the [Tribunal] decisions such as to render them unreasonable."
For these reasons, the Court allowed the judicial review and set aside the Tribunal decisions.
The respondent, JL by his litigation guardian, has filed an application for leave to appeal the Court's decision.
This is a helpful decision for congregate care providers in that it provides support for the premise that policies implemented during a public health crisis that are founded on sound medical, scientific and epidemiological evidence will not be prima facie discriminatory. It also highlights that the context of a public health emergency can be an important factor in the Court's analysis.
The decision also speaks to a number of broader issues, and the Court's conclusions, including the following, will be of particular interest to service providers and employers:
- Not every distinction is discriminatory, and it is not enough to impugn a policy on the basis that what was implemented had a negative impact on an individual in a protected group,
- The procedural aspect of the duty to accommodate requires the taking of steps to understand the disability-related needs and the undertaking of an individualized investigation of potential accommodation measures,
- Immediacy in accommodation is not required. An employer or service provider is permitted time to consider, assess and implement reasonable accommodation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.