Executive Summary: Key Legal and Evidentiary Issues

• Applicant alleged employment discrimination based on disability after being terminated for requesting medical leave.

• Human Rights Tribunal of Ontario dismissed the claim, finding the ankle injury did not constitute a disability under the Code.

• Applicant challenged the HRTO’s use of the balance of probabilities standard instead of the plain and obvious test.

• Judicial review was sought, with motions to summon former tribunal officials and introduce affidavit evidence about internal protocols.

• The Court upheld the HRTO’s decision-making process and quashed the summonses as speculative and protected by deliberative secrecy.

• Affidavit evidence from a former HRTO vice-chair was largely struck for irrelevance, lack of personal knowledge, and breach of confidentiality.

Facts of the case
Ali Bokhari filed a complaint with the Human Rights Tribunal of Ontario (HRTO) alleging that his employer, Top Medical Transportation Services, discriminated against him on the basis of disability. He claimed he was terminated after requesting two weeks off to recover from an ankle injury. The HRTO dismissed his complaint in December 2022 following a written hearing, concluding that his injury was a transitory condition and did not meet the threshold of a disability under the Human Rights Code. Bokhari requested reconsideration, which was also dismissed in February 2024.

The Tribunal applied the balance of probabilities standard when assessing whether his claim raised a valid allegation of discrimination. Bokhari objected to this standard being used without explicit notice and argued that it was unfair. He also suggested that there may have been a mandatory internal protocol requiring use of the balance of probabilities test, which he claimed improperly fettered the Adjudicator’s discretion.

Procedural motions and dispute over internal protocols
As part of his judicial review application, Bokhari sought to supplement the record with internal HRTO documents by issuing summonses to three former Tribunal officials, including two former Associate Chairs and the Registrar. He argued these witnesses might provide evidence of an undisclosed internal policy mandating the use of the balance of probabilities test. He also submitted an affidavit from former Vice-Chair Mark Hart, who left the HRTO in 2019, prior to the events at issue.

The HRTO brought motions to quash the summonses and strike parts of the affidavit. The Court held that the applicant failed to show a reasonable evidentiary basis for summoning the witnesses or for the existence of any mandatory internal protocol. The Court noted that the HRTO’s published Practice Direction from December 2022 expressly indicated the use of the balance of probabilities standard was not mandatory and was applied on a case-by-case basis. Further, HRTO decisions continued to reflect the use of both that standard and the “plain and obvious” test after January 2021, suggesting flexibility rather than rigid internal rules.

Regarding the affidavit, the Court found that most of Mr. Hart’s statements were either speculative, not based on personal knowledge of the relevant period, or protected by deliberative secrecy. Only two minor paragraphs of the affidavit were allowed to remain on the record.

Outcome
The Court granted the HRTO’s motion to quash the summonses and struck out the bulk of Mr. Hart’s affidavit. It confirmed that the applicant already had the relevant Practice Direction and Tribunal decisions available for his judicial review application and had no legal basis to probe further into internal HRTO deliberations. The Court found that the summonses were speculative and amounted to a fishing expedition, potentially constituting an abuse of process. The judicial review itself remains pending, but the evidentiary motions were fully resolved in favour of the HRTO. There was no order as to costs.