Executive Summary: Key Legal and Evidentiary Issues

• Scope of judicial review centered on whether the Human Rights Tribunal of Ontario (HRTO) reasonably concluded that prima facie discrimination had not been established in relation to misgendering, gender identity and gender expression.
• Unresolved factual and analytical gap in the Tribunal’s reasons concerning whether misgendering occurred after the Clinic knew Mr. Thorne’s preferred name and pronouns and what adverse impact, if any, that conduct had on him.
• Misapplication of the law on prima facie discrimination where the Tribunal relied on the “inadvertent” and “unintentional” nature of misgendering instead of focusing on the discriminatory impact on a trans person’s dignity and equality.
• Adequacy of the Tribunal’s treatment of the allegation of race and colour discrimination, given the absence of pleaded material facts or evidentiary links connecting the Clinic’s actions to Mr. Thorne’s race.
• Deference to the Tribunal’s credibility findings that the Clinic refused narcotic medication based on a neutral policy applicable to first-time walk-in patients, not because of race or gender identity.
• Remedy on judicial review limited to setting aside the Tribunal’s decisions on misgendering and gender expression and remitting that discrete issue to a different adjudicator, with no order as to costs and no monetary award quantified in this decision.

Background and parties

This case arises from an application for judicial review of two decisions of the Human Rights Tribunal of Ontario (HRTO): a final decision dated October 18, 2024 dismissing a human rights application, and a reconsideration decision dated February 10, 2025 denying reconsideration. The applicant, Jordan Renae Thorne, is a Black trans-male who alleged discrimination by the respondent Good Health Walk-In Clinic in the provision of medical services. The Human Rights Tribunal of Ontario was also named as a respondent in the judicial review because its decisions were under challenge.

Mr. Thorne claimed that the Clinic discriminated against him on three protected grounds: gender identity, gender expression, and race/colour. The Divisional Court (Sachs, Backhouse and Matheson JJ.) was asked to determine whether the Tribunal’s dismissal of those human rights allegations, and its refusal to reconsider, were reasonable in light of the governing human rights and administrative-law principles.

Facts and allegations before the Tribunal

Mr. Thorne underwent gender reassignment surgery (a gender-affirming double mastectomy) in November 2017. On December 6, 2017 he attended the Clinic seeking assistance for pain and anxiety following that surgery. At the front desk, an intake form had to be completed. Mr. Thorne’s account was that he provided his name as “Portia (Jordan) Thorne” and identified his gender as male, and that both the receptionist and the doctor proceeded to misgender him repeatedly despite his explicit and repeated requests to use his correct name and pronouns.

The Clinic’s witnesses gave a different account, which the Tribunal largely accepted. The receptionist, Ms. Arsenault, testified that she, not Mr. Thorne, filled out the intake form, relying on the OHIP record which listed his gender as female. She said she referred to him as “she” when speaking to another person, that Mr. Thorne corrected her to “he,” and that she told him the health ministry record indicated “female.” She maintained that any use of the wrong pronoun was not intentional, that she did not know his gender identity at the outset, and that if she had known she would have used his preferred form of address. She also described the encounter as escalating, leading her to say she would call the police.

Dr. Stein, the Clinic physician, recorded Mr. Thorne’s preferred name on his chart when informed of it. His notes used “she” and “her” when referring to Mr. Thorne, and he testified there was no specific discussion about preferred pronouns.

Mr. Thorne further alleged that the Clinic refused to examine his chest scars from surgery and refused to provide appropriate post-operative care because of his gender identity and gender expression. On this point, there was a stark evidentiary conflict. Mr. Thorne said he requested a physical examination of his chest; Dr. Stein testified that Mr. Thorne only sought a prescription for narcotics and did not ask for a chest examination. The Clinic emphasized that it had a clear policy not to prescribe narcotic medication to first-time walk-in patients, and that this policy—rather than any discriminatory motive—explained the refusal.

Finally, Mr. Thorne alleged that he was treated as a “drug-seeking Black person,” asserting discrimination on the basis of race and colour. The Tribunal noted that in his original application form he did not check the box for race and colour, that his pleadings, witness statement, documents and oral testimony before the hearing did not link the Clinic’s conduct to race or colour, and that these grounds were mentioned for the first time in his written submissions after the hearing.

Tribunal’s findings on misgendering and gender expression

On credibility, the Tribunal accepted the evidence of the Clinic’s witnesses, finding both Dr. Stein and Ms. Arsenault credible and reliable and placing weight on the contemporaneous chart notes. It concluded that, at the outset of the encounter, the Clinic was not in a reasonable position to know Mr. Thorne’s preferred name and pronouns.

The Tribunal’s reasons then addressed what occurred after the Clinic learned of those preferences. It summarized the respondent’s position that any misuse of names or pronouns after Mr. Thorne advised of his preferences was inadvertent and not intentional, and that the Clinic apologized for this oversight. The Tribunal referred to this submission and, in substance, treated the lack of intent and the Clinic’s apology as answering the claim of discrimination. On that basis, it held that Mr. Thorne had not established prima facie discrimination on the misgendering and gender-expression issues.

Tribunal’s findings on race and colour

On race and colour, the Tribunal’s reconsideration decision emphasized pleading and evidentiary deficiencies. It noted that Mr. Thorne had not identified “race and colour” as a ground in his initial application, had not pleaded any material facts linking the Clinic’s actions to his race, and had not referred to race or colour in his evidence describing the encounter. The Tribunal concluded that there was no factual foundation on the record from which a link between the alleged conduct and race/colour could reasonably be inferred.

In parallel, the Tribunal’s credibility findings undercut the theory that Mr. Thorne was targeted as a Black “drug-seeker.” The Tribunal accepted that the Clinic refused to prescribe narcotics because of an established clinic-wide policy for first-time walk-in patients, not because of his race, and that Mr. Thorne did not in fact ask for an examination of his chest scars. These findings were not challenged on judicial review; Mr. Thorne expressly confirmed he did not seek to set aside the Tribunal’s credibility findings.

Legal framework for judicial review

The Divisional Court applied the reasonableness standard of review to both the original HRTO decision and the reconsideration decision. The Court relied on the Court of Appeal’s direction in Ontario (Health) v. Association of Ontario Midwives that HRTO decisions are presumptively reviewed for reasonableness and that this standard is applied through the analytical lens set out in Canada (Minister of Citizenship and Immigration) v. Vavilov. Under that framework, the reviewing court considers not only the outcome, but also whether the Tribunal’s reasons form an internally coherent, rational chain of analysis that is justified in relation to the governing facts and law.

The Court also examined human-rights jurisprudence relevant to misgendering and discrimination. Tribunal and human-rights decisions from Ontario and British Columbia have recognized that persistent failure to use a person’s correct pronouns or post-transition name, when connected to their trans status and despite express requests, can amount to adverse treatment and prima facie discrimination. Decisions such as EN v. Gallagher’s Bar and Lounge, S.R. v. DLPH Hambleton Group Inc., Dawson v. Vancouver Police Board and Nelson v. Goodberry Restaurant Group emphasize the centrality of correct pronoun use to a trans person’s dignity, identity and sense of safety.

The Divisional Court further referred to Supreme Court of Canada authority holding that discriminatory intent is not required for prima facie discrimination. In cases such as Stewart v. Elk Valley Coal, Quebec (Commission) v. Bombardier and Schrenk, the Court has made clear that human rights law is primarily concerned with the impact of conduct on the claimant’s rights rather than the respondent’s motives. Intention may mitigate or exacerbate harm but is not an element that must be proven to establish discrimination.

Misgendering: the gap in the Tribunal’s reasons

Applying these principles, the Divisional Court found a fundamental gap in the Tribunal’s reasoning on the misgendering and gender-expression issue. First, the Tribunal did not make a clear factual finding on whether the receptionist or the doctor misgendered Mr. Thorne after they knew his preferred name and pronouns. The language of its reasons—particularly the reference to “misuse of names and/or pronouns” and the respondent’s position that this was inadvertent—implicitly left open the possibility that misgendering did occur post-notification.

Second, and more critically, the Tribunal moved directly from the premise that any misgendering was “inadvertent and not intentional” to the conclusion that prima facie discrimination was not established, without analyzing the key legal questions: whether any misgendering that occurred was linked to Mr. Thorne’s trans status, what impact it had on him, and whether that impact was adverse. By focusing on the absence of intention instead of assessing effect, the Tribunal’s reasoning conflicted with binding Supreme Court authority on discrimination and with human-rights jurisprudence on misgendering.

Because of this unresolved factual issue and the misdirection on the role of intent, the Court held that it was not possible to discern a rational chain of analysis on misgendering. Under Vavilov, where an administrative decision contains such a fundamental gap or rests on an unreasonable analytic chain, it is inappropriate for the reviewing court to supply its own reasons; instead, the decision must be set aside.

Race and colour: no reviewable error

On the race and colour allegation, the Divisional Court reached the opposite conclusion and upheld the Tribunal’s approach. The Tribunal had carefully canvassed the pleadings and evidence, finding no material facts tying the Clinic’s actions to Mr. Thorne’s race or colour. The only explicit invocation of race appeared in submissions after the hearing, without an evidentiary underpinning.

Moreover, in light of the unchallenged credibility findings—that narcotics were refused because of a neutral clinic policy applicable to first-time walk-in patients, and that Mr. Thorne did not ask for a chest-scar examination—the Court found no factual basis on which discrimination on the basis of race or colour could be sustained. Those findings foreclosed any inference that the Clinic’s decisions were driven by racial stereotyping or bias. Accordingly, the Tribunal’s conclusion that race and colour discrimination had not been established fell within the bounds of reasonableness.

Outcome and remedy

The Divisional Court partially allowed the application for judicial review. It set aside the HRTO’s decisions only with respect to the misgendering and gender-expression issue and ordered that this discrete issue be remitted to a different Tribunal member for a new hearing, to be conducted in accordance with the Court’s reasons. The findings on race and colour, as well as the central credibility determinations around the Clinic’s narcotics prescription policy and the absence of a request for chest-scar examination, remain intact.

On the question of costs and monetary relief, the Court noted the parties’ agreement that there would be no order as to costs, and it did not itself make any award of damages or other financial remedy. Any human-rights remedies, including potential monetary compensation related to misgendering or gender-expression discrimination, will depend on the outcome of the rehearing before a different adjudicator. As a result, while Mr. Thorne is the successful party on the judicial review regarding misgendering and gender expression, there is no quantifiable total monetary award, costs, or damages ordered in his favour in this Divisional Court decision.