Executive Summary: Key Legal and Evidentiary Issues

• Reasonableness of the Human Rights Tribunal of Ontario’s (HRTO) dismissal of the disability discrimination claim for having no reasonable prospect of success
• Adequacy of medical evidence and communication from the applicant to support ongoing accommodation and continued absence from work
• Whether the employer’s conclusion that the applicant had abandoned his employment was supported on the evidentiary record
• Scope of the HRTO’s role as a non-investigative tribunal and limits on its duty to inquire further into the facts
• Application of the “no reasonable prospect of success” screening test and the link between adverse treatment and disability as a Code-protected ground
• Proper use of reconsideration at the HRTO versus impermissible re-argument of the same case

Factual background

The case arises from a judicial review application brought by Ernesto Diarez challenging two decisions of the Human Rights Tribunal of Ontario (HRTO) involving his employment with Staff Plus and D.J. Gosselin Personnel Inc., a temporary staffing agency. Mr. Diarez worked for about nine months before suffering a workplace accident on December 4, 2017, in which he injured his right knee. Following the injury, he was absent for two days and then returned to perform his regular duties with help from co-workers until December 21, 2017. He attended a walk-in clinic on December 21, 2017 and then saw his family doctor on December 30, 2017. The family doctor completed a functional abilities form recommending modified duties for eight to fourteen days. The employer accommodated this by providing modified duties until about January 20, 2018. Around January 20, 2018, after the expiry of the two-week period referenced in the medical note, the employer discontinued his modified duties. On January 23, 2018, Mr. Diarez consulted another physician who declined to sign a functional assessment form to support ongoing modified duties, stating that further tests were required. As requested, he advised the employer at that time about this development. However, by his own account, he did not return to work, did not contact the employer about his medical status or availability, and did not provide further medical evidence for several months after January 2018. The employer’s practice required temporary staff to advise them when they were available for work. In light of the extended silence and lack of medical documentation, the employer concluded that he had abandoned his employment. In April 2018, the employer terminated his employment and issued a record of employment, which he appears not to have received until he requested it in the summer of 2018. In May 2018, he sent some medical information to the employer, and in August 2018 he supplied a medical note indicating that he had sustained a knee injury and was not fit to perform general labour work.

Proceedings before the Human Rights Tribunal of Ontario

Relying on these events, Mr. Diarez filed an application with the HRTO under the Ontario Human Rights Code alleging discrimination in employment on the basis of disability, and also alleging reprisal. His core theory was that the employer failed to accommodate his knee injury and terminated his employment for discriminatory reasons tied to that disability. The tribunal considered the application under its summary screening power to determine whether the claim had “no reasonable prospect of success.” In doing so, it assumed the factual allegations were true but examined whether, even on that assumption, the facts could reasonably amount to a Code breach and whether there was any evidentiary basis to link the adverse employment outcome to disability as a protected ground. The HRTO noted that accepting an applicant’s facts does not mean accepting their assumptions about why they were treated unfairly. It focused on whether the evidence, beyond the applicant’s suspicions, suggested that disability played a role in the termination decision.

The first HRTO decision: no reasonable prospect of success

In its first decision, dated September 9, 2022, the tribunal held that the application had no reasonable prospect of success. It accepted that the applicant had a workplace injury and that modified duties were provided for the period supported by medical evidence. It found that during the two weeks for which there was clear medical support for accommodation, the employer did accommodate his disability by assigning modified duties. After that period expired, the tribunal saw no evidence that he provided updated medical documentation or requested further accommodation supported by medical information, or that he kept the employer informed of his injury status and availability to work over the ensuing months. On this record, the HRTO concluded that the disability did not appear to be a factor in the termination of employment. It found no evidence, apart from the applicant’s own suspicions, that the employer breached his Code rights or that there was a sufficient link between his disability and the decision to deem him to have abandoned his position and terminate his employment. The tribunal also addressed the applicant’s own statements around not quitting his job and his separate references to reasons for voluntarily leaving employment under the Employment Insurance Act. Although one paragraph in the decision was acknowledged later by the court to be poorly worded, the tribunal went on to emphasize the underlying evidentiary gap: there was simply no material before it to support a finding that disability discrimination had occurred.

The reconsideration decision at the HRTO

After receiving the first dismissal, Mr. Diarez sought reconsideration under the HRTO’s internal procedures. In its reconsideration decision dated November 4, 2022, the tribunal noted that reconsideration is a discretionary remedy, governed by rules that strictly limit the circumstances in which it will be granted. These include situations such as new facts that could not reasonably have been presented earlier, significant errors of law or fact, or clear procedural unfairness. The tribunal reviewed his extensive submissions and concluded that he was essentially re-arguing his case rather than fitting within any recognized reconsideration criterion. It found that none of the grounds for reconsideration applied and, accordingly, dismissed the request.

Judicial review to the Divisional Court

Dissatisfied, Mr. Diarez applied to the Ontario Divisional Court for judicial review of both HRTO decisions, alleging that they were unreasonable. He argued that the tribunal failed to recognize the employer’s duty to accommodate his injury, improperly accepted the employer’s position that he had abandoned his job, and failed to conduct a sufficient inquiry into his circumstances. He also filed a lengthy application record including an affidavit and numerous exhibits, some of which had not been before the HRTO. The Divisional Court first addressed the standard of review. As decisions of a specialized human rights tribunal, HRTO decisions are reviewed on a reasonableness standard, which requires deference and focuses on whether the decision is justified, intelligible, and transparent when read as a whole. The court emphasized that judicial review is not an appeal on the merits and that it is not the court’s role to decide the case afresh or substitute its own view of the evidence. The court then addressed a preliminary evidentiary issue: whether it could consider the additional materials that had not been before the HRTO. It held that judicial review is generally limited to the record before the decision-maker, subject to narrow exceptions. These exceptions, drawn from the Keeprite Workers’ Independent Union v. Keeprite Products Ltd. framework, allow supplementary evidence only where it is general background, demonstrates a complete absence of evidence on an issue, or goes to matters such as natural justice, procedural fairness, improper purpose, or fraud that could not have been raised earlier. The court found that the extra materials submitted by Mr. Diarez were intended to explain the impact of the alleged Code violation, did not fall within any Keeprite exception, and therefore were not admissible on judicial review.

Reasonableness analysis of the HRTO’s findings

Turning to the merits of the HRTO decisions, the court framed the central question as whether it was reasonable for the tribunal to conclude that there was no reasonable prospect of proving discrimination in employment based on the information and documents before it. The court examined the chronology accepted by the tribunal: the initial injury, the short period of absence, the two weeks of modified duties supported by a medical note, the end of that accommodation around January 20, 2018, the January 23 medical visit where further tests but no functional abilities form were provided, and the applicant’s subsequent failure for several months to communicate with the employer about his medical status or availability or to provide ongoing medical evidence. The court noted that by his own account, he did not contact the employer between at least February and April 2018 to justify his absence or request further accommodation. On these facts, it was open to the employer to conclude that he had abandoned his employment, especially in the context of a temporary staffing agency that required workers to proactively indicate their availability. The court acknowledged that one paragraph of the HRTO’s first decision was drafted in a confusing way, but held that this did not undermine the overall reasonableness of the decision. When read holistically, the tribunal’s reasoning was intelligible and anchored in the evidentiary record, particularly the lack of documentation or communication supporting the applicant’s position that he had been terminated because of disability. With respect to the allegation that the HRTO failed to investigate adequately, the court pointed out that the tribunal is not an investigative body. Its role is to adjudicate based on the materials submitted, not to embark on its own fact-finding exercise. This undercut any argument that the HRTO’s process was unreasonable for not probing further into the circumstances of his termination. The court also noted that on judicial review, Mr. Diarez did not substantively engage with the specific criteria for reconsideration that he would have needed to satisfy at the HRTO. He did not identify any aspect of the reconsideration decision that was unreasonable in law or logic, reinforcing the conclusion that the denial of reconsideration fell within the tribunal’s discretion.

Outcome and monetary consequences

After assessing both the original HRTO decision and the reconsideration ruling, the Divisional Court concluded that the tribunal’s reasons, taken as a whole, were intelligible, rational, and transparent, and that its findings were supported by the information before it. Accordingly, the court held that the HRTO decisions were reasonable and dismissed the judicial review. As a consequence, the respondents were successful in the proceeding. The court ordered that the employer, Staff Plus and D.J. Gosselin Personnel Inc., was entitled to costs from Mr. Diarez in the all-inclusive amount of $6,000, while no costs were awarded to or sought by the HRTO. Thus, the respondents—the employer and the HRTO—emerged as the successful parties, with a total monetary award of $6,000 in costs ordered in favour of the employer.