Screening out Access to Justice? Court Reins in Jurisdictional Dismissals at the HRTO

Recently, the Ontario Divisional Court in Bokhari v. Top Medical Transportation Services, 2026 ONSC 1073 (Bokhari) provided definitive guidance on the proper approach to jurisdictional screening at the Human Rights Tribunal of Ontario (the Tribunal). The decision restores the “plain and obvious” standard for dismissal of applications for lack of jurisdiction. While the decision expands access to relief under the Ontario Human Rights Code (the Code), it simultaneously weakens a key procedural tool used by the Tribunal to reduce its backlog. Whether the decision ultimately enhances access to justice remains to be seen.

Tension between Access to Justice and Efficiency

The Tribunal is equipped with a range of procedural tools to dismiss applications that ought not to proceed to a full hearing, including summary hearings and early dismissals for lack of jurisdiction under Rule 13 of the Tribunal’s Rules of Procedure.

While dismissals of applications for lack of jurisdiction under Rule 13 have enabled the Tribunal to manage its caseload, this tool carries serious implications for access to justice, as applications may be dismissed without the benefit of an oral hearing or evidence. Since jurisdictional dismissals occur at a preliminary stage of the Tribunal’s process, they foreclose the opportunity for applicants to fully articulate their claim for relief under the Code.

The Tribunal has historically dismissed applications for lack of jurisdiction only if it were “plain and obvious” that the application falls outside the Tribunal’s authority. In recent cases, such as Bokhari, it has shifted to the less stringent “balance of probabilities” standard, effectively lowering the bar for early dismissals and allowing the Tribunal to swiftly dispose of numerous cases on its docket. The Court in Bokhari rejected this approach and confirmed that the “plain and obvious” standard applies.

Background to Bokhari

Mr. Bokhari filed an application with the Tribunal alleging discrimination in employment based on disability. He alleged the termination of his employment was related to a request for time off to recover from an ankle injury.

The Tribunal issued a Notice of Intent to Dismiss to Mr. Bokhari stating that the application appeared to be outside of the Tribunal’s jurisdiction since it failed to identify specific acts of discrimination that fell within the Code.

In response to the Notice, Mr. Bokhari provided further submissions outlining the alleged specific acts of discrimination within the bounds of the Code. The Tribunal ultimately dismissed the application without an oral hearing (the "Jurisdictional Decision"). Notably, the Tribunal adopted the “balance of probabilities standard” for its jurisdictional analysis and further determined that Mr. Bokhari’s reported ankle injury was not a disability within the meaning of the Code because it was a transitory condition.

Mr. Bokhari then filed a request for reconsideration which was subsequently dismissed (the "Reconsideration Decision").

The Proper Approach to Jurisdictional Screening

Mr. Bokhari sought judicial review of both the Jurisdictional Decision and the Reconsideration Decision. The Divisional Court granted the application for judicial review on three grounds:

1. It was unreasonable for the Tribunal to consider, at the jurisdictional stage, whether Mr. Bokhari’s injury was a disability within the meaning of the Code.
2. The Tribunal’s decision to lower the test for jurisdictional screening from “plain and obvious” to a “balance of probabilities” was unreasonable.
3. It was unreasonable for the Tribunal to conclude that there was no arguable case for the assertion that Mr. Bokhari’s injury constituted a disability.

The Court held that the issue of whether Mr. Bokhari’s injury constituted a disability under the Code was an inherently fact-based inquiry that was properly reserved for the merits. It was therefore unreasonable for the Tribunal, at the jurisdictional stage, to consider whether his injury constituted a disability under the Code.

The Tribunal also improperly applied the “balance of probabilities” standard and did not provide any justification for departing from the long-settled “plain and obvious” standard. While the Tribunal referenced a January 2021 protocol and the December 2022 Practice Direction on Jurisdiction, neither of these materials explained the reason for shifting the standard for determining whether an application is outside of its jurisdiction.

Access to justice was a key consideration in the decision: the Court noted that the result of the adoption of the “balance of probabilities” standard is the filtering out of applications that appear unlikely to fall within the Tribunal’s jurisdiction but which, with the benefit of a factual record and argument, may ultimately be determined to be within the Tribunal’s jurisdiction. The Court further commented that this results in applicants who experience discrimination being denied the Code’s protection and the Tribunal’s efforts to manage its workload cannot justify this result.

It was also unreasonable for the Tribunal to conclude that there was no arguable case that Mr. Bokhari’s reported ankle injury constitutes a disability. The Tribunal did not engage in the required socio-political analysis of disability, which requires an analysis of the context in which the alleged discrimination occurred, and it instead exclusively adopted a biomedical model of disability.

Takeaways

The Bokhari decision confirms that the “plain and obvious” standard applies to jurisdictional screening and signals more broadly that the Tribunal’s efforts to reduce its caseload must not come at the cost of applicants’ right to a hearing on the merits.

The decision provides a positive development for broadening access to relief under the Code given the higher “plain and obvious” standard for dismissing applications at the preliminary stage. For respondent counsel, in cases where early dismissal of an application is desired, the resumption of the “plain and obvious” standard for jurisdictional screenings may require a focus on summary hearings instead.

The Bokhari decision also weakens a key procedural tool used by the Tribunal to reduce its caseload. Notably, the decision was issued amidst a surge in new applications at the Tribunal: in the 2025 fiscal year, the Tribunal received 4, 518 new applications, which is the second highest annual intake since the Tribunal was established in 2008.[1]

The reasoning in Bokhari reveals an inherent tension: the resumption of the “plain and obvious” standard may expand access to relief under the Code but there is a simultaneous risk of increasing the Tribunal’s backlog, thereby delaying that same access to the Code’s protection.

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