HRLSC to intervene in judicial review of HRTO decision on disability-related case

An Ontario man has received permission to bring two Human Rights Tribunal of Ontario (HRTO) decisions before the Divisional Court, challenging the Tribunal’s finding that his workplace injury did not qualify as a disability under the Human Rights Code (Code), and its refusal to reconsider that ruling. The Human Rights Legal Support Centre (HRLSC) has been granted the right to intervene in this judicial review, which could have major implications for how non-permanent injuries are treated under Ontario’s human rights law and how the HRTO handles early dismissals based on jurisdiction.

In Bokhari v. Top Medical Transportation Services, 2022 HRTO 1424, the HRTO dismissed Ali Bokhari’s application after claiming that his ankle injury was not a “disability” under the Code. After the dismissal, Bokhari submitted a Request for Reconsideration, asking the HRTO to review its decision, which only occurs in rare and highly exceptional cases.

Request for Reconsideration

In his Request for Reconsideration, Bokhari argued that the HRTO did not apply the “plain and obvious” test that has historically been used to determine whether to dismiss an application early in the process based on jurisdiction. This “plain and obvious” argument related to the HRTO’s ruling in Bokhari’s case about the nature of his ankle injury, conflicted with prior Tribunal caselaw that a non-permanent injury can be considered a “disability” in certain circumstances.

The HRTO dismissed Bokhari’s Request for Reconsideration (Bokhari v. Top Medical Transportation Services, 2024 HRTO 229), stating that the HRTO was now applying the “balance of probabilities” test when considering early dismissals based on jurisdiction. The balance of probabilities places a different standard of proof, requiring a fact to need to be proven to have more likely than not to have happened. The HRTO also ruled that their decision was not in conflict with prior HRTO case law as there was “no factual basis” to find his injury was a “disability” protected by the Code.

Bokhari filed an application for judicial review of both decisions with the Divisional Court of Ontario. The HRLSC, along with six other organizations, filed a motion for leave to intervene in the proceedings. On September 18, 2025, the Divisional Court granted the HRLSC leave to intervene in Bokhari’s judicial review application.

This matter is scheduled for a full hearing at the Divisional Court on November 24, 2025.