In Empower Simcoe v. JL, 2022 ONSC 5371, the operator of a publicly funded residential facility for children and adults with intellectual disabilities (Operator) sought judicial review of the Human Rights Tribunal of Ontario’s (HRTO) findings that its policies during COVID-19 were discriminatory. Specifically, the HRTO found that the Operator’s temporary visitation policy during the early stage of COVID-19 discriminated against a non-verbal 14-year-old boy with multiple disabilities who resided in a group home operated by the Operator and failed in its duty to reasonably accommodate, and awarded the resident $10,000 in damages. 

The Divisional Court set aside the HRTO’s decision because  it “unreasonably did not sufficiently account for the context of the public health emergency and the evolving nature of public health pronouncements in which [the Operator] was forced to make its decisions”; unreasonably characterized the temporary precautions used by the Operator to protect residents and employees during the first months of COVID-19 as discriminatory; and unreasonably rejected the Operator’s offer of accommodation as a sufficient defence to the alleged unlawful discrimination. 

Background

The resident lived in the Operator’s facility where he received around-the-clock care.  Until the pandemic, his parents visited him regularly on weekends and holidays. 

In March 2020, in response to the Chief Medical Officer of Health for Ontario’s recommendation, the Operator implemented a temporary policy disallowing any visits at its group-living homes other than by essential personnel (Visitation Policy).  Subsequently, the Visitation Policy allowed family visits with physical distancing.  When the resident’s family insisted the resident could not physically distance without being restrained, the Operator offered video conference visits, and in-person visits with the resident separated from his family by a gate. The family rejected these options on the basis that the resident required physical contact to engage in meaningful communication. Beginning in August 2020, the resident was allowed short stays with his parents without physical distancing.  

The resident’s family submitted a complaint to the HRTO alleging that from March to August 2020 the resident was discriminated against when the Operator did not permit him to engage in in-person interaction involving physical contact and touch with his family, and that such discrimination was founded on the prohibited ground of his disability.

HRTO’s Original Decision

The HRTO held that the Operator prima facie discriminated against the resident because its visitation restrictions “reinforced, perpetuated and exacerbated the social exclusion [the resident] already experiences in the world because of his disabilities...”  The HRTO found also that the Operator failed to satisfy its duty to accommodate the resident and ordered the Operator to pay him $10,000 for injury to his dignity, feelings and self-respect, and to develop an accommodation policy.

HRTO’s Reconsideration Decision

In its reconsideration decision, the HRTO denied the Operator’s request for reconsideration because no new evidence or other basis had been advanced to justify reversing its original decision.

Decision of the Court

Was the decision of the HRTO that the Operator discriminated against the resident unreasonable?

Yes.  The court decided the HRTO was unreasonable in deciding that because the resident was not allowed to have in-person visits, he experienced “adverse effect discrimination.”  The court noted that in coming to this conclusion, “the HRTO made the leap of making the Visitation Policy the reason why [the resident] did not visit with his family and found that [the resident] could not visit meaningfully with his parents without physical touch when there was medical evidence to demonstrate that gestures, vocalizations and TechTalk for technology-assisted communication would have assisted with achieving this goal.”     

The court also found that it was unreasonable for the HRTO to conclude that discrimination had occurred.  It noted that a prima facie case of discrimination is proven when there is a link between an individual’s membership in a protected group and “the arbitrariness of the disadvantaging conduct, either on its face or in its impact.”  The Visitation Policy did not create a link between group membership and the impact on the resident because it was based on “sound medical, scientific and epidemiological evidence, and not on any presumed characteristics of persons suffering historical disadvantage.” Accordingly, the court found the Visitation Policy did not discriminate.   

The court also determined that the Visitation Policy did not create a distinction on the basis of an enumerated or analogous ground, or reinforce, perpetuate, or exacerbate a disadvantage. Instead, the court viewed the Visitation Policy as “a recommended precaution against a threatening and mysterious viral pandemic.”

The court considered an argument that the Visitation Policy had a disproportionate effect on the resident because of his unique challenges and need for physical touch. In doing so, the court considered its earlier decision, Sprague v. Her Majesty the Queen in Right of Ontario, 2020 ONSC 2335, which involved restrictions imposed on a hospital’s visitors due to COVID-19.  The court found that, as in Sprague, the key question was not simply whether the adverse effects of the Visitation Policy experienced by the resident were greater than those experienced by others to whom it applied, but whether the resident would experience those adverse effects as an affront to his dignity.  The court found that the HRTO had not been justified in distinguishing its analysis in Sprague.  In fact, the court reiterated its Sprague analysis, where it found that “reasonable public health measures could not be reasonably seen as presenting an affront to dignity but, rather, as being an unfortunate consequence of a general medical catastrophe.” 

Was the decision of the HRTO that the Operator had failed to satisfy its duty to accommodate the resident unreasonable?

Yes.  The court found that even if it had been wrong to conclude that prima facie discrimination had not been established, the Operator had a full defence because it took the steps reasonably necessary in the circumstances to accommodate. 

The court noted that the substantive component of the duty to accommodate involves an analysis of whether the accommodation offered is reasonable and sufficient, or an analysis of the reasons why accommodation is not provided.  The procedural component of the duty would require the Operator to make an effort to understand the resident’s needs as they related to his disability and engage in an individualized investigation of how he might be accommodated to address them.

Upon considering the Operator’s substantive accommodation efforts, the court found that between June and August 2020, the Operator balanced the resident’s individualized needs with the provincial guidelines then in place by proposing a number of reasonable visitation alternatives that were consistent with the guidelines. The court concluded that when the HRTO decided that these proposals were insufficient and did not satisfy the Operator’s duty to accommodate, it did not consider that the duty to accommodate requires reasonable efforts, not perfection.

Next, the court considered the Operator’s efforts to satisfy the procedural aspect of its duty to accommodate and found that the HRTO disregarded them.  The court stressed that it was unclear if the Operator was permitted to deviate from public health or ministry guidelines in the context of a pandemic, and the Operator made reasonable efforts to explore whether it could do so.

Finally, the court decided that the HRTO was unreasonable when it found that the Operator should have accommodated the resident as requested in June 2020.  The court found that the HRTO decision did not “give adequate attention to…considerations of public protection and urgency that form the context within with [sic] [the Operator] was required to act” and were unreasonable in not allowing time for the Operator to accommodate “within the broader context of evolving and changing information about the pandemic.”  The court stated that these contextual considerations must be given adequate weight when steps are taken in good faith to provide protection from extreme danger, and the HRTO’s failure to do so “is ultimately a flaw that infects the internal rationale of the HRTO decisions such as to render them unreasonable.”

For these reasons, the court set aside the HRTO Decisions. 

Bottom Line for Employers

The decision of the Divisional Court in Empower Simcoe indicates that prima facie discrimination may not be found when a policy implemented by a congregate care service provider is based on “sound medical, scientific and epidemiological evidence.”  The fact that such a policy came to be “as a recommended precaution against a threatening and mysterious viral pandemic” (or against another extreme public health danger) may provide additional contextual support for such a finding.  As the court noted, “the COVID-19 global pandemic required an immediate response in order to attempt to reduce the spread of a potentially deadly virus in circumstances in which full and complete information was not available but the well-founded fear of a worst-case scenario prompted a swift and firm response from public health officials and the institutions which they are responsible to advise.”

More broadly, Empower Simcoe sends a clear message that “not every distinction is discriminatory, and it is not enough to impugn a policy on the basis that what was done had a negative impact on an individual in a protected group.” Such a claim may be triggered only when it can be proven that there is a “link between that group membership and the arbitrariness of the disadvantaging conduct, either on its face or in its impact.”

Finally, Empowered Simcoe provides significant guidance regarding the duty to accommodate.  It indicates that the procedural component of the duty requires an effort to be made to understand the individual’s disability-related needs, and an individualized investigation to be conducted of potential accommodation measures.  As well, the decision suggests that it is unreasonable to expect accommodation to be provided immediately upon request.  Adequate weight should be given to the broader context in which such measures are to be taken and time to reasonably accommodate should be permitted within that context.