Human Rights Tribunal Finds “Good Faith” COVID-19 Restrictions Can Still Be Discriminatory, Sets Benchmark Monetary Award.

by Grant Ferguson | Aug 31, 2021

JL v. Empower Simcoe 2021 HRTO 222

In a recent decision confirmed by the Human Rights Tribunal of Ontario (the “HRTO”) May 7, 2021 (2021 HRTO 348), the HRTO has ruled that COVID-19 restrictions and protocols accepted to benefit the health of the public can still be discriminatory under the Ontario Human Rights Code (the “Code”).  Restrictions accepted to be in place to protect public health and safety “in good faith” were held to be discriminatory, resulting in a benchmark monetary award of $10,000.

The underlying facts of the case involved a child (the “Applicant”) in the Respondent’s care facility over the months of March through December, 2020 during the COVID-19 pandemic.  The Respondent provided housing support for children and adults with intellectual disabilities. The Respondent had policies in place to ensure visitations could occur over this time with physical distancing and the use of Personal Protective Equipment (“PPE”) due to COVID-19.  The Applicant’s family insisted on physical contact and an exception be made to the Respondent’s policies to allow visits without such distancing or without their own PPE.

At the start of the COVID-19 pandemic, in March 2020, the Ministry of Health (the “Ministry”) strongly recommended essential visitors only to care facilities like those of the Respondent.  Visitor restriction policies were thereafter put in place.  The Ministry issued a further policy April 1, 2020 restricting home visits.  This resulted in the Respondent’s home visit restriction policy at the end of April.

With the reopening of initial lockdowns in the summer of 2020, the Ministry provided further support for the continued use of PPE and physical distancing.  The Respondent developed a policy that allowed limited family visits in outdoor settings with physical distancing on all visits.  Short-stay overnight visits were also resumed under a policy issued by the Respondent in August, 2020.

Over this time, the Applicant’s family wished greater access than they were being given.  The family wished to attend in person with physical contact.  They also wished to be supplied PPE that was in short supply over this time in the pandemic.  The Respondent followed up with the local health unit to seek guidance and to advocate on behalf of patient safety.  The Applicant’s family continued to object to the physical distancing, even when visits were resumed through the second wave of the pandemic into December 2020.

In evaluating the Respondent’s actions, the HRTO accepted that the Respondent took a “risk-based approach” that permitted family visits but that required masking (where tolerated) and physical distancing.  The Applicant’s family were permitted in-person visits with the Applicant under these conditions into 2021.

The HRTO outlined the legislative framework under which they would still evaluate the Respondent’s COVID-19 policies notwithstanding.  The right to equal treatment with respect to services under s. 1 of the Code was limited by section 11.  Section 11 permits limiting services when such a restriction is bona fide to the level of undue hardship on the respondent (s. 11(2)).  Reference was made to the Supreme Court of Canada case in British Columbia (Public Service Employee Relations Commissions ) v. BCGSEU, 1999 CanLII 652 as the basis for this exemption to be upheld.

The HRTO accepted that the Applicant was a person under disability.  It also accepted that the Applicant would have benefited from greater physical contact with his parents.  In evaluating the Respondent’s actions in this context, the HRTO accepted it had jurisdiction to interpret “the respondent’s exercise of discretion when interpreting [the guidelines of the Ministry] and creating its own rules around visitation.”[para 68].

The HRTO accepted that the Ministry guidelines were not binding.  This was consistent with earlier Superior Court of Ontario cases such as Sprague v. Her Majesty the Queen in right of Ontario 2020 ONSC 2335.  In Sprague, however, the Court held visitor restrictions were not discriminatory under the Canadian Charter of Rights and Freedoms because they were rooted in medical opinion, scientific judgment and/or epidemiological evidence that the elderly were more severely impacted by the COVID-19 pandemic.

The Respondent sought to rely on Sprague to make a similar argument that their policy was routed in medical opinion and so was not discriminatory.  The Respondent further argued that the risk to the public and staff of the COVID-19 pandemic created undue hardship should the Applicant’s family be able to flout the restrictions the Respondent had in place.

The HRTO accepted that the Applicant “may be” more vulnerable and at increased risk of adverse effects give his developmental disability.  However, the Applicant, in this case, was not elderly.  As a child, the Applicant would benefit from physical touch inconsistent with physical distancing.  The HRTO accepted that the Applicant’s “social exclusion was heightened during the pandemic because he was unable to visit with his family.”[para 96]  This established a prima facie case for discrimination by the Respondent given the impact on the Applicant’s disability.

The HRTO then turned to evaluate the Respondent’s policies on the defence of the policies being a bona fide occupational requirement (“BFOR”) under sections 11(1) and 11(2) of the Code.

The HRTO accepted that the Respondent’s policies were “based on sound medical opinion.”[para 87]  The HRTO also agreed that “the restrictions were put in place to protect the health and safety of the residents and the employees of the respondent.”[para 105]  The HRTO further agreed that the visitation restrictions “were adopted in good faith as being necessary for the purpose” [para 106] of protecting the health and safety of residents and staff.  Despite this analysis, however, the HRTO did not accept the BFOR defence.  It held the Respondent had still discriminated against the Applicant by failing to accommodate the family’s wishes.

The Defence of undue hardship was not met here.  The HRTO denied undue hardship could be met even though it accepted the conditions of the COVID-19 pandemic, and that the policy was based on “sound medical opinion” and that the policy was placed in good faith for the purpose of protecting the health and safety of residents, including the Applicant.  More was needed and the Respondent bore the onus for supplying this further evidence of undue hardship.

The HRTO accepted that the onus for the duty to accommodate lay firmly with the respondent “because it is in the best position to determine how the applicant can be accommodated”[para 135].  Even though the Respondent’s policy was justifiable, it still needed more to prove undue hardship would result by providing the exemptions sought.  The HRTO held undue hardship “cannot be presumed by the sole fact of the pandemic.” [para 137].

The HRTO awarded the Applicant $10,000 in damages for the Respondent’s breach of the Code.  The HRTO further ordered that the Respondent develop an accommodation policy within 30 days of the decision.  This decision was sustained on subsequent appeal to the HRTO (See case 2021 HRTO 348).  The defence accepted by the Superior Court in Sprague was distinguished on appeal as not applicable here, leaving the above analysis as the leading HRTO decision as to the very high standard required to justify COVID-19 restrictions specifically.

This case raises difficult and complex issues regarding the role of human rights in the middle of the COVID-19 pandemic.  Even when restrictions are accepted to protect public health, be based on sound medical opinion or placed “in good faith”, the onus to justify those restrictions still lies with the defending party and is exceptionally high.

The onus at the HRTO is firmly on the defending respondent to provide a high level of proof for any restriction of rights, even during a pandemic.  The defence has the responsibility to justify any restrictions are necessary to the high level of “undue hardship”. Proof of a pandemic, good faith or bona fide public health interest is not enough to mitigate that onus.

This case also sets the bar for monetary awards for failing to accommodate requests for COVID-19 restrictions in the height of the pandemic.  It sets a new value for the cost of any “discriminatory” policies, even where there is no direct evidence of out-of-pocket or “general” (non-pecuniary) damages.  The awarded $10,000 is based primarily on the inherent offence of a breach of the Code.  Such a range did not require the Applicant to prove any substantial pain and suffering or any medical injury.

This remains the leading case in the pandemic to illustrates the very high standard for businesses to meet to discharge their obligations under the Code.  It is a cautionary decision that the threats to public health, “good faith” and sound medical basis are not enough to avoid a finding of discrimination.  Greater legal proof is necessary to avoid such a finding at the HRTO.