In the recent decision of Jacobs v. MyHealth Centre, 2021 HRTO 1009, the Human Rights Tribunal of Ontario (“HRTO”) concluded that the denial of services to a patient who was presumptively positive with COVID-19 did not amount to discrimination under the Ontario Human Rights Code (“the Code”)
The Applicant, Steven Jacobs, attended the MyHealth Medical Centre (the “Clinic”) to have an X-ray done in the summer of 2020. Upon his arrival, the Clinic receptionist requested that he complete a patient intake form and a COVID-19 screening questionnaire. The questionnaire was in accordance with the Ministry of Health’s Screening Guidance and Guidance for Independent Health Facilities, both of which applied to the Clinic.
Jacobs answered affirmatively to several of the screening questions. According to the Ministry of Health’s Guidance, this rendered him “presumptively positive” for COVID-19. The Clinic informed Jacobs that he needed to defer his appointment to a later date or visit a hospital to have his X-ray performed.
Following that denial of services, Jacobs filed an application under the Code naming the Clinic. He alleged that the Clinic discriminated against him by denying him services due to his “disability” or “perceived disability” pursuant to section 1 of the Code.
The HRTO directed a summary hearing to determine whether the application should be dismissed on the basis that it had no reasonable prospect of success.
The Tribunal requested that the parties provide submissions on the applicability of the Divisional Court’s decision in Sprague v. Her Majesty the Queen in right of Ontario, 2020 ONSC 2335 (“Sprague”) and whether Jacobs was “disabled” within the meaning of the Code. Both Jacobs and the Clinic were represented by legal counsel.
Counsel for Jacobs and the Clinic agreed that the Tribunal was bound by the Sprague decision.
In Sprague, a hospital implemented a no-visitor policy, which was in accordance with the Chief Medical Officer of Health for Ontario’s COVID-19 guidelines. As a result of the no-visitor policy, Mr. Sprague was unable to visit his hospitalized elderly father and as a result, he claimed against the hospital.
The Divisional Court considered the constitutionality of the exclusionary policy that was based on government guidelines. It concluded that the policy was not discriminatory and did not violate section 15 of the Charter of Rights and Freedoms because it did not “create a distinction on the basis of an enumerated or analogous ground” nor did it “reinforce, perpetuate, or exacerbate a disadvantage”.
Counsel for Jacobs argued that Sprague should be distinguished because it was decided on a different set of facts. The HRTO, however, disagreed and found that the facts of the two cases were directly parallel.
Both Sprague and this case involved the denial of service at a medical facility that implemented government COVID-19 guidelines. The purpose of both sets of guidelines was to restrict the spread of COVID-19. Both matters arose during the COVID-19 pandemic when the government saw fit to invoke the Emergency Management and Civil Protection Act and issue a number of emergency orders. The application needed to be considered within the larger social context at the time.
Jacobs did not argue that the Ministry of Health’s Guidance itself was contrary to the Code. Instead, he focused on how the Guidance was carried out and whether the screening tool should have asked more questions. The Guidance recommended exclusion based on one affirmative answer. The HRTO concluded that the Clinic went above and beyond this Guidance by asking all of the screening questions, with several being answered in the affirmative.
While Sprague was dealt with under section 15 of the Charter and this application was brought under s. 1 of the Code, the HRTO held that the findings were transferrable. Discrimination required “arbitrariness or…a disadvantage which limits opportunities, perpetuates prejudice and stereotyping, or fails to recognize pre-existing disadvantages.” Jacobs did not meet this onus merely from the implementation of government guidelines.
The HRTO went on to reiterate that even if there was differential treatment of Jacobs, there was no discrimination without additional evidence of creating “disadvantage by perpetuating prejudice or stereotyping”. The HRTO restated that there is a difference between discrimination and distinctions. Not every distinction is discriminatory. The claimant bore the burden of connecting the distinction to a disadvantage it created. An applicant must establish both differential treatment based on the ground and that there is a reinforcing of “stereotypes, disadvantages or prejudices” to prove discrimination.
The Clinic’s denial of services was not discriminatory.
The Tribunal went further to accept that statements like “the Clinic is not set up for patients like you” were also not discriminatory. Once identified as presumptively positive, such statements could be tied to non-disability factors like the size of the Clinic or the amount of ventilation. Even though Jacobs felt that he was treated badly, any disadvantage he experienced in these circumstances “does not engage the right to equal treatment under the Code.”
In making this finding, the Tribunal went so far as to distinguish the recent case of JL v. Empower Simcoe (“Simcoe”).  The Tribunal accepted that its decision here might be held to be “contradicting” Simcoe and supported that interpretation. Implementing and following government guidance was accepted to be reasonable in this case, while it was held to be insufficient as a defence in Simcoe. The Tribunal accepted that following government guidance that did not reinforce stereotypes was not discriminatory, though the Tribunal in Simcoe suggested otherwise. The Tribunal recognized this case as a movement away from its own earlier approach in the pandemic.
– The case of Sprague was held to have shifted the direction of the HRTO by establishing that compliance with government guidelines would be accepted as a defence unless the policy created a distinction on the basis of an enumerated or analogous ground or reinforced a disadvantage.
– The Tribunal moved away from the logic that reasonable compliance with such guidelines could still be discriminatory as held to be in the case of Simcoe was distinguished on its logic and was held to be “contradictory” to this later finding. The Tribunal used the case of Trachemontagne and other Court decisions to support that differential treatment is not enough to prove discrimination when there is no evidence of arbitrariness or disadvantage from that treatment.
– While each case of the Tribunal is deemed to be “persuasive” rather than binding, this decision strongly supports that denial of services base don government guidelines are justified and non-discriminatory in nature.
 Ibid, para 34.
 Ibid, para 44.