Court decision may mean fewer early dismissals of complaints and more HR due diligence
The Ontario Divisional Court’s recent decision in Bokhari v. Top Medical Transportation Services, 2026 ONSC 1073 (Bokhari) is a procedural ruling with practical consequences for human resources professionals who handle accommodations, leave of absence requests and related Human Rights Tribunal of Ontario (HRTO) applications.
While the decision does not expand the definition of discrimination or make weak claims easier to prove, it does narrow the circumstances in which the HRTO will dismiss applications on a preliminary basis, before they get their day in court. In practical terms, Ontario respondents are likely to see more applications moving beyond the preliminary screening process and into mediation, summary hearing procedures, and full evidentiary hearings.
For several years now, the HRTO has relied on an early screening process to dismiss applications that fall outside its mandate, such as complaints that alleged unfairness but not discrimination and complaints about events that occurred outside of the province. While this approach may have helped the tribunal manage its significant caseload, Bokhari confirms that efficiency has limits when access to justice is at stake.
Terminated during medical absence
The applicant, Ali Bokhari, was an ambulance driver who injured his ankle, provided his employer with a medical note, and asked for two weeks away from work to recover. A week later, his employer ended the relationship, effectively claiming that Bokhari had quit his job. In response, Bokhari filed an HRTO application alleging discrimination in employment based on disability.
The HRTO dismissed the application at a preliminary stage based on a determination that Bokhari’s impairment was not a disability and therefore his claim did not involve discrimination under the Ontario Human Rights Code (the code). Bokhari applied to the tribunal for reconsideration but was denied. However, on judicial review, the Divisional Court overturned the Tribunal’s decision, finding that the HRTO had effectively made a decision on the case’s merits without hearing any actual evidence.
In its decision, the court noted that it was unreasonable for the tribunal to conclude that there was no arguable case that Bokhari's ankle injury was a disability. While temporary in nature, the applicant’s injury could have met the code’s definition of disability, namely per section 10 of the code, “any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury.”
In issuing this decision, the court clearly signaled that the question of whether a condition or injury amounts to a disability must be decided based on the evidence, not at the preliminary screening stage.
Fewer cases screened out means longer wait times
This case does not mean that every temporary injury will qualify as a disability. Rather, employers must look at context, including the likely duration of the condition as well as corresponding functional limitations and relevant workplace barriers.
This case does mean that if fewer applications are screened out at the preliminary screening stage, employers will likely see more cases proceeding to mediation and hearing. This will result in higher legal costs, longer timelines to resolution, and greater pressure to produce reliable, contemporaneous evidence. A claim may still fail but, under this clarified framework, that outcome could take longer and cost more.
As a result, the tribunal is likely to be more cautious before dismissing applications without allowing parties to develop and present a comprehensive factual record.
How HR can prepare
While the tribunal’s jurisdiction can still be challenged where appropriate, organizations should assume that factual disputes, particularly about whether a condition constitutes a disability, must be tested through evidence. For HR professionals, this means tightening up documentation and accommodation processes.
- Train managers to recognize accommodation triggers. Employees do not need to use legal language: a medical note, a request for recovery time, disclosure of functional limitations or repeated references to an injury may be enough to require follow-up.
- Separate attendance management from human rights analysis. Employers can manage staffing needs and operational disruption, but where an absence may be connected to injury or illness, an accommodation analysis should come before discipline, termination, or resignation is considered.
- Ask for the right information. Employers are generally entitled to functional restrictions and limitations, prognosis, and expected duration, but not necessarily diagnosis. Requests should be tailored to the workplace and role and framed respectfully.
- Document the process. In a world where more applications are likely to proceed beyond the screening stage, the written record becomes even more important. Preserve correspondence, emails, text messages, attendance records, accommodation options considered, reasons for accepting or rejecting options, and the decision-maker’s rationale.
- Temporary conditions can be disabilities. Do not assume that transitory conditions are not disabilities. Use a contextual analysis, including a review of functional limitations and workplace barriers, to assess whether a condition is disabling.
Bokhari is not a green light for every workplace complaint to succeed. Applicants must still prove discrimination and employers must mount substantive defences, including legitimate non-discriminatory reasons for decisions. But the decision changes the procedural landscape. More disputes may now get a foot in the door of the HRTO and require employers to defend their decisions on the evidence. For HR leaders, the practical response is straightforward: slow down, ask appropriate questions, assess accommodation individually, and document the process.
Michelle Folliott is an employment lawyer and workplace investigator at Turnpenney Milne in Toronto.
