In the first merits decision of the Human Rights Tribunal of Ontario (“HRTO”) on the role of human rights during the Covid-19 pandemic, Vice Chair Jennifer Scott minced no words. “Human rights protections do not go away in a pandemic.” JL v. Empower Simcoe, 2021 HRTO 222 (“JL”) at para 150 (link).

JL is a teenaged boy who resides in a group home operated by the Respondent. He is non-speaking, has an infectious personality, and has a genetic deletion (GABRG2) causing intractable epilepsy and global developmental delay. His parents continue to parent him and make all of his medical and educational decisions. As a result of the pandemic, the Respondent imposed visitation restrictions which prevented JL’s parents from visiting their 13-year old son in person.

Represented by lawyers Jessica De Marinis and Mariam Shanouda, JL by his litigation guardian PL, filed an Application to the HRTO on June 18, 2020 alleging discrimination based on disability. The Tribunal expedited the urgent matter and it proceeded relatively quickly, given the current delays currently happening at the Tribunal. The matter was heard over the course of 6 days in November and December 2020.

In its decision dated March 23, 2021, the Tribunal highlighted JL’s unique and important disability-related needs. JL “relies on his parents for comfort, guidance, nurturance, emotional development and the development of his identity… The evidence was clear that one of the ways the applicant communicates is through physical touch” (paras 91 and 92).

The Respondent’s actions in preventing JL’s parents from visiting him for 3 months “meant that [JL] could not connect with his parents in the way he had always connected with them. He could not see his parents up close, he could not touch his parents, he could not hug his parents, he could not take his parents’ hands and lead them in a certain direction, the things that he had always done to connect with his parents” (para 93).

The Tribunal found there was a prima facie case of discrimination, pointing out that “the visitation restrictions imposed by the respondent reinforced, perpetuated and exacerbated the social exclusion the applicant already experiences in the world because of his disabilities and are discriminatory for this reason” (para 96).

The Tribunal found that the Respondent failed to prove it could not accommodate JL without incurring undue hardship (para 137):

It is the respondent’s burden to prove it could not accommodate the applicant without incurring undue hardship and the respondent has failed to meet its burden. The respondent has failed to establish that allowing the applicant’s parents to visit from June to August with no physical distancing in place, but with screening, masking and hygiene followed, would present an unacceptable safety risk to the applicant, his housemate and the staff that worked in the applicant’s group home. The respondent did not call any medical evidence to establish this safety risk and it cannot be presumed by the sole fact of the pandemic. The evidence establishes the respondent had the discretion to apply the guidelines in a non-discriminatory way and it failed to do so.

The Tribunal also addressed the responsibilities of parties with respect to the duty to accommodate and the power imbalance that exists, and affirmed a greater responsibility falls on a respondent (para 135):

The duty to accommodate is a duty on the respondent because it is in the best position to determine how the applicant can be accommodated without undue hardship. The applicant must cooperate in the accommodation process by providing sufficient information to allow the respondent to understand the nature of the disability and the accommodation sought. This is often referred to as the “duty to cooperate”. The duty to cooperate does not mean the applicant is responsible for finding the solution. That responsibility remains with the respondent. So, although the accommodation process is a multi-party inquiry, the parties are not equally responsible for the process. The respondent shoulders more responsibility for the accommodation process because it controls it. This is evident from the fact that if a respondent denies an accommodation request outright, there is very little an applicant can do about it.

The Tribunal awarded general damages to JL in the amount of $10,000 and ordered the respondent to develop an accommodation policy for children under the age 18 in its care.

This is a precedent-setting case regarding the duty to accommodate during the pandemic. The decision recognizes that non-speaking individuals have unique and very important needs. It imposes an obligation on policy creators and administrators to assess those needs, and accommodate an individual accordingly.

Bakerlaw congratulates JL and his lawyers at ARCH Disability Law Centre on this landmark victory.

If you or your child require assistance with obtaining disability-related accommodations from an organization, school, or service provider, please reach out to Bakerlaw to discuss how we may assist. You can contact us here (link).