CITATION: Empower Simcoe v. JL, 2022 ONSC 5371
DIVISIONAL COURT FILE NO.: 320/21
DATE: 20220922
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Stewart, and A.D. Kurke J.J.
BETWEEN:
Empower Simcoe
Applicant
– and –
JL by his litigation guardian PL and The Human Rights Tribunal of Ontario
Respondents
Charles V. Hofley and Siobhan M. O'Brien, for the Applicant
Jessica De Marinis and Mariam Shanouda, for the Respondent, JL by his litigation guardian PL
Brian A. Blumenthal, for the Respondent, The Human Rights Tribunal of Ontario
HEARD: February 7, 2022
REASONS FOR DECISION
Stewart J.
Nature of the Application
[1] This application brought by Empower Simcoe seeks judicial review of the decision dated March 23, 2021 and the reconsideration decision dated May 7, 2021 of the Human Rights Tribunal of Ontario (“HRTO”). Those decisions concluded that Empower Simcoe had discriminated against JL, had failed in its duty to provide reasonable accommodation to him, and awarded $10,000.00 in damages to him as a result.
[2] Empower Simcoe submits that the HRTO decisions are unreasonable and should be set aside.
[3] JL submits that the decisions are reasonable and should stand.
[4] The issue before the HRTO was one which places into focus the many difficult and unpopular strategies employed in the context of the uncertainties of the dangers posed by the spread of the COVID-19 virus, especially during the early stages of the pandemic when the risk of death from the disease appeared very serious but little had been clearly proven about its effective prevention or treatment. No vaccines were yet available to reduce the virulence of the virus or to tamp down its impact. The pandemic brought normal life for many people in Ontario and elsewhere to a standstill; shuttered many businesses and institutions in this province, including the schools and the courts; restricted the ability of people to move about freely during periods of lockdowns; and has thus far resulted in the deaths of over 13,000 people in this province alone.
[5] For the following reasons, I conclude that the HRTO decisions under review are unreasonable in several respects. They characterize as discriminatory to JL the temporary policy precautions employed by Empower Simcoe that were designed to protect its residents and employees during the first months of a global pandemic. They reject the steps taken by Empower Simcoe to offer accommodation to JL as a sufficient defence to the alleged unlawful discrimination. In my view, the HRTO decisions unreasonably did not sufficiently account for the context of the public health emergency and the evolving nature of public health pronouncements in which Empower Simcoe was forced to make its decisions, and they must accordingly be set aside.
Background
[6] Empower Simcoe is a multiservice residential facility publicly funded by the Ontario Ministry of Children, Community and Social Services (MCCSS) and provides housing support for children and adults with intellectual disabilities. It operates two homes for children under the age of 18.
[7] JL is a 14-year-old boy with multiple disabilities, including intractable epilepsy and global developmental delay. He is non-verbal but uses gestures and vocalizations to communicate. Since the age of seven JL has been living in a group-living home operated by Empower Simcoe where he has received and still receives around-the-clock care. PL is one of his parents and is his litigation guardian on this application.
[8] Throughout the time of JL’s residence at Empower Simcoe, both of his parents have continued to parent him, to make medical decisions, and – except for the few months in 2020 during which this dispute arose – visit him regularly on weekends and holidays.
[9] In March 2020, the Chief Medical Officer of Health for Ontario responded to concerns about the threat posed by COVID-19 by issuing a memorandum strongly recommending that only essential visitors should be allowed in all congregate care settings for ill residents. As a result, Empower Simcoe adopted and communicated the temporary policy that it would not permit any visits at its group-living homes other than by essential personnel. Although it permitted families of residents to take residents outside the facility to be cared for at home, in such a situation the resident would not be permitted to return until the circumstances of the pandemic had resolved sufficiently to do so safely.
[10] From March 2020 onward, public health officials for Ontario continued to update recommendations. Updates included requirements for physical distancing, doing symptom screening, and updating the definition of “essential visitors”. In June 2020, MCCSS had recommended that outdoor family visits could resume with physical distancing required for all visits. Agencies were also encouraged to consider whether any proposed in-person visitor was truly vital to maintain the health, wellness and safety of a resident. By August 2020, MCCSS recommended the resumption of short-stay absences and outings.
[11] A basic chronology and summary of these evolving recommendations is as follows:
Date
Document
Visitation
March 13, 2020
MOH COVID-19 Updates: Visitors
Essential Visitors only. Essential visitor included parent/guardian of an ill child or youth
April 1, 2020
MOH COVID-19 Guidance: Group Homes and Co-Living Settings
Family visits permitted if resident stays with family for duration of emergency. Short-time family visits not permitted
May 8, 2020
MCCSS COVID-19: Additional Measures under Action Plan
Service providers to eliminate non-essential persons in congregate care settings and ensure physical distancing
May 28, 2020
MOH COVID-19: Congregate Living for Vulnerable Populations
Essential visitor includes a person performing essential support services, such as health care services, a parent/guardian, a person visiting a very ill or palliative resident, or a maintenance worker
June 11, 2020
MCCSS Resuming Visits in Congregate Living Settings
Resumption of outdoor visits to residential care settings beginning June 18, 2020 with physical distancing required
July 16, 2020
MCCSS Visitor’s Guidelines: Re-Opening of Congregate Living Settings
Visitor defined as any family member or friend. Resident allowed up to two visitors for outdoor visiting and one to two visitors for indoor visiting to allow for physical distancing. Effective July 22, 2020
August 28, 2020
MCCSS Re-Opening Congregate Living Settings: Short-Stay Absences and Outings and Essential Overnight Absences
Short-stay absences resumed
[12] From the outset of the imposition of these temporary restrictions, JL’s family pressed public health authorities to allow family visits to JL when in congregate care and to provide them with PPE. Among other arguments, JL’s family sought to be considered to be essential visitors under the Visitation Policy. They later expressed the concern that JL would not be able to comply with any physical distancing requirements imposed for visits without being actively restrained. Throughout, they made Empower Simcoe aware of their efforts to lobby public health authorities to change the recommendations for these temporary restrictions.
[13] In view of the risks posed to all by the COVID-19 virus Empower Simcoe maintained the reasonableness of its temporary Visitation Policy. Empower Simcoe explained to JL’s family members that for reasons beyond its control it did not have adequate PPE supplies available for all of its families who were not considered to be essential visitors.
[14] Empower Simcoe offered to JL’s family the option of video conference visits with him. In June 2020, Empower Simcoe further offered to schedule in-person family visits during which JL would be separated from family members by a gate. JL’s family rejected those suggestions on the basis that in their opinion JL required physical contact to engage in any meaningful communication and these were therefore not appropriate or adequate options.
[15] It always remained an option for JL’s family to take him from the group-living home to be cared for temporarily at home until the immediate concerns about the pandemic had abated, such that it was safe for him to return. JL’s family did not pursue that option.
[16] On June 18, 2020 a complaint was lodged with the HRTO on behalf of JL. The complaint alleged that JL was being discriminated against on the basis that Empower Simcoe had not permitted JL 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.
[17] In August 2020 JL’s parents were permitted to make arrangements with the parents of another child residing at the group home to create an exclusive social circle in accordance with then-prevailing public health guidelines and to facilitate the organization of short stays. From that point on, JL had short stays with his parents without physical distancing requirements. This arrangement was supported by Empower Simcoe and local public health authorities.
[18] The decisions of the HRTO which are the subject matter of this review therefore involve only its disposition of a complaint about the temporary policies for visitation observed at Empower Simcoe’s group-living home over the period of time from March through August 2020 and their specific application to JL.
Jurisdiction
[19] This Court has jurisdiction to hear and determine this application pursuant to ss. 2 and 6 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
Standard of Review
[20] Counsel for Empower Simcoe and JL agree that the standard of review to be applied is one of reasonableness in accordance with the decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”). Although counsel for the HRTO in detailed submissions argues that “patent unreasonableness” should apply, this Court has held that this standard amounts to a reasonableness assessment (see: Shaw v. Phipps, 2010 ONSC 3884 (Div. Ct.); Pereira v. Hamilton Police Services Board, 2022 ONSC 4150 (Div. Ct.); Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458).
[21] I therefore agree with counsel for Empower Simcoe and JL that a standard of reasonableness is to be applied for the purpose of review of these decisions.
Decisions of the HRTO
[22] On March 23, 2021, after a hearing, the HRTO held that Empower Simcoe had prima facie discriminated against JL and had failed its duty to accommodate him.
[23] The HRTO found that JL had not touched his parents and had not connected with them in the way he had done previously, for a period of close to six months. The HRTO found that this had a negative impact on JL in that he had was more distant from his family and he had not gained weight despite being in a growth spurt age. The HRTO found that JL’s social exclusion had been exacerbated by Empower Simcoe’s Visitation Policy.
[24] In holding that JL had experienced discrimination, the HRTO relied on Fraser v. Canada (Attorney General), 2020 SCC 28, and applied the test under s. 15 of the Canadian Charter of Rights and Freedoms (Part 1, Constitution Act 1982) in the adverse effects discrimination context.
[25] The HRTO considered and distinguished the decision of this Court in Sprague v. Her Majesty the Queen in Right of Ontario, 2020 ONSC 2335. In Sprague, the court dismissed a Charter challenge to the visitation guidelines for hospitals that had been issued by the Ministry of Health which had prompted a hospital to institute a “no visitor policy” except for certain categories of patient. The HRTO considered that the decision in Sprague was distinguishable in that it dealt with elderly hospital patients and involved a visitation policy that did not apply to children. Also, in the instant case no attempt was being made to attack the relevant provincial guidelines, but rather, the complaint impugned the application by Empower Simcoe of public health guidelines in fashioning its Visitation Policy.
[26] The HRTO concluded that:
It is well established that persons with disabilities experience both systemic and historic discrimination in our society, and that it is often manifested through social exclusion. The applicant is a child with significant disabilities and experiences social exclusion for this reason. His social exclusion was heightened during the pandemic because he was unable to visit with his family. In this way, 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.
[27] The HRTO then considered whether the “bona fide occupational requirement” provision contained in s. 11 of the governing legislation (Human Rights Code, RSO 1990, c H.19) which includes the duty to accommodate, provided a full defence to Empower Simcoe in these circumstances.
[28] The HRTO found that the Ontario guidelines and memoranda were only recommendations for care providers in developing their own policies, and not a strict directive. The HRTO cited Sprague as authority for that determination as in that case it was stated that the Chief Medical Officer of Health’s recommendations about hospital visitors were not a mandatory directive.
[29] The HRTO, citing British Columbia (Public Service Employee Relations Commission) v. BCGSEU, held that Empower Simcoe had to first establish a valid purpose of its restrictions, and then prove that the restrictions were adopted for that purpose, in good faith, and that they were reasonably necessary to accomplish the purpose and could accommodate JL without incurring undue hardship.
[30] The HRTO found that the restrictions were put in place to protect the health and safety of Empower Simcoe’s residents and employees, but not for the residents’ families as they were outside the scope of its responsibility. It found the restrictions were adopted for that purpose and in good faith.
[31] The HRTO noted that JL’s parents and Empower Simcoe disagreed as to the nature of appropriate accommodation for JL in this case. The HRTO considered the procedural and substantive components of the duty to accommodate together. It noted that PL did not ask for accommodation for JL between March and June while JL’s family advocated for systemic change.
[32] The HRTO then found that in Ontario’s memorandum of May 28, 2020, all parents/guardians were deemed essential for any resident but still encouraged physical distancing. The question was whether Empower Simcoe had a discretion to exempt JL from this requirement. The HRTO could not find that Empower Simcoe was required to follow the memoranda since they were recommendations and, in August, Empower Simcoe’s approach in fact was more permissive than the Ontario guidelines in place at the time. From June to August 2020, however, Empower Simcoe did not provide adequate accommodation to JL and his parents and did not provide evidence that allowing physical visits would jeopardize the health and safety of the residents and staff.
[33] As a result, the HRTO concluded:
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.
[34] As a remedy, the HRTO ordered payment by Empower Simcoe to JL of $10,000 for injury to JL’s dignity, feelings and self-respect, and ordered Empower Simcoe to develop an accommodation policy.
[35] In its reconsideration decision of May 7, 2021 the HRTO denied Empower Simcoe’s request for reconsideration on the basis that Empower Simcoe had not shown any new evidence or other basis upon which to justify reversal of the original decision.
Issues and Discussion
[36] Empower Simcoe raises the following issues:
A. Was the decision of the HRTO that Empower Simcoe discriminated against JL unreasonable?
B. Was the decision of the HRTO that Empower Simcoe had failed to satisfy its duty to accommodate JL unreasonable?
Issue A: Was the decision of the HRTO that Empower Simcoe discriminated against JL unreasonable?
[37] JL submits that it was reasonable for the HRTO to find prima facie discrimination in his case, that Empower Simcoe’s arguments are “decontextualized and medicalized” and that the HRTO rejected them with transparent, intelligible and justifiable reasons. The HRTO had reviewed the record and had determined that JL needed physical touch for meaningful communication. The effect of the Visitation Policy was that JL could not connect with his parents in the way he always had, which amounted to a negative impact on the way JL communicated with his parents.
[38] Citing Fraser, JL argues that he was not required to prove that the impugned Visitation Policy was arbitrary or that it created a distinction. He also submits that Empower Simcoe has interpreted incorrectly the test for prima facie discrimination by attempting to justify the policy at this stage of the analysis. The perpetuation of disadvantage does not become less serious because it was relevant to a legitimate state objective. JL submits that it is within the role of the HRTO to re-weight the basis for Empower Simcoe’s decisions during the pandemic in a case where they negatively affect a child with a disability.
[39] For the HRTO decisions to be reasonable under the standard of reasonableness articulated in Vavilov, they must be based on an internally coherent and rational chain of analysis justified in relation to the facts and law before it. Empower Simcoe submits that the HRTO decisions fail to meet this standard.
[40] Empower Simcoe submits that the HRTO erred in drawing conclusions that were unreasonable both in reasoning and outcome. In particular, it submits that the HRTO erred in finding that JL required physical touch for meaningful communication, because there was no evidence to support such conclusion other than from JL’s parents who believed this to be the case. By contrast, Empower Simcoe had tendered evidence which confirmed JL’s ability to engage in meaningful communication through other means, including gestures, vocalizations, and technology-assisted communication.
[41] Empower Simcoe further submits that the link drawn by the HRTO between adverse impact and the Visitation Policy was flawed. JL’s parents refused all other visitation options proposed, which it argues is what caused any adverse effects JL may have experienced.
[42] Empower Simcoe’s Visitation Policy did permit JL to visit with his parents either virtually or with physical distancing measures in place. Empower Simcoe was prepared to facilitate a number of alternate means for JL’s parents to visit their son, within what was strongly recommended by provincial guidelines in place at the time. JL’s parents refused all visitation methods proposed.
[43] It is well-established 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. Membership in a protected group alone does not, without more, justify access to a human rights remedy. It is the link between that group membership and the arbitrariness of the disadvantaging conduct, either on its face or in its impact, that triggers a potential claim to a human rights remedy and, if such a link is proven, a prima facie case of discrimination is shown.
[44] I agree with Empower Simcoe that the HRTO’s conclusion that JL experienced adverse effect discrimination when the usual in-person visits with his family were temporarily suspended by the Visitation Policy was unreasonable. In order to arrive at this conclusion, the HRTO made the leap of making the Visitation Policy the reason why JL did not visit with his family and found that JL 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.
[45] I also agree with Empower Simcoe that it was not reasonable for the HRTO to have concluded that JL had established that discrimination had occurred. In this case, there is no link between group membership and the impact on JL. Empower Simcoe’s Visitation Policy was founded on sound medical, scientific and epidemiological evidence, and not on any presumed characteristics of persons suffering historical disadvantage.
[46] Empower Simcoe’s temporary Visitation Policy did not create a distinction on the basis of an enumerated or analogous ground, nor did it reinforce, perpetuate, or exacerbate a disadvantage. It was established as a recommended precaution against a threatening and mysterious viral pandemic. Empower Simcoe considered the available information, recommendations and guiding principles set out by the governmental bodies responsible for public health and safety, and also weighed the risks posed by the COVID-19 virus to JL and its own staff and other residents against the benefit of visitation without physical distancing.
[47] During the period of June to August 2020, Empower Simcoe determined that the visitation with JL could occur, but that physical distancing measures would be employed. This decision was not rooted in presumed characteristics of people like JL, but in the advice and expertise of public health and MCCSS officials.
[48] In my view, the issues in this case may be considered to be fairly analogous to those raised in Sprague where this Court considered a hospital’s COVID-19 visitor policy. In that case, as in the present case, there was a focus on Sprague’s inability to communicate with his family by virtue of the hospital’s visitation restrictions. It was held that the limitations arising out of the implementation of a hospital visitation policy on persons with certain medical conditions could not be construed as a violation of any Charter right. In particular, the visitor policy involved in that case, as in this one, was not driven by either age or physical or mental condition.
[49] The focus of an analysis of a claim of discrimination examines the effects of an impugned law or conduct, and not whether it has drawn a distinction on a prohibited ground on its face (the distinction between “substantive equality” and “formal equality”). The argument advanced on behalf of JL is that the policy had a disproportionate effect on him, because of his unique challenges and history. Certainly JL’s family believes this – and they reflected this belief in declining contact rather than engaging in the permitted contact that they felt would be distressing, rather than comforting, for JL. We do not have evidence of the circumstances of all the residents of congregate care facilities managed by Empower Simcoe in particular, or of all congregate care facilities in general, but as a matter of common sense the personal hardship felt by many during the pandemic was undoubtedly substantial. Certainly the same could be said for the family members involved in the Sprague case, the families of persons in care facilities for the elderly, and many other contexts in which Ontarians found themselves increasingly isolated during the initial stages of the pandemic.
[50] The impugned policy in this case was specifically for congregate care settings – where residents, staff and visitors were believed to be at heightened risk. It is in this overall context that the question must be asked not just whether the adverse effects felt by JL were greater than they were for others to whom the policy applied, but whether this would be felt as an affront to his dignity interest. This was the gravamen of this Court’s finding in Sprague – not that seriously ill elderly parent or his family members would not feel hospital restrictions more keenly, but 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.
[51] In its decision, the Court in Sprague also noted that the criticisms of the visitor policy in question sought to achieve a reweighing by the Court of many complex, politically-charged and often difficult factors, considerations and choices that must be evaluated by a hospital administration during a pandemic, and stated (at para. 45):
“…This is not the Court's role. The Hospital has enormous expertise and specialized knowledge available to it in exercising its discretion around hospital administration issues during a pandemic, only one of which is visitor policy. Significant deference must be afforded to the Hospital in the circumstances. There is ample evidence to support the conclusion that the Visitor Policy to limit visitors was founded on sound medical, scientific and epidemiological evidence, not on presumed characteristics of persons suffering historical disadvantage.”
[52] The HRTO decisions speculated that JL’s residential setting may produce different considerations than those provided by public health authorities that necessarily required a variation. Congregate living settings embrace a range of residential facilities where people live or stay overnight and use shared space. A congregate care setting inevitably requires many staff, including caregivers, to come through the home in which resides a vulnerable population residing in the home. Such considerations inform public health guidance in respect of congregate care settings. The specific reasons why residents are cared for in these settings or their variations in size do not justify criticism for failing to deviate from non-mandatory guidelines when there is no evidentiary basis for doing so, as in this case.
[53] In my view, any differences between the hospital setting and a group home with two residents do not justify distinguishing the analysis in Sprague. It is the considerations of health and safety involving those living and working in congregate care settings that grounded the public health guidance to Empower Simcoe.
[54] Empower Simcoe’s temporary Visitation Policy was therefore founded on available medical opinion and not on presumed characteristics of persons suffering historical disadvantage. It therefore was not reasonable for the HRTO to conclude that JL had established that any prima facie discrimination had occurred, nor did the HRTO’s reasoning provide support for this conclusion to withstand scrutiny as to its reasonableness.
[55] On this ground, therefore, I would grant the application and set aside the HRTO’s decisions.
Issue B: Was the decision of the HRTO that Empower Simcoe had failed to satisfy its duty to accommodate JL unreasonable?
[56] Even if I am wrong in my conclusion that prima facie discrimination had not been established in this case, I nevertheless would conclude that it was unreasonable for the HRTO to hold that Empower Simcoe had not taken such steps to accommodate JL as were reasonably necessary in the circumstances such that it was afforded a full defence.
[57] Once prima facie discrimination is established, it may be answered by proof that the discriminatory standard is bona fide and reasonable and that the duty to accommodate was fulfilled. That was done by Empower Simcoe in this case.
[58] The HRTO decisions, insofar as they relate to assessing efforts of Empower Simcoe to provide accommodation to JL, unreasonably disregarded the procedural aspects of its efforts to fulfil its duty to accommodate and the steps taken by it towards accommodation.
[59] Empower Simcoe submits that it actively pursued this duty by collaborating with local public health officials and the MCCSS to determine if it could modify the Visitation Policy.
[60] After March 2020, information about COVID-19 was in flux. The guidelines received strongly recommended precautions and changed over time to allow for modifications with the support of public health officials. In applying knowledge acquired after the fact, the conclusion drawn by the HRTO that Empower Simcoe could have, and ought to have, provided the specific accommodation requested is unreasonable.
[61] If the duty to accommodate is triggered, Empower Simcoe had both procedural and substantive obligations. Procedurally, Empower Simcoe had an obligation to take steps to understand JL’s disability-related needs and undertake an individualized investigation of potential accommodation measures to address those needs. The substantive component of the analysis considers the reasonableness and sufficiency of the accommodation offered or the reasons for not providing accommodation.
[62] In the context of a pandemic, the extent to which Empower Simcoe was permitted to deviate from Public Health or MCCSS guidelines was unclear. This required collaboration with MCCSS, Empower Simcoe’s funding agency, to determine whether, and the extent to which, Empower Simcoe could modify MCCSS guidelines. Empower Simcoe made reasonable efforts to explore this through the relevant time frame in response to the request made on JL’s behalf.
[63] The HRTO misapprehended key facts in its analysis of whether Empower Simcoe satisfied the duty to accommodate when it determined that it was only after August 28, 2020 that Empower Simcoe worked with the MCCSS and the SMDHU to develop a risk-based approach, and when it determined that Empower Simcoe was not required to follow the memoranda and guidelines from the MOH and the MCCSS.
[64] First, the HRTO misapprehended a key fact when it determined that it was only after August 28, 2020 that Empower Simcoe worked with the MCCSS and the SMDHU to develop a risk-based approach. The record before the HRTO illustrates that steps were taken by Empower Simcoe prior to August 27, 2020 and, in fact, it was these steps that led MCCSS to conclude that, with approval from public health authorities, Empower Simcoe could modify its Visitation Policy.
[65] The HRTO also misapprehended a key fact when it determined that the MCCSS and MOH guidelines were purely advisory in nature. The HRTO held that Empower Simcoe’s position in June and July 2020 that the MOH and MCCSS guidelines were directive in nature contradicted the MCCSS email sent on August, 27, 2020 which advised Empower Simcoe that its guidelines were advisory. The HRTO also held that Empower Simcoe’s position that the MOH and MCCSS guidelines were directive throughout June and July 2020 contradicted its own actions when it ultimately finalized the September 3, 2020 protocol which was more permissive than the MCCSS guidelines.
[66] However, prior to August 27, 2020, the MOH and MCCSS guidelines imposed physical distancing at family visits. It was only as a result of Empower Simcoe’s requests for clarity on the binding nature of these guidelines throughout June and July 2020 that the MCCSS advised it that some modifications to the guidelines were permitted.
[67] Further, MCCSS’s direction was that in order to deviate from its strong recommendations, support of public health authorities was required.
[68] The HRTO also appears in its decisions to have accepted that it was in the best interests of this child for him to have been exempted from the full impact of the guidelines as his family wished, and that the inability of Empower Simcoe to demonstrate more in the way of efforts to provide accommodation to him made it necessary to find that they had failed in that duty. In so doing, the HRTO overlooked the interest the child would have in remaining healthy and virus-free, as well as the undue hardship the risk of infection to everyone else entering the group-living home would create.
[69] On August 27, 2020, Empower Simcoe was informed for the first time by the MCCSS that its policy guidelines were only advisory in nature. Empower Simcoe then granted the request made on behalf of JL that he be permitted to have short stay absences with his family, an arrangement that enjoyed the support of local public health authorities.
[70] Prior to August 27, 2020, Empower Simcoe was not in a position to freely and unilaterally challenge the guidelines. This is particularly so given that the information surrounding COVID-19 at the time was in a state of constant flux. The HRTO unreasonably applied the knowledge acquired on August 27, 2020 retrospectively to June 2020 to determine that Empower Simcoe could and should have deviated from MOH and MCCSS guidelines as of that point in time.
[71] In failing to recognize that Empower Simcoe had taken steps to meet the substantive aspects of its duty to accommodate JL, the HRTO’s decisions are unreasonable and therefore cannot stand.
[72] I also agree with the submission made on behalf of Empower Simcoe that it was unreasonable for the HRTO to conclude that as of June 2020 it could and should have accommodated JL in the manner requested by his family. The HRTO decisions unreasonably did not allow time for Empower Simcoe to accommodate JL within the broader context of evolving and changing information about the pandemic.
[73] In addition, it was unreasonable for the HRTO decision to conclude that between June and August 2020, the accommodation alternatives offered to JL’s family were insufficient. Empower Simcoe proposed a number of reasonable alternatives that allowed for visitation that accorded with the provincial guidelines at the time. In crafting these accommodations, Empower Simcoe balanced the individualized needs of JL as well as the MCCSS and MOH guidelines in effect at the time. In failing to find that these proposals satisfied Empower Simcoe’s duty to accommodate, the HRTO decisions neglected the principle that the duty to accommodate requires reasonable efforts, not perfection: Fisher v. York University, 2011 HRTO 1229.
[74] In finding that Empower Simcoe should have accommodated JL immediately when the request for accommodation was made in June 2020, the HRTO decisions employ a chain of analysis that is not reasonable, ignoring key elements of the evidence and affording inadequate consideration to the several options for accommodation offered to JL’s family between June and August 2020 as well as the satisfactory substantive accommodation provided as of the end of August 2020.
[75] Accordingly, I would also have allowed the application on this ground.
Conclusion
[76] As has been noted throughout the submissions of Empower Simcoe with which I agree, 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.
[77] As an historical footnote, I am mindful that after the deadly SARS breakout in 2003, a Commission of Inquiry was established to review information, conduct public hearings, and make recommendations designed to prevent such a tragedy from ever re-occurring. In the Executive Summary of its report released in 2006 following an exhaustive inquiry, the Commission of Inquiry offered as one of its main recommendations the adoption of what it referred to as the “precautionary principle”. That principle was articulated as follows: where there is reasonable evidence of an impending threat to public harm, it is inappropriate to require proof of causation beyond a reasonable doubt before taking steps to avert the threat. Reasonable steps need not await scientific proof.
[78] In my view, the decisions of the OHRT in this case, given the fluid state of knowledge about the health emergency, required too high a degree of proof of danger and harm to be demonstrated by Empower Simcoe to justify the steps it took over those early months in 2020 to protect the health and safety of its residents, including JL, as well as members of its staff and other persons who were required to enter the premises.
[79] Despite all earlier admonitions of the SARS Commission of Inquiry, adequate supplies of PPE were not readily available to Empower Simcoe at that time. The mechanics of how the virus could spread and the extent of the damage it might cause to those exposed – including persons with vulnerabilities – were not fully understood. Although these considerations do not justify any wholesale trampling of individual rights, they must be given adequate weight when steps are taken in good faith in an effort to protect those individuals and the public at large from extreme danger. In my view, the HRTO decisions do not give adequate attention to these considerations of public protection and urgency that form the context within with Empower Simcoe was required to act. Accordingly, this failure is ultimately a flaw that infects the internal rationale of the HRTO decisions such as to render them unreasonable.
[80] For these reasons, the application for judicial review is allowed and the decisions of the OHRC are hereby set aside.
Costs
[81] The parties have agreed that $3000.00 is a fair and reasonable amount for the successful party to receive for costs of this application. It is likewise agreed that the HRTO does not seek its costs and that no costs are to be awarded against it. It is hereby ordered that JL shall pay to Empower Simcoe $3000.00 as its costs of this application, but only if demanded.
Stewart J.
I agree _______________________________
D.L. Corbett J.
I agree _______________________________
A.D. Kurke J.
Released: September 22, 2022
CITATION: Empower Simcoe v. JL, 2022 ONSC 5371
DIVISIONAL COURT FILE NO.: 320/21
DATE: 20220922
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Stewart, and A.D. Kurke J.J.
BETWEEN:
Empower Simcoe
Applicant/Appellant
– and –
JL by his litigation guardian PL and The Human Rights Tribunal of Ontario
Respondents
REASONS FOR DECISION
Stewart J.
Released: September 22, 2022