Overview

[1] Ms. Obredor has brought an application for judicial review of a decision of the Human Rights Tribunal of Ontario dated August 8, 2023 and the Tribunal’s dismissal of the request to reconsider that decision. The central issue on the application is whether the Tribunal was entitled to dismiss the application because of a lack of jurisdiction. It did so because it found Ms. Obredor did not provide sufficiently detailed medical evidence to substantiate a disability. Ms. Obredor submits she provided sufficient evidence of a disability and also alleges the Tribunal breached procedural fairness.

[2] Ms. Obredor’s application to the Tribunal alleged she experienced discrimination when she went into a Zehrs store in February 2021 and was approached by staff who required her to wear a mask. She claimed she was subject to discrimination on the basis of creed and disability.

[3] On April 23, 2021, the Tribunal sent Ms. Obredor a Notice of Intent to Dismiss the Application (NOID) because it was not clear that the application engaged the Human Rights Code, R.S.O. 1990, c. H. 19. The Tribunal stated it did not appear Ms. Obredor’s “creed” was engaged by the incident she described. It also stated that for the application to proceed, Ms. Obredor was required to identify her disability within the meaning of the Code that prevented her from wearing a mask.

[4] In response to the notice, Ms. Obredor provided a medical note stating she was not able to wear a face mask because of an underlying medical condition. The medical note did not identify the condition she claimed was a disability under the Code. It was accompanied by a dated specialist’s consultation note that identified a potential underlying medical condition but did not substantiate whether the condition was ongoing or whether Ms. Obredor required accommodations because of it.

[5] The Tribunal then issued an interim decision dated February 3, 2022, in which it gave Ms. Obredor 21 days to provide additional medical evidence to support her disability and further submissions relating to her creed.

[6] After receiving Ms. Obredor’s further submissions, the Tribunal dismissed the application in a decision dated June 2, 2023. It stated Ms. Obredor had provided no medical evidence as directed. She provided her personal perspective as to why mask wearing was difficult based on her life experience. In response to the direction to clarify her creed, she provided an article on the lack of efficacy of masks. The Tribunal concluded a singular belief could not fall within the definition of creed. It also held Ms. Obredor had failed to provide sufficient medical evidence to demonstrate her allegations could fit within the Code.

[7] Ms. Obredor then requested reconsideration of the Tribunal’s decision. She submitted a detailed medical note, but this was one year after the deadline to provide submissions. The Tribunal concluded that, although Ms. Obredor had by then filed the required information, there were no extraordinary circumstances that justified granting reconsideration.

[8] For the reasons that follow, I conclude the Tribunal reasonably found Ms. Obredor’s evidence did not substantiate a disability under the Code. I also conclude the Tribunal did not violate procedural fairness.

Anonymization Order

[9] At the outset of the hearing, Ms. Obredor brought a motion seeking an anonymization order. Ms. Obredor submitted that she required anonymization of the court file because of the disclosure of highly sensitive personal and medical information.

[10] In my view, Ms. Obredor has not met the test in Sherman Estate v. Donovan, 2021 SCC 25, which states the requested order must be required to address a serious risk to an important public interest. I agree with Ms. Obredor that a portion of the evidence she submitted to justify her claimed disability was highly sensitive and personal. However, it is very unlikely this information will be disseminated. She advised that the information has not been disseminated to date. She also did not identify any basis for believing there was any interest in this proceeding outside of the immediate parties. No members of the public or media attended the hearing.

[11] Further, there is no need for the court to reference the details of Ms. Obredor’s sensitive information to render its decision since the central question for the court is not the content of the information but whether Ms. Obredor was required to disclose more information than she did initially. In short, it’s highly unlikely the information Ms. Obredor is concerned about would be disseminated. Therefore, Ms. Obredor has not met her burden of justifying a limitation on the open court principle.

Standard of Review

[12] The standard of review for decisions of the Tribunal is reasonableness: Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458. With respect to an alleged breach of procedural fairness, the court applies the factors in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 SCR 817.

Was it unreasonable for the Tribunal to dismiss the application on the basis that Ms. Obredor had not provided sufficient evidence of a disability?

[13] Ms. Obredor submits she was not required to provide the Tribunal with more detailed evidence. She submits (1) she did provide medical evidence to the Tribunal; and (2) the Tribunal did not specify that she was required to provide a medical diagnosis.

[14] I conclude the Tribunal’s requirement for more evidence was reasonable. In Ms. Obredor’s response to the NOID, she placed substantial emphasis on her beliefs regarding masking. She wrote three full pages single-spaced describing why declining to wear a mask formed part of her “belief system” or “creed”. She then included one paragraph regarding why she claimed a medical exemption. She attached a 2020 note from a doctor saying only that wearing a face covering exacerbates an underlying medical condition and a 2010 medical report diagnosing acute sinusitis. She also included an internet article about “why masks are ineffective, unnecessary and harmful.”

[15] In response to the interim decision, she provided additional information but again partially focusing on the ineffectiveness of masking. For example, she provided links to articles on the ineffectiveness of masking and a blog on the improper use of PCR tests. She also described her personal challenges with wearing a mask that related to a prior traumatic experience. However, no medical evidence supporting this information was provided prior to the submission deadline fixed by the Tribunal. She did subsequently provide a supportive medical report, however that occurred more than a year after the submission deadline.

[16] Although it may have been open to the Tribunal to accept Ms. Obredor’s statements as sufficient evidence to determine it had jurisdiction, I do not find its conclusion that it was without jurisdiction unreasonable. Given the significant emphasis she put on her beliefs about her right not to wear a mask, without specific medical evidence connecting an ongoing medical condition to mask-wearing, it was not unreasonable for the Tribunal to seek more information. It also was not unreasonable to deny her reconsideration when she did not provide the required information until well after the deadline established by the Tribunal.

[17] Ms. Obredor relies on Ontario Regulation 364/20, which is a regulation under Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17. The regulation addresses mandatory masking including exceptions for individuals with medical conditions. Nothing in the regulation overrides the Tribunal’s entitlement to direct Ms. Obredor to provide evidence of her medical disability for the purposes of an application under the Code. The regulation applies to businesses operating during the pandemic; it does not apply to the conduct of the Tribunal in responding to an application. The Tribunal’s reconsideration decision reasonably dismissed this submission by stating that Ms. Obredor was required to follow the directions the Tribunal had provided.

[18] I similarly reject Ms. Obredor’s submission that the Tribunal should have followed the Ontario Human Rights Commission’s Policy on ableism and discrimination based on disability. It is not clear whether this submission was raised before the Tribunal. In any event, the policy does not address the Tribunal’s practice and is not binding on the Tribunal. Instead, the excerpts Ms. Obredor has provided from the policy address the conduct of an “employer, service or housing provider” in response to a request for accommodation. This is very different from the requirement to establish a disability for the purpose of a discrimination claim before the Tribunal.

[19] Overall, it was open to the Tribunal to request further medical evidence substantiating Ms. Obredor’s claimed disability to determine if it had jurisdiction. This ground of review is dismissed.

Did the Tribunal breach procedural fairness?

[20] Ms. Obredor also submits she was denied procedural fairness. She submits the Tribunal’s process was excessively delayed, the Tribunal’s process was biased, and that she was entitled to a hearing. She also notes that a similar case she had brought against a different respondent was not dismissed on a preliminary basis because of a lack of jurisdiction.

[21] I disagree with these arguments. Section 41 of the Code grants the Tribunal the ability adopt alternatives to traditional adjudicative or adversarial procedures that will facilitate a fair, just, and expeditious resolution. The Tribunal is entitled to use procedures to address, on a preliminary basis, whether it has jurisdiction. Here, the Tribunal first issued the NOID, in which it gave Ms. Obredor the opportunity to provide further submissions and information. It then issued an interim decision giving her a second opportunity to provide detailed medical documentation. In the interim decision, the Tribunal expressly stated that she was required to “provide medical evidence that not only identifies their disability or disabilities within the meaning of the Code but also explains how the disability or disabilities prevent them from wearing a mask.” These directions were clear and specific. Ms. Obredor failed to provide the required information despite being given ample opportunity to do so; in fact, she was granted extensions to respond both to the NOID and to the interim decision. There was no breach of procedural fairness, nor is there any merit to Ms. Obredor’s submission that the Tribunal was biased in following this procedure.

[22] Although there was some delay in the Tribunal’s process, this was partly because of the interim decision and the opportunity to provide additional information. Ms. Obredor has not shown that the time it took the Tribunal to release its decision breached procedural fairness in all the circumstances.

[23] With respect to the application Ms. Obredor says was similar, it is not before this court. There is no way to know the degree to which it is similar to the present matter. In any event, adjudicators at the Tribunal have discretion as to the procedures they follow in response to a particular application. The decision to follow a different procedure in a different case does not render the procedure in the current case unfair.

Disposition

[24] The application therefore dismissed. The Tribunal does not seek any costs and none are ordered.

O’Brien, J

I agree _______________________________

Fitzpatrick, J

I agree _______________________________

Cullin, J

Released: June 27, 2024

DIVISIONAL COURT FILE NO.: DC-23-1412-JR

DATE: 20240627

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

NAZ OBREDOR

Applicant

and -

HUMAN RIGHTS TRIBUNAL OF ONTARIO AND ZEHRS

Respondents

REASONS FOR DECISION

O’BRIEN, J

Released: June 27, 2024

Obredor v. Zehrs, 2024 ONSC 3689

Case Summary

Overview

Anonymization Order

Standard of Review

Was it unreasonable for the Tribunal to dismiss the application on the basis that Ms. Obredor had not provided sufficient evidence of a disability?

Did the Tribunal breach procedural fairness?

Disposition

Judges

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legal Tests 2

Legislation 3