Executive Summary: Key Legal and Evidentiary Issues

• Scope of the Divisional Court’s role on judicial review and application of the reasonableness standard to HRTO decisions on discrimination and reconsideration
• Sufficiency of evidentiary foundation to show a link between the worker’s knee injury (disability) and termination, beyond the worker’s suspicions of discrimination
• Effect of the employee’s failure to provide ongoing medical documentation and to maintain contact about availability for work on the viability of a human rights claim
• Interpretation and application of the HRTO’s “no reasonable prospect of success” screening test to an employment disability accommodation complaint
• Limits on introducing new or supplementary evidence on judicial review, including the Keeprite exceptions and refusal to admit post-HRTO materials
• Application of the HRTO’s narrow reconsideration criteria where the applicant effectively re-argues the merits rather than demonstrating reviewable error

Background and parties

Ernesto Diarez worked for Staff Plus and D.J. Gosselin Personnel Inc., a temporary staffing agency, for about nine months when he suffered a workplace accident on December 4, 2017, injuring his right knee. He was off work for two days and then returned to his regular duties, relying on assistance from co-workers, from December 7 to December 21, 2017. He attended a walk-in clinic on December 21 and saw his family doctor on December 30, 2017. The doctor completed a functional abilities form recommending that he be placed on modified duties for 8 to 14 days. The employer provided modified duties during this two-week period, up to about January 20, 2018.

Events leading to the termination

Around January 20, 2018, once the two-week modified-duties period expired, the employer discontinued modified duties. On January 23, 2018, Mr. Diarez saw another physician, who declined to sign a functional assessment form to support ongoing modified duties, indicating that further tests were needed. As the employer had requested, he advised them at that time of this development.
After that, by his own account, he neither returned to work nor contacted the employer for several months regarding his injury status or availability for work, and he did not provide additional medical documentation over that period. The employer, which required employees to advise when they were available for work, concluded that he had abandoned his employment. In April 2018, it terminated his employment and issued a record of employment, which he seems not to have received until he asked for it in the summer of 2018. In May 2018, he sent some medical information to the employer, and in August 2018 he provided a medical note indicating that he had sustained a knee injury and was not fit to resume general labour work.

The human rights application and allegations

Mr. Diarez filed an application with the Human Rights Tribunal of Ontario (HRTO) under the Human Rights Code, asserting discrimination in employment based on disability. He alleged that the employer failed to accommodate his knee injury and terminated his employment because of that disability. He also raised allegations of reprisal, although he did not pursue the reprisal aspect before the Divisional Court.
The thrust of his discrimination claim was that the employer should have continued to accommodate his injury and should have taken further steps to obtain or request documentation about his disability, rather than treating him as having abandoned his job and ending the relationship.

HRTO’s first decision: No reasonable prospect of success

In its first decision dated September 9, 2022, the HRTO applied its screening test for whether an application has “no reasonable prospect of success.” Under that test, the tribunal assumes the applicant’s factual allegations are true, but assesses whether, even on that assumption, the facts could reasonably be considered to amount to a Human Rights Code violation. The tribunal may also consider whether the applicant is reasonably likely to prove the necessary link between the adverse treatment (here, termination) and the protected ground (disability).
The HRTO distinguished between accepting an applicant’s factual account and accepting the applicant’s assumptions about the reasons for the employer’s conduct. It concluded that, even taking his version of events at face value, there was no evidence beyond his own suspicions to support a finding that he was terminated because of disability. The evidence showed that the employer accommodated him with modified duties during the period for which there was medical support. After that, there was a prolonged gap where he neither provided updated medical documentation nor confirmed his availability, despite an express request that he obtain a signed functional abilities form. On this record, the HRTO determined that his disability did not appear to be a factor in the termination decision, and it found no reasonable prospect that he could establish discrimination in employment. The application was therefore dismissed at the screening stage.

HRTO reconsideration decision

Mr. Diarez then sought reconsideration. In a decision dated November 4, 2022, the HRTO reviewed its reconsideration rules, emphasizing that reconsideration is a discretionary and exceptional remedy, granted only in limited circumstances such as new evidence that could not reasonably have been presented earlier, fundamental error, or clear violations of procedural fairness.
The tribunal considered his extensive submissions but found that he did not identify any recognized ground warranting reconsideration. Rather than demonstrating that the original decision had a fundamental defect or that new, previously unavailable evidence existed, he essentially re-argued the same points on the merits. Seeing no basis to revisit its initial finding that the application had no reasonable prospect of success, the HRTO dismissed the reconsideration request.

Judicial review in the Divisional Court

Dissatisfied with both HRTO decisions, Mr. Diarez brought an application for judicial review in the Ontario Divisional Court. He asked the Court to quash the initial screening decision and the reconsideration decision on the basis that they were unreasonable.
The Court reiterated that the standard of review of HRTO decisions is reasonableness, particularly because the HRTO operates within a specialized area of expertise in human rights law. Under this standard, the reviewing court does not substitute its own view of what the decision should have been. Instead, it examines whether the tribunal’s reasons and outcome are justified, transparent, and intelligible in light of the evidence and the applicable legal framework. Decisions are to be assessed holistically, not through a search for minor or isolated errors.

Attempted supplementary evidence on judicial review

In support of his judicial review, Mr. Diarez filed a lengthy application record containing an affidavit and numerous exhibits, some of which had not been before the HRTO at first instance. The Court noted that judicial review is generally confined to the record that was before the administrative decision-maker. Supplementary evidence is only admitted in narrow, exceptional circumstances, such as to provide general background (not going to the merits), to show a complete absence of any evidence on a particular point, or to address issues of natural justice, procedural fairness, improper purpose, or fraud that could not reasonably have been raised earlier.
He explained that his new materials were meant to show the impact of the alleged Human Rights Code violation. The Court held that neither that purpose nor the content of the proposed evidence fit within the recognized exceptions. Accordingly, the additional evidence was not admitted and the review proceeded on the HRTO record.

Assessment of the HRTO’s reasoning

On the central question—whether the HRTO unreasonably concluded that there was no reasonable prospect of success—the Court found that the tribunal’s analysis was open to it on the record and met the reasonableness standard.
The Court accepted that one paragraph in the HRTO’s first decision (paragraph 23) was “far from clear” in its wording, but emphasized that the tribunal’s reasons must be read as a whole. When viewed in context, that paragraph did not undermine the overall rationality of the decision. The key point was that, after setting out the facts, the tribunal focused on the absence of evidence linking the termination to disability, as opposed to neutral employment management decisions based on non-communication and lack of medical documentation.
The Court highlighted that, based on his own account, Mr. Diarez did not contact the employer between at least February and April 2018 about his status or availability, despite being expressly asked to obtain a functional abilities form. He did not explain why no medical documentation was provided until May 2018, nor did the record show any formal request for accommodation or supporting material during the critical period. On these facts, it was entirely open to the HRTO to find that there was no realistic prospect he could prove that he was terminated “because of” his disability in the sense required by human rights law.

No investigative duty and reconsideration issues

To the extent he argued that the HRTO failed to conduct a thorough investigation of his complaint, the Court noted that the HRTO is not an investigative body; it adjudicates based on materials the parties put before it. That institutional role framed the tribunal’s approach to both the screening decision and reconsideration.
Regarding reconsideration, the Court observed that he did not demonstrate how any of the reconsideration criteria were met or identify any particular aspect of the reconsideration decision that was unreasonable. The HRTO’s conclusion—that he was simply re-arguing his case without satisfying the strict thresholds for reconsideration—was found to be reasonable.

Outcome and costs

Having reviewed the record and both HRTO decisions, the Divisional Court held that the HRTO’s reasons were intelligible, rational, and transparent, and that its conclusions were supported by the information before it. The application for judicial review was therefore dismissed. Staff Plus and D.J. Gosselin Personnel Inc., as the employer respondents, emerged as the successful party. The Court ordered that the employer receive $6,000 in all-inclusive costs from Mr. Diarez, and noted that the HRTO did not seek costs and none were awarded in its favour; no damages or other monetary relief were granted to the applicant, making the $6,000 costs award in favour of the employer the only quantified amount ordered in the case.