Case Summary and Analysis: JL v Empower Simcoe, 2021 HRTO 222 – First decision about human rights during the COVID-19 pandemic

On March 23, 2021 the Human Rights Tribunal of Ontario released its first substantive decision regarding the operation and applicability of an individual’s human rights during the time of the COVID-19 pandemic. In JL v Empower Simcoe , the Tribunal considered whether the Respondent’s visitation ban, which was put in place to reduce risk of transmission of COVID-19 for residents and staff, adversely impacted and discriminated against the Applicant.

The decision is important for several reasons. First, it clarifies that the existence of the pandemic is not in and of itself a sufficient justification for refusing or failing to appropriately accommodate persons who require disability-related accommodation.

Second, it affirms the relative roles of the resident and the service provider in the accommodation process. Particularly, it affirms that while the resident must cooperate in the accommodation process, the responsibility to find and implement the accommodation solution remains with the service provider.

Third, the Tribunal finds that service providers are required to apply government guidance in a manner that is consistent with Ontario’s Human Rights Code (Code). This process includes considering the resident’s accommodation request and seeking public health advice.

Background

The Applicant, JL, is a 14 year old boy with multiple disabilities residing in one of the Respondent’s group homes. JL requires support for all activities of daily living. He has a communications disability, which for him means that he does not use words to communicate. Instead, he uses touch, hugging, pulling on hands, gestures and other physical displays of expression.

Prior to the pandemic, he lived from Monday to Friday in a group home which provides him, and two other children residents, with disability-related supports and services. He spent weekends with his parents and brother at his family home. At all times, JL’s parents parented him and made all health care, education, and other decisions.

With the onset of the pandemic, the government released a memorandum and guidance documents for congregate care settings and other service providers about safety precautions, including restricting visitors. The Respondent implemented a rigid visitor restriction policy, which meant that JL’s parents were not permitted to visit him and he was not permitted to leave for visits at his family home. From March to June 2020, the Respondent instead offered video calls, drive-by visits, or for JL to live in his family home indefinitely. From June to August 2020, the Respondent allowed in-person visits as long as visitors remained 6 feet apart from residents. None of these options accommodated JL’s disability because of his communication disability-related needs.

As a result, the Applicant was denied appropriate accommodations for meaningful contact with his family from March to August 2020. Despite requests for accommodation, the Respondent refused to investigate or implement any disability-related accommodations for the Applicant. It did not turn their minds to or make inquiries about other ways that it could implement the recommendations from the government.

The Applicant filed an application with the Human Rights Tribunal of Ontario alleging that the Respondent’s visitor restriction policy discriminated against him and that it failed to accommodate him to the point of undue hardship.

Outcome

The Tribunal found in the Applicant’s favour. It found that JL demonstrated prima facie discrimination; it also found that the Respondent failed to establish that accommodating his disability-related needs would amount to undue hardship. The Respondent was ordered to pay damages and to implement an accommodation policy for pandemic visitor restrictions.

Finding 1: A service provider must follow the requirements of the Human Rights Code even in a pandemic

The first important finding is about individual human rights during the pandemic. As the Tribunal clearly stated in her decision, “[h]uman rights protections do not go away in a pandemic.” (para 150) The respondent argued that the unprecedented nature of the pandemic did not allow space for individual human rights protections or individualized assessment.

JL argued that the pandemic, while certainly an important contextual piece for this case, does not materially change established human rights principles. He argued that the human rights framework is robust enough to address many contexts – including a pandemic where safety and health considerations require particular attention. In other words, the duty to accommodate and undue hardship analysis includes consideration of safety. Even in new and novel scenarios, the analysis balances individual Code-protected rights with competing interests in a justified and principled way.

The Tribunal agreed with the Applicant. It found that while the pandemic raised important and difficult issues, service providers are required to continue to follow the requirements of the Code.

Finding 2: A service provider bears more responsibility in the accommodation process

The second important finding is about the relative levels of responsibility of the parties in the accommodation process. The Respondent argued that JL’s parents failed to cooperate in the accommodation process by failing to try out the alternative methods of communication proposed by the Respondent and instead “insisted upon their preferred accommodation.” (para 131)

The Tribunal disagreed with the Respondent, and found instead that JL’s parents made an accommodation request and rationally explained why alternatives offered by the Respondent were insufficient. Once they set out this explanation, the Tribunal held that it was incumbent upon the Respondent to consider their request – rather than insisting that the Applicant avail himself of the alternatives offered. The central question remained: whether the requested accommodation would have caused the respondent undue hardship.

While the duty to accommodate is a multi-party cooperative process, the “parties are not equally responsible for the process.” (para 135, emphasis added). The Tribunal affirmed that the ultimate responsibility for finding and implementing the accommodation solution remains with the respondent.

Finding 3: A service provider is required to apply government guidance in a manner consistent with its human rights obligations

The third important finding relates to the Respondent’s human rights obligations in the context of government guidance about safety protocols. The Respondent asserted that it was required to strictly follow the memorandum and guidelines from the government, and that it was not permitted to deviate from these to accommodate JL.

The Tribunal disagreed. It held these directions were not coercive, but rather advice and recommendations intended to guide service providers in their decision making. For this reason, it was required to implement the government’s guidelines and recommendations with its mind turned to the individual human rights of its residents.

The Tribunal found that what was required of the Respondent in this case was for it to investigate the accommodation request, and engage in an assessment of actual risk of accommodating JL. Because the Respondent did not do this, it was not able to demonstrate that accommodating JL’s needs would amount to undue hardship:

The ball was in the respondent’s court to consider the applicant’s accommodation request, and seek its own public health advice on that specific request. It did not do so. Instead, it remained steadfast in its approach. Because the respondent did not investigate the applicant’s accommodation request, there is no objective health evidence that it would have caused undue hardship to grant the request in terms of jeopardizing the health and safety of the residents and staff in the applicant’s home. (para 132)

In this way, JL clarifies that while policies created in response to the pandemic are important, they do not supersede the quasi-constitutional human rights bestowed by the Code.

What does this decision mean for other persons who are disproportionately impacted by visitation bans?

Without a doubt, JL is an important victory for human rights in Ontario and ARCH is hopeful that this decision will create positive change for others who have been subject to restrictive visitation bans and who have been unable to have meaningful communication with their loved ones during the pandemic. Further, the Tribunal’s findings with respect to the obligations of service providers to consider, investigate, and explore requests for individualized accommodations will outlast the pandemic conditions and will contribute to the Tribunal’s jurisprudence about the procedural aspect of the duty to accommodate.

However, it is equally important to reflect on JL in context. The Tribunal’s decision relies heavily on the individual facts of this case. JL was a child, which comes with particular and pressing needs to have meaningful contact with his parents. He does not use words to communicate. His group home had only 2 residents, which was a relatively controlled environment. Further, in this case, the public health authority was supportive of an individualized risk-based assessment that was informed by the rates of transmission in the region at that time. These factors were important in the Tribunal’s determination. As the Tribunal noted, there will “no doubt be different factors to consider in other settings and different conclusions may be reached.” (para 138)

To read the full decision, follow this link:
https://www.canlii.org/en/on/onhrt/doc/2021/2021hrto222/2021hrto222.html