The Human Rights Tribunal of Ontario dismissed a gender identity discrimination complaint after finding the applicant failed to establish a factual link between alleged workplace mistreatment and discriminatory conduct.
B.S., a physiotherapist who worked at University Health Network’s Toronto Western Hospital from 2011 to 2019, filed the human rights application alleging discrimination based on gender expression and gender identity. The case was decided through written submissions without an oral hearing.
Tribunal’s jurisdictional concerns
The tribunal issued a case assessment direction in January 2025, identifying two key jurisdictional concerns. First, the narrative describing alleged discrimination incidents “failed to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent.” Second, while B.S. identified protected grounds and claimed adverse treatment, the application did not “clearly explain why the applicant believes the adverse treatment was because of the enumerated ground.”
The tribunal emphasized it “does not have jurisdiction over general allegations of unfairness unless there is some factual basis which links the respondent’s conduct to the applicant’s Code-enumerated ground.”
Background of the case
B.S. alleged experiencing chronic misgendering in the workplace and claimed to have raised concerns about this treatment with management personnel on numerous occasions. However, B.S. believed his concerns were not properly addressed in a timely manner.
University Health Network disputed these characterizations, arguing it provided substantial support for B.S.’s gender transition. The employer stated that after B.S. disclosed his gender identity in 2016 to his manager, N.I., he was introduced to the senior manager of diversity and mediation services, J.S., who supported him through his transition.
The hospital approved paid short-term disability leaves on six separate occasions between November 2016 and March 2019 to accommodate gender transition surgeries and related mental health needs.
Lack of formal complaints
University Health Network argued that B.S. never filed formal complaints with human resources, managers, or diversity services about specific employees allegedly misgendering him. Without formal complaints, the employer stated it never conducted investigations into the alleged incidents described in the application.
The hospital maintained that B.S. “failed to establish a nexus between his alleged treatment and the Code grounds listed in the Application.”
Termination for cause
B.S.’s employment ended on Sept. 17, 2019, when University Health Network terminated him for cause due to his failure to renew his physiotherapy licence — a mandatory job requirement. The employer argued this termination was not motivated by or connected to any Code-protected grounds.
Legal framework applied
The tribunal applied established legal principles governing its jurisdiction. To proceed with a human rights complaint, an application must fall within the tribunal’s authority, which is limited to enforcing the Human Rights Code. The Code only prohibits discriminatory actions based on enumerated grounds in protected social areas.
The tribunal cannot hear “general allegations of unfairness unrelated to the Code.” Applications must provide “some factual basis beyond a bald assertion which links their ground(s) to the respondent’s actions and explains why they think that these actions are discriminatory in nature.”
The decision referenced previous court rulings establishing that complainants must demonstrate a basis “beyond mere speculation and accusations” that respondents’ conduct was discriminatorily linked to protected grounds.
Tribunal’s analysis
The tribunal found B.S. “failed to present sufficient facts to support the applicant’s allegation that the respondent’s treatment and termination which resulted from the respondent’s failure to renew his physiotherapy license was in any way discriminatory on the basis of a Code ground.”
Regarding accommodation issues, the tribunal noted that while the employer argued there was no evidence B.S. was not accommodated, “the onus is on the applicant, however, to present sufficient facts to support a finding of a failure to facilitate accommodation and is being used as a proxy for gender identity and gender expression discrimination, which the applicant in this case failed to discharge.”
The tribunal emphasized that asserting protected ground status and adverse treatment is insufficient. Complainants must provide factual basis linking respondents’ conduct to Code-enumerated grounds. “A bald assertion that the adverse treatment they received was owing to their enumerated ground is not enough to provide the required factual basis.”
Decision outcome
The tribunal concluded B.S. “failed to establish how any of the alleged acts of the respondent’s were related or motivated by discriminatory reasons” and “failed to provide a factual basis beyond a bald assertion which links their Code grounds to the respondent’s actions.”
Consequently, the application did not fall within the tribunal’s jurisdiction and was dismissed.
For more information, see Siu v. University Health Network, 2025 HRTO 1250 (CanLII).
