More Workplace Harassment Cases Are Coming to a Hearing: What Bokhari Means for Ontario Employers

On April 21, 2026, L&E Global published its analysis of a Divisional Court judgment that quietly changes the calculus for every Ontario employer with an active or potential workplace harassment file. In Bokhari v. Top Medical Transportation Services, 2026 ONSC 1073, the Ontario Divisional Court set aside an HRTO decision that had dismissed a human rights application at the jurisdictional screening stage — and, in doing so, ruled that the Tribunal's longstanding practice of using a "balance of probabilities" standard at that stage is unreasonable. Rudner Law's analysis and the administrativelawmatters.com commentary reach the same conclusion through different lenses.

The decision lands at a time when the HRTO is already sitting on a backlog the Human Rights Legal Support Centre (which intervened in the appeal) has put at over 8,000 outstanding applications. The Tribunal's December 2022 Practice Direction was, in part, a workload-management response: tighten the threshold, dismiss more applications at the door, clear the queue. The Divisional Court has now told the Tribunal that workload pressures cannot justify denying applicants their day in front of an adjudicator.

For Ontario employers, the consequence is operational. More harassment, discrimination, and reprisal applications will reach a full hearing. The defensive value of a procedurally weak investigation — or no investigation at all — has dropped accordingly.

Key Takeaways

• The HRTO can no longer dismiss applications at the jurisdictional screening stage on a "balance of probabilities" standard. A higher threshold applies.
• More harassment, discrimination, and reprisal applications will proceed past the screening stage to a merits hearing.
• Investigation quality is now the principal cost-management lever for Ontario employers facing HRTO risk.
• Workplace harassment programs that meet only the bare statutory minimum will be exposed under the new equilibrium.

What Happened

The applicant, Ali Bokhari, suffered an ankle injury he characterized as a disability under Ontario's Human Rights Code. The HRTO dismissed his application at the jurisdictional screening stage in Bokhari v. Top Medical Transportation Services, 2022 HRTO 1424, on the basis that — applying a "balance of probabilities" standard — it was more likely than not that a transitory injury did not meet the Code's definition of disability. A request for reconsideration was dismissed in 2024 HRTO 229 on the same reasoning.

Bokhari sought judicial review at the Ontario Divisional Court. The HRLSC was granted leave to intervene. On hearing the matter, the Divisional Court — Rees J. writing — set aside both HRTO decisions and remitted the application to the Tribunal for a determination on the merits.

What the Court Held

Three findings are doing the work for Ontario employers.

The standard was wrong. Prior to a December 2022 Practice Direction, the HRTO had consistently applied a "plain and obvious" standard at the jurisdictional screening stage. Under that standard, the Tribunal could dismiss an application without a hearing only where it was plain and obvious that the application was outside its jurisdiction. The 2022 Practice Direction shifted the standard to "balance of probabilities" — the same standard ordinarily used to make findings of fact based on evidence. The Divisional Court held that this shift was unreasonable: it was unjustified, it conflicted with the Tribunal's longstanding practice, and the Tribunal had failed to provide an adequate explanation for the change as required under the Vavilov reasonableness framework.

The standard cannot rationally apply at screening. As Rees J. observed, the balance of probabilities standard exists to allow adjudicators to make evidence-based determinations. At the jurisdictional screening stage, no evidence is yet before the Tribunal. Applying a balance-of-probabilities test in the absence of an evidentiary record is an analytical contradiction.

The consequence is access to justice. The Court held that applying the balance of probabilities standard "inevitably results in screening out, at a threshold stage, applications that appear unlikely to fall within the jurisdiction of the Tribunal but which, with the benefit of a factual record and argument, would ultimately be determined to be within the Tribunal's jurisdiction." That outcome — denying applicants the protection of the Code on the basis of a screening-stage probability assessment — could not be justified by the Tribunal's interest in efficiency.

The TurnpenneyMilne summary of a parallel Divisional Court decision on procedural pitfalls at the HRTO makes the same point through a different fact pattern: the Divisional Court is now actively policing how the HRTO disposes of applications without a merits hearing.

What This Means for Ontario Employers

The HRTO will dismiss fewer applications at the door. That changes the math on three fronts.

Defence costs will rise on average. A portion of the harassment, discrimination, and reprisal applications Ontario employers receive — applications that, under the prior standard, would have been screened out within months and at minimal cost — will now proceed deeper into the Tribunal process. Even if the ultimate outcome is the same, the cost of getting there is higher.

Investigation quality becomes the principal lever. When a higher proportion of applications reaches a hearing, the documentary record produced by the employer's internal harassment investigation becomes the central piece of evidence. A thorough, procedurally fair, and well-documented investigation is the single most cost-effective defence asset an Ontario employer can build. A sloppy one — or none — is now a much more expensive liability. The Human Rights Tribunal's analysis in Bidwai v. Ontario Teachers' Pension Plan Board, 2024 HRTO 1092 is the load-bearing recent precedent on what a procedurally adequate investigation looks like.

The OHSA program is now the leading edge. Section 32.0.7 of the Occupational Health and Safety Act requires employers to ensure an investigation "appropriate in the circumstances" into every incident or complaint of workplace harassment. That obligation existed before Bokhari and exists after it — but the post-Bokhari environment converts a paper-compliance program into a litigation liability. The OHSA Code of Practice on workplace harassment is the Ministry of Labour's published baseline; employers should treat it as a floor, not a ceiling.

What to Do Now

The operational response splits across three time horizons.

This week, stop assuming the HRTO will screen out marginal claims. The defensive posture of "we'll deal with it if it survives screening" no longer pencils out. Treat every harassment complaint received under your workplace harassment program as if it will be litigated to a full HRTO hearing. That is the new median outcome for the cases that reach the Tribunal.

This quarter, audit your workplace harassment program for procedural fairness. The criteria are well established: an impartial and qualified investigator, allegations put to the respondent in writing with a meaningful opportunity to respond, witness interviews documented contemporaneously, evidence-based findings, a written report, communication of the outcome to both parties. Sherrard Kuzz's guidance on the duty to investigate walks through each requirement. If your program is missing one of these elements, you are running on a defence the courts and tribunals are no longer accepting.

This year, build investigator capacity that scales. For mid-market and SMB Ontario employers, internal HR rarely has the bandwidth or independence to handle every harassment investigation that comes through. Building a roster of vetted external investigators — and a clear internal protocol for when to escalate to external — is the single best bandwidth-protection move available. Gowling WLG's analysis of investigation governance covers the structural choices.

The 1205 View

The HRTO has been a pressure-relief valve for Ontario employers for fifteen years. Bokhari doesn't close the valve, but it narrows it. The corollary is that the fall-back defence — "we did what we could, the Tribunal screened it out anyway" — is no longer a strategy. The leading edge of harassment-risk management for Ontario employers in 2026 is investigation quality: the documents your investigator produces are now the documents that will decide the case.

For founder-led and family-owned Ontario businesses without a deep in-house HR function, this is also a budget question. The cost of building and maintaining a procedurally sound workplace harassment program is meaningful. The cost of defending a harassment application all the way to a merits hearing without one is much larger.

Where 1205 Consulting Fits

1205 Consulting builds, audits, and runs workplace harassment programs for Ontario employers — including investigation file architecture, intake protocols, investigator rosters, and the internal controls that hold up under HRTO and Divisional Court scrutiny. We also serve as external investigator on matters that require independence from the in-house HR function.

If the Bokhari environment has changed the calculus on your workplace harassment program — or if you have not stress-tested it against the post-screening reality — book a 30-minute call or read more about our workplace investigations and HR services practices.

This article is not legal advice. Consult your legal counsel on specific matters. The operational message, though, is straightforward: more harassment cases are now going to a hearing in Ontario. Your investigation file is the document that decides them.

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