CL as represented by his Litigation Guardian KL v. Toronto District School Board, 2021 HRTO 159 (CanLII)

[1]         KL filed an Application “on behalf of himself and his dependents” alleging discrimination in services because of age, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, KL takes issue with the public health mandate that his children are required to wear masks at school as a result of the COVID 19 pandemic.

[2]         In the Application’s narrative, KL alleges that the public health mandate requiring children to wear masks at school is too severe, unnecessary, unwarranted and unconstitutional. However, he did not identify any specific acts of discrimination within the meaning of the Code. The Tribunal therefore sent KL a Notice of Intent to Dismiss, advising that it appears that the Application is outside of the Tribunal’s jurisdiction. 

[3]         In his submissions in response to the Notice, KL explained that his child CL has what KL describes as a “speech impediment” and alleges that the requirement to wear a mask or a face shield impedes CL’s learning and communication. KL attached correspondence between himself and the respondent Toronto District School Board with respect to his request for an exemption for CL from wearing a mask while at school.  

[4]         An application will be dismissed at a preliminary stage if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction.  See Masood v. Bruce Power, 2008 HRTO 381. The Tribunal does not have jurisdiction over general allegations of unfairness unless the unfairness is connected, in whole or in part, to one of the grounds specifically set out in Part I of the Code (e.g. race, disability, sex, etc.). See, for example, Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389.

[5]         In Sharma v. Toronto (City), 2020 HRTO 949 (“Sharma”), the applicant objected to wearing a mask because he said that the requirement to do so without evidence of the efficacy of masks was speculative and amounted to a heavy hammered approach. The Tribunal explained that this objection did not engage the Code. However, the Tribunal also explained that where an applicant alleges that they require an exemption from wearing a mask because they have a disability, the Code is engaged.  

[6]         In this case, the Tribunal does not have the jurisdiction over general allegations of unfairness with respect to the public health mandate requiring children to wear masks at school. KL clearly disagrees generally with that mandate.  This is for a variety of reasons, including questions with respect to the efficacy of masks (like in Sharma), and his philosophical and political disagreement with the public health mandate requiring children to wear masks at school. However, the substance of KL’s concerns that fall within the Tribunal’s jurisdiction relate to the application of the masks in school requirement to his child CL. In this regard, KL effectively alleges that CL has a disability that requires an exemption from the requirement that he wear a mask at school. This falls within the Tribunal’s jurisdiction. Therefore, CL as represented by his Litigation Guardian KL’s Application against the Toronto District School Board alleging discrimination in services because of disability will continue in the Tribunal’s process.

[7]         The Application is dismissed against the remaining respondents Chief Medical Office of Ontario, Dr. David Williams, Toronto Public Health, Dr. Eileen Davilla [Dr Eileen de Villa], Ontario Ministry of Education, Stephen Lecce, Ontario Ministry of Health, Christine Elliott and Doug Ford. This is because the remainder of KL’s general concerns as set out in the Application, including with respect to the efficacy of masks, and his philosophical and political disagreement with the public health mandate requiring children to wear masks at school, are not allegations against these respondents that are connected, in whole or in part, to one of KL’s or CL’s protected grounds as set out in the Code. In this regard, there are also no specific allegations of discrimination within the meaning of the Code against KL or CL by any of these respondents.

[8]         For the above reasons, the Tribunal orders as follows: