Two of the more challenging legal principles for regulators to apply are accommodation and proportionality. Accommodation, in the human rights sphere, refers to adjusting a regulator’s process so that an individual with a disability has equitable access. Proportionality, in respect of the Canadian Charter of Rights and Freedoms, requires that regulators ensure that their public interest requirements, although important, do not inappropriately impinge on an individual’s Charter rights. A recent court decision provides valuable guidance on the application of both concepts.
In Zarabi-Majd v. Toronto Police Service, 2025 ONSC 277 (CanLII), a police officer was dismissed for persisting in posting on social media “racist, offensive, obscene, vulgar, disrespectful, degrading, false and libelous” comments about her superior officers and police board members. She continued to do so after being ordered to stop.
The police officer had PTSD. She requested an indefinite adjournment of the discipline hearing. The tribunal found that she would be able to participate effectively with accommodations. The tribunal reached out to the police officer with several proposals, such as changing the location of the hearing (from police headquarters), a virtual hearing, shorter hearing days, frequent breaks, requiring witnesses to be in civilian attire, etc. The tribunal also invited the police officer to propose alternative accommodations. The police officer responded that the only accommodation she would accept would be an indefinite adjournment. The tribunal then proceeded with the hearing in the police officer’s absence.
The Court said:
The process of devising appropriate accommodations for a health-related disability must be collaborative…. The person seeking accommodation must participate in the process of finding appropriate accommodations and has an obligation to accept reasonable accommodations offered…. To the extent the Hearing Officer had an obligation to accommodate Ms. Zarabi-Majd even though her illness did not prevent her from participating in the hearing, we find the Hearing Officer discharged that obligation by proposing possible accommodations to Ms. Zarabi-Majd and remaining open to other suggestions (short of an indefinite adjournment). [citations omitted]
In terms of proportionality, the Court noted that the Commission (that heard the administrative appeal) had recognized that the Charter right of freedom of expression was engaged and requested submissions from the parties. The Commission had correctly identified the goals of the legislation, to “ensure transparency and enhance public confidence in policing”. These goals warranted some limitations on the expression by police officers even in their private social media accounts (especially since the posts in issue were publicly available).
The rules about social media posts by police officers were reasonable and were known to the police officer. The posts in issue were quite offensive. There was no merit in the police officer’s position that she had no other way to raise her concerns about the police force. In these circumstances, a serious sanction would not create a chilling effect on other police officers wishing to raise legitimate concerns about the organization or otherwise exercise their freedom of expression rights.
The Court agreed with the Commission that dismissal from the force was proportionate:
In the end, the Commission found that Ms. Zarabi-Majd’s dismissal was proportionate. On the one hand, the Commission found that Ms. Zarabi-Majd’s dismissal from the TPS would not have a chilling effect on the expressive rights of other officers beyond the limits imposed by the Police Services Act and the TPS policies. On the other hand, the Commission found that the findings of misconduct and Ms. Zarabi-Majd’s dismissal were “necessary to protect public confidence in policing.”
While the facts of this decision may be unique, the approach taken by this tribunal, the Commission, and the Court with respect to the principles of accommodation and proportionality have broader application.