Executive Summary: Key Legal and Evidentiary Issues

• Timeliness of Mr. Bhanji’s request to reactivate his human rights application, made more than four years after his grievances were withdrawn and well beyond the Tribunal’s 60-day reactivation timeline tied to the conclusion of the other proceeding.
• Extent of Mr. Bhanji’s responsibility to pursue his own case, including his failure to communicate with Unifor about the status of his grievances despite written warnings that non-communication would almost certainly lead to their withdrawal.
• Scope of the Tribunal’s discretion to extend the time limit for reactivation, and its reliance on the length of the delay, the causes of the delay, and prejudice to Enercare, as informed by the Divisional Court’s decision in Pereira v. Hamilton Police Services Board, 2022 ONSC 4150 (Div. Ct.).
• Alleged failure by Enercare’s counsel to meet a duty of candour by not advising the Tribunal that the grievances had been withdrawn after Enercare obtained a deferral order, and the Tribunal’s conclusion that there was no basis in law for such a duty on these facts.
• Whether Mr. Bhanji’s letters and emails to the Tribunal—asking it to “proceed to hearing” and requesting extensions—could be treated as a valid reactivation request under Rule 14.4, given that they did not advise that the grievances had concluded or copy the other parties.
• Balancing of prejudice between the parties, including the Tribunal’s finding that Enercare was specifically prejudiced by delay due to potential witnesses no longer being employed and difficult to reach, and Mr. Bhanji’s argument that denial of reactivation affected rights he described as semi-constitutional in nature.

Factual background and procedural history

Mr. Alkarim Bhanji was an employee of Enercare Home and Commercial Services Inc. from October 2008 until his termination in December 2016. Enercare asserted that he was terminated for cause. In response to the termination, his union, Unifor Local 975, filed two grievances on his behalf, and Mr. Bhanji also filed an application with the Human Rights Tribunal of Ontario alleging discrimination. Enercare requested that the Tribunal defer Mr. Bhanji’s human rights application until the grievance arbitrations were concluded. The Tribunal granted this request on August 7, 2018, issuing a deferral order. By that time, however, the grievances had already been withdrawn on May 18, 2018 because of Mr. Bhanji’s failure to communicate with his union and his failure to participate in the grievance process. Mr. Bhanji was not present when the grievances were withdrawn, and neither Unifor nor Enercare advised him that the withdrawal had occurred. Before withdrawing the grievances, Unifor had contacted Mr. Bhanji in writing on a number of occasions and advised him that if he failed to respond, the grievances would almost certainly be withdrawn. Mr. Bhanji did not respond to Unifor’s communications and did not contact Unifor to find out what had happened to his grievances. In the deferral order of August 7, 2018, the Tribunal advised Mr. Bhanji that if he wished to reactivate his human rights application, he had to do so within sixty days of the conclusion of the other proceeding. Mr. Bhanji did not file a reactivation request within that period. On May 30, 2022, after Mr. Bhanji had retained counsel who contacted Unifor to request an update, Unifor’s counsel confirmed that the grievances had been withdrawn in May 2018. On July 8, 2022, Mr. Bhanji filed his request with the Tribunal to reactivate his human rights application.

Tribunal decisions on reactivation and reconsideration

On July 23, 2024, the Tribunal declined to extend the time period for filing a reactivation request. It found that, given the length of the delay—over four years—the lack of a reasonable explanation for the delay, and the prejudice to Enercare if the matter were to proceed, the test for extending the time period was not met. In discussing this test, the Tribunal referenced the Divisional Court’s decision in Pereira v. Hamilton Police Services Board, 2022 ONSC 4150 (Div. Ct.). Mr. Bhanji then requested that the Tribunal reconsider its decision. The Tribunal’s reconsideration decision was released on March 5, 2025. In that decision, the Tribunal addressed new arguments raised by Mr. Bhanji, including an asserted duty of candour on Enercare’s counsel and the claim that his earlier correspondence should be treated as initiating the reactivation process. The Tribunal rejected those arguments and denied reconsideration.

Applicant’s position before the Divisional Court

On judicial review, Mr. Bhanji submitted that the Tribunal’s decisions were unreasonable. He argued that the Tribunal unreasonably limited its discretion by considering only three factors—the length of the delay, the cause of the delay, and prejudice to Enercare—and failed to consider other highly relevant factors. He contended that the Tribunal failed to consider that he wrote to the Tribunal three times indicating his intent and desire to proceed; that neither Enercare nor Unifor advised the Tribunal that the grievances had been withdrawn; and that Enercare requested the deferral order and then did not advise the Tribunal when the grievances were withdrawn, which he characterized as a breach of the duty of candour owed by lawyers to tribunals. He further argued that the Tribunal did not take into account that he was an unsophisticated litigant who was unable to hire a lawyer to represent him at the Tribunal until 2022. He said the Tribunal failed to read his correspondence as a request that his application be reactivated and, in doing so, took a technical rather than remedial and purposive approach to the time requirements in its rules. Finally, he submitted that the Tribunal failed to consider the prejudice to him if his application was not reactivated and allowed to proceed on the merits, noting that the rights at stake were, in his view, semi-constitutional in nature.

Divisional Court’s analysis of the Tribunal’s reasoning

The parties agreed that the applicable standard of review was reasonableness. The Divisional Court stated that it requires an exceptional circumstance for a reviewing court to interfere with a tribunal’s fact-finding and weighing, referring to Canada (Minister of Citizenship and Immigration) v. Vavilov. The Court held that there was no merit to the submission that the Tribunal failed to consider the factors identified by Mr. Bhanji. It found that the Tribunal considered all of them but did not give them the weight that Mr. Bhanji asserted it should have. The Court noted it is a matter of concern that the Tribunal issued the deferral order after the grievance proceedings had been withdrawn. It summarized the Tribunal’s reconsideration reasoning on the asserted duty of candour, which emphasized that the Tribunal had written on January 10, 2020 stating that “the Applicant is required to advise the HRTO whether the other proceeding is still ongoing,” and that Mr. Bhanji had ignored that request and failed to copy the other parties, contrary to the Tribunal’s rules. The Tribunal had concluded that there was no basis in law supporting the position that Enercare’s counsel had a duty of candour to advise the Tribunal of the ongoing status of the grievance arbitrations, and that no court decisions had been provided to support such a duty or to support the idea that a lawyer is responsible for ensuring that opposing parties adhere to legal deadlines. The Divisional Court expressed some difficulty with Enercare’s position, stating that in its view Enercare, having made the request for a deferral, did have a duty to advise the Tribunal when it became clear there was no longer any need for the deferral and should have advised the Tribunal that the order was no longer necessary when it received it. However, the Court was not prepared to find that the Tribunal’s conclusion on this issue was unreasonable and characterized it as an issue about which reasonable people can disagree.

Treatment of delay, knowledge, representation, and informal correspondence

The Divisional Court held that the duty-of-candour issue did not detract from the main rationale for the Tribunal’s decision not to extend the time limit. It emphasized that it was Mr. Bhanji’s application and that he had an obligation to pursue it in a reasonable manner, including taking steps to reactivate it. The Court observed that the Tribunal had reasonably rejected his argument that he could not take those steps because he did not know of the withdrawal until May 2022. It noted the Tribunal’s finding that Mr. Bhanji had the onus to take steps to reactivate his application and that he knew that if he did not communicate with his union or appear at the arbitrations, it was almost certain Unifor would withdraw his grievances. Despite this, he did not contact his union to see if the grievances had been withdrawn. The Court concluded that there was nothing irrational about the Tribunal’s reasoning or conclusion that he could not rely on his lack of knowledge as an explanation for his delay. The Court also stated that this conclusion was not undermined by the fact that Mr. Bhanji was unrepresented until 2022, endorsing the Tribunal’s observation that many applicants before it are unrepresented and that, if lack of legal representation were considered a sufficient excuse for failing to meet time limits, the Tribunal would have difficulty enforcing its time limits in many cases. On the issue of informal correspondence, the Court recounted the three pieces of communication relied on by Mr. Bhanji: his May 18, 2018 letter to the Tribunal with the subject “please proceed to hearing” in which he advised that he had rejected a settlement offer from Enercare; his December 3, 2018 email again requesting that the Tribunal proceed to a hearing and expressing dissatisfaction with how his case was being handled; and his January 22, 2020 email advising that his motor vehicle accident case was still ongoing, stating that he would inform the Tribunal when it was over, and asking for an extension of time to reactivate his application. The Tribunal had held, and the Court accepted, that in order to request reactivation under Rule 14.4, the Tribunal needed to be advised whether the original proceeding (the grievances) had been concluded. Mr. Bhanji did not advise the Tribunal of the status of the grievances in his December 3, 2018 or January 22, 2020 communications, and he did not copy the other parties as required. The Tribunal concluded that the reactivation process could not legally commence and that this was not a matter of strict compliance with Tribunal forms but a legal requirement tied to the status of the other proceeding. The Court agreed that his reference to rejecting a settlement offer could not be construed as notice that the grievances had been withdrawn and observed that, in many cases, rejection of a settlement offer leads to a hearing.

Prejudice and outcome including costs

The Divisional Court rejected the suggestion that the Tribunal’s decision was unreasonable because it did not explicitly mention prejudice to Mr. Bhanji if he could not extend the time to reactivate his application. The Court noted it was clear from the decision that the Tribunal was aware that, if the extension were not granted, Mr. Bhanji would not be able to proceed with his application, describing this as “obviously a serious matter” for him. The Tribunal nonetheless reasonably concluded that Mr. Bhanji was the author of his own misfortune and that his actions or inaction placed the Tribunal in the position of being asked to hear an application about events that occurred in 2016 more than seven years later. The Tribunal had found that Enercare was “specifically prejudiced by the delay because a number of potential witnesses who were involved in the applicant’s performance issues and termination of employment, are no longer employed by the respondent and may be difficult to reach.” The Divisional Court held that there was nothing unreasonable in that assessment. Accordingly, the Court dismissed the application for judicial review. In accordance with the agreement of the parties, the Court ordered that Mr. Bhanji pay costs to Enercare and to Unifor. It fixed costs at $7,500 to Enercare Home and Commercial Services Inc. and $7,500 to Unifor Local 975, for a total monetary award of $15,000 in favour of the successful respondents.