Executive Summary: Key Legal and Evidentiary Issues

• The Moving Parties — Academy of Learning Career College, Faizun Kashem, and Fariba Shirvanion — sought an extension of time to commence a judicial review of a Human Rights Tribunal of Ontario (HRTO) decision dated March 28, 2025.
• Procedural errors and counsel's serious health challenges caused the Moving Parties to miss the thirty-day filing deadline under the Judicial Review Procedure Act.
• Scope of the proposed application was agreed by the parties to be limited to procedural fairness grounds only, not the substantive merits of the HRTO decision.
• At issue was whether the HRTO took an overly formalistic approach to disclosure requirements that prevented the Moving Parties from presenting their case.
• A stay of enforcement of the HRTO award was sought pending the outcome of the judicial review application.
• Costs were not awarded to either party, despite divided success, given that the extension motion arose from the Moving Parties' own default.

Facts of the case

The underlying dispute arose from a Human Rights Tribunal of Ontario (HRTO) decision dated March 28, 2025 (2025 HRTO 838), in which the HRTO found that Mr. Paresh Ashar had been subjected to discrimination in connection with his employment. The Tribunal awarded Mr. Ashar $25,000 and made ancillary orders against the Moving Parties: Academy of Learning Career College, Faizun Kashem, and Fariba Shirvanion. The Moving Parties intended to seek judicial review of that decision within the thirty-day deadline prescribed by the Judicial Review Procedure Act, but failed to do so due to difficulties filing documents and errors by their counsel, compounded in part by counsel's serious health challenges. The Moving Parties acted with reasonable promptness once they became aware of the missed deadline.

Procedural fairness issue

The Moving Parties' central arguable ground for judicial review related to disclosure. They had delivered certain documents to Mr. Ashar and the HRTO earlier in the proceedings and sought to rely on those documents at the hearing. The HRTO found that those documents had to be re-provided in response to a subsequent disclosure order, and that the Moving Parties could not reasonably have thought their earlier disclosure would satisfy that subsequent direction. The court noted that while considerable deference is owed to the HRTO in how it structures its procedures, an overly formalistic approach that prevents a party from presenting its case may warrant judicial intervention. The scope of the application was limited, by agreement before Shore J., to procedural fairness grounds only; the court found no arguable basis that the HRTO's substantive decision was unreasonable on the record before it.

Court's reasoning and analysis

Justice D.L. Corbett balanced the relevant factors on the extension motion and was satisfied that an extension of time should be granted, subject to terms. On the stay motion, the court considered that Mr. Ashar was in difficult financial circumstances, meaning that any amount paid to him pending the application could be difficult — and potentially costly — for the Moving Parties to recover if they ultimately succeeded. To balance the prejudice to both sides, the court directed the Moving Parties to pay $27,000 into court as security for the HRTO award and accrued interest, within sixty days. The motion to quash the application and the rule 2.1 process were dismissed as unnecessary given the merits analysis already conducted on the extension motion.

Ruling and overall outcome

Justice Corbett granted the extension of time to commence the application for judicial review and stayed enforcement of the HRTO award pending final determination of the application or a further order of the Divisional Court. The Moving Parties were directed to pay $27,000 into court by August 21, 2026 as security, with written confirmation to the court by August 24, 2026. The application was confined to procedural fairness issues, and a hearing was expected to be scheduled for late 2026 or early 2027. Although the Moving Parties achieved greater success overall on the motions, no costs were ordered given that the extension motion was necessitated by their own default. Mr. Ashar's $25,000 HRTO award remains stayed pending the outcome of the application.