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Notice - Administrative. Bhanji v. Enercare Home and Commercial Services Inc.
In Bhanji v. Enercare Home and Commercial Services Inc. (Ont Div Ct, 2026) the Ontario Divisional Court dismissed an HRTO JR, this brought against "a decision and reconsideration decision of the Human Rights Tribunal of Ontario (the “Tribunal”) where the Tribunal dismissed Mr. Bhanji’s request to reactivate his human rights application after it had been deferred pending the conclusion of two grievance arbitrations relating to the termination of his employment ...".
Here the court considered the effect of the applicant not filing the proper forms, and giving proper notice, on his time extension request:[19] The Tribunal also considered Mr. Bhanji’s argument that he did indicate in writing on three occasions that he intended to pursue his application, and while he may not have done so in exactly the right way, his intention was clear. He wished to proceed with his application. In failing to find this correspondence sufficient notice that he wished to reactivate his application, the Tribunal ignored the directions in its own rules of procedure to interpret those rules in a liberal and purposive manner as opposed to a technical manner.
[20] The three pieces of correspondence that Mr. Bhanji relied upon were:(i) A letter dated May 18, 2018 that Mr. Bhanji delivered to the Tribunal with the subject matter “please proceed to hearing” in which he advised that he had rejected a settlement offer from Enercare.
(ii) An email that Mr. Bhanji sent on December 3, 2018 in which he again requested that the Tribunal proceed to a hearing. In that letter he expressed his dissatisfaction with the way his case was being handled.
(iii) An email that Mr. Bhanji sent to the Tribunal on January 22, 2020 in which he advised the Tribunal that his motor vehicle accident case was still ongoing and that he would inform the Tribunal when it was over. He also asked for an extension of time to reactivate his application. (iv) In its Reconsideration Decision the Tribunal dealt with this submission as follows:[14] The Tribunal ruled in its Decision that Bhanji did not initiate the reactivation process following the Interim Decision, dated August 7, 2018, until July 8, 2022. Bhanji argues for the first time that, rather than failing to act, he simply did not adhere to the strict procedural requirements outlined in Rule 19, which mandates that a Form 10 be file to reactivate the proceedings. He claims he informally initiated the re-activation process when he wrote to the Tribunal on December 3, 2018, and again on January 22, 2020.
[15] I do not agree. In order to request a re-activation process under Rule 14.4 the Tribunal needs to be advised as to whether the “original proceeding” (i.e. the grievances) have been concluded. Bhanji did not advise the Tribunal of the status of the grievances on December 3, 2018, nor on January 22, 2020, and he did not copy the other parties as required by the Tribunal’s Rules. Therefore, the re-activation process could not legally commence. This is not a matter of “strict compliance” with Tribunal Forms. Bhanji, as a matter of law, was not permitted to commence his re-activation request until the Tribunal became aware that his grievances were withdrawn. As set out in the Decision, Bhanji ought to have known his grievances were withdrawn, and in any event, it was his fault for failing to contact the intervenor union or the respondent to determine the status of his grievances. [21] Again, there is nothing unreasonable about the Tribunal’s analysis or conclusion with respect to this issue. Rule 14.4 of the Tribunal’s rules is clear that a request for reactivation “must set out the date the other legal proceeding concluded and include a copy of the decision or order in the other proceeding, if any.” Furthermore, Mr. Bhanji was advised of this requirement. He did not comply with the requirement, nor did he advise the Tribunal that the grievances had been withdrawn. His reference to rejecting a settlement offer from Enercare cannot be construed as notice that his grievances had been withdrawn. In fact, in many cases, once a settlement offer is rejected, the grievances proceed to a hearing.
[22] I also reject the suggestion that because the Tribunal in this case failed to explicitly mention the prejudice to Mr. Bhanji if he was not allowed to extend the time for his reactivation request this rendered the decision unreasonable. It is clear from the decision that the Tribunal was aware that if the extension was not granted Mr. Bhanji would not be able to proceed with his application. This is obviously a serious matter for Mr. Bhanji, but the Tribunal reasonably concluded, on the record before it, that Mr. Bhanji was the author of his own misfortune. It was his actions (or inaction) that put the Tribunal in the position where it was being asked to hear an application about events that occurred in 2016, more than seven years before the date that the Tribunal rendered its decision on the reactivation request. The Tribunal 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”.
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