Court signals best practice for employers even while upholding late dismissal
An Ontario court has upheld a human rights tribunal's decision to dismiss a discrimination claim filed more than four years late, but not without raising serious concerns about an employer's duty to keep tribunals informed when circumstances change.
In a decision released February 11, 2026, Justice Sachs of the Ontario Superior Court's Divisional Court examined whether Enercare Home and Commercial Services Inc. should have told the Human Rights Tribunal of Ontario when employee grievances were withdrawn — after the company had specifically requested the tribunal defer the employee's discrimination case until those same grievances concluded.
Alkarim Bhanji was terminated in December 2016. His union filed grievances and he filed a discrimination application with the tribunal. Enercare requested a deferral until the grievances finished. The grievances were withdrawn in May 2018 due to Bhanji's failure to communicate with his union, but the tribunal issued the deferral order anyway in August 2018 — unaware the grievances no longer existed. Bhanji filed his reactivation request in July 2022, more than four years after the grievances ended.
The deferral that shouldn't have been
The tribunal rejected Bhanji's late reactivation request, citing the four-year delay, lack of reasonable explanation, and prejudice to Enercare. The tribunal found 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."
Bhanji argued that neither Enercare nor his union Unifor told him the grievances were withdrawn. More importantly, he contended that Enercare breached its duty of candour by not informing the tribunal the grievances had ended — rendering the deferral order unnecessary.
The tribunal accepted the employer's position that there was no legal duty to update the tribunal. It found "there is no basis in law in support of Bhanji's assertion that its counsel had a duty of candour to advise the Tribunal of the ongoing status of the grievance arbitrations."
A troubling judgment call
While Justice Sachs ultimately upheld the tribunal's decision as reasonable, he expressed discomfort with Enercare's approach. He wrote: "I have some difficulty with this reasoning. In my view, while I can understand that Enercare's counsel may have been paying less attention to the file given the apparent lack of interest displayed by Mr. Bhanji and made a judgment call that his duty to his client meant that he should 'let sleeping dogs lie', it is my view that Enercare, having made the request for a deferral, did have a duty to advise the Tribunal when it became clear that there was no longer any need for the deferral."
The judge added: "In addition, when it received the order, it should have advised the Tribunal that the order was no longer necessary."
However, Justice Sachs stopped short of finding this unreasonable, noting "this is an issue about which reasonable people can disagree."
When employee inaction proves fatal
Despite concerns about Enercare's silence, the court found the outcome turned on Bhanji's own failures. The tribunal had specifically advised him that reactivation requests must be filed "within sixty days of the conclusion of the other proceeding."
Bhanji argued his letters to the tribunal expressing desire to proceed should have been treated as informal reactivation requests. The tribunal rejected this, stating: "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."
The tribunal found that Bhanji "ought to have known his grievances were withdrawn" after his union repeatedly warned him they would be withdrawn if he failed to respond.
See Bhanji v. Enercare Home and Commercial Services Inc., 2026 ONSC 202
