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JR - Limitations - Post-Amend (5). Academy of Learning Career College v. Ashar
In Academy of Learning Career College v. Ashar (Ont Div Ct, 2026) the Ontario Divisional Court considered "(s)everal motions and a r. 2.1 issue", this where the "underlying proceeding is an intended application for judicial review of a decision of the Human Rights Tribunal of Ontario" - and that challenging an HRTO award of "$25,000, and making ancillary orders, for discrimination in connection with Mr Ashar’s employment".
Here Corbett J illustrates what may be a coming tendency (at least with him) to impose tight conditions on the granting of discretionary orders (here a JR limitation time extension and stay pending JR, but I first noticed it with RTA auto-stay and related matters):Extension of Time
[4] The Moving Party seeks an extension in time to commence an application for judicial review and a stay of the HRTO order pending the application.
[5] The Moving Parties: (i) intended to seek judicial review within the thirty-day deadline provided in the Judicial Review Procedure Act, (ii) thought the application had been commenced, and (iii) thought that the commencement of the application stayed the HRTO decision. The problems leading to non-commencement were challenges encountered filing documents, and errors made by the Moving Parties’ counsel (influenced in part by counsel’s serious health challenges). The Moving Parties acted with reasonable promptness once the missed deadline was clear to them.
[6] The prejudice to the Responding Party is delay in collecting the $25,000 awarded by the HRTO. That prejudice would have been attenuated if the Responding Party had consented to the extension on terms limiting the application to arguable grounds and with a schedule for reasonably prompt exchange of materials and scheduling of the application.
[7] On the merits, there is an arguable procedural fairness issue available to the Moving Parties: they had delivered documents to the Responding Party and the HRTO earlier in the process 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 that the earlier disclosure would satisfy the subsequent disclosure direction. Notice and disclosure are aspects of procedural fairness, and considerable deference is shown in this court for the HRTO’s choice of procedures in achieving fair notice and disclosure prior to a hearing, but where the Tribunal takes an overly formalistic approach to their procedural requirements leading to a result that a party is unable to present its side of the case the Tribunal, this court may well intervene. These comments are not intended to express a view on the ultimate disposition of the procedural fairness arguments, but only to explain why I consider the procedural fairness arguments to be arguable. Further, this explanation is not intended to limit the procedural fairness arguments available to the Moving Party on the application: if any procedural fairness ground is available, then this weighs in favour of granting the extension.
[8] As stated above, Shore J. noted the parties’ agreement that the scope of the application be limited to issues of procedural fairness. This was a reasonable agreement: I see no arguable basis that the impugned decision is substantively unreasonable in light of the record that was before the HRTO.
[9] I am satisfied that a balancing of the factors in the test for an extension favours granting the requested extension. I would impose some terms to ameliorate the prejudice to the Responding Party, as set out in my disposition, below.
Stay Pending the Application
[10] On the Responding Party’s evidence, he is in difficult financial circumstances (part of his evidence that he is prejudiced by delay in being able to enforce the HRTO’s award). In my view, on the basis of this evidence, money paid to the Responding Party pending the hearing of the application would be difficult (and possibly expensive) for the Moving Parties to recover if they prevail on the application.
[11] This said, the delay in this matter has caused prejudice to the Responding Party and will cause further delay in his recovery of the award if he prevails in the application. To ameliorate this prejudice, I would direct the Moving Parties to pay $27,000 into court, to the credit of this application, as security for the impugned HRTO award, and accrued interest. This payment shall be made within sixty days, and the Moving Parties shall confirm to the court by email, copied to the Responding Party, that they have made this required payment.
[12] Enforcement of the HRTO award is stayed pending final determination of the application or other order of the Divisional Court.
....
Terms of the Extension
[14] I would direct a reasonably prompt hearing of the merits of the application, but a precise schedule cannot be established before production of the HRTO’s Record of Proceedings. In these circumstances, I would direct as follows:(a) Court staff are asked to issue the Notice of Application in the form tendered by the Moving Parties on this motion, and to provide a copy of the issued notice of application to the parties (including the HRTO).
(b) The application shall be confined to issues of procedural fairness, as agreed before Shore J. and as directed by this court.
(c) The Moving Parties shall pay $27,000 into court to the credit of this proceeding by August 21, 2026, and shall advise the court by email, with copies to the Responding Party and the HRTO, that the payment has been made as directed by August 24, 2026.
(d) If they have not already done so, the Moving Parties shall pay the fee for issuance of the notice of application by June 26, 2026.
(e) The HRTO is requested to advise the court by email by June 20, 2026, of the date by which it will deliver its Record of Proceedings.
(f) The court shall set deadlines for the exchange of application materials once it has received a response from the HRTO. The parties should expect that they will each have about 60 days to provide their materials, and that the JRTO shall have about an additional 14 days after the deadline for the materials of the Responding Party.
(g) The parties should expect that the hearing of the application will be scheduled late in 2026 or in early 2027.
(h) The parties may not bring further motions or take additional steps in this application without first seeking a direction from the case management judge.
(i) D.L. Corbett J. is seized with case management of this application unless he or an administrative judge of the Divisional Court subsequently directs otherwise.
(j) If the Moving Parties fail to make the payments required by (b) and (c), above, the Responding Party may request the court to dismiss the application by email copied to the Moving Parties and the HRTO. . Brar v. ATU Local 113
In Brar v. ATU Local 113 (Ont Div Ct, 2026) the Ontario Divisional Court denies a motion to extend time to commence a JR [under JRPA s.5(2)]:[2] Section 5(1) of the Judicial Review Procedure Act requires that an application for judicial review be brought within 30 days of the decision at issue. Section 5(2) gives the court discretion to extend the time where there are apparent grounds for relief and no substantial prejudice or hardship will result. In that regard, the court may consider the length of the delay and any explanation offered for it: Unifor v. Scepter, 2022 ONSC 5682 (Div. Ct.).
[3] The moving party relies on the history of his labour dispute to justify his delay. Those circumstances arise from his termination from the respondent TTC in 2019. The respondent ATU Local 113 is the moving party’s Union. The respondent William Kaplan was the arbitrator for the resulting grievance. The grievance proceeded to a hearing during which the TTC agreed to reinstate the moving party. The arbitration continued on the issue of compensation. Arbitrator Kaplan awarded compensation of $175,000, as well as reimbursement of certain expenses. The moving party was dissatisfied with the financial outcome but resumed work at the TTC.
[4] After obtaining legal advice, the Union declined to bring an application for judicial review from the above award. The Union notified the moving party of that decision in October 2023. At the moving party’s request, the Union confirmed its position in writing by an email in February 2024.
[5] The moving party did not proceed with a late attempt to bring the judicial review. The moving party started an unfair labour practice complaint against the Union but withdrew it in December 2024. There was then another delay before this motion was submitted in April 2025.
[6] With respect to his delay, the moving party relies on his unfair labour practice complaint even though it was ultimately withdrawn. The moving party also relies on a request for his file from the Union in August 2024. At that time, there was a dialogue about which documents were available. That dialogue does not show that the request was a barrier to commencing an application for judicial review. And the moving party relies on a period of bedrest following surgery in August 2023, without providing supporting medical evidence and despite being able to bring the unfair labour practice complaint after that time. Although I have taken all of this into account, it is a weak explanation at best.
[7] Further, the delay here is long. In Unifor, an eight-month delay required a robust explanation. Here, the delay is almost eighteen months.
[8] Moving to the merits, the moving party would first need to overcome the law that provides that a unionized employee cannot seek judicial review of an arbitration award where the union decides not to, subject to exceptions that do not appear to apply here: see, e.g., Gilinsky v. Arbitrator Joseph D. Carrier, 2012 ONSC 5497 (Div. Ct.). The moving party relies on the email from the Union confirming that it was not pursuing judicial review. That email said that the moving party was free to seek his own remedy. With respect to that email, the Union submits that when read in context, it referred to pursuing an unfair labour practice complaint, which is what the moving party did pursue.
[9] Even if the application was heard on the merits, the presumptive standard of review is reasonableness and there is considerable deference to an arbitrator in the labour relations context. Before this court, the moving party submits that the Arbitrator made legal errors in determining compensation. The moving party relies on principles from private employment law. The respondents dispute the characterization of and relevance of those cases and also note that to some extent the moving party seeks to challenge the Arbitrator’s factual findings on the evidence. Further, there is no merit to an application as against the Arbitrator personally. Nor are the allegations of procedural unfairness persuasive.
[10] I am therefore doubtful that there are apparent grounds for relief. There is then the question of prejudice. Under s. 5(2) of the Act, the issue is whether substantial prejudice would result if the extension were granted. The lengthy delay here is sufficient to give rise to a presumption of prejudice to the respondents. Further, the importance of finality in labour relations is a significant factor. I find that there would be substantial prejudice to the respondents if the extension is granted. . Joseph v. Human Rights Tribunal of Ontario
In Joseph v. Human Rights Tribunal of Ontario (Ont Div Ct, 2026) the Ontario Divisional Court dismissed an HRTO JR, here brought against an order dismissing a "complaint as abandoned".
Here the court considers a JR limitation time-extension issue [JRPA s.5(2)]:The Impugned Dismissal Decision
[17] Mr Tyler also asks this court to review the original dismissal decision, which was made on May 23, 2023. Subsection 5(1) of the JRPA provides that an application for judicial review shall be brought within 30 days of the impugned decision. This court has the discretion to relieve from this deadline: JRPA, s. 5(2). This application was brought more than 2.5 years after the dismissal decision.
[18] I would decline to extend the time to apply for judicial review of the dismissal decision for three reasons:(i) The delay after counsel knew of the decision (in January 2025) to the date this application was commenced is not adequately explained. I would adopt the analysis and conclusion of the Tribunal in respect to the delay between January 2025 and October 2025: it is not reasonable or explained.
(ii) Applicant’s counsel made a series of inquiries to the Tribunal between May and August 2023. The Applicant then did nothing between August 2023 and January 2025. This period of inaction is not explained or reasonable. It is not reasonably explained on the basis that the Applicant was “waiting” for a response from the Tribunal.
(iii) Where the very issue of whether an extension should be granted has been heard and decided by the Tribunal, I would confine the Applicant’s right of redress to this court to a review of the reconsideration decision: the reconsideration process is an adequate right of redress for a situation such as that presented in this case, and even though this court has jurisdiction to entertain a judicial review of the original dismissal decision, I would decline to exercise that discretion on the basis that there is another adequate route of recourse available to the Applicant, a route which he has pursued unsuccessfully: JRPA, s. 2(5); Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541; Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 CanLII 145 (SCC), [1995] 1 S.C.R. 3; Harelkin v. University of Regina, 1979 CanLII 18 (SCC), [1979] 2 S.C.R. 561. [19] Therefore, I would decline to grant an extension to permit Mr Tyler to apply for judicial review of the dismissal decision.
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