In a March 2013 decision that is likely to be challenged in
the courts, the Ontario Human Rights Tribunal has ordered the
reinstatement of an employee a decade after she went on disability
leave, together with loss of wages from June 2003 until the date of
In a 2012 decision in Fair v. Hamilton-Wentworth
District School Board, adjudicator Joachim found that the
respondent school board had discriminated against the employee by
failing to accommodate her disability. In particular, in 2001
she developed an anxiety disorder as a result of the highly
stressful nature of her job, and went on long-term
disability. She was subsequently assessed as capable of
gainful employment in 2004. From mid 2003 onwards however,
the school board failed to take any steps to offer her available
alternative work, even though similar jobs were advertised and the
employee underwent job hardening in positions for which the
employer was seeking employees.
In March 2013, adjudicator Joachim rendered her decision in
relation to the remedy for this case of discrimination. She
found that because: (i) the employee had commenced her initial
complaint with the Ontario Human Rights Commission only 4 months
after her employment was terminated; (ii) the delay was largely at
the hands of the Commission; and (iii) the employee had confirmed
that she was seeking reinstatement when her application was
subsequently filed with the Tribunal, there was no good reason to
not order reinstatement due to the passage of time.
As a result, the employer was ordered to reinstate the employee
despite her absence from work for almost a decade. In
addition, the employer was ordered to pay the employee's lost
wages, benefits, expenses and pension contributions over that
period of time, which amounted to over $400,000 (subject to any
employment insurance and related deductions). Finally,
adjudicator Joachim awarded the Applicant $30,000 as compensation
for the injury to her dignity, feelings and self-respect.
Despite the likelihood of an appeal, this is an important
decision as it illustrates the potential liability associated with
a failure to return an employee to work after his or her disability
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On Thursday, September 22, 2016, Dentons hosted a panel discussion about the management of liabilities and risks associated with environmental crises, including potential liabilities for directors and officers and provided insight into risk and liability techniques associated with environmental crisis management.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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