Canada: Employee Reinstated, Awarded Almost 10 Years Of Back Pay And Other Compensation By Ontario Human Rights Tribunal

Over a year after its decision holding the Hamilton-Wentworth District School Board (the School Board) liable for discriminating against former employee Sharon Fair (Ms. Fair) by failing to accommodate her post traumatic stress disorder (PTSD) and terminating her employment, the Human Rights Tribunal of Ontario (HRTO) has ordered the School Board to reinstate Ms. Fair and pay her an amount equal to nearly 10 years' worth of back pay and benefits. The School Board was also ordered to pay $30,000 to Ms. Fair as compensation for injury to her dignity, feelings and self-respect.

Liability of the School Board

Ms. Fair had been employed with the School Board for approximately 16 years when she was terminated in July 2004. Starting in 1994, she acted as Supervisor, Regulated Substances, Asbestos, a position which she held until her termination. In 2001, she developed a generalized anxiety disorder resulting from the highly stressful nature of her job and her particular fear that she would be held personally liable for a breach of Ontario's Occupational Health and Safety Act (the OHSA) if she made a mistake in her duties relating to asbestos removal. She was hospitalized for a time, diagnosed with PTSD and depression, and later received long-term disability (LTD) benefits.

Approximately two years later, and following an assessment determining that Ms. Fair was capable of gainful employment, her LTD benefits ceased. While medical documentation established that Ms. Fair was not totally disabled, there was, however, some ambiguity as to whether she could fill a position in which there was a risk of personal liability under the OHSA. As the School Board was of the view that all supervisory or comparable positions involved some risk of personal liability, it took the position that Ms. Fair could not perform the essential duties of her position and could not be accommodated. She was terminated shortly thereafter. Ms. Fair subsequently filed an application with the Ontario Human Rights Commission (the Commission) (which prior to 2008 was the government body responsible for dealing with human rights complaints) alleging that the School Board failed to accommodate her PTSD and terminated her employment as a result.

While Ms. Fair's application was filed in November 2004, the Commission had not dealt with the matter for some 4 years. In 2009 Ms. Fair filed a fresh application with the HRTO pursuant to the transitional application rules then in effect. A decision in the matter was ultimately not released by the HRTO until February 2012. In its decision, the HRTO acknowledged that while there was some ambiguity as to whether Ms. Fair could fill positions involving personal liability, it held that once it was established that Ms. Fair was capable of gainful employment it was incumbent on the School Board to clarify this ambiguity and work with Ms. Fair to determine what risk of liability she could accept. The School Board was aware of Ms. Fair's limitations and it did not canvass possible solutions for her accommodation needs. It was also held that although Ms. Fair could have been a supervisor in a position other than asbestos removal, the School Board's Controller had refused to discuss alternate positions she might fill, and as a result, she was not considered for appropriate work opportunities. The School Board also rejected Ms. Fair's application for a posted supervisor position in June 2003, a position for which she was qualified.

While the decision established the liability of the School Board, the HRTO did not rule on the appropriate remedy. Instead, it was decided that a further hearing would be held if the parties were unable to agree in this regard.

Remedial Measures

As the parties failed to reach such an agreement, on March 14, 2013 the HRTO issued its remedial decision and ordered the School Board to take a number of significant actions, including the following:

  • To reinstate Ms. Fair to suitable alternative employment and adjust her length of seniority accordingly;
  • To pay her the amount of the full-time wages she would have earned (with the exception of any income and non-repayable benefits she actually received from that date) from June 26, 2003 (the date the supervisor position was posted) until the date of reinstatement;
  • To pay her pension contributions to the Ontario Municipal Employees Retirement System and to the Canada Pension Plan (or compensate her for any losses arising from lost contribution years) as if she had been employed throughout the period;
  • To pay for out-of-pocket medical and dental expenses which would have been covered by her benefit plans had she been accommodated and to compensate Ms. Fair for the adverse tax consequences of receiving almost 10 years of pay in one lump sum; and
  • To pay Ms. Fair $30,000 as compensation for the injury to her dignity, feelings and self-respect.

Pre and post-judgment interest was also awarded on the damages ordered. Regarding pre-judgment interest specifically, such interest was notably awarded from the date of the complaint even though awarded amounts would have been paid out over time and were not due and payable at the time Ms. Fair's application was filed. While the School Board argued that a reinstatement order would be unfair in light of the time that had elapsed since Ms. Fair's termination, the HRTO noted that Ms. Fair submitted her original application in a timely way and had since consistently sought reinstatement and that the delay in proceedings was largely attributable to the Commission and not Ms. Fair. The HRTO's determination that reinstatement was preferred was also influenced by the following holdings: (i) that Ms. Fair would have continued to be employed by the School Board had she not been terminated and the purpose of human rights legislation is to make a complainant "whole"; (ii) that Ms. Fair was still capable of full-time employment at the School Board; and last (iii) there was no animosity between Ms. Fair and the School Board and those individuals responsible for her termination no longer worked at the School Board.

With respect to its award for lost wages and benefits, the HRTO justified its order by referring to the general principle holding that the purpose of compensation is to restore a complainant as far as is reasonably possible to the position they would have been in had the discrimination not occurred. This general principle applied despite the fact that almost 10 years had passed since Ms. Fair's termination. The HRTO was also satisfied that Ms. Fair had made sufficient efforts to mitigate her losses following her termination, as she obtained alternative part-time employment and continued to look for a full-time position.

While Ms. Fair also claimed for compensation relating to the loss of the spousal life insurance plan that ended on her termination, the HRTO noted that Ms. Fair's spouse had since developed serious medical issues which would affect the premium of such insurance upon her reinstatement. It was held that this loss was too speculative and, in any event, she failed to mitigate this loss by purchasing other insurance following her termination.

Our Views

This case illustrates how serious the consequences can be for employers who do not take seriously their duty to accommodate employees with disabilities, particularly in cases where reinstatement is sought and remains a viable option. The HRTO will not hesitate to issue significant damages awards if it deems such awards necessary to properly address discriminatory conduct on the part of an employer. Further, the decision also serves as a reminder that accommodation obligations under the Human Rights Code are a two-way street, and that even in the face of ambiguous medical documentation an employer should take steps to clarify an employee's restrictions and limitations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions