Way back in 2008, the Ontario Human Rights Code was
amended to permit human rights claims to be piggybacked onto
wrongful dismissal actions in the Ontario courts. Prior to
that time, the only recourse for an employee with a discrimination
claim was to make a complaint to the [then] Human Rights
Commission. Some 5 years later, the Ontario Superior Court of
Justice has recently released its very first decision in a
joint wrongful dismissal/discrimination action.
The case in question was the September decision of Justice
Grace in Wilson v. Solis Mexican Foods Inc. Patricia
Wilson was a 16 month employee at the time of her termination, and
off work due to back problems. The reason given for Ms.
Wilson's termination was a corporate reorganization, but
the court found that reasoning "[defied] common sense" as
Ms. Wilson was never told about the impending reorganization while
it was taking place. The court looked closely at the
communications between Ms. Wilson's doctor and employer, and
found that the only conclusion that could be drawn was that the
employer was not happy with Ms. Wilson's ongoing back problems
and absences from work, or her requests for accomodation.
Justice Grace reiterated that as long as an employee's
disability is a factor in the decision to terminate, there will be
a finding of discrimination. That is the case whether the
disability is the sole factor or simply one small factor in the
decision-making process. In this case it was clear to the
judge that Ms. Wilson's back problems were a significant factor
in the decision to terminate, but the result would have been the
same even if her back problems were but one factor along with the
Having determined that Ms. Wilson had been discriminated
against, the court awarded her $20,000 due to the fact that she
"lost the right to be free from discrimination" and
experienced "victimization", and due to the fact that the
employer orchestrated her dismissal and was disingenuous both
before and during the termination. That amount was in
addition to the damages received in lieu of notice of
Interestingly, the court did not comment on whether or not
reinstatement of employment was an option, thereby leaving that
issue to another court on another day. While employees
pursuing complaints at the Human Rights Tribunal can seek
reinstatement, and while the Human Rights Code appears to
permit courts to make similar orders, we still have no guidance as
to whether reinstatement will become a tool used by our courts.
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