For the first time, the Ontario Superior Court of Justice has
awarded human rights related damages in relation to a wrongful
dismissal action. The award was based on the application of s. 46.1
of the Ontario Human Rights Code (the "Code"). Amendments
to the Code in 2008 granted Ontario Courts the ability to order
damages or other forms of relief for human rights infringements
through the operation of s. 46.1 (copied below).
46.1(1) If, in a civil proceeding in a court,
the court finds that a party to the proceeding has infringed a
right under Part I of another party to the proceeding, the court
may make either of the following orders, or both:
1. An order directing the party who infringed the right to pay
monetary compensation to the party whose right was infringed for
loss arising out of the infringement, including compensation for
injury to dignity, feelings and self-respect.
2. An order directing the party who infringed the right to make
restitution to the party whose right was infringed, other than
through monetary compensation, for loss arising out of the
infringement, including restitution for injury to dignity, feelings
and self-respect. 2006, c. 30, s. 8.
Patricia Wilson was terminated without cause after 16 months of
continuous employment. In addition to seeking damages related to
wrongful dismissal, Ms. Wilson stated she was terminated because of
her on-going disability and sought damages related to
The plaintiff commenced work with Solis Mexican Foods Inc. as an
Assistant Comptroller in January of 2010 but quickly moved into a
Business Analyst role by May of the same year. She was paid an
annual salary of $65,000 plus other employment benefits.
In November of 2010 the Plaintiff underwent her first official
performance review. The review was largely positive and her overall
performance was graded as satisfactory or better in each category.
In December of 2010 Ms. Wilson met with the HR Manager and
explained a back ailment she was suffering with. Within five days
of this meeting upper management had adjusted her performance
review and was concerned that the plaintiff "may not be suited
to" the defendant.
In March of 2011 Ms. Wilson took time off work related to her
back ailment and provided medical documentation to her employer.
The employer sought further medical information from the Plaintiff
and her family physician and was informed that the Plaintiff could
begin returning to work slowly by the end of March and return to
full time hours by April 18, 2011. The employer refused this plan
and stated that the employee should only return when capable of
full duties. Further communication occurred between the three
parties until the Plaintiff was ultimately terminated on May
19th, 2011. The employer cited the reason for
termination as the sale of the defendant's New Orleans Pizza
With respect to the Human Rights damages, Justice Grace noted
that discrimination has occurred if the Plaintiff's disability
formed any part of the decision to terminate her employment.
Ultimately the Court found her disability to play a significant
role in her termination. The temporal link between the
employer's revision of the performance review and the
employer's awareness of an ongoing disability was persuasive
for the Court. Grace J. was unconvinced of the employer's
explanation regarding the sale of the pizza business because the
possibility of corporate restructuring was not mentioned in a
single instance prior to termination.
The Court determined that the Plaintiff lost "the right to
be free from discrimination" and experienced
"victimization". Aggravating factors considered by the
Court included seriousness of the breach and a finding that the
employer was disingenuous both before and during termination. The
Court awarded Ms. Wilson $20,000 in damages pursuant to s.46.1 of
the Code and three months of common law reasonable notice based on
the typical Bardal factors.
This decision represents an ongoing movement in the labour and
employment field to allow various forums to be flexible in the
remedies they fashion. Allowing a single forum to determine varying
heads of liability can provide a more expeditious process but also
means employers must be prepared to defend against a variety of
allegations in a single hearing.
The importance of having a fully functioning workplace
disability policy and return to work program is made clear by this
case. The lawyers at CCP are able to assist with drafting
accommodation policies and procedures and providing guidance to
ensure that employers are fully compliant with Human Rights and
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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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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