Unlike our court, theOntario Human
Rights Tribunalhas the power to reinstate
employees to their employment in appropriate cases. Normally, a
reinstatement order will also be accompanied by some form of
compensation award in respect of lost wages or "back
pay". In the past, this powerful reinstatement remedy has only
been very rarely ordered by theTribunal. In a recent case,
however, the Tribunal has demonstrated its readiness to award
reinstatement and back pay, and in dramatic fashion.
In Fair v. Hamilton Wentworth District School
Board1 , the Tribunal ordered not only that Sharon
Fair be reinstated to her employment with the Hamilton Board, but
that she also be compensated for the entire nine year period of her
unemployment between 2003 and her ultimate reinstatement in 2012.
The Tribunal ordered the payment to Ms. Fair of approximately
$420,000.00 in damages representing lost wages, interest, pension
adjustments and reimbursement of benefits.
Fair had been employed by the Board as Supervisor, Regulated
Substances, Asbestos. The stressful nature of her job and her fear
of making a mistake in the area of asbestos removal caused Fair to
develop a generalized anxiety disorder. In a 2012 decision, the
Tribunal found that the Board had failed to adequately accommodate
Fair's disability leading up to the termination of her
employment in 2004.
In determining that reinstatement was the appropriate remedy in
the circumstances, the Tribunal relied on the decision of the
Supreme Court of Canada in Alberta Union of Provincial
Employees v. Lethbridge Community College2 , where
in the context of a unionized (grievance arbitration) environment,
the Court held that "as a general rule, where a
grievor's collective agreement rights have been violated,
reinstatement of the grievor to her previous position will normally
be in order. Departure from this position should only occur where
the arbitration Board's findings reflect concerns that the
employment relationship is no longer viable."
The Tribunal's decision is potentially very important for
The Tribunal has adopted a test from
the unionized environment that would indicate reinstatement, as a
rule, to be the appropriate remedy in most cases, unless it can be
demonstrated that continued employment is not viable.
The Tribunal has also demonstrated
its willingness to award significant damages as compensation for
back pay where even "extraordinary" delay has occurred,
so long as the delay is not directly attributable to the
This decision could well mark a turning point in the Ontario
Human Rights landscape. The extent to which the Fair case
influences the frequency of future awards of reinstatement by the
Tribunal remains to be seen in future cases. Employers faced with
allegations of Human Rights violations should nonetheless be aware
of the power of this remedy, and the Tribunal's recently
illustrated willingness to swing the "big stick" that it
has always wielded but seldom previously used.
Originally published June 2014.
1 Fair v. Hamilton Wentworth District School Board, 2013
2 Alberta Union of Provincial Employees v. Lethbridge
Community College, 2004 SCC 28
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