You may recall that last year, the Ontario Human Rights Tribunal
("the Tribunal") raised the eyebrows of employers when it
ordered that a terminated employee be reinstated to her position
with full seniority almost a decade after she had left the
workplace. In Fair v. Hamilton-Wentworth District School
Board, 2013 HRTO 440 ("Fair"), the employee
was awarded, among other things, reinstatement (which included nine
years of back pay) and $30,000 for compensation for the injury to
her dignity, feelings and self-respect. To read our prior e-lert on
this decision, click
Until recently, the Tribunal had generally been of the view that
its reinstatement powers should be exercised in limited
circumstances. As a result, many were surprised to see the Tribunal
reinstate an employee almost ten years after her termination. Such
a decision results in an uncharacteristically large damages award
and also leaves the employer with the undoubtedly uncomfortable
task of re-integrating the employee back into the workplace.
It was therefore no surprise that the employer in Fair
brought an application for judicial review of the Tribunal's
decision before a panel of the Ontario Superior Court of Justice,
Divisional Court ("Divisional Court"). Among the several
grounds raised, the employer challenged the appropriateness of the
reinstatement award in the circumstances.
On September 29, 2014, the Divisional Court released its decision
on the application,1 upholding the decision of the
Tribunal and awarding an additional $15,000 in costs against the
employer in respect of the judicial review process.
The Divisional Court made short order of the employer's quarrel
with the reinstatement award. It held that the Tribunal has broad
remedial authority and that, while reinstatement is unusual, there
is no barrier or obstacle to the remedy at law. The Divisional
Court concluded that the Tribunal's decision with respect to
remedy is "intelligible, transparent and with justification.
The outcome is within the range of reasonable
While one could argue that such a result was not within
anyone's reasonable expectation at the time, with Court
approval of the Tribunal's decision in Fair, employers should
now have little doubt that the Tribunal's power to reinstate is
a risk on any termination that is found to result from unlawful
1Hamilton-Wentworth District School Board v.
Fair, 2014 ONSC 2411
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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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