In Hamilton-Wentworth District School Board v
Fair, the Ontario Divisional Court upheld two noteworthy
decisions of the Ontario Human Rights Tribunal. In the
Tribunal's first decision, it found that the
Hamilton-Wentworth District School Board discriminated against its
employee, Sharon Fair, by failing to accommodate her
disability-related needs. In its second decision, the Tribunal ordered that
Fair be reinstated more than nine years after her employment was
terminated and it also awarded her damages of over $400,000 —
one of the largest damages awards made by the Tribunal to date.
These decisions serve as a reminder to Ontario employers about
the need to canvass all possible alternatives when faced with a
request for accommodation, including reinstatement, and to
accommodate employees to the point of undue hardship.
Fair was the "Supervisor, Regulated Substances,
Asbestos" with the Board and oversaw asbestos removal
projects. Fair's position was the source of significant stress
and, as a result, she was diagnosed with an anxiety disorder in
2001. In 2002, after being further diagnosed with depression and
post-traumatic stress disorder, Fair commenced long-term disability
leave. When her disability benefits ended in 2004, Fair looked to
the Board to accommodate her to the point of undue hardship by
placing her in a less stressful position. The Board denied that a
suitable position existed and it terminated Fair's employment
in July 2004.
In response, Fair filed a human rights complaint, which
eventually reached the Tribunal in 2008. In 2012, the Tribunal
decided that the Board failed to accommodate Fair when it refused
to place her in a suitable, vacant position. In 2013, the Tribunal
ordered the Board to reinstate Fair despite the lengthy passage of
time and to pay her more than $400,000 in damages for back pay
(including approximately nine years of lost wages, banked sick
days, pension and CPP contributions and out-of-pocket medical and
dental expenses) as well as $30,000 for injury to her dignity,
feelings and self-respect (which is on the high end of general
damages awarded by the Tribunal). Though the Tribunal has the
jurisdiction to reinstate employees or order compensation in lieu
of reinstatement, this power has rarely been exercised.
The Board brought an application before the Divisional Court for
judicial review of the Tribunal's decisions. The Board
argued the decisions of the Tribunal should be quashed for a number
of reasons, including that the award and reinstatement constituted
an unreasonable remedy.
The Divisional Court's Decision
The Divisional Court dismissed the Board's application for
judicial review finding that the remedy and reinstatement were
"within the range of reasonable expectation", though it
acknowledged that the award was uncommon. The Divisional Court
further found the Tribunal's broad remedial authority to grant
reinstatement was not limited by the passage of time and that the
Tribunal's decision was intelligible, transparent and
justified. Perhaps frustratingly for employers, the Divisional
Court did not lower the award even though some of the delay in the
hearing of the application was caused by structural changes at the
Lesson for Employers
While reinstatement orders are fairly common in unionized
workplaces, these types of orders are rare in non-unionized
settings. In dismissing the application for judicial review, the
Divisional Court has potentially paved the way for more
reinstatement orders to be made by the Tribunal and by the courts
in civil proceedings involving wrongfully terminated employees. As
such, Ontario employers should be sure to carefully consider
reinstatement or a transfer to an alternate position as a viable
option for accommodating employees, regardless of how much time has
passed since the employees were actively at work.
In addition, the Divisional Court's endorsement of the
Tribunal's damages award casts doubt on the commonly held
perception that damages awards on human rights applications will
typically be low. Indeed, substantial liability can flow from
breaches of the Human Rights Code, especially where an
applicant is insistent on his right to reinstatement. The
Divisional Court's decision also serves as a reminder to
employers that awards for injury to dignity, feelings and
self-respect are on the rise. As such, it is imperative that
employers actively respond to accommodation requests as quickly and
effectively as possible.
Finally, employers should not presume that delaying the
prosecution of human rights applications will be to their benefit
on the basis that the claimant will lose interest. This decision
demonstrates that the Tribunal and the courts will not excuse any
delay when making an award.
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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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