The Divisional Court recently upheld one of the
most noteworthy Ontario Human Rights decisions of 2013 in which the
Tribunal ordered the reinstatement (with back pay totalling
$419,000) of an applicant whose employment had been terminated for
almost a decade. CCPartners blogged on the original decision
On appeal, the employer argued that reinstatement was a unique
and uncommon remedy that the Tribunal had generally exercised in
limited circumstances. The employer argued further that the
tribunal ought not to have imposed "that remedy so long after
the events giving rise to the complaint".
The Court rejected the employer's argument and agreed with
the applicant's submission that "the goal of the remedial
provisions of the Code ought not to be thwarted because of the
passage of time that was largely beyond the control" of the
applicant. In this case, the delay in proceeding to a hearing was
not caused by the applicant.
The Court 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" and
concluded that the Tribunal's decision with respect to remedy
was "intelligible, transparent and with justification. The
outcome is within the range of reasonable expectation".
In addition to upholding the Tribunal's decision, the Court
awarded an additional $15,000 in costs against the employer in
respect of the judicial review process.
The important lessons for employers to take away from this
decision are as follows:
While it is expected that reinstatement will continue to be
uncommon at the HRTO, the possibility of reinstatement exists on
any termination that is found to result from unlawful
Since this decision makes clear that the passage of time will
not necessarily diminish an employee's right to reinstatement,
it may encourage the Tribunal to order reinstatement even when long
periods of time have passed since the end of the employment
Employers should give serious consideration to the possibility
of reinstatement after attempts at accommodation have failed. It is
now more important than ever to ensure that reinstatement would
constitute undue hardship before ending the employment
The School Board is currently seeking leave to appeal from the
Court of Appeal for Ontario and CCPartners will keep you posted of
any updates as they occur.
The lawyers at CCPartners can assist employers with the
difficulties associated with accommodation under the Human Rights
Code and with any Human Rights complaints they may be faced
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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