Although reinstatement in the Human Rights context is considered
a unique and uncommon remedy, the Ontario Divisional Court recently
refused an application for judicial review of a decision of the
Ontario Human Rights Tribunal (the "Tribunal") wherein an
employee was reinstated almost 10 years after her last day of work.
This decision may be indicative of a move by tribunals to consider
reinstatement as a remedy in the appropriate case and therefore
must be considered by employers when accommodating employees.
Before the Tribunal, the evidence was that the applicant had
developed an anxiety disorder in reaction to the stressful nature
of her job as "Supervisor, Regulated Substances,
Asbestos" with the Ontario School Board (the
"Board"). After receiving long term disability benefits
and being deemed capable of returning to work, two suitable
positions were available with the Board. Instead of offering
one of these positions to the applicant, she was terminated on the
assertion that the Board was unable to accommodate her by finding a
suitable replacement position because of work restrictions related
to her disability.
The applicant filed a complaint with the Ontario Human Rights
Commission in 2004, but the complaint was not heard. Under
transitional provisions in the Ontario Human Rights Code,
R.S.O. 1990 c H-19 (the "Code"), she was permitted to
initiate new proceedings before the Tribunal in 2009. In
these new proceedings, the complainant requested
reinstatement. The application was heard by a panel of the
Tribunal in January and February of 2012. The Tribunal found that,
on the evidence, the Board never had a real intention to
accommodate the applicant and resultantly failed in that duty.
Thus, the Board had discriminated against the applicant on the
basis of her disability. The Board argued that an order of
reinstatement would be unfair due to the passage of time. The
Tribunal found that the delays were not attributable to the
applicant and that the passage of time, although it would have had
the effect of eroding the applicant's skills, was not enough on
its own to establish prejudice to the Board.
When deciding on a remedy, the Tribunal found support in a
Supreme Court of Canada decision that held, in a collective
bargaining context, that reinstatement should only be avoided where
the employment relationship is no longer viable. Animosity
between the employer and employee could be an impediment to
reinstatement but in the case at hand, the applicant's evidence
demonstrated that she held no ill will towards the Board,
especially since the individual employees of the Board that were
responsible for the decision to terminate her were not still
employed there. The Tribunal ordered that the applicant be
reinstated to an equivalent position to her previous job, be
provided with a reasonable training period, and be compensated for
out of pocket expenses, lost wages and benefits, and injuries to
her dignity, feelings and self-respect in an amount calculated at
On the application for judicial review by the Divisional Court,
the Board argued that the remedy of reinstatement should not have
been exercised by the Tribunal, as it was meant to be a unique and
uncommon remedy and was not appropriate due to the passage of time
between the events giving rise to the complaint and the decision.
As the applicant was not responsible for the delay, and the
decision of the Tribunal was "within the range of reasonable
expectation", the Court refused the application for judicial
review. The Court noted that the "Code provides the Tribunal
with broad remedial authority to do what is necessary to ensure
compliance with the Code. It is fair to say that while
reinstatement is unusual, there is no barrier or obstacle to this
remedy in law". It further awarded $15,000 in costs against
the employer in addition to damages awarded by the
Whether this case will be considered by the Ontario Court of
Appeal is not yet known, but in the interim and should the decision
stand, employers should be increasingly cognizant of the
possibility of the use of reinstatement as a remedy by Human Rights
Tribunals. Although it will likely remain an uncommon remedy, this
decision clearly supports the position that in the appropriate
case, where there is no animosity between the parties,
reinstatement of an employee terminated due to discrimination in
violation of Human Rights legislation will be considered by Human
Rights Tribunals. The passage of time will not foreclose the
availability of reinstatement as a remedy. Employers must
thoroughly consider whether reinstatement equals undue hardship
prior to terminating an employee. Field Law can help employers with
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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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.
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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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