Back in April 2013, we reported on the decision of the Human
Rights Tribunal of Ontario to order the reinstatement of a
dismissed employee with full back pay and other significant
monetary remedies following what was then an 11.5 year absence. The
Tribunal had held that the employer had breached the Ontario Human
Rights Code in failing to take reasonable steps to accommodate the
employee's disability following a lengthy sick leave:
The Divisional Court dismissed the employer's application for
judicial review in September, 2014.
In rejecting the employer School Board's appeal, the Court
found that the Tribunal's determinations both with respect to
the failure to accommodate and the remedy of reinstatement were
reasonable. On the failure to accommodate to the point of undue
hardship, the Court stated that the Tribunal's decision was
"fact-driven and one that it was entitled to make based on the
evidence before it". As for the remedy, while noting that
reinstatement is rarely used in the human rights context, the Court
found that the Tribunal has broad remedial authority under the Code
as well as "specialized expertise" that "is accorded
a high degree of deference". The passage of several years was
found not to be determinative in itself. The decision as to whether
reinstatement ought to be ordered is "context-dependent".
In this case the employment relationship was not fractured nor had
the delay materially affected Fair's capabilities, in the
Of particular interest was the Court's comment that in an
appropriate case an employer may be obliged to place a disabled
employee in a position for which the employee "is qualified
but not necessarily the most qualified". It favourably cited a
1991 grievance arbitration decision, noting that the employer's
obligation to accommodate under the Code prevailed over the
seniority rights of the grievor who was competing for a vacant
Absent a successful application for leave to appeal to the
Supreme Court of Canada (there has been no indication as yet by the
School Board of such intention), Fair will be reinstated and
receive hundreds of thousands of dollars in back pay and interest,
along with other material monetary payments, following what is now
a 14 year absence.
What Employers Should Know
This decision makes it clear that Ontario courts will give
Tribunal decisions great deference. Further, the Tribunal's
remedial authority is extremely broad and it includes potential
reinstatement where circumstances warrant.,
As the Tribunal said in its original decision, the duty to
accommodate should be addressed "actively, promptly and
diligently". When assessing a genuine accommodation
request, an employer must proceed in good faith and consider all
reasonable steps including modifications to the employee's
position (or other conditions of employment depending on the nature
of the request) or looking for alternative jobs if the original
position cannot be modified without undue hardship. This is a
serious and sometimes tricky business and ought to be treated as
such. It is a process that usually involves significant
consultation and certainly detailed documentation. While the delay
in the Fair case was anomalous, depending on the complexity of the
situation an employer should not hesitate to seek input from its
legal advisors or risk exposure to significant liability.
The foregoing provides only an overview and does not
constitute legal advice. Readers are cautioned against making any
decisions based on this material alone. Rather, specific legal
advice should be obtained.
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.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).