The Ontario Court of Appeal has upheld a surprising decision
from the Ontario Human Rights Tribunal ("the Tribunal")
that ordered a terminated employee be reinstated to her position
with full seniority almost a decade after she had left the
The Tribunal's decision in Fair v. Hamilton-Wentworth
District School Board, 2013 HRTO 440, involved an
employer's failure to accommodate an employee's
disability-related needs. In October 2001, Ms. Fair commenced a
medical leave of absence after being diagnosed with a generalized
anxiety disorder – resulting from the stressful nature of her
job - depression and post-traumatic stress disorder.
At the time of the onset of her disability in October 2001, Ms.
Fair had more than 15 years of service and performed a supervisory
position. In 2003, Ms. Fair's doctor indicated that she could
return to work, subject to certain restrictions. No position was
offered by the employer. Ms. Fair's eligibility for long-term
disability benefits ended in April 2004 and her employment was
eventually terminated on July 8, 2004.
The Tribunal found the employer liable for failing to
accommodate Ms. Fair and, in particular, for failing to consider
other appropriate positions available in the workplace. Ms. Fair
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.
Appeals of the Tribunal's Decision
In September 2014, the Divisional Court dismissed the
employer's application for a judicial review of the
Tribunal's decision. The employer appealed the Divisional Court
The Ontario Court of Appeal has recently released its decision
dismissing the employer's appeal and upholding the
Tribunal's decision. The Court agreed with the Divisional Court
that the Tribunal's determinations were reasonable with respect
to both: (1) the finding that the employer had failed to
accommodate Ms. Fair; and (2) the remedy of reinstatement.
With respect to reinstatement, the most controversial aspect of
the decision, the Court dismissed the employer's argument that
the reinstatement of Ms. Fair was an "unreasonable,
unprecedented and disproportionate" remedy. In particular, the
Court found that, while reinstatement was a rarely used remedy, it
clearly fell within the Tribunal's broad remedial authority and
specialized expertise under the Human Rights Code.
Further, the Court went on to find that that the passage of time
is not, by itself, determinative of whether reinstatement of an
employee is an appropriate remedy. Rather, the decision as to
whether to order reinstatement is context-dependent. In this case,
the Court agreed with the lower court decisions that Ms. Fair's
employment relationship was "not fractured" and that the
passage of time had not "materially affected" her
As a result, the employer will now be required to reinstate Ms.
Fair almost 15 years after she left the workplace.
The Court of Appeal's decision is an important reminder that
employers must consider all possible avenues of accommodation for
employees with disabilities. A failure to accommodate can result in
a costly human rights application. Further, given the broad powers
of the Tribunal – which are accorded significant deference by
the courts – a failure to accommodate may result in an order
to reinstate an employee, even after a significant passage of
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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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