Not surprisingly, the Hamilton-Wentworth District School Board
("the "Board") decided to appeal the Divisional
Court's decision and late last month, the Ontario Court of
Appeal rendered its own decision on the same matter. In doing
so, it agreed with the Divisional Court on virtually every point,
thereby upholding the astounding 2013 decision of the Human Rights
Tribunal for 10 years of back pay, as well as employee
reinstatement a decade after termination.
In summary, Ms. Fair was an employee with the Board who was on
disability leave for about 3 years prior to being terminated.
At the time of termination she had sought a return to work but the
employer refused to accommodate her into another position.
The standard of review on an appeal such as that before the Court
of Appeal is one of "reasonableness" – namely, was
the Tribunal's decision reasonable? Under that test, the
Ontario Court of Appeal unanimously determined that the Human
Rights Tribunal's decision was reasonable with regard to the
facts and law before it.
Although no new law was made by the Ontario Court of Appeal, it
did reaffirm the law in areas that employers should pay particular
heed to. First, the Court confirmed that in order for an
employer to fulfil its duty to accommodate an employee's
disability, the employer may be required in an appropriate case to
place the disabled employee into a position for which he or she is
qualified but not necessarily the most qualified. Second, the
Court confirmed that the passage of years is not determinative of
whether reinstatement is an appropriate remedy; rather, context is
key. In this case, the evidence was that Ms. Fair's
relationship with the Board had not been fractured and the passage
of time had not materially affected her capabilities, both of which
led to the conclusion that reinstatement after a decade was not
Employers would do well to keep in mind the inherent
uncertainties of litigation, the fact that the Human Rights
Tribunal can order reinstatement, and the fact that a complaint
which moves slowly through the system can ultimately increase the
bottom line for an unsuccessful employer. While not every
case should necessarily be settled, Hamilton-Wentworth District
School Board v. Fair is a good example of a case which became
far more costly to the employer due to the passage of time.
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