In May of 2016, in Fair v Hamilton-Wentworth District School
Board, 2012 HRTO 350, an Ontario Court of Appeal upheld a
Human Rights Tribunal with important implications for employers in
relation to the duty to accommodate and the jeopardy of
Ms. Fair, who suffered from generalized anxiety disorder,
depression and Post-Traumatic Stress Disorder, and held a
supervisory position with the Hamilton Wentworth District School
Board [the "Board"] in regulating hazardous substances,
took medical leave in October 2001. By 2003, Ms. Fair indicated
that she was ready and willing to return to work, with the
condition that she be given a position where she would not be in
charge of employees' health and safety or exposed to personal
liability (due to the stress caused by such acute responsibility).
The Board responded that it could not identify an alternate
position to accommodate Ms. Fair and it terminated her employment
on July 8, 2004.
The Ontario Human Rights Tribunal [the "Tribunal"]
invoked the rarely used remedy of reinstatement to return an
employee with full back pay after 14 years. The Board was found to
have failed in its duty to accommodate its employee.
The Tribunal underlined that the duty to accommodate an employee
imposes obligations on both the worker and Management. An employer
must prove its efforts to identify suitable alternative employment
and verify its inability to accommodate to the point of undue
hardship. An employee must provide sufficient proof of her
disability, including limitations and/or restrictions and cooperate
in efforts at accommodation. The Tribunal held that Ms. Fair met
her obligations, but her employer failed in its duty to
Specifically, the Board's failure was found because it had
adopted an active role regarding possible accommodation
met with a Vocational Rehabilitation Consultant or provided Ms.
Fair with a description of her essential duties when requested;
met with Ms. Fair in a timely manner to review her needs or
obtained its own expert opinion, and instead it had improperly
tried to influence Ms. Fair's expert.
The Tribunal concluded that the Board was never open to
accommodating Ms. Fair in another position, in light of the fact
that other positions did exist but they were not adequately
explored or considered. The Board incorrectly relied on the fact
that all employment positions had some risk of personal
The Tribunal's Order reinstated Ms. Fair. In making this
order, the Tribunal took the position that the Board is a very
large employer and reinstatement would not cause any hardship
despite the 14-year gap in employment. The Tribunal also rejected
the employer's argument that the passage of time precluded or
rendered unfair her return. The Tribunal noted that the delay in
processing her complaint was not her fault and Ms. Fair had acted
diligently throughout the process.
What This Means For Employers
An employee who brings a human rights complaint can seek
reinstatement as a remedy, even if there has been a long absence
from the workplace.
An Employer should consider that:
The law requires human rights' accommodation assessments to
be conducted on a case-by-case basis. The duty to accommodate is
complex and often requires expert analysis and advice to ensure
compliance (legal, medical, financial).
An employer has a duty to accommodate an employee up to the
point of undue hardship. Undue hardship is a high threshold to
sustain a defence, will be assessed based on the particular context
in each workplace, and is based on the resources of each unique
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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