In a decision released May 31, 2016, the Ontario Court of Appeal made clear that the passage of time shall not in and of itself be treated as a bar to the order of reinstatement.
In this case, the employee had been off on medical leave for 2½ years when she began seeking to return to work. Her employer alleged it had no position to return her to and ultimately terminated her employment. The employee brought a complaint before the Human Rights Tribunal alleging a failure to accommodate and discriminatory termination.
The tribunal found that there were positions available in which the employee could and should have been placed as accommodation of her disability and ordered that she be reinstated (though not expressly stated in the Appeal decision, the employee was awarded 14 years of lost wages). The employer sought judicial review of the decision which application was dismissed by the Divisional Court.
The Court of Appeal also agreed. It held the findings to be reasonable based upon the evidence before the Tribunal. The employer argued that there is no authority for the proposition that accommodation requires that the employee to be accommodated be given preference over another legitimate and more qualified candidate for the role. The Court held this to be in fact not correct. While an employer has no obligation to place a disabled employee into a position for which he or she is not qualified, an employer may be required in an appropriate case to place a disabled employee into a position for which he or she is qualified, but not necessarily the most qualified. Accommodation to the point of undue hardship may also include altering the employee's previous position or looking for alternate positions if the previous one could not be altered in order to accommodate without undue hardship. The Court agreed that the Tribunal's conclusion that the employer failed to do so was reasonable.
The Court of Appeal went on to conclude that while rarely used in the Human Rights context, the remedy of reinstatement certainly falls within the jurisdiction of the Tribunal to award. The Tribunal having specialized expertise is to be given a high degree of deference with respect to the remedy awarded. It held:
"the passage of years is not, by itself, determinative of whether reinstatement is an appropriate remedy. Rather, the decision as to whether to order reinstatement is context-dependent. In the present case, the Tribunal found... [the Employee's] employment relationship with the [Employer]... was not fractured and the passage of time had not materially affected her capabilities."
This decision represents a consistent approach to obligations respecting accommodation to what we have seen in the past and an acceptance of the principle of reinstatement after a long passage of time, in human rights cases.
Hamilton-Wentworth District School Board v. Fair 2016 ONCA CA 421 (CanLII)
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