The Divisional Court recently upheld one of the most noteworthy Ontario Human Rights decisions of 2013 in which the Tribunal ordered the reinstatement (with back pay totalling $419,000) of an applicant whose employment had been terminated for almost a decade. CCPartners blogged on the original decision here.
On appeal, the employer argued that reinstatement was a unique and uncommon remedy that the Tribunal had generally exercised in limited circumstances. The employer argued further that the tribunal ought not to have imposed "that remedy so long after the events giving rise to the complaint".
The Court rejected the employer's argument and agreed with the applicant's submission that "the goal of the remedial provisions of the Code ought not to be thwarted because of the passage of time that was largely beyond the control" of the applicant. In this case, the delay in proceeding to a hearing was not caused by the applicant.
The Court held that the Tribunal has "broad remedial authority" and that, "while reinstatement is unusual, there is no barrier or obstacle to the remedy at law" and concluded that the Tribunal's decision with respect to remedy was "intelligible, transparent and with justification. The outcome is within the range of reasonable expectation".
In addition to upholding the Tribunal's decision, the Court awarded an additional $15,000 in costs against the employer in respect of the judicial review process.
The important lessons for employers to take away from this decision are as follows:
- While it is expected that reinstatement will continue to be uncommon at the HRTO, the possibility of reinstatement exists on any termination that is found to result from unlawful discrimination.
- Since this decision makes clear that the passage of time will not necessarily diminish an employee's right to reinstatement, it may encourage the Tribunal to order reinstatement even when long periods of time have passed since the end of the employment relationship.
- Employers should give serious consideration to the possibility of reinstatement after attempts at accommodation have failed. It is now more important than ever to ensure that reinstatement would constitute undue hardship before ending the employment relationship.
The School Board is currently seeking leave to appeal from the Court of Appeal for Ontario and CCPartners will keep you posted of any updates as they occur.
The lawyers at CCPartners can assist employers with the difficulties associated with accommodation under the Human Rights Code and with any Human Rights complaints they may be faced with.
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.