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The Ontario Divisional Court in Fair v. Hamilton-Wentworth District School Board, 2014 ONSC 2411, 2014 CarswellOnt 13509 (Ont. Div. Ct.), recently upheld the Ontario Human Rights Tribunal’s decision in 2013 C.L.L.C. 230-020, 2013 CarswellOnt 9218 (Ont. Human Rights Trib.), in which the tribunal made use of one of its most significant remedial powers, reinstatement, ordering Sharon Fair be returned to her position with the school board after approximately a decade had passed since her dismissal.

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The tribunal originally concluded in 2013 that the respondent, the school board, discriminated against the applicant, Ms. Fair, because of her disability, contrary to ss. 5 and 9 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”), by failing to accommodate her disability-related needs since April 2003 and then by terminating her employment on July 9, 2004.

 

Facts

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Outside of the termination of Ms. Fair’s employment, the discriminatory conduct was summarized by the tribunal as follows [at paras. 7-10]:

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In the fall of 2001, the applicant developed a generalized anxiety disorder. Her disability was a reaction to the highly stressful nature of her job, and her fear that, in making a mistake about asbestos removal, she could be held personally liable for a breach of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, as amended.

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The applicant received long-term disability benefits (”LTD”) through the Ontario Teachers Insurance Plan (”OTIP”) until April 3, 2004, when she was assessed as capable of gainful employment.

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From April 2003, the respondent failed to take steps to investigate possible forms of accommodation. From June 2003, the respondent failed to offer the applicant available, alternative work.

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On June 26, 2003, an area supervisor in the plant announced that he was leaving effective July 7, 2003. This is a position that could have been offered to the applicant, as she was a qualified area supervisor.

 

Appeal

With respect to the tribunal’s decision as it relates to reinstatement, the divisional court in its review concluded [at paras. 41-5]:

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It is certainly the case, as the Board points out, that reinstatement is an uncommon remedy in human rights litigation. It is not, however, unusual in labour relations litigation under the provisions of a collective agreement where one might be dealing with exactly the same issues.

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The Code provides the Tribunal with broad remedial authority to do what is necessary to ensure compliance with the Code. It is fair to say that while reinstatement is unusual, there is no barrier or obstacle to this remedy in law.

Concerning the timeliness of the remedy, we agree with the submission made on behalf of Fair 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 Fair.

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The Vice-Chair’s decision with respect to remedy is intelligible, transparent and with justification.

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The outcome is within the range of reasonable expectation.

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It is quite clear that where the environment is not acrimonious and the passage of time is not the result of the applicant/plaintiff’s actions, reinstatement is a realistic possibility. The court seems to place significant weight on the fact that within unionized environments, similar fact scenarios are dealt with by way of reinstatement on a relatively more frequent basis.

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Traditionally, courts in Canada do not have the ability to order reinstatement as a remedy in a civil wrongful dismissal case. Moreover, outside of unionized environments, reinstatement is an exceptional remedy, often only permitted by remedial statutes such as the Code.

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With respect to the human rights context, the broad discretion of the tribunal is apparent when the wording of the Code is read in depth. Pursuant to s. 45.2(1), on an application under s. 34, the tribunal may make one or more of the following orders:

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1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

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2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

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3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

Despite the foregoing, reinstatement orders are rare in the human rights context, the tribunal has existing decisions that stand in contrast to this decision, and the practicality of the remedy does not exist in many scenarios. Ultimately, each case and the decision to order reinstatement will turn on its own set of facts.

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A significant point that was considered in this case was the fact that there was no real acrimony between the parties. The applicant held no ill will and most of the individuals involved in the original incidents almost a decade earlier no longer remained with the company.

 

Takeaways

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1. With this decision, non-unionized employers may need to take a step back and consider readdressing the manner in which they approach issues of accommodation and settlement in the human rights context. It remains to be seen if this decision will open the floodgates given it is a remedy that has rarely been employed outside unionized environments. What is clear is that in the absence of an acrimonious relationship/environment, reinstatement remains a realistic possibility.

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2. Given that this decision included a reinstatement order and an order for the payment of back wages, it is apparent these types of employment law cases will not be analyzed using the traditional reasonable notice framework that we witness being employed in most civil wrongful dismissal lawsuits. With the possibility of an employer also being exposed to back wages from the date of the hearing to the date of dismissal, liability can be significantly greater than the 24-30 month cap on reasonable notice damages in Ontario courts. In Piazza v. Airport Taxicab (Malton) Assn., (1989), 60 D.L.R. (4th) 759, 26 C.C.E.L. 191 (Ont. C.A.), the Ontario Court of Appeal stated [at para. 9]:

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The purpose of compensation is to restore a complainant as far as is reasonably possible to the position that the complainant would have been in had the discriminatory act not occurred.

Reinstatement and back wages may very well serve to put an individual back into the position they were supposed to be.

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If you have a workplace issue relating to workplace discrimination, human rights, harassment, bullying and/or general mistreatment, call a Toronto employment lawyer, Toronto labour lawyer and Toronto Human Rights lawyer at Stitz Litigation. Michael Stitz is an employment and labour lawyer in Toronto with over half a decade of winning experience. Call for a free case assessment.

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