October 23, 2014 By: Alison McEwen
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In 2012 and 2013, the Human Rights Tribunal made two decisions ordering the reinstatement, along with over $400,000 in back pay and damages, to an employee despite the employee having been away from the workplace for almost a decade in the decision of Fair v. Hamilton-Wentworth District School Board. This decision was remarkable for the rarely awarded reinstatement and the unusually high damage award. One can only imagine it would have been difficult for the School Board to reintegrate the employee after ten years of adversarial litigation.

Background of Fair v. Hamilton-Wentworth District School Board

The Applicant was an employee of the School Board and had supervised the removal of asbestos. She began disability leave in 2001 for general anxiety and post-traumatic stress disorder caused by her fear that the improper performance of her job duties could result in personal liability under the Occupational Health and Safety Act. Her disability leave expired in April 2004, and the School Board subsequently terminated her employment, effective July 8, 2004.

In November 2004, the Applicant began a Human Rights complaint. Due to various delays, many caused by amendments to the Ontario Human Rights Code and changes to the adjudication process, it took almost ten years for a decision to be rendered. In 2012, the Tribunal concluded that the School Board had failed to accommodate the Applicant to the point of undue hardship when it refused to place her in any of the positions that came available prior to her termination. In a separate decision regarding remedy in 2013, the Tribunal held that reinstatement, with full back pay, was required to put the Applicant back into the position she would have been had the discrimination not occurred.

Judicial Review

Given the unusual remedy, it was not surprising that the School Board brought an application for judicial review of the decision. In a decision dated September 29, 2014, the Ontario Divisional Court upheld this award.

The School Board brought a variety of issues, including alleging there was a reasonable apprehension of bias, that the Vice-Chair had failed to properly interpret the Tribunal’s rules properly, that the Vice-Chair had improperly allowed the Applicant to expand on her complaint, and that the Vice-Chair had failed to provide sufficient reasons. The Divisional Court dismissed all of these allegations.

The School Board also alleged that the Vice-Chair had made an unreasonable finding when she found that the School Board never had any real intention of accommodating the Applicant. The Divisional Court found that in addition to the documentary evidence, which supported the Vice-Chair’s finding, the Vice-Chair had accepted the Applicant’s testimony as she was entitled to do. The Vice-Chair held that the School Board had a duty to obtain whatever medical evidence it needed to accommodate the Applicant, that she was willing throughout to provide it, and that the Board had failed in that duty. The Divisional Court found nothing unreasonable in the Vice-Chair’s findings on the issue of accommodation. The Court commented that it was difficult to conclude that the Applicant was accommodated to the point of undue hardship where she was not assigned to a vacant position which would have accommodated her disability – and this was within a pool of hundreds of employees for a large public sector employer.

The Court then turned to the remedy of reinstatement. The School Board argued the reinstatement was unreasonable due to the uniqueness of the remedy and the imposition of the remedy so long after the events. The Divisional Court noted that while uncommon in human rights, reinstatement is not unusual in labour relations arbitrations under the provisions of the collective agreement, which often deal with the same issues.

Further, the Court noted that reinstatement was provided for in the Human Rights Code, therefore there was no barrier or obstacle to the remedy in law. While the reinstatement was ten years after the dismissal, the passage of time was largely beyond the control of the Applicant, and therefore she should not be barred from accessing reinstatement as a remedy.

The Divisional Court decision affirms that reinstatement, even after a lengthy absence, is a viable remedy at the Tribunal. While the Tribunal has only ordered reinstatement a handful of times in the past five years (and it is not often requested), this decision does have the potential of making reinstatement, with full back pay, a more useable remedy for breach of the Human Rights Code. Hopefully, this could remind employers that a proactive approach to accommodation is one of the best defences to a Human Rights claim.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Employment Law