April 24, 2014
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Court decision brings good news for employees terminated due to a disability, in violation of Ontario’s Human Rights Code (the “Code”). The case confirms that Courts, when appropriate, will award damages for breach of the Code in addition to normal damages awarded in wrongful dismissal cases.

By way of background, on June 30, 2008, amendments were made to the Ontario Code. Among other things, s. 46.1 was added in order to allow an individual to claim damages for breach of the Code in a civil claim. This was to help simplify and avoid duplication of proceedings, especially in the context of employment claims.

Section 46.1 states the following:

If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:

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.

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.

The Code further states that every person is entitled to equal treatment in the matters of employment without discrimination. That being said, should a person find themselves being terminated on the basis of what appears to be a protected ground of discrimination by the Code, the employee will be entitled to their notice as well as damages for breach of the Code pursuant to section 46.1 of the Code.

In the 2013 Ontario Superior Court decision, Wilson v. Solis Mexican Foods Inc, the plaintiff was claiming exactly this. She had been terminated from her employment after only 16 months. Prior to her termination, the plaintiff had been off work due to medical reasons. She was suffering from back pain and her employer had refused a gradual return to work. The employer required for her to return to full time duties. Within a few months of being off work, the plaintiff received a termination letter stating that as a result of organizational changes her job had become redundant and her services were no longer required. The plaintiff started a civil action and claimed reasonable notice as well as damages pursuant to section 46.1 of the Code.

The Court accepted the proposition that “a decision to terminate an employee based in whole or in part – on the fact that the employee has a disability is discriminatory and contrary to the Code”. The Court found that the “plaintiff’s ongoing back issues was a significant factor in the decision to terminate”. He awarded her three months of notice and $20,000.00 in damages for infringement of the Code in addition to her notice entitlements.

The test used by the Court and the award given in this decision will be helpful in utilizing section 46.1 of the Code in wrongful dismissal cases and obtaining a separate head of damages for a human right infringement. Its important that Employers ensure that when terminating employees, they don’t infringe on the terminated employees human rights. Otherwise, the Employer may find the termination maybe more costly than anticipated.

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