Ontario Divisional Court upholds uncommon remedy of reinstatement in human rights case after over 12-year absence from the workplace

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Reinstatement of an employee is a common remedy in labour relations litigation arising under the terms of a collective agreement.  It is however far less common as a remedy in human rights litigation.  The recent decision in Hamilton-Wentworth District School Board v. Fair (September 29, 2014) indicates that in certain circumstances reinstatement can nevertheless be appropriate as a remedy in the human rights context.

Sharon Fair worked for the Hamilton-Wentworth District School Board (“Board”) from 1988 to July of 2004.  At the time of her termination, Ms. Fair held the position of Supervisor, Regulated Substances, Asbestos.  In the fall of 2001, she developed a generalized anxiety disorder and began to suffer from depression and post-traumatic stress disorder. These conditions were attributed to the 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. She went on a disability leave and, in March of 2002, began to receive long-term disability benefits through the Ontario Teachers Insurance Plan (“OTIP”).  In determining her entitlement to benefits, OTIP concluded that although Ms. Fair could not return to work in her former position, she remained capable of gainful employment.  As such, OTIP ceased paying disability benefits in April of 2004.  Ms. Fair’s employment was subsequently terminated after the Board concluded that it could not find a suitable position for Ms. Fair because of the work restrictions related to her disability.  Ms. Fair filed a complaint with the Ontario Human Rights Commission, and in 2009 initiated new proceedings before the Human Rights Tribunal of Ontario (“Tribunal”) under the transition provisions of the amended Ontario Human Rights Code (“Code”).  In the new proceedings, Ms. Fair requested for the first time that she be reinstated.

The case went before the Tribunal in early 2012 and the Tribunal released its decision in February of that year.  In its reasons, the Tribunal stated that the Board failed in its obligation to actively, promptly and diligently canvass possible solutions to Ms. Fair’s need for accommodation.  The Tribunal came to this conclusion as a result of the conduct of the Board.  This conduct included:

  • the failure by the Board to meet with the OTIP Vocational Rehabilitation Consultant to explore volunteer work and work-hardening activity for Ms. Fair;
  • the failure to provide Ms. Fair with information relating to the essential duties of her job;
  • the failure to expeditiously meet with Ms. Fair to discuss her return to work; and
  • the failure to seek expert medical opinion or advice relating to the work restrictions.

The Tribunal found the overall conduct of the Board indicated that it did not seem willing to even attempt to accommodate Ms. Fair in another position.  Evidence showed that in fact there were at least two other positions that would have been suitable for Ms. Fair that would not have caused undue hardship.  Based on the foregoing, the Tribunal concluded that the Board discriminated against Ms. Fair on the basis of disability by failing in its duty to accommodate her disability-related needs.  The termination of Ms. Fair’s employment was held to be in violation of the Code.

In a subsequent decision released in March of 2013, the Tribunal addressed the remedy arising from the Board’s discrimination, and in particular Ms. Fair’s request for reinstatement.  The Tribunal first set out the remedial provisions of the Code:

45.2  (1)  On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

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.

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.

The Tribunal next cited the guiding principles for determining the appropriate remedy as set out by the Supreme Court of Canada in McKinney v. University of Guelph, (1990):

… it should be noted that the rights of the appellants which have been infringed pertain to their dignity and sense of self-worth and self-esteem as valued members of the community, values which are at the very centre of the Charter.  It would be insufficient, in my view, to make any order which does not seek to redress the harm which flows from the violations of this interest.  Reinstatement is clearly the most effective way of righting the wrong that has been caused …

The Tribunal noted that there was no animosity or ill-will between the parties that would render the employment relationship untenable going forward.  As such, it held that Ms. Fair should be reinstated to a position equivalent to what she held at the time of her termination, with the medical restriction that the position not involve exposure to personal liability for health and safety and that the Board provide a reasonable period (up to six months) of training. In addition to reinstatement, the Tribunal ordered the Board to make the necessary adjustments to Ms. Fair’s length of seniority, banked sick days, other employment entitlements, and to pay lost wages (over $400,000) from June 26, 2003 (the date upon which Ms. Fair could have first been accommodated) to the date of reinstatement.  Amounts were also awarded for pension contributions and buy-back costs, retroactive payments to the Canada Pension Plan, out of pocket medical and dental expenses which would have been covered by the applicable benefit plans, compensation for additional tax consequences from the lump sum payments, $30,000 as compensation for injury to dignity, feelings and self-respect, and finally pre-judgment and post-judgment interest.  The Board applied for judicial review of the Tribunal’s decisions relating to both liability and the remedy.

On judicial review, the Divisional Court had little difficulty upholding the Tribunal’s decisions as being within the range of possible reasonable outcomes.  In its reasons it noted that the Board was a large public sector employer and that it was difficult to conclude that Ms. Fair was accommodated to the point of undue hardship.  This was particularly evident in the Board’s refusal to assign Ms. Fair to one of the vacant positions that would have accommodated her disability.

In terms of the remedy, the Divisional Court agreed with the Board that reinstatement was uncommon in human rights litigation.  Nevertheless the Court noted that it was not an unusual remedy in the context of labour relations litigation where the issues between the parties may be identical.  The Divisional Court also highlighted the fact that the Code provides the Tribunal with broad authority to order what is necessary to ensure compliance with the Code.  In the Court’s view, although reinstatement was unusual, there was no barrier or obstacle to it as a remedy under the law.  As such, the Divisional Court held that reinstatement was reasonable and dismissed the Board’s application.

The Board filed a leave to appeal with the Ontario Court of Appeal on October 14, 2014. We will keep our readers informed of any future developments.

For further information, please contact Jennifer Birrell at (613) 940-2740.