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Nova Scotia – Application of restorative process to discrimination complaint

accomodation-discrimination-scaleSince 2012, the Nova Scotia Human Rights Commission has adopted a restorative approach as the first option in addressing human rights complaints. If a complaint is referred to a Board of Inquiry, parties have the option to either proceed to a traditional hearing, or agree to a Restorative Board of Inquiry process.

The Restorative Board of Inquiry seeks to restore and repair relationships through the use of inquiry circles. Parties are asked to explore how they were affected, what circumstances contributed to the harms, and what solutions will prevent them from recurring. If the parties cannot agree on solutions, the Board Chair can make findings of fact or law. If there are unresolved issues at the conclusion of the process, the Board Chair issues a written decision on these points. The Commission’s Restorative Board of Inquiry Policy can be found here.

In many cases, the parties are able to reach an agreement without requiring the Board Chair to issue a decision. However, this is not always the case. For example, in Tanner v Alumitech Distribution Centre Ltd, 2015 CanLII 15118, the parties participated in a restorative process on consent, but were unable to reach an agreement. Accordingly, the Board of Inquiry issued a written decision.

In that case, the complainant alleged that his former employer, Alumitech Distribution Centre Ltd., discriminated against him on the basis of a physical disability. The complainant, a delivery driver, suffered a back injury on November 18, 2012 as a result of a car accident. He was absent from work for several months due to his injury. In January and June, 2013, the employer took the position that it did not have any modified duties for the complainant, and he could not return to work until he could perform his full duties.

At the hearing, the President of the employer acknowledged that he had not given any consideration to providing the complainant with light duties. He stated that he felt it was not necessary because he thought that the complainant would only be off work for a short period.

He acknowledged that it would have been feasible for the complainant to perform modified driving duties, and the company could have provided someone to help him with the loading and unloading of material from the truck. However, he stated that he felt that the complainant should have said that this is what he wanted to do.

The Board of Inquiry found that the employer discriminated against the complainant by taking the position that he could not return to work until he was able to perform his full duties. The Board stated that once the employer knew the complainant needed accommodation, the employer was required to explore possible solutions. The employer should have communicated that it was willing to consider a temporary accommodation and then explored options with the complainant and his health care providers.

The Board of Inquiry also concluded that the employer discriminated against the complainant by failing to adequately address conduct by the complainant’s supervisor. In July, 2013, the complainant encountered his supervisor at a gas station. The supervisor directed the comment “Oh, my back” to the complainant in a mocking way and stated that if it was up to him, the complainant would no longer have a job. The complainant was distressed and relayed the comments to the President of the employer. However, the President acknowledged at the hearing that he had only recently spoken with the supervisor about the comments. The Board stated that the employer had an obligated to address the comments with the supervisor and to ensure that the conduct was not repeated.

The Board awarded the complainant $2,500 in general damages. The Board indicated that one of the reasons that it awarded damages on the low end of the range was that a higher amount was not necessary to send a message to the employer that it is required to comply with its human rights obligations. The Board noted that the employer’s representatives willingly and respectfully participated in the restorative process, and expressed a desire to learn what ought to have been done to comply with the Human Rights Act.

The Board also ordered that the employer’s management and employees undertake human rights education training, and that the employer draft human rights policies related to discrimination and accommodation, within 5 months of the decision.

This case serves as a reminder to employers that if they do not work with employees who require accommodation, and take prompt action to address discriminatory comments, they risk liability under the Human Rights Act. The case also highlights that one of the goals of a general damages award is the need to ensure a message is delivered that human rights must be respected. The Board’s decision suggests that if the employer demonstrates a genuine understanding of the need to respect human rights, this can impact the amount of the general damages.

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Alison J. Bird

Employment Lawyer at Cox & Palmer
Alison Bird is a lawyer practicing in Halifax with the Atlantic regional law firm, Cox & Palmer. Alison is growing her practice in the areas of labour & employment law and litigation. Alison is a frequent presenter on employment law topics and recently presented on the challenges being faced by employers dealing with changing demographics in the workplace. Read more
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