Last year, we reported on the notable Human Rights Tribunal decision of Fair v. Hamilton-Wentworth District School Board where the Tribunal ordered 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.
When this decision came out, it soon became the benchmark, worst-case scenario, for employers who were found to have failed to properly accommodate an employee. Not only was the reinstatement order rare and the monetary award uncharacteristically high, but the Hamilton-Wentworth School Board was left to sort out the impending awkwardness of re-integrating an employee back into the workplace after ten years of adversarial legal proceedings.
Considering the extraordinary remedy, an application for judicial review of the decision was almost inevitable.
Recently, the Ontario Divisional Court upheld this extraordinary award, strengthening reinstatement, with full back pay, as a potential remedy for breach of the Human Rights Code and reminding employers that the best defence to a Human Rights claim, is a proactive approach to accommodation.
Background of Fair v. Hamilton-Wentworth District School Board
In 2001, the Applicant, Sharon Fair, commenced disability leave related to general anxiety and post-traumatic stress disorder that was caused by her fear that the improper performance of her job duties could result in personal liability under the Occupational Health and Safety Act. Fair supervised the removal of asbestos for the School Board.
Shortly after Fair’s disability leave expired in April 2004, the School Board terminated her employment, effective July 8, 2004. Fair launched a Human Rights complaint in November 2004. While it took almost ten years for a decision to be reached, much of the delay came from the amendments to the Ontario Human Rights Code and the changes to the Human Rights adjudication process.
Eventually, the Tribunal issued two decisions on the matter in 2012 and 2013. The 2012 decision found that the School Board failed to accommodate Fair up to the point of undue hardship when it refused to place her in any of the positions that came available prior to her termination. The remedy decision, issued in 2013, found that reinstatement, with full back pay was the best way to put Fair back into the position she arguably would have been had the discrimination not occurred.
Judicial review
On September 29, 2014, the Ontario Superior Court of Justice, Divisional Court (“Divisional Court”), upheld both of the Tribunal’s decision. In specifically addressing the order of reinstatement, the Divisional Court noted:
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.
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.
The Divisional Court found that the decision to order reinstatement was “intelligible, transparent and with justification” and “within the range of reasonable expectation”.
Reinstatement as a remedy
The Divisional Court decision affirms that reinstatement, even after a lengthy absence, is a viable remedy at the Tribunal. While perhaps surprising, the decision in Fair v. Hamilton-Wentworth does remain an outlier in the Tribunal’s jurisprudence. In fact, the Tribunal has only ordered reinstatement a handful of times in the past five years and has recently acknowledged that it will likely only do so in very specific circumstances. Last year in Macan v. Strongco Limited Partnership, the Tribunal refused to order reinstatement and offered the following measured clarification:
The Tribunal has the jurisdiction to reinstate an applicant, but this order is rarely requested or ordered in human rights cases. See Krieger at para. 182. In cases in which an applicant has been ordered reinstated, the applicant has been a unionized employee for a large employer (Kreiger) or has been employed in a relatively unskilled position (Dhamrait v. JVI Canada, 2010 HRTO 1085). Unlike Dhamrait, in which there were no other reasons for which the applicant was terminated, in this case I have determined that the applicant’s disability was a factor but not the sole reason for her termination.
While these comments would indicate that there is likely little risk that reinstatement would ever be ordered in the majority of circumstances, it still provides limited consolation for large, sophisticated employers like the Hamilton-Wentworth District School Board.
We will keep you updated on the issue of reinstatement as it continues to develop through the Tribunal’s jurisprudence.
By Matthew Demeo
McCarthy Tétrault LLP
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