FTR Now
Appellate Court Upholds Significant Remedy Decision of the Human Rights Tribunal of Ontario
Date: June 3, 2016
A decision of the Human Rights Tribunal of Ontario (Tribunal) which ordered reinstatement and back wages for an employee who had been absent from the workplace (at that time) for almost ten years has been upheld by the Ontario Court of Appeal.
In Hamilton-Wentworth District School Board v. Fair, the Court of Appeal found that the decision of the Tribunal was entitled to deference and noted that the passage of time is not, by itself, “determinative of whether reinstatement is an appropriate remedy.”
We discuss this significant decision in this FTR Now.
The Tribunal finds failure to accommodate, grants significant remedies
Ms. Fair (the Applicant) had worked for the school board (Board) since 1988. At the time of her leave from work she had been Supervisor, Regulated Substances, Asbestos for seven years. In 2001 she developed a generalized anxiety disorder arising from the responsibilities and personal liability associated with this job. She was later diagnosed with depression and post-traumatic stress disorder.
The Applicant commenced medical leave in October 2001 and received LTD benefits from March 2002 to April 2004, when those benefits ceased. The Tribunal found that during this period, the Applicant had stayed in touch with the Board and had provided it with whatever information, including medical, that was required. Moreover, in April 2003 the Applicant expressed a desire to return to work and the Ontario Teachers’ Insurance Plan contacted the Board regarding a possible return to work, which was met with a negative response. Her employment was ultimately terminated in July 2004.
The Tribunal found that the Board was aware that the applicant’s only medical restriction was not to be placed in a job with the same level of personal liability as the former position. It identified various positions into which the Applicant could have been, but was not, placed without causing undue hardship. The Tribunal concluded that the Board “failed to actively, promptly and diligently canvas possible solutions to the applicant’s need for accommodation,” constituting discrimination on the basis of disability.
On the issue of remedies, the Tribunal explicitly rejected the Board’s argument that it would be unfair to order reinstatement in light of the length of time that had passed, stating that employers should be aware that “reinstatement is always an option in human rights cases.” Had the Board properly accommodated the employee, she would have been returned to full-time employment in June 2003. Among other things, the Board was ordered to:
- reinstate the employee to a position at a level equivalent to that which the employee had previously held in 2003
- provide compensation for lost wages, as well as medical/dental expenses incurred since the employee’s benefits were terminated
- take steps to have the employee’s years of service with the pension plan reinstated, and to make all employer pension contributions for the period
- pay $30,000 for injury to dignity, feelings and self-respect.
On judicial review, this decision was found to be reasonable and was upheld. Of note, the Divisional Court agreed with the Applicant’s submission that “the goal of the remedial provisions of the Code ought not to be thwarted because of the passage of time that was largely beyond the control” of the Applicant. The Board appealed.
The Court of Appeal Decision
The Court of Appeal dismissed the appeal. Among other things, it held:
- There was no error in the finding of Divisional Court that the Tribunal’s accommodation analysis was unreasonable. The “assessment of a person’s disability-related needs and the appropriate accommodation to be made is a highly individualized process.” Upon developing a psychiatric impairment caused by her former position, the duty to accommodate the Applicant was triggered.
- The Tribunal reasonably concluded on the evidence that the Applicant was capable of returning to full-time employment by April 2003 in a full-time supervisory position but one without the same risk of personal liability as the former position.
- The Board’s argument that the Tribunal finding creates “new and unreasonable standards of accommodation” because it would require the Board to create a new surplus position or displace an incumbent was without merit. The Court found the Tribunal made factual findings that the Board need not create a surplus position or displace an incumbent to accommodate the Applicant.
- There was no evidence that the Board did not have the resources to fill the position of Area Supervisor, into which the Applicant could have been placed.
- While an employer is not obligated to place a disabled employee into a position for which that employee is not qualified, “an employer may be required in an appropriate case to place a disabled employee into a position for which he or she is qualified but not necessarily the most qualified.”
- Section 17 of the Human Rights Code “does not impose a requirement for an employer to be perfect or allow the Tribunal to engage in speculation about what positions could potentially be available or performed by the disabled employee just because the accommodation process followed was not ultimately successful.” However, in this case, the Tribunal found that the Board “never had any real intention” to accommodate the applicant.
- The remedy decision was reasonable. The passage of time is not, in itself, determinative of whether reinstatement is appropriate. Here, the Applicant’s relationship with the Board “was not fractured and the passage of time had not materially affected her capabilities.”
Implications
The Court’s decision is once again a stark reminder for employers of the potential risks associated with failing to comply with obligations under the Human Rights Code. This case demonstrates the potential breadth of remedies that may be available in the human rights context. In particular, it is an important reminder that employers who assume that reinstatement is not a likely remedy (including where the employee is absent for an extended period of time) do so at their own peril. Employers should be diligent and thorough when considering whether there is the ability to provide modified or alternate positions for employees with medical restrictions and cognizant that an adjudicator may review such efforts.
If you have questions, please contact Kathryn L. Meehan at 519.883.3120 or your regular Hicks Morley lawyer.
The article in this Client Update provide general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©
