Does the Human Rights Tribunal of Ontario (“HRTO”) have the legal ability (“jurisdiction”) to award severance pay? According to a recent decision from the Divisional Court (a branch of the Ontario Superior Court of Justice, and a type of court of appeal), Campbell v. Revera Retirement LP, 2014 ONSC 3233 (CanLII), the answer is that it is probably best to look elsewhere.
The case is an important reminder to potential plaintiffs to pick the proper venue for advancing one’s case.
The case concerned an application for judicial review of a decision of the Human Rights Tribunal of Ontario (“HRTO”). The HRTO had awarded the applicant only $5,000.00 after her employment was ended after she refused to attempt an alternate position with her employer.
The applicant, Louisa Campbell, had been diagnosed with lipodermatosclerosis, a condition that causes ongoing discomfort and swelling, as well as thickening and discoloration of the skin. It is exacerbated by prolonged standing and extensive walking. She had been employed by the respondent, Revera Retirement LP (“Revera”), as a Health Care Aide at a retirement residence for approximately twenty-three years when she was diagnosed.
There was a disagreement about what jobs Ms. Campbell could do. She was ultimately offered a job in the laundry, but on the advice of her doctor, she declined to take the position. The employer deemed her to have abandoned her position. Ms. Campbell brought a human rights’ application, claiming discrimination on the basis of a disability.
The Decision of the HRTO
The HRTO found that the decision of the employer to insist that Ms. Campbell report to work to attempt the laundry aide job, against the advice of her doctor, was “problematic”. It was her inability to do the job, as confirmed by the letter from her doctor, that was the reason she did not take the position offered. Thus, given the role her disability played in her termination, it was determined that the employer had failed to meet its procedural obligations under the duty to accommodate and so infringed the rights of Ms. Campbell under the Human Rights Code. However, the HRTO found no fault with the accommodation efforts made by the employer up to the point that it made the decision to terminate Ms. Campbell “...for ostensibly abandoning her job.” It was on this basis that the HRTO awarded Louisa Campbell $5,000.
The Decision of the Divisional Court
In upholding the award of only $5,000, the Honourable Justice Lederer, wrote the following on behalf of the court:
 …the present legislation, while not necessarily limiting the basis on which an award may be made, makes specific reference to “…compensation for injury to dignity, feelings and self-respect”. These words direct the HRTO to a consideration of the damages associated with discrimination separate from other remedies that may be sought. There is nothing in this that requires the HRTO to go further. The Human Rights Code specifies that the HRTO: “…may make one or more of the following orders.” In this case, the HRTO, as it was entitled to do, found that the discrimination was limited to a procedural failing that came after a proper and comprehensive effort was made to accommodate Louisa Campbell through the efforts of Revera to find her alternate employment. It was on this basis that the HRTO concluded that the award for the discrimination should be $5,000. This restricted view of the basis for the discrimination explains why… the award made is less than might have been awarded on a successful claim for wrongful dismissal.
 A complaint made pursuant to the Human Rights Code does not stand as a replacement or substitute for all other claims or actions that may arise in a given circumstance. It is a particular complaint, which is authorized by a specific piece of legislation. In this case, Louisa Campbell sought the money that she would have obtained under the provisions of the Employment Standards Act, 2000 had her employment not been treated as abandoned. She grieved her termination. In its decision, the HRTO explained that, following discussions with her union, the process was discontinued. The HRTO did not see this loss as attributable to the discrimination. It found that it did not have the authority to award “severance pay”. The HRTO quoted its decision in Pilon v. Cornwall (City):
The applicant seeks compensation in the amount of four weeks’ pay per year of service. Severance pay is generally understood as payment for the capital cost of lost employment – the cost associated with the loss of lengthy employment in the form of vacation entitlement, seniority where applicable and other elements of one’s remuneration associated with length of service. I have no jurisdiction to award severance pay, as such; however, I have considered as part of the analysis of the other heads of monetary compensation the consequences for the applicant of losing her employment after 23 years’ of service. Accordingly, I decline to make a separate damages award severance pay.
As mentioned above, the case is an important reminder that you have to be careful in picking the venue in which you which to plead your case. Employees who get fired in Ontario have a number of options to which they can turn for redress, including the Employment Standards Branch of the Ontario Ministry of Labour (‘the Labour Board’), the Human Rights Tribunal of Ontario, and of course the civil courts.
Ensuring that you plead your case in the correct place is important. As this blog has mentioned in a previous post, see The High Price of Free Employment Law Advice, sometimes free advice can be very expensive.
The Human Rights Tribunal of Ontario and the Labour Board can seem like attractive options for those who feel they have been wronged; however, as the Campbell case demonstrates, they may not be the best answer for everyone.
Takeaways for those with Labour Pains
The takeaway for employees with labour pains is that it pays to seek a professional legal opinion before making any decisions about your own case. While an employment lawyer will likely charge you for advice as to whether a claim should be made to the Labour Board, the Human Rights Tribunal, or the courts, the cost of selecting the wrong venue can be substantially higher.
If you have recently lost your job and are looking for advice about what to do next, the professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP would be happy to be of service to you.
To reach the author of this blog, Sean Bawden, email firstname.lastname@example.org or call 613.238.6321 x260.--
As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.
Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.