Sunday, 26 June 2016

Passage of Nearly a Decade’s Time Not a Barrier to Reinstatement: ONCA

There is a saying about the pace at which the wheels of justice move: they grind slowly. Perhaps no case better exemplifies that saying than that of Sharon Fair.

On December 15, 2003, Ms. Fair filed a human rights complaint, claiming that her employer, the Hamilton-Wentworth District School Board, had discriminated against her under the Ontario Human Rights Code by failing to accommodate her disability by placing her in a suitable alternate position.

The Human Rights Tribunal did not release its decision on the merits until 2012: Fair v. Hamilton-Wentworth District School Board, 2012 HRTO 350 (CanLII).

The decision on remedy, which has really driven the subsequent litigation, was not released until March 14, 2013: Hamilton-Wentworth District School Board, 2013 HRTO 440 (CanLII). In 2013, I proclaimed that decision the number one case of importance to Ontario employment law, see Ontario Employment Law’s Top Five Cases – 2013 Edition.

The School Board sought judicial review of the Tribunal’s decision and in 2014 the Ontario Divisional Court released its decision upholding the decision. I blogged about that decision in the post Appeals Court Upholds Employee’s Reinstatement 9 Years After Termination.

On May 31, 2016, nearly twelve and one half years after Ms. Fair filed her human rights complaint, the Court of Appeal for Ontario offered its opinion on the issue: Hamilton-Wentworth District School Board v. Fair, 2016 ONCA 421 (CanLII).

Once again Ms. Fair prevailed. With respect to the fact that many, many years had passed between the start of Ms. Fair’s case and the Tribunal’s order that she be reinstated, the express decision of the Court of Appeal was that, “The passage of years is not, by itself, determinative of whether reinstatement is an appropriate remedy.”

Facts

Fair is a case more important for its decision on remedy than anything else. The Tribunal had found that the employer had discriminated against the applicant on the basis of a disability for nearly nine years (from April 2003 until the Tribunal’s decision in February 2012.)

In its decision on remedy, 2013 HRTO 440 (CanLII), the Tribunal not only ordered the employer to reinstate Ms. Fair to suitable employment, the Tribunal ordered the employer to calculate her loss of wages from June 26, 2003, until the date of reinstatement (bear in mind this decision was given in March 2013) and pay such an amount, including all pension contributions, and take account of all tax, EI, and CPP implications as well. $30,000 in general damages was also awarded. Interest of those amounts was awarded from November 2004.

According to an article in the Toronto Star, the total award came to over $450,000.

Decision

In upholding the decision on remedy, the Honourable Justice Lois Roberts wrote the following on behalf of the Court of Appeal for Ontario:

[89] …the School Board submits that the remedy of reinstatement is unreasonable, unprecedented and disproportionate after a delay of so many years and in light of the failure of the Tribunal to identify any available position to which Ms. Fair could return. It also argues that the Divisional Court erred in drawing a comparison between reinstatement in human rights litigation and labour relations litigation.

[90] I would not accept these arguments.

[91] First, while rarely used in the human rights context, the remedy of reinstatement clearly falls within the Tribunal’s discretion to order under s. 45.2(1) of the Code, as follows:

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:

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.

[92] As the Divisional Court correctly noted, “The Code provides the Tribunal with broad remedial authority to do what is necessary to ensure compliance with the Code.”

[93] The determination of remedy falls within the specialized expertise of the Tribunal, and as such is accorded a high degree of deference: Phipps v. Toronto Police Services Board, 2010 ONSC 3884 (CanLII), 325 D.L.R. (4th) 701 (Div. Ct.), at para. 42, aff’d 2012 ONCA 155 (CanLII), 347 D.L.R. (4th) 616.

[94] Further, Ford Motor Co. of Canada Ltd. v. Ontario (Human Rights Commission) (2001), 2001 CanLII 21234 (ON CA), 209 D.L.R. (4th) 465, where this court set aside the reinstatement of an employee, is distinguishable from the present case. Although in Ford Motor, this court pointed to the time that had passed since the employee’s dismissal, it also relied on the internal inconsistencies within the Board’s decision and the lack of consideration of an arbitrator’s prior decision upholding the discharge: see paras. 68-73.

[95] The passage of years is not, by itself, determinative of whether reinstatement is an appropriate remedy. Rather, the decision as to whether to order reinstatement is context-dependent. In the present case, the Tribunal found none of the barriers to reinstatement that foreclosed reinstatement in the Ford Motor case. Specifically, Ms. Fair’s employment relationship with the School Board was not fractured and the passage of time had not materially affected her capabilities.

[96] Moreover, the Divisional Court’s reference to the labour relations context was not unreasonable or unusual. For example, the Tribunal in Krieger v. Toronto Police Services Board, 2010 HRTO 1361 (CanLII), espoused similar principles. This case involved an application by a terminated employee for reinstatement following alleged discrimination. In examining the issue of reinstatement, the Tribunal noted, at para. 182:

While reinstatement orders are rarely requested or ordered in human rights cases, they are “normally” ordered in arbitral cases where a violation of a grievor’s rights has been found, unless there are “concerns that the employment relationship is no longer viable” A.U.P.E. v. Lethbridge Community College, [2004] 1 S.C.R. 727, 2004 SCC 28 (S.C.C.) (CanLII), at para. 56. The goal of human rights legislation, which is remedial in nature, is to put the applicant in the position that he or she would have been in had the discrimination not taken place. See Impact Interiors Inc. v. Ontario (Human Rights Commission) (1998), 35 C.H.R.R. D/477 (Ont. C.A.). Where viable, reinstatement is sometimes the only remedy that can give effect to this principle.

[97] Finally, there was no error in the Tribunal’s requiring the School Board to determine the appropriate position. The School Board remains in the best position to determine what positions are available or could be made available, and the adjustments that it will be required to make in order to accommodate Ms. Fair.

The appeal was dismissed and the original decision upheld.

Commentary

The Court of Appeal’s decision is hardly surprising given the decision of the Divisional Court. While one appreciates that the case took an exceptionally long time, the same was not entirely the fault of the parties. It would be unfair to deny Ms. Fair a remedy simply because the system took so long.

Takeaways for Employees with Labour Pains

What does the court’s decision in Fair mean for employees? It means that in Human Rights Code related discrimination cases, concerning large, public employers, reinstatement with back pay will remain an option. It means that employees do not have to accept their termination and seek their remedy exclusively by way of pay in lieu of reasonable notice plus, perhaps, aggravated damages as is the case in non-Code-related discrimination cases. (For this blog’s commentary on that issue consider the post Tort Damages Place in Wrongful Dismissal Cases.) It means that it is possible that Human Rights law may soon eclipse ‘regular’ employment law cases as the primary method by which dismissal cases are resolved.

The effect of an employee’s ability to seek not only reinstatement, but back pay for lost wages cannot be understated. Ms. Fair had a modest salary. Had she not, the amount of her award, after nine years, could easily had exceeded one million dollars. One need only compare that against the recent case of Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 (CanLII), summarized by this blog in the post Wal-Mart Rolls Back Award of Punitive Damages, which must now be considered the high-water mark for aggravated damages for bad behaviour in employment. Ms. Boucher, as this author understands the situation, received less than Ms. Fair.

Accordingly, the takeaway for employees is this: if you have been let go from your job, and you suspect that any of the following was a “factor” in the decision to terminate your employment: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability, then it is important that you speak with an experienced employment lawyer before making any decisions about your case.

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.

Takeaways for Employers with Labour Pains

The takeaway for employers is that a violation of the Ontario Human Rights Code could be very, very expensive. If an employee can demonstrate that he or she experienced discrimination in employment on the basis of one of the above-enumerated grounds, then the Human Rights Tribunal of Ontario demonstrably has the power to award some exceptional remedies.

If you are an employer and are considering ending the employment relationship of any of your employees it is likely prudent to speak with an experienced employment lawyer first. The professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP would be happy to be of service to your business or organization.

Contact Me

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260.

Sean P. Bawden is a partner with Kelly Santini LLP, located in Ottawa, Ontario, Canada. He practices in the areas of employment law and civil litigation. He has also taught Trial Advocacy for Paralegals and Small Claims Court Practice at Algonquin College in Ottawa.

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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.

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