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In the recent case, Fair v. Hamilton-Wentworth District School Board, 2013 HRTO 440, the Human Rights Tribunal reinstated the Applicant, Ms. Fair, into a position with the Respondent school board, more than eight years after she was dismissed.

This case involved an allegation of discrimination in employment on the basis of disability and a failure to discharge the duty to accommodate.

The Applicant was employed by the respondent school board, initially as a casual employee technician, but was eventually assigned supervisory responsibilities in her capacity as “Supervisor, Regulated Substances, Asbestos.”

The Applicant subsequently developed generalized anxiety disorder requiring a medical leave of absence.  Her specific disability involved a reaction to the highly stressful nature of her job regarding the removal of asbestos and possible personal liability for her errors or omissions in the course of her employment, pursuant to the Occupational Health and Safety Act.

Given her severely debilitating condition, the applicant was not able to work, and went off work on disability leave from approximately 2001 until 2004.  However, the applicant was deemed by the insurer to be capable of employment subsequent to 2004 and benefits were suspended.

In the interim period, the respondent had several positions become available which could have been offered to the applicant, however the respondent did not offer these positions to her, or attempt to accommodate her return to work in any other meaningful way.

Liability

The question of liability was decided in an earlier decision in this bifurcated proceeding.

The respondent was found to have discriminated against the applicant on the basis of disability and to have failed to accommodate the applicant’s disability related needs from April 2003 up to her termination on July 9, 2004.

Remedies

The applicant requested general damages of $50,000, reinstatement, lost wages from June 26, 2003 to 2012 in the amount of $419,283.89, lost pension credits, CPP adjustments, reimbursement of out-of-pocket drug and dental expenses, and a tax gross up.

On the issue of reinstatement, the Tribunal Vice-Chair, Kaye Joachim, noted that the overarching remedial principal in the Code is to make the applicant whole and that reinstatement was the most appropriate way to do this.  The Tribunal quoted from McKinney v University of Guelph, [1990] 3 SCR 229 at para. 341 which states:

It should be noted that the rights of the appellants which have been infringed pertain to their dignity and sense of self-worth and self-esteem as valued members of the community, values which are at the very centre of the Charter. It would be insufficient, in my view, to make any order which does not seek to redress the harm which flows from the violations of this interest. Reinstatement is clearly the most effective way of righting the wrong that has been caused.

The Tribunal noted that the applicant had searched “assiduously” for other work, but had only been able to obtain casual or part-time employment, concluding that the respondent failed to discharge its duty to prove a failure to mitigate.

The Tribunal found, on a balance of probabilities, that the applicant would have continued to remain employed with the respondent if her employment was not terminated contrary to the Code.

In ordering reinstatement, the Tribunal cited the case of Alberta Union of Provincial Employees v. Lethbridge Community College, 2004 SCC 28 at para. 56: “as a general rule, where a grievor’s collective agreement rights have been violated, reinstatement of the grievor to her previous position will normally be ordered.  Departure from this position should only occur where the arbitration board’s findings reflect concerns that the employment relationship is no longer viable.”

The following factors were seen to militate in favour of reinstatement:

• the applicant holds no ill will toward the respondent as a whole
• the applicant believes she can return to work
• the individuals who were responsible for the discriminatory decisions leading to her termination are no longer employed
• the respondent is very large employer with sophisticated management structure
• the reinstatement would not cause any hardship
• the passage of time is not sufficiently prejudicial to respondent, and not the fault of the applicant

Reinstatement was granted with adjustment to seniority and banked sick days.  The applicant was ordered to be placed in a suitable position as soon as possible.

Significant Points

The Human Rights Tribunal has observed that reinstatement is not frequently requested or ordered.  However, it remains a powerful remedial option for employees who were dismissed for a reason that would breach the Human Rights Code.  The Tribunal’s recent decision in Fair v. Hamilton-Wentworth, confirms that reinstatement is available for employees found to have been terminated for a discriminatory reason, and that the lost wage awards can go back to the date of termination.