April 24, 2015
The Ontario Superior Court of Justice upheld a 2013 decision of the Human Rights Tribunal of Ontario (2013 HRTO 440) where an employee was awarded reinstatement to her employment as a Supervisor with the Hamilton-Wentworth District School Board (the “School Board”).
The Complaint had been filed with the Ontario Human Rights Commission (the “Commission”) on November 24, 2004 alleging discrimination due to disability contrary to sections 5 and 9 of the Ontario Human Rights Code (the “Code”). The Complaint was thereafter transferred to the Human Rights Tribunal (the “OHRT”) by way of an Application filed in 2009.
The School Board was found to have violated the Code by failing to accommodate the employee’s disability-related needs from April 2003, and thereafter, by terminating her employment on July 9, 2004. The OHRT awarded monetary and other remedies, including back wages of $419,283.89 from June 26, 2003 (when an alternate appropriate position had been posted by the School Board) to the date of reinstatement, less any income and non-repayable benefits she received, and $30,000 for injury to dignity, feelings and self-respect, together with prejudgment interest on all amounts to the date of the decision and postjudgment interest thereafter. In addition, the HRTO made an Order for reinstatement; stating that the passage of time, in and of itself, was not sufficiently prejudicial to the School Board to justify refusing reinstatement.
In the Application for judicial review, the School Board argued several grounds, including the inappropriateness of the reinstatement remedy; stating that it was unreasonable due to its uniqueness and the length of time which had elapsed from the date of the events giving rise to the initial complaint.
The Court rejected all of the School Board’s arguments. On the issue of reinstatement, the Court stated that while reinstatement is an uncommon remedy in human rights litigation, it was common in labour relations litigation under the provisions of a collective agreement (as was the context in this case). Further, the Court stated that the Code provided the Tribunal with broad remedial authority to do what is necessary to ensure compliance with its provisions and that there is no barrier at law to reinstatement as a remedy. Finally, it held that the passage of time ought not to thwart the remedial provisions of the Code, particularly where the delay is largely beyond an applicant’s control.
While this case must be looked at within the context of the facts and the unionized workplace environment, the Court’s conclusion that the lapse of time did not present an automatic barrier to reinstatement has a much wider implication for employers who are respondents to a discrimination application.
Fair v. Hamilton-Wentworth District School Board, 2014 ONSC 2411