Reinstatement After Eight Years? Ontario Human Rights Tribunal Says Yes.
November 27, 2013
In a recently released decision of the Ontario Human Rights Tribunal (“OHRT”) dated March 14, 2013, the employee Applicant was awarded reinstatement to her employment as Supervisor, Regulated Substances, Asbestos, with the Hamilton-Wentworth District School Board (the “Respondent School Board”) after being away from work since July 8, 2004.
The Applicant had filed a Complaint with the Ontario Human Rights Commission on November 24, 2004 alleging discrimination due to disability contrary to Sections 5 and 9 of the Code. The Complaint was thereafter transferred to the OHRT by way of an Application filed in 2009.
In a decision on the merits issued by the OHRT in 2012, the Respondent School Board was found to have violated the Code by failing to accommodate the Applicant’s disability-related needs from April 2003 and thereafter, by terminating her employment on July 9, 2004.
In the decision on the remedy to be awarded to the Applicant, the Tribunal Adjudicator focused on the Applicant’s request for reinstatement, stating that the remedial objective of human rights legislation is to make an applicant “whole”.
The Tribunal adopted the remedial principles outlined in the Supreme Court of Canada decision of McKinney v. University of Guelph, [1990] 3 S.C.R. 229 which held that “reinstatement is clearly the most effective way of righting the wrong that has been caused…”.
The Tribunal held that the Applicant had searched diligently for alternative work but had only managed to find casual and part-time employment. It also held that on the balance of probabilities, the Applicant would have continued in the employ of the Respondent School Board had her employment not been terminated contrary to the Code.
The Tribunal found that there was no impediment to reinstatement as the Applicant held no animosity towards the School Board and the individuals who were responsible for her termination were no longer in the School Board’s employ. Given the size of the School Board, it was also found that the reinstatement of the Applicant would not cause any hardship.
In respect to the lengthy passage of time, the Tribunal held that while it had been 8 ½ years since the Applicant was terminated, the delay was not attributable to the Applicant, but rather was due to the Commission and OHRT process. It found that the delay by the HRTO in processing the Application since 2009 was not unreasonable given the complex issues.
In any event, the Tribunal held that the passage of time, in and of itself, was not sufficiently prejudicial to the School Board to justify refusing reinstatement.
In addition to reinstatement, the Tribunal ordered lost wages to be paid by the School Board in the sum of $419,283.89, based on the full-time wages the Applicant would have earned with the School Board from June 26, 2003 (when an alternate appropriate position was posted) to the date of reinstatement, less any income and non-repayable benefits she received. The Tribunal also ordered the School Board to make all employer pension contributions and to pay any additional costs related to buy-back of pensionable service; to make retroactive payments to the Canada Pension Plan; to reimburse the Applicant for out-of-pocket medical/dental expenses; and to compensate the Applicant for any tax consequences as a result of receiving the wages as a lump sum rather than as continuing salary. The Applicant was not awarded compensation relating to increased spousal life insurance premiums due to the Applicant’s spouse’s declining health since the termination as the Tribunal found such was too speculative and unmitigated.
Finally, the Tribunal also awarded the Applicant compensation for injury to dignity, feelings and self-respect under the Code in the sum of $30,000.00, as well as prejudgment interest on all damages from the date of the original Complaint to the date of the decision and postjudgment interest thereafter.
This decision is a significant one in human rights jurisprudence. It reveals the willingness of the Tribunal to award reinstatement as a viable remedy for a breach of the Code irrespective of the passage of time as well as a significant lost wages award. Employers should be aware of these risks while employees should be mindful to claim such relief in their applications.
Fair v. Hamilton-Wentworth District School Board, 2013 HRTO 440
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