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The Ontario Court of Appeal Upholds Surprising Reinstatement Decision with Backpay

Employers are usually aware of their duty to accommodate employees with disabilities. However, disability remains one of the most cited grounds of discrimination in applications made under the Ontario Human Rights Code and often arises in employment matters. Employers continue to struggle with meeting their obligations to properly accommodate.

In the case of Hamilton-Wentworth District School Board v Fair (2016 ONCA 421), the Ontario Court of Appeal sided with Ms. Fair. Sharon Fair was a Supervisor for the Hamilton-Wentworth District School Board ("School Board"). She had almost 15 years of service but was on a medical leave of absence from 2001 until 2003. She suffered from depression and PTSD stemming from the highly stressful nature of her job in ensuring asbestos was removed. She feared she would cause personal injury to others and be held personally liable. Her physician and the School Board's physician both determined that Ms. Fair's disability renders her permanently disabled from being a Supervisor. Both physicians indicated that she is otherwise capable of gainful employment in areas that do not include health and safety. The School Board did not find another suitable position for Ms. Fair and instead, terminated her employment with a severance package.

The Ontario Human Rights Tribunal ordered Ms. Fair to be reinstated to the School Board with back-pay from 2003 (the date the Tribunal found a suitable position was first available but not offered to Ms. Fair) until the date of reinstatement. This amounted to $419, 284 (plus interest), representing lost wages. Ms. Fair also received pension contributions she would have earned from the date an alternative position was posted in June 2003 until her reinstatement. She was awarded an additional $30,000.00 as compensation for injury to her dignity, feelings and self-respect. The Tribunal found the School Board did not properly accommodate her disability. The School Board appealed this decision, but the Divisional Court and Court of Appeal agreed that Ms. Fair should be reinstated with back-pay. The Court of Appeal stated the School Board "never had any real intention to accommodate" and that the School Board failed to consider any alternate positions for Ms. Fair.

Lesson for Employers

While re-instatement orders are fairly common in unionized workplaces, these types of orders are rare in non-unionized settings. Although it is unknown whether the School Board will appeal to the Supreme Court of Canada, Ontario employers must fulfill their duty to accommodate or risk legal action, human rights complaints, and costly penalties. Accommodating does not include a duty to create a new position, but it does include modifying the employee's position or considering an alternate position that the employee is qualified for within the organization. To be able to do this effectively, employers should understand the employee's needs by seeking adequate and appropriate medical information.

It is important to remember that the goal of the human rights legislation is to put the affected individual back in the position he or she would have been in had discrimination not taken place. As we saw with Ms. Fair, this can include reinstatement and significant back-pay.

Lesson for Employees

If you have a disability, your employer has a duty to accommodate you unless it causes the employer undue hardship. This is a high standard to meet. If you believe that you have not been properly accommodated or that you were dismissed because of your disability, contact us and we would be happy to discuss your case and how we can be of service to you.

To reach the author of this blog, Jean-Francois Lalonde, email jflalonde@viceandhunter.ca or call 613.232.5773 x 246.

Jean-Francois Lalonde is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Vice & Hunter LLP. He has extensive experience practicing in the areas of employment law and is a part-time professor at La Cité Collégiale teaching Employment Law for Paralegals.

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