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Ontario Court of Appeal Upholds Controversial Human Rights Decision Ordering Reinstatement of Former Employee

Published: 06/14/2016

By Caitlin Russell

The Ontario Court of Appeal has upheld a surprising decision from the Ontario Human Rights Tribunal (“the Tribunal”) that ordered a terminated employee be reinstated to her position with full seniority almost a decade after she had left the workplace.

(Read our prior e-lerts on this decision from October 10, 2014 and June 3, 2013 for more information.)


The Tribunal’s decision in Fair v. Hamilton-Wentworth District School Board, 2013 HRTO 440, involved an employer’s failure to accommodate an employee’s disability-related needs. In October 2001, Ms. Fair commenced a medical leave of absence after being diagnosed with a generalized anxiety disorder – resulting from the stressful nature of her job - depression and post-traumatic stress disorder.

At the time of the onset of her disability in October 2001, Ms. Fair had more than 15 years of service and performed a supervisory position. In 2003, Ms. Fair’s doctor indicated that she could return to work, subject to certain restrictions. No position was offered by the employer. Ms. Fair’s eligibility for long-term disability benefits ended in April 2004 and her employment was eventually terminated on July 8, 2004.

The Tribunal found the employer liable for failing to accommodate Ms. Fair and, in particular, for failing to consider other appropriate positions available in the workplace. Ms. Fair was awarded, among other things, reinstatement (which included nine years of back pay) and $30,000 for compensation for the injury to her dignity, feelings and self-respect.

Appeals of the Tribunal’s Decision

In September 2014, the Divisional Court dismissed the employer's application for a judicial review of the Tribunal’s decision. The employer appealed the Divisional Court decision.

The Ontario Court of Appeal has recently released its decision dismissing the employer’s appeal and upholding the Tribunal’s decision. The Court agreed with the Divisional Court that the Tribunal’s determinations were reasonable with respect to both: (1) the finding that the employer had failed to accommodate Ms. Fair; and (2) the remedy of reinstatement.

With respect to reinstatement, the most controversial aspect of the decision, the Court dismissed the employer’s argument that the reinstatement of Ms. Fair was an “unreasonable, unprecedented and disproportionate” remedy. In particular, the Court found that, while reinstatement was a rarely used remedy, it clearly fell within the Tribunal’s broad remedial authority and specialized expertise under the Human Rights Code.

Further, the Court went on to find that that the passage of time is not, by itself, determinative of whether reinstatement of an employee is an appropriate remedy. Rather, the decision as to whether to order reinstatement is context-dependent. In this case, the Court agreed with the lower court decisions that Ms. Fair’s employment relationship was “not fractured” and that the passage of time had not “materially affected” her capabilities.

As a result, the employer will now be required to reinstate Ms. Fair almost 15 years after she left the workplace.

Take Away

The Court of Appeal’s decision is an important reminder that employers must consider all possible avenues of accommodation for employees with disabilities. A failure to accommodate can result in a costly human rights application. Further, given the broad powers of the Tribunal – which are accorded significant deference by the courts – a failure to accommodate may result in an order to reinstate an employee, even after a significant passage of time.

For further information regarding this matter, please contact Caitlin Russell or other members of Cassels Brock & Blackwell’s Employment and Labour Group.

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