In the recent decision of Hamilton-Wentworth District School Board v. Fair, 2016 ONCA 421, the Ontario Court of Appeal (“ONCA”) upheld the Human Rights Tribunal of Ontario’s 2013 decision to reinstate an employee, more than 10 years after her employment was terminated. By the time of the ONCA’s decision, almost 15 years had passed since the original termination.

The ONCA’s decision may encourage other decision-makers to order reinstatement as a remedy in discrimination cases. The decision also highlights the importance of considering all possible positions, vacant or not, in order to meet the duty to accommodate employees with disabilities.

Background

As explained in our previous post on this case, Ms. Fair was hired by the School Board in 1988. In connection with her work, Ms. Fair developed a generalized anxiety disorder and was later diagnosed with depression and post-traumatic stress disorder. Ms. Fair started a medical leave of absence in 2001 as a result.

In 2003, Ms. Fair indicated that she wanted to return to work and enrolled in a work-hardening schedule. Her psychiatrist indicated that she could return to work, subject to certain restrictions. However, no position was offered. In April 2004, Fair’s long-term disability benefits were discontinued because she was deemed capable of gainful employment. In July 2004, the School Board terminated her employment.

Ms. Fair requested reinstatement before the Human Rights Tribunal of Ontario (“HRTO“). The HRTO found that there were appropriate positions available for Ms. Fair and the School Board had therefore discriminated against her by failing to reasonably accommodate her disability. The HRTO ordered the School Board to reinstate Fair to suitable employment, despite the substantial passage of time, and to pay Fair’s lost wages since 2003. The Ontario Divisional Court upheld the HRTO’s decision as reasonable and dismissed the School Board’s application for judicial review.

Key Questions

Among other issues, the ONCA considered the following key questions:

1. Did the Divisional Court err in upholding the HRTO’s decision that the School Board failed to accommodate Ms. Fair?
2. Did the Divisional Court err in upholding the HRTO’s decision to order reinstatement?

Raising the Bar on the Duty to Accommodate

The ONCA emphasized that the purpose of accommodation is to ensure that persons who are otherwise fit to work are not unfairly excluded from employment where working conditions can be modified without undue hardship.

The ONCA dismissed the School Board’s argument that the HRTO created new and unreasonable standards of accommodation by requiring an employer to create a new position or transfer a current employee. The ONCA concluded that:

• Transferring employees may fall within the duty to accommodate and does not, in and of itself, create undue hardship;
• Creating or maintaining a position that the employer considers to be surplus may also not constitute undue hardship, unless the employer can prove otherwise, such as by demonstrating a lack of financial resources;
• An employer has no obligation to place an employee into a position for which he or she is unqualified; and
• An employer may be required to pass over a more qualified or senior employee in favour of a qualified employee with a disability.

Reinstatement as Remedy in Employment Law

The ONCA dismissed the School Board’s arguments that reinstatement is an unreasonable, unprecedented, and disproportionate remedy, for the following reasons:

• Although uncommon, ordering reinstatement is within the HRTO’s broad authority and expertise. It is also a common remedy in arbitral cases.
• The passage of time itself does not preclude the availability of reinstatement; rather, the decision to award this remedy should depend on the context.
• Factors that have made reinstatement unreasonable in other cases, including a fractured relationship between the parties and a material change in the employee’s capabilities over time, were not present in this case.

Key Takeaways

The ONCA’s decision emphasizes a number of important points. Employers should be aware that the duty to accommodate an employee to the point of undue hardship can include the transfer of existing employees from their current positions or the creation of a slightly different position with bundled duties. Although employers are not required to place an employee in a position for which he or she is not qualified, an employee with a disability need not be the most qualified person for the position. Finally, where employers do not fulfil their duty to accommodate, reinstatement of a former employee is a possible consequence, even after a significant passage of time.

However, this decision does not detract from other key principles regarding the duty to accommodate, including the fact that employees are not entitled to their ideal accommodation, employees must cooperate and participate in the accommodation process, and employers are not required to create a valueless position in order to fulfil the duty to accommodate. Furthermore, as this case suggests, there may be certain circumstances where reinstatement is inappropriate. This is particularly true in industries and positions that involve constantly-changing skill sets and capabilities.

In short, employers must assess each accommodation request on a case-by-case basis, with an open mind to all reasonable solutions. Addressing these requests in a thoughtful way at the outset may reduce the risk of complaints in the future.