The Human Rights Tribunal of Ontario’s decision to reinstate Sharon Fair almost 10 years after her employment was terminated has been upheld by the Ontario Divisional Court. This decision may signal an increase in reinstatement orders at the Human Rights Tribunal of Ontario (“HRTO”), and in civil cases involving allegations of discrimination under the Human Rights Code.
Fair first became employed by the Hamilton-Wentworth District School Board on October 24, 1988. Between September of 1994 and October of 2001, she held the position of “Supervisor, Regulated Substances, Asbestos”. In this role, Fair was responsible for asbestos removal projects.
Fair found her job to be highly stressful and feared she might be held personally liable for breaches of the Occupational Health and Safety Act. In 2001, she was diagnosed with anxiety disorder, and in 2002, she was diagnosed with depression and post-traumatic stress disorder. On October 2, 2001, Fair took a long leave of absence to address her mental health issues.
In 2003, Fair’s disability management coordinator advised that Fair “may return to work, but not to a position with the same level of liability”. The school board began requesting medical information from Fair in November of 2003, but Fair was not provided with a return to work option.
On July 8, 2004, after Fair’s long term disability benefits were discontinued, the school board determined that it did not have a suitable alternative position for Fair, and her employment was terminated. Medical evidence suggested that she could not work in any position involving liability for health and safety issues.
On November 24, 2004, Fair filed a human rights complaint with the Ontario Human Rights Commission. At that time, Fair was not required to specify the remedy she sought. In 2008, Fair filed a transition application under the Transition Rules which permitted complaints to be transferred to the HRTO. Her transition application specifically requested reinstatement.
Ultimately, the Tribunal decided that the school board failed to reasonably accommodate Fair because there were suitable work opportunities for Fair starting in 2003, both temporary and permanent.
The HRTO ordered the school board to reinstate Fair to suitable alternative employment, and to pay the applicant’s loss of wages from June 26, 2003 until the date of reinstatement. The HRTO also ordered the school board to pay for out of pocket medical and dental expenses which would have been covered by the applicable benefit plans, and $30,000 for injury to dignity.
Reinstatement after almost 10 years of employment is very extraordinary. It is therefore not surprising that the school board applied to the Divisional Court for judicial review of the HRTO’s decision, and in particular, the reinstatement order.
In Hamilton-Wentworth District School Board v. Fair, 2014 ONSC 2411, the Divisional Court considered, among other things, whether the order to reinstate Fair after almost 10 years of employment was unreasonable. In short, the Divisional Court found that, although reinstatement is an uncommon remedy in “human rights litigation”, it was not unreasonable in this case, confirming that the HRTO’s broad remedial authority was not limited by the passage of time, and finding that the HRTO’s reasoning was intelligible, transparent and justified.
Reinstatement is actually very common in the union context where human rights issues are grieved and arbitrated. But the union context is exceptional. Reinstatement has been relatively uncommon in human rights litigation before courts and tribunals.
We expect that reinstatement orders will continue to be rare at the HRTO, but this decision will encourage the HRTO to order reinstatement where the employer failed to accommodate, and where reinstatement is practical and reasonable under the circumstances, even if many years have past since the employment relationship has been discontinued.
Employers should therefore seriously consider the possibility of reinstatement when the accommodation process breaks down. It is now more important than ever to ensure that reinstatement would constitute undue hardship before ending the employment relationship.
This decision also highlights the importance of the following best practices in accommodation:
- Employers must be open to, and actively canvass, all possible accommodation solutions from the outset.
- Employers should maintain ongoing communication with employees who are away on disability leave.
- Employers must be diligent in requesting the appropriate medical information that will allow them to accurately assess whether the employee is able to return to work, with or without modified duties. Such information requests should be updated regularly.