Over a year after its decision holding the Hamilton-Wentworth District School Board (the School Board) liable for discriminating against former employee Sharon Fair (Ms. Fair) by failing to accommodate her post traumatic stress disorder (PTSD) and terminating her employment, the Human Rights Tribunal of Ontario (HRTO) has ordered the School Board to reinstate Ms. Fair and pay her an amount equal to nearly 10 years’ worth of back pay and benefits. The School Board was also ordered to pay $30,000 to Ms. Fair as compensation for injury to her dignity, feelings and self-respect.
Liability of the School Board
Ms. Fair had been employed with the School Board for approximately 16 years when she was terminated in July 2004. Starting in 1994, she acted as Supervisor, Regulated Substances, Asbestos, a position which she held until her termination. In 2001, she developed a generalized anxiety disorder resulting from the highly stressful nature of her job and her particular fear that she would be held personally liable for a breach of Ontario’s Occupational Health and Safety Act (the OHSA) if she made a mistake in her duties relating to asbestos removal. She was hospitalized for a time, diagnosed with PTSD and depression, and later received long-term disability (LTD) benefits.
Approximately two years later, and following an assessment determining that Ms. Fair was capable of gainful employment, her LTD benefits ceased. While medical documentation established that Ms. Fair was not totally disabled, there was, however, some ambiguity as to whether she could fill a position in which there was a risk of personal liability under the OHSA. As the School Board was of the view that all supervisory or comparable positions involved some risk of personal liability, it took the position that Ms. Fair could not perform the essential duties of her position and could not be accommodated. She was terminated shortly thereafter. Ms. Fair subsequently filed an application with the Ontario Human Rights Commission (the Commission) (which prior to 2008 was the government body responsible for dealing with human rights complaints) alleging that the School Board failed to accommodate her PTSD and terminated her employment as a result.
While Ms. Fair’s application was filed in November 2004, the Commission had not dealt with the matter for some 4 years. In 2009 Ms. Fair filed a fresh application with the HRTO pursuant to the transitional application rules then in effect. A decision in the matter was ultimately not released by the HRTO until February 2012. In its decision, the HRTO acknowledged that while there was some ambiguity as to whether Ms. Fair could fill positions involving personal liability, it held that once it was established that Ms. Fair was capable of gainful employment it was incumbent on the School Board to clarify this ambiguity and work with Ms. Fair to determine what risk of liability she could accept. The School Board was aware of Ms. Fair’s limitations and it did not canvass possible solutions for her accommodation needs. It was also held that although Ms. Fair could have been a supervisor in a position other than asbestos removal, the School Board’s Controller had refused to discuss alternate positions she might fill, and as a result, she was not considered for appropriate work opportunities. The School Board also rejected Ms. Fair’s application for a posted supervisor position in June 2003, a position for which she was qualified.
While the decision established the liability of the School Board, the HRTO did not rule on the appropriate remedy. Instead, it was decided that a further hearing would be held if the parties were unable to agree in this regard.
As the parties failed to reach such an agreement, on March 14, 2013 the HRTO issued its remedial decision and ordered the School Board to take a number of significant actions, including the following:
- To reinstate Ms. Fair to suitable alternative employment and adjust her length of seniority accordingly;
- To pay her the amount of the full-time wages she would have earned (with the exception of any income and non-repayable benefits she actually received from that date) from June 26, 2003 (the date the supervisor position was posted) until the date of reinstatement;
- To pay her pension contributions to the Ontario Municipal Employees Retirement System and to the Canada Pension Plan (or compensate her for any losses arising from lost contribution years) as if she had been employed throughout the period;
- To pay for out-of-pocket medical and dental expenses which would have been covered by her benefit plans had she been accommodated and to compensate Ms. Fair for the adverse tax consequences of receiving almost 10 years of pay in one lump sum; and
- To pay Ms. Fair $30,000 as compensation for the injury to her dignity, feelings and self-respect.
Pre and post-judgment interest was also awarded on the damages ordered. Regarding pre-judgment interest specifically, such interest was notably awarded from the date of the complaint even though awarded amounts would have been paid out over time and were not due and payable at the time Ms. Fair’s application was filed. While the School Board argued that a reinstatement order would be unfair in light of the time that had elapsed since Ms. Fair’s termination, the HRTO noted that Ms. Fair submitted her original application in a timely way and had since consistently sought reinstatement and that the delay in proceedings was largely attributable to the Commission and not Ms. Fair. The HRTO’s determination that reinstatement was preferred was also influenced by the following holdings: (i) that Ms. Fair would have continued to be employed by the School Board had she not been terminated and the purpose of human rights legislation is to make a complainant “whole”; (ii) that Ms. Fair was still capable of full-time employment at the School Board; and last (iii) there was no animosity between Ms. Fair and the School Board and those individuals responsible for her termination no longer worked at the School Board.
With respect to its award for lost wages and benefits, the HRTO justified its order by referring to the general principle holding that the purpose of compensation is to restore a complainant as far as is reasonably possible to the position they would have been in had the discrimination not occurred. This general principle applied despite the fact that almost 10 years had passed since Ms. Fair’s termination. The HRTO was also satisfied that Ms. Fair had made sufficient efforts to mitigate her losses following her termination, as she obtained alternative part-time employment and continued to look for a full-time position.
While Ms. Fair also claimed for compensation relating to the loss of the spousal life insurance plan that ended on her termination, the HRTO noted that Ms. Fair’s spouse had since developed serious medical issues which would affect the premium of such insurance upon her reinstatement. It was held that this loss was too speculative and, in any event, she failed to mitigate this loss by purchasing other insurance following her termination.
This case illustrates how serious the consequences can be for employers who do not take seriously their duty to accommodate employees with disabilities, particularly in cases where reinstatement is sought and remains a viable option. The HRTO will not hesitate to issue significant damages awards if it deems such awards necessary to properly address discriminatory conduct on the part of an employer. Further, the decision also serves as a reminder that accommodation obligations under the Human Rights Code are a two-way street, and that even in the face of ambiguous medical documentation an employer should take steps to clarify an employee’s restrictions and limitations.