On September 29, 2014, the Divisional Court released its decision in Hamilton- Wentworth District School Board v. Fair, upholding the two decisions of the Human Rights Tribunal of Ontario (“HRTO” or the “Tribunal”). In the first decision, the HRTO found that the Hamilton-Wentworth District School Board (the “Board”) discriminated against Ms. Fair by failing to accommodate her disability; and in the second decision, the HRTO ordered reinstatement with back pay even though the employee had been out of the workplace for over ten years.

The Court rejected the Board’s concern that the imposition of such a remedy was unreasonable, given the significant passage of time, concluding that the outcome was within the range of reasonable expectation.

Background

Ms. Fair had been employed by the Board as a Supervisor, Regulated Substances, Asbestos. In the fall of 2001, Ms. Fair developed a generalized anxiety disorder and was off work from October 2, 2001. She was subsequently diagnosed with depression and post-traumatic stress disorder. Her disability was determined to be a reaction to the highly stressful nature of her job, and her fear that, in making a mistake about asbestos removal, she could be held personally liable for a breach of the Occupational Health andSafety Act.

Ms. Fair received long-term disability benefits through the Ontario Teachers Insurance Plan until April 3, 2004, when she was assessed as capable of gainful employment. The Board took the position that it could not place Ms. Fair in a suitable job because of work restrictions related to her disability. Consequently, on July 8, 2004, following the Board’s conclusion that she could not be accommodated without causing undue hardship, her employment was terminated.

HRTO’s Decisions

The Vice Chair of the Tribunal concluded that the Board discriminated against Ms. Fair because of her disability, by failing to accommodate her disability-related needs from April 2003 and then by terminating her employment on July 9, 2004. In particular, the Tribunal held that from April 2003, the Board failed to take steps to investigate possible forms of accommodation; and from June 2003, it failed to offer the applicant available, alternative work as the Staff Development  Supervisor.

With respect to remedies, the Board was ordered to reinstate Ms. Fair to suitable alternative employment. In the Tribunal’s view, had the Board properly accommodated the applicant, she would have been returned to full-time employment as an area supervisor or in an alternate role since June 26, 2003. The Tribunal also identified the following findings as reasons why reinstatement was appropriate in this case:

  • the applicant had searched assiduously for alternative work, although she was only able to find casual and part-time employment; and the loss of full-time employment had affected her financially going forward until retirement;
  • there was no animosity between the parties to impede a successful reinstatement;
  • the few individuals who were responsible for the decisions leading to the termination of the applicant’s employment were no longer employed with the Board;
  • there was sufficient evidence that the applicant could medically have returned to work as either an area supervisor or Staff Development Supervisor;
  • the delay in hearing the case could not be attributed to the applicant, as she filed a human rights complaint in November 2004, four months after her employment was terminated; and
  • the passage of time was not sufficiently prejudicial to the Board to justify refusing reinstatement.

In addition to reinstatement, the Tribunal ordered the Board to pay the full-time wages Ms. Fair would have earned from June 26, 2003 (the date the Staff Development Supervisor position was posted), to the date of reinstatement, less any income and non-repayable benefits she received. The applicant was also awarded $30,000 as compensation for injury to her dignity, feelings and self-respect, and other benefits, including employer pension contributions and out of pocket medical and dental expenses from August 2004.

Divisional Court’s Decision

The Court upheld the Vice-Chair’s decision concluding that there was nothing unreasonable in the Vice Chair’s findings  that the Board failed to accommodate the applicant. The Court found that, based on the evidence, it was difficult to conclude that the applicant was accommodated to the point of undue hardship where she was not assigned to a vacant position which would have accommodated her disability.

With respect to the remedy of reinstatement, while the Court agreed that reinstatement is an uncommon remedy in human rights litigation, the Court explained that the Human Rights Code provides the Tribunal with broad remedial authority to do what is necessary to ensure compliance with the Code. As such, there is no bar to such a remedy in law.

Conclusion

The decision in this case underscores the need for employers to take reasonable steps to properly investigate alternative means of accommodation and consider all options, including reviewing alternative available positions. As in this case, a failure to conduct a genuine and good faith assessment of an employee’s needs in determining what accommodation may be required, can lead to potential liability and may prove very costly for an employer. In most cases, the prudent course is to obtain legal advice prior to any decision to terminate the employment of an ill or disabled employee.