This case sends a strong message that situations involving discriminatory conduct combined with a wrongful dismissal action may not be analyzed using the typical wrongful dismissal reasonable notice framework given the broad and creative remedial powers the tribunal possesses.
Under Ontario’s Human Rights Code c. H.19, the tribunal may make one or more of the following orders:
“1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
“2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
“3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.”
In Fair’s case, the tribunal summarized the discriminatory conduct, namely the failure to accommodate her disability related needs as follows:
“In the fall of 2001, the applicant developed a generalized anxiety disorder. . . . The applicant received long-term disability benefits (“LTD”) through the Ontario Teachers Insurance Plan (“OTIP”) until April 3, 2004, when she was assessed as capable of gainful employment. From April 2003, the respondent failed to take steps to investigate possible forms of accommodation. From June 2003, the respondent failed to offer the applicant available, alternative work. On June 26, 2003, an area supervisor in the plant announced that he was leaving effective July 7, 2003. This is a position that could have been offered to the applicant, as she was a qualified area supervisor.”
On appeal, the Divisional Court in upholding the tribunal’s award concluding:
“It is certainly the case, as the Board points out, that reinstatement is an uncommon remedy in human rights litigation. It is not, however, unusual in labour relations litigation . . . where one might be dealing with exactly the same issues. The Code provides the Tribunal with broad remedial authority to do what is necessary to ensure compliance with the Code. It is fair to say that while reinstatement is unusual, there is no barrier or obstacle to this remedy in law. The outcome is within the range of reasonable expectation.”
Courts in Canada generally do not have the ability to order reinstatement as a remedy in a civil wrongful dismissal case unless otherwise provided for by statute. Furthermore, outside of a unionized environment reinstatement remains an extraordinary remedy.
Although this case leaves a bit of uncertainty as to when reinstatement will be ordered by the tribunal and how often, it goes without saying that many situations will not be conducive to continued employment just based on a simple reading of the facts alone. However, the threat of a reinstatement order alone can force a more timely settlement from an employer in the right scenario. In the absence of an acrimonious situation, reinstatement remains a realistic possibility, at least before Ontario’s Human Rights Tribunal.
This case turned in large part on the fact there was no acrimony between the parties and many of the individuals involved in the discriminatory conduct were no longer with the organization.
Outside of reinstatement, human rights litigation can also result in creative remedies such as back wages being ordered. Employers need to be aware that their exposure far exceeds the typical 24-month cap placed on liability in dismissal scenarios not involving discrimination. As we witnessed in Fair’s case, compensation orders can easily approach half a million dollars and account for a decade of loss.
One of the most important takeaways from this case is that timely mitigation strategies can often prevent manageable workplace issues turning into expensive fiascos. Sometimes, knowing when to get out of a case is the most important consideration, particularly when an order for back wages and reinstatement are realistic outcomes.
Michael Stitz is an employment lawyer at Grosman Grosman & Gale LLP in Toronto. He assists both employers and employees in all aspects of employment law including disability management and human rights litigation.