Wilson v. Solis Mexican Foods Inc., is the first decision where the Superior Court has relied on the relatively new s. 46.1 to award a human rights remedy in a wrongful dismissal case.
In 2008, the amendments were passed and allowed, for the first time, employees who bring wrongful dismissal cases claiming a breach of contract, to piggyback discrimination claims in the Superior Court.
“They can’t just bring a discrimination claim — it has to be associated with another cause of action,” explains Hendrik Nieuwland, a partner with Shields O’Donnell MacKillop LLP. “Typically it is done by a wrongful dismissal claim and a claim of being discriminated against and seeks human rights remedies.”
The 2008 amendments were largely driven by demand for efficiency in the system. It’s taken five years for a court to rule on such a case, largely because there is about a 95-per-cent settlement rate, says Nieuwland.
Wilson’s case went to court and she was awarded $20,000 in damages by Justice A. Duncan Grace.
Wilson, a certified general accountant who earned $65,000 a year, was employed by Solis Mexican Foods Inc., for more than 16 months when she was terminated in May 2011. She received two weeks pay in lieu of notice. She alleged she was terminated at least in part because of an ongoing back ailment and therefore her rights under the Human Rights Code were infringed.
Wilson’s lawyer, Jonathan B. Pitblado, said the lesson from the case for employers is a “double-edged knife” and they should be prepared to see more decisions like this one.
“Now that there’s one judge who has awarded human rights [damages] I think there is going to be many more,” says Pitblado.
“The summary trial procedure under the simplified rules is a wonderful procedure,” he says. “It allows plaintiffs to get their case heard in a relatively fast and relatively cheap format.
“The downside for employers is now the floodgates have potentially been opened by this case; expect more of them. The upside is if the summary trial method is chosen an HR person for the employer will know the complete case at least a month before trial.”
Typically, Pitblado says the plaintiff completes his or her affidavit 90 days before trial, defence counsel does its 60 days before trial and the plaintiff replies 30 days before trial.
“The summary trial has the pleadings and all the affidavits with all exhibits and when the defence lawyer gets it he or she can make a copy for HR and it should be easy to settle cases at the 30-day mark before trial because you know what everyone is saying,” he says.
There are some important lessons from the case for employers and HR people in general, says Nieuwland. The first is that temporary illnesses or injuries are considered disabilities under the code.
“This woman had a temporary bad back. She was off work for about a month and then proposed a graduated return to work. Some people are under the misconception that having a bad back for a short period of time isn’t a disability but it is and the reason why is the code protects employees from being treated differently even if they are perceived to have a disability and they don’t actually have one. The bar is very low for what qualifies as a disability under the code,” he says.
Another lesson is that employers typically can’t insist on a full recovery before an employee returns to work, which is what the employer did in this case.
It’s also a good reminder that disability should play “no role whatsoever” in the decisions to terminate.
“Even if one per cent of the decision to terminate is motivated by an employee’s disability it’s discrimination under the Code,” says Nieuwland. “The big question justice Grace answered was whether or not the courts are going to adopt that policy and interpretation of prima facie cases of discrimination because that’s what the tribunal has established and it’s well established in tribunal case law.”
With disability “the battleground” in terms of human rights cases right now, Nieuwland says the Wilson decision with “embolden” plaintiff’s counsel to make these kinds of claims more often, especially since the damages awarded represented about one third of her income.
Two other common remedies in addition to the damages Wilson received include damages for loss of employment, which can far exceed common law reasonable notice damages, and reinstatement.
“The big question for the employment bar is going to be whether a judge will order reinstatement in an appropriate case where that is sought,” he adds.