By Graeme McFarlane

Is zombie culture spreading to the courtroom?  Issues employers thought were long dead coming back to life and returning to the workforce.  A recent decision by the Ontario Human Rights Tribunal should strike a fear similar to the more manifest zombies of the big and smalls screens.

In the decision of Fair v. Hamilton-Wentworth District School Board, 2013 HRTO 440, the Ontario Human Rights Tribunal ordered that a non-union employee be reinstated to her position.  This order was made notwithstanding that it had been over 10 years since the employee had left active employment and commenced disability leave.  The Tribunal also ordered the employer to pay lost wages for almost 11 years of pay.

In the earlier liability decision, the Tribunal decided that the employer had failed to properly accommodate the employee’s anxiety disorder and therefore had discriminated against her pursuant to the Code.  The employee’s anxiety centered on her belief that she could be found personally liable if she made a mistake discharging her employment duties as the district’s Supervisor, Regulated Substances, Asbestos.

After receiving disability benefits from 2001 through 2004, the disability insurer determined that she was capable of gainful employment.  The employer concluded that it was not able to accommodate the employee in any return to work because her anxiety was a complete bar to her ability to work in her field of expertise.  The Tribunal did not accept the employer’s position and held that the medical evidence only showed anxiety related to the removal of asbestos.  Accordingly, there were other occupational health and safety positions available that could have formed the basis for a reasonable workplace accommodation.

In the damages decision the Tribunal made a number of important factual conclusions.    First, had the employer properly accommodated the employee, she would have been returned to full-time employment in June 2003.  Second, even though the complainant made reasonable and fulsome efforts, she had been unable to find full-time permanent employment.  Third, had the complainant been properly accommodated, she would have remained a District employee from 2003 through the date of the decision.

The second and third of these conclusions seemed to drive the result.  In reaching the second conclusion, the Tribunal eliminated any possibility of reducing the damage award for a failure to mitigate her damages.  The third conclusion eliminated a damages reduction for the “uncertainties” that are often factored in when determining losses.

The Tribunal then proceeded to award the complainant $419,000 in back pay.  It also held that the complainant needed to be “made whole” and directed that she be re-instated to an accommodated position with the occupational health and safety group.  Quoting the Supreme Court of Canada’s decision in McKinney v. University of Guelph, [1990] 3 SCR 229 at para. 341:

“It should be noted that the rights of the appellants which have been infringed pertain to their dignity and sense of self-worth and self-esteem as valued members of the community, values which are at the very centre of the Charter.  It would be insufficient, in my view, to make any order which does not seek to redress the harm which flows from the violations of this interest.  Reinstatement is clearly the most effective way of righting the wrong that has been caused.”

Even thought the complaint was filed in 2004 and not heard until June 2012, the Tribunal paid little consideration to the argument that any back pay award should be reduced because of the extremely long delay in the proceedings.  The Ontario process changed from a commission based model to a Tribunal process in 2009.  Because of this change the Tribunal concluded, in part, that the matter may not have been concluded any earlier because of its complexity and because of complications arising from the change in Human Rights models.  It focused analysis on the complainant and said that any delays were not her fault.  For unknown reasons it boldly stated that there would be no prejudice to the employer in awarding the full amount for back pay.

As far as damages for injury to dignity, feelings and self-respect, the Tribunal concluded that an additional award of $30,000 was necessary.

This case should serve as a warning to employers that Human Rights Tribunals have exceptional remedial power.  They can and will return employees to the workplace even in circumstances where that employee has been absent from the workplace for extensive periods.  In addition, employers should be mindful of situations where the adjudication of a case has been delayed.  As time goes on, so do potential damages increase.

Graeme McFarlane is a partner at Roper Greyell LLP, a firm focused on partnering with companies to find solutions to workplace legal issues.

(PeopleTalk Summer 2013)