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Employment Law in Action

A recent court of appeal decision has addressed the issue of an employer’s duty to accommodate a disabled employee and the seldom-invoked remedy of reinstatement of the employee to her employment under the Ontario Human Rights Code, R.S.O. 1990, c.H.19 (the “Code”). Hamilton-Wentworth District School Board v. Fair, 2016 ONCA 421 (Canlii).

The court was determining whether the Divisional Court erred in dismissing an application for judicial review of the Human Rights Tribunal of Ontario’s decision with respect to liability and remedy. The Tribunal had accepted the complaint by Sharon Fair that the School Board had discriminated against her by failing to accommodate her disability. As a remedy, among other relief, the Tribunal ordered Ms. Fair’s reinstatement to employment with the School Board. The Divisional Court had found the Tribunal’s decision reasonable that there were positions available within the School Board in which Ms. Fair could and should have been placed as accommodation for her disability. The Court also found their decision reasonable in ordering that Ms. Fair be reinstated to her employment with the Board after 14 years of absence.

Ms. Fair, prior to her medical leave, had worked for seven years at the School Board as Supervisor, Regulated Substances, Asbestos. In the fall of 2001, Ms. Fair developed a generalized anxiety disorder, resulting in her being hospitalized for almost a month. She was subsequently diagnosed with depression and post-traumatic stress disorder. This disability developed in response to the highly stressful nature of the job and her fear that in making a mistake she could cause personal injury to others and be held personally liable. After two years, Ms. Fair indicated that she wanted to return to work and her OTIP consultant contacted the School Board to begin discussing a return to work. She participated in a work hardening schedule and applied for (but did not receive) alternative job positions with less exposure to personal liability. Ultimately, Ms. Fair was not able to find suitable employment at the School Board and on July 8, 2004, the Board terminated Ms. Fair and offered her a severance package.

Ms. Fair filed a civil action and filed a complaint with the Ontario Human Rights Tribunal. In these proceedings she sought reinstatement. In its decision released February 17, 2014, the Tribunal concluded that the Board discriminated against Ms. Fair on the basis of disability by failing in its duty to accommodate her beginning in April 2003. In addition, the Tribunal found that Ms. Fair had fulfilled her obligation to co-operate fully in the accommodation process, including being in constant communication with the Board and providing consent to the release of medical information. The Tribunal found that the Board had failed to actively, promptly and diligently canvas possible solutions to her need for accommodation. As a remedy, the Tribunal ordered, among other relief, Ms. Fair’s reinstatement to employment with the Board and, in particular, reinstatement to a suitable position for which she had the basic general qualifications equivalent to the level that she had been at when last employed by the Board. In looking at whether to order reinstatement, the Tribunal considered the fact that Ms. Fair’s employment relationship with the Board was not fractured and the passage of time had not materially affected her capabilities.

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