Readers of this blog may recall reading in 2014 about the Ontario Divisional Court upholding the Ontario Human Rights Tribunal’s order for 10 years of back pay and employee reinstatement.  The decision was reached in the case of Hamilton-Wentworth District School Board v. Fair and can be read about in more detail here:  http://www.employmentandlabour.com/school-board-taught-a-costly-lesson-court-upholds-reinstatement-with-10-years-of-back-pay.

Not surprisingly, the Hamilton-Wentworth District School Board (“the “Board”) decided to appeal the Divisional Court’s decision and late last month, the Ontario Court of Appeal rendered its own decision on the same matter.  In doing so, it agreed with the Divisional Court on virtually every point, thereby upholding the astounding 2013 decision of the Human Rights Tribunal for 10 years of back pay, as well as employee reinstatement a decade after termination.

In summary, Ms. Fair was an employee with the Board who was on disability leave for about 3 years prior to being terminated.  At the time of termination she had sought a return to work but the employer refused to accommodate her into another position.  The standard of review on an appeal such as that before the Court of Appeal is one of “reasonableness” – namely, was the Tribunal’s decision reasonable?  Under that test, the Ontario Court of Appeal unanimously determined that the Human Rights Tribunal’s decision was reasonable with regard to the facts and law before it.

Although no new law was made by the Ontario Court of Appeal, it did reaffirm the law in areas that employers should pay particular heed to.  First, the Court confirmed that in order for an employer to fulfil its duty to accommodate an employee’s disability, the employer may be required in an appropriate case to place the disabled employee into a position for which he or she is qualified but not necessarily the most qualified.  Second, the Court confirmed that the passage of years is not determinative of whether reinstatement is an appropriate remedy; rather, context is key.  In this case, the evidence was that Ms. Fair’s relationship with the Board had not been fractured and the passage of time had not materially affected her capabilities, both of which led to the conclusion that reinstatement after a decade was not unreasonable.

Employers would do well to keep in mind the inherent uncertainties of litigation, the fact that the Human Rights Tribunal can order reinstatement, and the fact that a complaint which moves slowly through the system can ultimately increase the bottom line for an unsuccessful employer.  While not every case should necessarily be settled, Hamilton-Wentworth District School Board v. Fair is a good example of a case which became far more costly to the employer due to the passage of time.

The Ontario Court of Appeal’s decision in Hamilton-Wentworth District School Board v. Fair can be found here:  http://www.ontariocourts.ca/decisions/2016/2016ONCA0421.htm.

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