Ms. Fair was employed by the Hamilton-Wentworth District School Board (the “Board”) from 1988 to 2004, when her employment was terminated.  During her employment, Ms. Fair had developed a psychiatric disorder, namely, generalized anxiety disorder.  She took a disability leave on October 2, 2001, as a result of depression and post-traumatic stress disorder related to the stress of her job.  When the Board determined it could not accommodate her, the Board terminated her employment in July 2004.  At that point, she filed a human rights complaint, alleging discrimination based on disability.

Due to amendments to the Human Rights Code in July 2008, Ms. Fair was given the opportunity to, and did, refile her complaint as a “transitional application” under the transitional rules that were put in place at that time.  The result of this refiling was that for the first time, Ms. Fair formally identified the remedies she was seeking, including the remedy of reinstatement.  The result:  years after dismissing her, the Board learned that she was seeking reinstatement as a remedy.

In February 2012 the Tribunal finally issued its decision on liability, and concluded that there were in fact positions into which Ms. Fair could have been placed without causing undue hardship, but the Board had failed to make the attempts to do so.  As such, the Board had failed in its duty to accommodate.

In 2013, the Tribunal issued its decision in respect of remedies.  The Tribunal rejected the Board’s argument that the length of time between the termination and the decision made it unfair to order reinstatement.  The Tribunal ordered the Board to reinstate Ms. Fair to a suitable position, being a position at or equivalent to the position she was in before the termination of her employment in 2004.  The Tribunal also ordered the Board to compensate Ms. Fair for her loss of earnings for the entire period between her dismissal and the reinstatement, less any mitigation earnings, as well as $30,000 for compensation for the injury to her dignity, feelings and self-respect.  Since Ms. Fair had earned minimal amounts since her dismissal, the amount owing was in excess of $400,000, plus pension and CPP adjustments and compensation for lost medical benefits, and a gross-up for tax (given the lump sum payment).

Not surprisingly, the Board filed for review of the decision with the Divisional Court.  The Board made a number of what might be called “technical” arguments about the decision, including that the Tribunal breached its duty of fairness in the way the hearing was conducted, that there was a “reasonable apprehension of bias” because of certain comments made by the Vice-Chair during the hearing, that the Tribunal failed to properly follow its own Rules, and that it had not provided sufficiently detailed reasons for its decision.  The Divisional Court rejected all of these arguments, holding that there was no reasonable apprehension of bias on the part of the Tribunal, and that there were no procedural defects in the conduct of the hearing or in the decisions that had been issued.

The Board also argued that the Tribunal’s decision was unreasonable.  The Board tried to attack the portion of the decision in which the Tribunal found that there was no appropriate accommodation made by the Board.  The Board argued that it had made a number of accommodations for Ms. Fair, and that the Tribunal’s conclusion that the Board had not met the standard of undue hardship was unreasonable based on the evidence.

The Divisional Court rejected the Board’s arguments, and found that the Tribunal’s conclusion was supported by the evidence.  The Court held that the Tribunal’s decision was reasonable, considering that the Board had taken a number of steps to avoid finding alternate employment for Ms. Fair, including a refusal to consider alternate roles and failing to seek out further medical evidence it needed to accommodate her.

In terms of the remedy, although the Court agreed with the Board that reinstatement was an “uncommon” remedy before the Tribunal, the Court held there was nothing unreasonable about such a remedy.  The Court justified its conclusion by referring to the broad remedial authority of the Tribunal, and as well the Court referenced the unionized workplace setting, where reinstatement is not unusual where there has been a breach of a collective agreement.

With respect to the fact that so much time had passed between the dismissal and the order of reinstatement, the Court held that the goal of the remedial provisions of the Code ought not to be “thwarted” because of the passage of time, particularly since the delay was largely beyond the control of Ms. Fair.

There is a significant body of case law on the duty to accommodate disabilities in the workplace, and the high threshold needed to meet “undue hardship”.  Were it not for the remedy (reinstatement with 10 years of back pay), this decision would not likely have raised eyebrows.  There are relatively few cases in which the Tribunal has awarded reinstatement as a remedy, but certainly the award of reinstatement in this case, and the significant monetary damage award that followed, serves as a warning to employers about the risks inherent in the human rights process.

Ultimately, this decision underscores the importance of lining up any defence – and assessing the relative strengths and weaknesses – early on.  It also demonstrates that the Courts will in general defer to specialized tribunals when it comes to fact-finding and remedial issues, so employers should not expect that Courts will readily relieve them from onerous decisions at the Tribunal.  One thing is clear:  if reinstatement is sought as a remedy, care should be taken on the employer side to ensure that the case is strong, and that it proceeds expeditiously through the system.  In that sense, delay can certainly work against the employer where reinstatement is on the table, so employers should make every effort to ensure the case moves forward as quickly as possible.  In that sense, if there is a real risk of reinstatement, delay could be said to work against the employer.

Of course, given the nature of the decision and the “costs” of the remedies (both financial and logistical), it can be expected that the Board will carefully consider seeking further review from a higher level Court.  We will continue to watch the evolution of this case if/when it works its way to a higher level of authority.

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