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Ontario Human Rights Tribunal Awards Reinstatement and Substantial Back Pay for Failure to Accommodate

Posted in Benefits, Compensation, Pensions, Human Rights, Termination, Wage and Hours, Wrongful Dismissal
Benjamin Aberant

A recent decision of the Ontario Human Rights Tribunal (HRTO) in Fair v. Hamilton-Wentworth District School Board, 2013 HRTO 440 illustrates the potentially serious consequences for employers who fail to accommodate employees.

In its initial and long-delayed decision on liability, the HRTO found the Hamilton Wentworth District School Board liable for discriminating against former employee Sharon Fair by failing to accommodate her post-traumatic stress disorder (PTSD) and terminating her employment.

After the parties were unable to agree on a remedy, the HRTO issued a very thorough remedial decision, dated March 14, 2013, and ordered the School Board to do the following:

  • Reinstatement in a suitable position within a reasonable period, including adjusting for seniority, and up to 6 months of training;
  • Payment for lost wages from June 26, 2003 (the date the HRTO found a suitable position was first available but not offered to Ms. Fair) until the date of reinstatement, less employment income and non-repayable benefits;
  • Reinstatement of Ms. Fair’s years of service with the Ontario Municipal Employees Retirement System and payment of the employer pension contributions and additional costs associated with the buy-back of service;
  • Retroactive payment to the Canada Pension Plan, or compensation for any losses arising from the lost years of CPP pension contributions;
  • Payment of out-of-pocket medical and dental expenses since Ms. Fair’s benefits were terminated in August, 2004;
  • Compensation for the tax consequences of receiving a lump sum payment;
  • Payment to Ms. Fair of $30,000 as compensation for injury to her dignity, feelings and self-respect; and
  • Payment of pre-judgment and post-judgment interest.

Given the significance of the remedy, we can expect an appeal.

For employers, this award means that, as part of taking the duty to accommodate seriously in every case, they must actively consult with employees to carefully determine an employee’s restrictions and limitations. Employers should also be aware that reinstatement is a possibility despite the passage of a significant period of time.

Another noteworthy award, which included reinstatement, was recently granted by the Alberta Human Rights Tribunal in Cowling v. Alberta (Employment and Immigration). Our brief overview of that decision can be found here.