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Don't focus on the past

The duty to accommodate is substantial, and failing to meet it can lead to reinstatement

By Stuart Rudner

“Don’t focus on the past; you cannot seek reinstatement but you can seek compensation for your dismissal.” That is what we usually tell individuals who seek advice after being dismissed. And in most cases, it is true.

However, there are limited circumstances where reinstatement may be viable. These include ones involving unionized employees, individuals who have suffered a reprisal  in contravention of section 50 of the  Occupational Health and Safety Act and, as the Ontario Court of Appeal recently confirmed, in the event of discrimination pursuant to the Human Rights Code.

In its recent decision in Hamilton-Wentworth District School Board v. Fair, the Ontario Court of Appeal upheld a human rights tribunal's decision to reinstate an employee where there had been a failure to accommodate the employee's disability. Notably, the Court of Appeal’s decision was handed down almost 15 years after the termination of employment.

According to the evidence, Sharon Fair suffered from a generalized anxiety disorder and was diagnosed with depression and post-traumatic stress disorder. She began her employment in 1988, and had to go on a medical leave of absence in 2001. Subsequently, as often happens, things went sideways. Fair wanted to return to work. Her psychiatrist indicated that she could, with some limitations. However, the employer claimed that it did not have a position to put her into. Meanwhile, in April 2004, Fair’s long-term disability benefits were cut off, as she was deemed to be capable of working.

In July 2004, Fair’s employment was terminated. She brought a claim before the Human Rights Tribunal of Ontario (HRTO) alleging a failure to accommodate and seeking reinstatement as a remedy. The HRTO agreed with her, holding that the employer school board had positions available that would have been suitable for Fair and by failing to offer those to her, the school board had discriminated against her. The HRTO ordered that Fair be reinstated and awarded her lost wages; the decision was subsequently upheld by the Ontario Divisional Court.

The decision was then appealed to the Ontario Court of Appeal. The Court of Appeal’s decision is notable in two respects:

  1. It clarifies the broad nature of the duty to accommodate.
  2. It confirms that reinstatement is an appropriate remedy in such circumstances.

As our courts have confirmed many times, human rights legislation is to be interpreted liberally so as to offer protection to those groups that have been historically disadvantaged and discriminated against. In particular, the Court of Appeal in this case confirmed that the purpose of accommodation is to ensure that persons who are fit to work are not unfairly excluded from employment.

It is well-recognized that accommodation can involve modified duties, modified hours, transfers, and other efforts to find a way to allow an employee with a disability to participate in the workforce. The duty is to accommodate to the point of undue hardship, which is an elusive concept that is often hard to define. It will depend on the nature, size and budget of the employer, safety concerns, and other factors.

The Court of Appeal confirmed that the duty can, in the right circumstances, require transferring the employee or even creating a surplus position in some cases. In the course of accommodation, an employer may have to place the disabled employee in a position even if there are more qualified employees available (though they do not have to put someone in a position for which they are not qualified).

Every case must be assessed on its own particular factors and, as I often say, a multinational corporation will be expected to incur more costs than a small family-run business. Evidence of undue hardship must be produced in order to justify a refusal to implement accommodation; this can include financial or safety-related information. It is not sufficient for an employer to say, without any supporting evidence, that accommodation is not feasible.

In ordering reinstatement, the Court of Appeal confirmed that it is a reasonable remedy in such cases, even when such a lengthy amount of time has passed. Of course, any Court or Tribunal will have to consider whether reinstatement is viable in the particular case before it, bearing in mind the relationship between the parties. In this case, there was no evidence that the relationship had been fractured to a point that would preclude reinstatement.

The duty to accommodate is an issue that employers struggle with. This case should serve as a reminder that it is a broad duty, and that failure to consider appropriate accommodation can result not only in an award of damages, but in reinstatement. Every request for accommodation must be properly assessed and given fair consideration.

Stuart Rudner

Stuart Rudner is a founding partner of Rudner MacDonald LLP in Toronto. Follow him on Twitter @CanadianHRLaw. He can be reached at srudner@rudnermacdonald.com.
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