Two Ontario cases showcase possible trends in human rights decisions employers need to be aware of going into 2015
Human rights awareness is essential for employers when it comes to issues such as discrimination and accommodation. Such awareness is increasing in society as a whole, so if employers don’t live up to their obligations in protecting their employees’ human rights, they face not only possible financial consequences, but also a risk of harm to their public image. Both can be seriously damaging to business
As one year ends and another begins, it’s a good idea to take stock of where things are in terms of human rights and employment law. Employment lawyer Lorenzo Lisi discusses two notable cases in 2014 that have some important lessons for employers going into 2015.
As we come to the close of 2014, two recent decisions of the Ontario Divisional Court dealing with employers’ efforts to accommodate disabled employees should be on every employers’ radar.
The first is Hamilton-Wentworth District School Board v. Fair, where the court upheld one of the largest damage awards ever awarded by the Human Rights Tribunal of Ontario.
The second is Campbell v. Revera Retirement LP, where the court upheld a tribunal award that limited damages to only those flowing from harm caused by discrimination and not from a separate common law cause of action.
Hamilton-Wentworth v. Fair
The scale of the award and the fact that the tribunal ordered an employee’s reinstatement despite being away from the workplace for almost a decade has made this case a topic of considerable discussion.
Recall that the tribunal found the Hamilton-Wentworth School Board had discriminated against Sharon Fair when it terminated her employment because of her disability contrary to the Ontario Human Rights Code. The tribunal ordered that Fair’s employment be reinstated (despite the fact that she had been away from work for approximately 10 years) and that she be financially compensated for all losses arising from the breach of the code, which amounted to reinstatement and monetary compensation in the range of $400,000 for lost wages, lost pension contributions, lost Canada Pension Plan payments, medical and dental expenses paid out of pocket, and $30,000 as compensation for injury to dignity, feelings and self-respect.
Fair worked for the school board for more than 16 years and was employed as the supervisor of regulated substances (asbestos) at the time of the termination of her employment. She developed a generalized anxiety disorder in reaction to the highly stressful nature of her job and the fear that she could be held personally liable for any mistakes made in removing asbestos. Fair took a leave from work for approximately three years and received long-term disability benefits. She was later assessed as being capable of returning to her employment. The school board, however, failed to take any steps to investigate possible forms of accommodation and failed to offer Fair available, applicable work (despite the tribunal finding that there were positions available for which she was qualified). Because of this, the tribunal found that the school board had failed to take all possible steps to accommodate Fair.
In upholding the tribunal’s decision, the Ontario Divisional Court noted that while the order for reinstatement was unusual, it was a permissible remedy under the code and refused to overturn the tribunal’s award. The court therefore upheld the award in its entirety.
Campbell v. Revera
Louisa Campbell was employed as a personal support worker at an assisted living residence by Revera Retirement LP for more than 20 years. Her position involved caring for elderly residents, which included bathing, feeding, dressing and transporting those in her care. Campbell developed lipodermatosclerosis, a condition that caused swelling, discomfort, thickening and discolouration of the skin in her legs and feet. This condition was exacerbated by prolonged standing and walking. As Campbell’s position as a personal care worker involved a large amount of standing and walking, she took an extended sick leave.
After almost two years away from Revera, Campbell’s doctor determined that she was capable of returning to modified duties. Upon her return to work, it was determined Campbell could not perform modified duties as a personal support worker. Revera canvassed suitable positions and offered Campbell a position in its laundry facilities. Campbell felt the duties in the new position were not within her medical restrictions, as she would have to lift heavy laundry loads, stand while folding laundry and sweep under machines.
Revera disagreed, stating that Campbell would not be required to go up and down stairs, could sit while folding laundry, and would not have to sweep under machines. In its view, Revera was able to accommodate Campbell’s restrictions in the position as a laundry attendant. Campbell’s doctor provided a further note from stating that she was “unable to do any kind of laundry work.” Revera took the position that there was no medical information regarding Campbell’s restrictions and terminated her employment, treating it as abandoned.
Campbell was a unionized employee and initially filed a grievance. She chose, however, not to pursue the grievance and brought a complaint to the Ontario Human Rights Tribunal, where she sought compensation for damages to her dignity, feelings and self-respect, as well as severance pay owing upon termination.
The tribunal determined that Revera had failed to meet its procedural obligations under the Ontario Human Rights Code by failing to accommodate Campbell. While the HRTO found no fault with Revera’s accommodation efforts up to the point of termination, it held that Revera should have sought further medical information rather than terminate Campbell’s employment. Because Revera had made a comprehensive effort to find Campbell alternate employment, the tribunal limited its award to $5,000 in damages for losses to Campbell’s dignity, feelings and self-respect.
Of note is the fact that Campbell also sought an order directing that Revera pay her severance pay under the Ontario Employment Standards Act, 2000. The tribunal reviewed its earlier decision in Pilon v. Cornwall (City), where it had held that it had no jurisdiction to award severance pay as it did not view this “loss” as being attributable to the discrimination. The tribunal therefore limited its award to damages for Revera’s infringement under the code.
Campbell applied to the Divisional Court for judicial review of the tribunal’s decision. She was seeking severance pay and more than the $5,000 awarded. The court denied her review request and upheld the tribunal’s decision in its entirety, refusing to alter the $5,000 award which it found to be reasonable.
The court also stated that in general a complaint made to the tribunal under the code was not a replacement or substitute for all other claims or actions that may arise in a given circumstance and specifically pointed out that Campbell could have continued her grievance and pressed her human rights concerns without a need to commence a separate complaint or procedure.
Takeaways for employers
•Based on the Divisional Court’s decision to uphold the tribunal’s decision in Wentworth-Hamilton v. Fair, employers should expect to see a continued increase in the scope of damage awards for violations of human rights legislation.
• Specifically, claimants and employee counsel alike will see the potential for much greater damages, whether via the human rights or civil litigation process. We may be moving to a more American-style view of damage awards for human rights violations.
• Campbell v. Revera signals a growing penchant on behalf of employees to seek redress for “other damages” before human rights tribunals. As part of this trend, and as we’ve seen in the 2013 decision in Wilson v. Solis Mexican Foods Inc., damages under the code for an employer’s decision to terminate an employee based on the employee’s disability can be in addition to awarding damages under the common law for wrongful dismissal.
• While damage awards (like Fair) can be significant, Revera shows how important it is for employers to make every effort to follow the procedural requirements under the code to accommodate an employee’s disability. The attempt to find suitable accommodation appeared to be a mitigating factor which reduced the overall scale of the tribunal’s award.
For more information see:
• Fair v. Hamilton-Wentworth District School Board, 2014 CarswellOnt 13509 (Ont. Div. Ct.).
• Campbell v. Revera Retirement LP, 2014 CarswellOnt 8102 (Ont. Div. Ct.).
• Pilon v. Cornwall (City), 2012 HRTO 177 (Ont. Human Rights Trib.).
• Wilson v. Solis Mexican Foods Inc., 2013 CarswellOnt 13851 (Ont. S.C.J.).
