Ontario court uses power to award human rights damages

Fired employee gets $20,000 in rare case of human rights damages as part of wrongful dismissal claim in court

In 2008, the Ontario Human Rights Code was overhauled in an effort to make the process of remedying human rights abuses faster and more efficient.

Part of those amendments allowed individuals to seek human rights damages as part of a civil action and gave judges the same powers as the Human Rights Tribunal to award remedies for code infringements.

In practical terms, these amendments allowed an employee who files a lawsuit for wrongful dismissal to include a human rights claim as part of a civil action, rather than having to commence multiple proceedings in different forums.

From 2008 until 2012, there had not been a single reported decision in which a judge used this new power. In 2013, however, there were two. First, in March a small claims court judge — in Berkhout v. 2138316 Ontario Inc. — awarded $15,000 in damages to a female employee who had been fired for complaining about being sexually harassed by her manager.

More recently, in October, damages for breach of the code were awarded in Wilson v. Solis Mexican Foods Inc., a decision which provides important lessons for employers and HR professionals.

Employee dismissed after reporting back problem

In Wilson, Patricia Wilson, began her employment with Solis on Jan. 4, 2010, as assistant controller. She later moved to the position of business analyst.

Things appeared to be working well between Wilson and Solis. In November 2010, she had a performance review in which she was graded satisfactory or better in each category. However, on Dec. 16, 2010, Wilson advised Solis’ human resources manager that she was suffering from a back problem. Despite Wilson’s recent positive performance evaluation, within five days of that meeting Solis management met and decided it was “time to consider that (Wilson) may not be suited to (Solis).”

Wilson continued to work for Solis until early March 2011, when she was forced to take time off because of her ongoing back problems. During her medical leave, she kept Solis updated about her status and on March 28, 2011, she provided a note from her physician that stated she was medically fit to start a graduated return to work.

Solis rejected this plan, stating in a letter that it required her to be “capable of returning to full-time hours and full duties before making the transition back to the workplace.”

On April 12, 2011, Wilson provided anther note from her doctor which stated she was capable of returning to full-time hours, but needed some limited accommodation. Solis rejected this plan, stating it would not accept Wilson back in the workplace until she could return to her full-time hours and full duties.

One month later, Solis terminated Wilson’s employment without cause, citing corporate restructuring.

In considering Wilson’s claim for damages under the code, the court accepted that an employer’s decision to terminate an employee needs to be only in part based on an employee’s disability to justify a damage award.

In Wilson’s circumstances, the court found her ongoing back problem was a “significant factor” in the decision to terminate her employment, relying on the fact the company’s attitude changed immediately after she informed it about her back condition and that Solis had improperly and disingenuously insisted on Wilson making a complete recovery before allowing her to return — failing to offer or even consider accommodation.

Furthermore, the court didn’t believe Wilson was terminated due to restructuring. Describing Solis’ position as “contrary to the evidence” and defying “common sense,” the court found Solis used the sale of one of its divisions as an excuse to terminate Wilson.

She was awarded $20,000 in damages. In calculating this award, the court considered the fact Wilson lost “the right to be free from discrimination” and experienced “victimization.” Furthermore, the breach was serious and the employer had been disingenuous towards Wilson both before and during her termination.

Tips for employers

This case has important takeaways for employers and HR professionals including:

•Employers have a duty to accommodate. The employer was faulted for demanding a full recovery before it would allow a return to work. Employers have a duty to accommodate disabled employees and modify positions up to the point of undue hardship and generally cannot demand a full recovery before allowing an employee to return to work.

•Temporary illnesses are protected under the Human Rights Code. In this case the employee did not have a “disability” in the traditional sense, but reoccurring back pain. The court noted Wilson’s back pain constituted a disability under the code. As such, employers should be aware that a temporary injury such as back pain should not factor into a decision to terminate an employee.

•This case may open the floodgates. While some employees have been including human rights claims as part of wrongful dismissal actions since 2008, now that there has been a reported decision in which a court has awarded damages under the code, it will likely encourage more employees to do the same. While the awards in the two cases decided under thus far have been monetary, there remains the potential for a court to award other remedies, such as reinstatement, which have traditionally not been available in civil actions.

For more information see:

Wilson v. Solis Mexican Foods Inc., 2013 CarswellOnt 13851 (Ont. S.C.J.).
Berkhout v. 2138316 Ontario Inc. (March 2013), (Ont. Small Claims Ct.).

Justin Tetreault is an associate with Grosman, Grosman & Gale LLP in Toronto. He represents both employers and employees in all aspects of labour, employment, and human resources law with a particular focus on wrongful dismissal litigation. He can be reached at jtetreault@grosman.com.

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