Law Times

Page 10 September 9, 2013 Law Times • FOCUS New cases put employers on alert 'There's a broadening of payout and liability,' lawyer says BY MARG. BRUINEMAN For Law Times A trio of recent cases decided by the Human Rights Tribunal of Ontario has put the spotlight on employers and their duty to accommodate. David Bannon of Norton Rose Fulbright Canada LLP suggests the recent decisions hint at growing employer liability. "There's a broadening of payout and liability," says Bannon, referring to the decision in Fair v. Hamilton-Wentworth District School Board. But he also points to Morgan v. Herman Miller Canada Inc. and Monrose v. Double Diamond Acres Ltd. as indications of an overall broadening he believes has occurred. In Morgan, the tribunal found there was no discrimination, but the failure to investigate resulted in a total award of more than $70,000. Aldeen Morgan worked as an installation scheduler at Herman Ball Professional Corporation Excellence in Employment & Labour Law • Counsel in Leading Cases • • Author of Leading Treatise • Wrongful Dismissal Employment Law Human Rights Post Employment Competition Civil Litigation Appellate Advocacy Disability Referrals on behalf of employees and employers respected 82 Scollard Street, Toronto, Canada, M5R 1G2 Contact Stacey Ball at (416) 921-7997 ext. 225 or srball@82scollard.com web: www.staceyball.com all_LT_Nov7_11.indd 1 Miller Canada from July 3, 2007, to March 30, 2010, and charged that, as a black man, there was a discriminatory allocation of tasks and that requiring him to act as a janitor or servant was outside of the job description. The company terminated him after he complained. The company undertook no investigation to respond to his complaints before his termination. And although none of the employer's explanations amounted to a breach, the tribunal questioned whether the termination was actually an act of reprisal against the applicant for Employers should take heed of the need to having raised a complaint. investigate and the duty to accommodate, "I find that the decision to says David Bannon. terminate the applicant's employment was made as a reprisal because the applicant claimed his code rights by raising issues of harassment and discrimination in his workplace. I also find that the respondents failed to adequately address, or take any steps in response to, the applicant's allegations of discrimination and harassment," wrote HRTO vice chairwoman Geneviève Debané. "Who knows what would have happened if the respondents had dealt with the applicant's human rights issues — it may or may not have resulted in an improvement in the applicant's attitude at work." The Fair decision attracted a great deal of attention because it awarded a worker nine years of back pay. In that case, adjudicator Kaye Joachim found the school board discriminated against Sharon Fair by failing to accommodate her disability and then terminating her employment. Fair had developed an anxiety disorder in reaction to the highly stressful nature of her job and her fear that, in making a mistake about asbestos removal, she may be personally liable. She went on long-term disability from 2001 to 2004 but when deemed ready to return, there were no available positions for her. She lost her job. In granting the order to give the woman her job back, Joachim pointed out that Fair felt no ill will towards the school board and the people she had reported to were no longer in those positions. Joachim also ordered $30,000 in compensation along with Fair's wage loss from 2003 to 2012 that amounted to about $419,000. In Monrose, a migrant worker lost his job after working nine 11-11-08 11:44 AM CITED BY THE SUPREME COURT OF CANADA CANADIAN EMPLOYMENT LAW STACEY REGINALD BALL "The most comprehensive text on employment law in Canada. It is carefully constructed and accurate." Canadian Bar Review MORE THAN 6,145 CASES CITED Canadian Employment Law is a one-stop reference that provides a thorough survey of the law and analysis of developing trends, suggesting potential avenues of attack as well as identifying potential weaknesses in the law. Canadian Employment Law has been cited by the Supreme Court of Canada, in superior courts in every province in Canada and is used in law schools throughout Canada. ORDER # 804218-62305 $365 2 volume looseleaf supplement book 3-5 supplement per year Supplemen invoice separately $255 0-88804-218-3 With methodically organized chapters covering the complete range of employment law, Canadian Employment Law provides the kind of detailed examination of the facts you can count on. The subject-matter is wide-ranging and addresses issues such as: wrongful dismissal, fiduciary obligations, tort law and vicarious liability issues, remedies, constitutional issues, occupational health and safety, employment contracts, duty of good faith and fidelity and human rights. Internet version available separately. Also available in Employment Spectrum. Includes a Table of Reasonable Notice — a chart, which groups together comparable types of positions so you can easily compare length of notice awards. Plus, all topics are illustrated with extensive case law and useful footnotes. AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.ca .c Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. CANADA LAW BOOK® Carswell-26373-Feb25-13.indd 1 www.lawtimesnews.com 13-02-20 10:32 AM months in 2009 and returning to his home country. He claimed his termination was discriminatory and was due to his human rights complaint accusing a supervisor and the owner of making a discriminatory remark. The tribunal found discrimination in the comment and that the termination resulted from the worker voicing his complaint to his employers. The HRTO awarded the complainant damages of $5,500 for lost wages, general damages of $3,000, and $15,000 for losses associated with the violation. The lesson, says Bannon, is it's important to investigate all human rights complaints. And even where the tribunal otherwise finds no breach, an employer can be liable for terminating an employee for having made the complaint. "I think it certainly should be a concern to employers," says Bannon. Employers should take heed, he adds. They should be aware, for example, of the need to investigate and their duty to accommodate. The large awards did catch Connie Reeve's attention, but she doesn't see them as indicative of a trend. "There are some recent decisions in which complainants have received significant damage awards," says the partner at Blake Cassels & Graydon LLP. But there's "no increasing liability under human rights law in Ontario," she adds. "The adjudicated decisions . . . are really driven by the facts." The Fair decision was interesting because of the large award. But according to Reeve, that case really turned on its facts resulting in the finding of discrimination and a failure to accommodate by the school board. Reeve's message to employer clients hasn't changed. "We're not saying to them all of a sudden the tribunal is going wild." Employers have always carried a significant responsibility when it comes to human rights and their obligation to find alternative employment, says Mary Cornish of Cavalluzzo Shilton McIntyre & Cornish LLP. "The human rights laws . . . represent the fundamental values of the country. The Supreme Court has taken very seriously what that means. If there's a complaint, there's usually a problem that you need to address." The decisions serve as an alert that there's a process employers should follow when a complaint arises even if the tribunal dismisses it. In cases where employers resist the obligation and challenge the complaint, they have a decision to make. "Employers have to make an assessment. . . . If they're wrong, what they are doing over time is accumulating damages," says Cornish. LT

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