Law Times

Law Times • November 4, 2013 Page 7 COMMENT Damages award signals new era in human rights, employment law L awyers and their clients have wondered for some time whether the civil courts would award human rights damages in the context of a wrongful dismissal action. In its recent decision, Wilson v. Solis Mexican Foods Inc., the Ontario Superior Court of Justice answered this vexing question by awarding the wrongfully dismissed employee $20,000 in human rights damages. Wilson signifies a new era in human rights and wrongful dismissal litigation and reminds employers they're under a duty to act fairly when dismissing employees with disabilities. The case decision concerned a 54-yearold business analyst, Patricia Wilson, whose employer terminated the job she had held for 16 months under the guise of corporate restructuring. At the time of her dismissal, Wilson suffered from an ailing back and was away on medical leave. On March 7, 2011, Wilson stopped coming to work and produced a medical note that required her "to be off work until further notice." Unimpressed with its vagueness, the employer requested more comprehensive medical documentation to substantiate Wilson's back problem. On March 28, 2011, Wilson produced another medical note stating she was "medically fit to start a graduated return to work" but would require some accommodation through a combination of sitting, standing, and walking. This proposal was unacceptable to the employer because it required Wilson to be capable of returning to full-time hours and full duties before making the transition back to the workplace. The employer's position shocked, dismayed, and angered once the employer learned Wilson. Consequently, she proproblems duced the third medical note Labour of Wilson's back to get rid in 2010, it decided of that ordered her to be off work Pains her. Despite the fact that Wiluntil June 15, 2011. son's disability cost it very litOn May 19, 2011, the emtle, the employer felt no need ployer dismissed her on a withto prolong things and nudged out-cause basis due to restrucher dismissal forward via the turing that included the sale of corporate restructuring. With one of its divisions. In response, regards to the alleged divestiWilson sued for wrongful disture, the court reasoned that missal. As part of her claim, Wilif that was the real reason for son argued the employer had Nikolay Wilson's dismissal, why did dismissed her, at least in part, Chsherbinin the transaction "not feature, because of her disability and at all, in a single communicasuccessfully sought both wrongtion" with Wilson prior to her dismissal? ful dismissal and human rights damages. When assessing the quantum of huThe Superior Court of Justice's jurisdiction to consider allegations of a violation man rights damages, the only evidence of human rights legislation and award the with respect to injury to dignity, feelings, payment of monetary compensation to and self-respect the court had was the fact an employee for an infringement stems that Wilson was "shocked, dismayed, and from s. 46.1(1) of the Human Rights Code angered" by the employer's pre-dismissal Amendment Act. This section came into letter. Relying on the Divisional Court's force in 2008. While s. 46.1(1) empow- analysis in Adga Group Consultants Inc. v. ered the civil court to order damages for a Lane, the court concluded that at the time breach of the code, Wilson appears to be the the employer refused to accommodate Wilson's gradual increase in hours, she lost first decision that actually did it. In arriving at its award of $20,000 in the right to be free from discrimination and human rights damages, the court ex- experienced "victimization." In awarding Wilson a significant sum plained that the term disability includes "any degree of disability . . . that is caused of $20,000 in human rights damages, by . . . illness." It reaffirmed the proposition the court sought to recognize both the that a decision to terminate an employee importance of the right infringed by the based in whole or in part on the fact the employer and the impact of its conduct person has a disability is discriminatory on Wilson in the context of the particular and contrary to the code. Based on the ev- circumstances of the case. Arguably, if the idence, the court concluded the employer award of damages was lower, it could have had orchestrated the dismissal and was been counterproductive as it would have disingenuous both before and during Wil- trivialized the social importance of the son's dismissal. It was of the opinion that code and human rights breaches. The Wilson decision sends a loud message to employers that they have a duty to act fairly. They must be candid, reasonable, honest, and forthright and provide reasonable accommodation of disabilities to employees coming back from medical leaves to the point of undue hardship. In Wilson, the court exercised only a portion of the remedial powers conferred upon it by s. 46.1(1). It's unclear whether the court would also exercise its jurisdiction to order reinstatement of an employee in the context of a wrongful dismissal action. One of the central arguments that s. 46.1 confers jurisdiction upon the court to order reinstatement relates to the fact that the true intent, meaning, and spirit of the code is the protection of individuals from discriminatory actions. At the same time, the substantial degree of importance placed upon human rights legislation arguably supports a very broad interpretation of the remedial powers s. 46.1(1) confers upon the court. A counterargument to this proposition could be that the power to reinstate would amount to a fundamental change to the existing common law and, therefore, should only be an option where the statute very clearly provides that remedy. While it's clear the tools are available for the court to order reinstatement, whether it has the remedial jurisdiction to do so and whether it would actually exercise it are very live issues. LT uNikolay Chsherbinin is an employment lawyer at Chsherbinin Litigation and author of The Law of Inducement in Canadian Employment Law. He can be reached at 416-907-2587, nc@nclaw.ca or nclaw.ca. Legal community urged to foster volunteerism, organ donation BY SAM MARR For Law Times I involved. Leadership and direction from others are key to getting people to take the steps necessary to solve a problem. How did my wife succeed in encouraging people to help me? It was not because I am a special person but because she inspired others by telling our story in a very beautiful way and explaining to people what was possible and how to do it. If people knew how important this is and how easy it is to register to be an organ donor, they would agree to do it. They also need to know that for those left behind, organ donation can provide comfort as they grieve their loss. Miriam Young, president of the Toronto Lawyers Association, recently shared with me the story of her father's death when she was only 15 years old. At the funeral, she said: "My family's initial reaction was to say no. However, as the doctor spoke about all the people whose lives would be saved and touched by the donation of my father's organs, we agreed to go through with it. "I like to think that right now a little girl might be holding her daddy's hand and asking him to live . . . and he'll be able to." The Trillium Gift of Life Network will gladly assist law firms to run a registration drive. The agency has designed an innovative workplace program that is easy to plan and execute. A key aspect of the campaign includes the creation of a unique page by an organization on the beadonor.ca web site. It's very easy to do. I urge lawyers to help save lives by registering to be an organ donor and encouraging their employees and colleagues to do the same. Registering to become a donor and assisting and motivating others to do the same are an important example of volunteerism. Then some day in the future, some fortunate little girl will have a daddy for many years to come. LT u SPEAKER'S CORNER n the law business, we often see the worst of people. However, recent events in my life have shown me that what I always suspected was true: Many people have goodness at their core and are looking for ways to express it. For more than 25 years, I suffered from a serious liver disease. It never slowed me down but it was a constant part of my life. In January 2012, my condition deteriorated to the point that I went on the organ transplant waiting list. As horrible as that sounds, due to Ontario's severe organ shortage, the most likely best-case scenario was that I would receive a new liver only when I became sick enough to move to the top of the transplant list. However, becoming sick enough to move to the top of the list is very dangerous and, unfortunately, many people on the list die waiting for a transplant. Around his time, my wife Susan and I also learned it was possible to receive a living donation through which someone would donate a part of his or her liver to me. Miraculously, the livers in both the donor and recipient regenerate in size after surgery. By the summer of 2012, it was becoming apparent that I might not receive a new liver in time. My wife, together with some other close family and friends, offered to be my donor. But testing demonstrated they were not suitable candidates. Susan then made it her mission to try to find someone to save my life by launching an inspiring and extensive campaign in the fall of 2012. To my amazement, a number of people came forward and expressed a willingness to undergo the test as potential donors for me. In early November, we learned of a suitable candidate. The donor wished to remain anonymous. The surgery proceeded on Nov. 21 and was a success. The extraordinary selflessness demonstrated by the hero who saved my life is rare, but sharing and putting the needs of others first is an inspiration to anyone who wants to volunteer to give back to the community. According to Statistics Canada, more than 13.3 million people did volunteer work in 2010. They devoted 2.07 billion hours to their volunteer activities, a volume of work equivalent to just under 1.1 million full-time jobs. Young Canadians aged 15 to 24 were even more likely to volunteer than people in most other age groups. And the higher the education level, the higher the rate of volunteerism. Making your law firms a place where there are opportunities for the lawyers and staff to help the broader community is good for business. Associate retention rates are one of the biggest problems facing our profession and young lawyers who grew up with the ethos of volunteerism are looking for their firms to provide them with these opportunities at work. Live donation, while perhaps the ultimate in self-sacrifice, should ideally be unnecessary. The reason donation from living donors is necessary is because, unfathomably, only 23 per cent of Ontarians have registered their consent to donate organs upon their death. Everyone is a potential donor regardless of age. The oldest Canadian organ donor was more than 90 years old. One donor can save up to eight lives through organ donation. There remains a severe shortage of organs in Ontario. Right now, there are 1,500 Ontarians waiting for organs. On average, someone on the transplant list in Ontario dies waiting for an organ every three days. Volunteerism is flourishing and yet organ donation is still floundering. Why? Many people want to do the right thing but they need help in getting to where they want to go. Statistics Canada informs us that half of Canada's volunteers do volunteer activities because they had friends who were www.lawtimesnews.com uSam Marr is a lawyer at Landy Marr Kats LLP and former president of the Toronto Lawyers Association.

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