Law Times

Law Times • sepTember 8, 2014 Page 9 www.lawtimesnews.com Solis leaves little impact so far Few decisions follow landmark human rights ruling By marg. Bruineman For Law Times hile many people took notice of a Superior Court employment law decision awarding damages in a human rights case last year, the ruling hasn't had the impact some observers had anticipated. Why is that the case? e case, Wilson v. Solis Mexi- can Foods Inc., was the first time the Ontario Superior Court of Justice had awarded damages in a human rights complaint in connection to a wrongful dis- missal action seeking damages related to discrimination. e complaint revolved around the employee's termination that she alleged had resulted from her ongoing disability. "It's interesting on a number of levels," says Doug MacLeod of the MacLeod Law Firm. "It's the first time I know of where a court has awarded human rights damages." Although employees have had the ability to seek damag- es for discrimination in rela- tion to wrongful dismissal ac- tions through the courts since 2008, most people rely on the Human Rights Tribunal of Ontario for human rights is- sues where they face no risk of a legal costs award. MacLeod also found it surprising the case included no oral evidence, instead re- lying on statements of claim and defence along with an af- fidavit filed by the worker. "e one question I have coming out of this is, is it more advantageous to take a human rights complaint to the tribunal or the courts? Will the courts be more or less generous?" asks MacLeod. "I suspect it will take a while for the courts and the tribunal to get on the same page." In Wilson, the two complaints were for wrongful dismissal and the human rights action for dis- crimination. Patricia Wilson was a certi- fied general accountant who maintained she should have re- ceived pay in lieu of notice until she obtained alternate employ- ment, which occurred about six months aer her termination. She had received two weeks' pay in lieu of notice. She also said she lost her job, at least in part, because of an on- going back ailment and, as such, alleged discrimination. During her 16 months of working with the company, Wil- son's back injury proved prob- lematic. e issue was the sub- ject of a meeting she had with the human resources manager as well as frequent communica- tions. To the dismay of the com- pany, she took time off. Aer agreeing to return to work full-time with some accom- modation — through a com- bination of sitting, standing, and walking — the human resources manager told her in a letter the restrictions could affect her job performance. She lost her job the following month. Justice Duncan Grace found her back issue was a significant factor in the deci- sion to terminate and award- ed her three months' back pay, worth about $15,000, and $20,000 for the human rights breach plus costs. "Without hesitation, I conclude that the decision to terminate the plaintiff started with her complaints on De- cember 16, 2010. ose were largely based on the condition of her back and the long hours. . . . e plaintiff 's condition en- abled the defendant to nudge the problem across the divesti- ture finishing line and provided the defendant with an excuse to terminate her," wrote Grace. Early indications are show- ing little impact from last year's decision. Many had expected to see more cases in the Supe- rior Court following the amend- ments to the Ontario Human Rights Code, especially aer Wilson. But Sean Bawden says that hasn't happened. "It hasn't been the watershed moment we expected when the Human Rights Code was amended," says Bawden, an em- ployment lawyer with Kelly San- tini LLP in Ottawa. "I am seeing more and more human rights cases alleging dis- crimination in employment, but those are in the tribunal. e tribunal is becoming more and more the go-to for employment cases which have a whiff of dis- crimination." Exactly why there hasn't been a flow to the courts isn't clear. Bawden suspects it's because ap- plicants can better hedge their bets through the tribunal, where there's no risk of costs but they can still ask for damages. Many who appear at the tri- bunal represent themselves, something that further reduces their costs. London, Ont., lawyer Jona- than B. Pitblado, who acted for Wilson, suspects many lawyers aren't familiar with the decision because it didn't make the On- tario Reports and so it hasn't yet had the anticipated impact. He notes he chose the court over the tribunal because he felt it was a classic wrongful dismissal case with a human rights element. Lawyers can apportion some of the funds of a wrongful dis- missal case towards human rights damages if there's a plead- ing to a human rights breach and if there's some substance to it, he adds. e advantage of doing so is that human rights damages aren't taxable while those result- ing from a wrongful dismissal claim are. LT FOCUS www.kuretzkyvassos.com Tel: (416) 865-0504 w Kuretzky_LT_Apr7_14.indd 1 14-04-02 9:08 AM W 'I suspect it will take a while for the courts and the tribunal to get on the same page,' says Doug MacLeod. Family status protections bolstered By marg. Bruineman For Law Times uggling family and work have long been a struggle for many people, but a recent decision emphasizes the importance of balancing individuals' responsibilities to their employer as well as at home. "I think it's an important reflection of the reality of the work- place today," says Hugh Scher, a Toronto employment and hu- man rights lawyer, of Canada (Attorney General) v. Johnstone. "Workplaces are now going to be obligated to accommodate fun- damental child-care issues." Johnstone opens a new chapter when it comes to employers' responsibility to accommodate family status by accounting for the child-care needs of their employees. But at least one employ- ment lawyer is criticizing it with suggestions it could have a nega- tive fallout for those it aims to protect. e Federal Court of Canada upheld the decision of the Ca- nadian Human Rights Tribunal that found employers have a duty to accommodate the child-care obligations of employees. It did, however, amend the award. Fiona Johnstone complained the Canadian Border Services Agency had discriminated against her based on her family status and child-care obligations. She had been working as a border ser- vices officer at Toronto's Pearson International Airport on rotating shis and asked for full-time work on fixed day shis to allow her to arrange for child care for her young children. During that pe- riod, she had expressed an interest in developing a career with the agency that included working full-time and seeking promotions. But the employer reserved day shis for part-time employees, an option that wasn't available to full-time workers unless there was a medical need. e employer argued against including child care under the protection for family status. e Canadian Human Rights Tribunal concluded there had been discrimination and decided her employer hadn't proven hard- ship in order to be exempt from its obligation to accommodate for family status. (Although the Federal Court of Canada found the tri- bunal didn't err in its decision, it did decide it had failed to justify the compensation award it made for the period in which Johnstone took an unpaid leave to accompany her spouse on relocation to Ottawa.) Aer having her first child, Johnstone was unable to negoti- ate a schedule to accommodate child-care availability by family J See Family, page 10

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