Law Times

Law Times • November 14, 2016 Page 11 www.lawtimesnews.com Court gives woman job back after 15-year gap BY MICHAEL MCKIERNAN For Law Times R einstatement could be set for a renaissance in the non-union context after the province's top court upheld an Ontario Human Rights Tribunal decision to give a woman her job back despite a 15-year gap, according to labour and employment lawyers. Sharon Fair took a medical leave of absence from her job at the Hamilton-Wentworth Dis- trict School Board in 2001, but she never returned to full-time work before her termination in 2004. In its May 31 decision, Ontario's appeal court ruled that the OHRT was within its rights to order Fair's reinstatement with back pay, and that the sheer length of time that had passed was not enough on its own to prevent her return. Jennifer Bernardo, a litiga- tion lawyer with a focus on la- bour and employment cases, ex- plains that reinstatement orders are routine in cases of violations of unionized workers' rights un- der collective agreements. "The idea of a reinstatement in an employment context is a bit more surprising, because it's a much less common remedy there than in union cases, espe- cially after such a long period of time," says Bernardo, who works in the Toronto office of Baker & McKenzie LLP. "I wouldn't be surprised if we now see more applicants requesting reinstatement as a remedy. Assuming the situation wasn't one of intense conf lict or acrimony, I think plaintiffs will think, 'Why not give it a go.'" Whether or not a boost in claims ultimately results in more reinstatements being ordered by the tribunal, Fair's lawyer Ed Canning, a partner at Hamilton, Ont. firm Ross & McBride LLP, says the appeal court decision will loom large over every dis- missal case in the province and beyond. "Most people don't actually want to go back, but I think the threat of seeking an order of re- instatement is playing into settle- ments and resolutions through- out the country right now," Can- ning says. He says reinstatements were more common in the years after Ontario's Human Rights Code took effect in the 1960s, but it gradually went out of fashion outside of the union environ- ment. "This decision is important in the sense that it reaffirms a long- held remedy," Canning says. "People just aren't used to seeing reinstatement ordered. Anecdot- ally, I don't believe many people were asking for it, but we had the fortune to take it all the way in this case, and maybe this will start people asking for it again." Fair actually began work at the school board back in 1988, 13 years before she developed a generalized anxiety disorder related to the stress of her job as a supervisor in charge of asbes- tos removal and remediation. In 2002, she began receiving long- term disability benefits after go- ing on leave, but she indicated her desire to return to full-time work the following year. In December 2003, she launched a human rights com- plaint against the board, alleg- ing it had discriminated against her by failing to find her a suit- able alternate position that would accommodate her dis- ability. The school board even- tually terminated Fair's employ- ment in July 2004, shortly after the expiration of her long-term disability benefits. In 2012, the HRTO sided with Fair, finding that the board had discriminated against her by failing to accommodate her disability. The tribunal ruled that there were jobs available at the board that Fair could have filled without causing her em- ployer undue hardship. A year later, the tribunal de- livered its findings on the appro- priate remedy, ordering Fair's reinstatement with up to six months of training for a new po- sition, as well as reimbursement for lost wages, which in 2012 al- ready stood at a total of around $420,000. After a failed judicial review of the tribunal orders at the Di- visional Court, the school board appealed again to the province's top court, but Ontario Appeal Court Justice Lois Roberts, writ- ing for a unanimous three-judge panel, concluded the decision on reinstatement was reasonable. "While rarely used in the human rights context, the rem- edy of reinstatement clearly falls within the Tribunal's discretion to order," Roberts wrote, adding that "the passage of years is not, by itself, determinative of wheth- er reinstatement is an appropri- ate remedy. Rather, the decision as to whether to order reinstate- ment is context-dependent." In Fair's case, the tribunal found none of the barriers to re- instatement identified in other cases existed. In contrast, the tri- bunal concluded: "Ms. Fair's em- ployment relationship with the School Board was not fractured and the passage of time had not materially affected her capabili- ties," Roberts wrote. Canning says Fair returned to work at the board in June, within weeks of the appeal court decision, which was not ap- pealed any further. "She had a great sense of re- lief when we got the judgment," Canning says. Sean Bawden, an employ- ment lawyer with Ottawa firm Kelly Santini LLP, says the unique circumstances of Fair's case will not translate well to ev- ery discrimination case. "The fact that this was a large public sector employer and not a small mom-and-pop shop ab- solutely reduced the barriers to reinstatement," he says. Despite that, Bawden says em- ployers of all sizes should keep the case in mind when terminat- ing employees who may have a claim under a protected ground of the Human Rights Code. "You can't just brush it off and think there's no big deal. When the remedy was just sev- erance pay, you used to be able pay things away, but that's not the case under human rights legislation, where the remedy is reinstatement with back pay," he says. LT FOCUS Sean Bawden says the unique circumstanc- es of an Ontario Human Rights Tribunal decision case will not translate well to every discrimination case. Order # 804218-65203 $426 2 volume looseleaf supplemented book Anticipated upkeep cost – $319 per supplement 4-6 supplements per year Supplements invoiced separately 0-88804-218-3 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. 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