Written by Michael J Weiler

Fair v Hamilton-Wentworth District School Board 2016 ONCA 421

There are a number of statutes that give various boards the authority to order reinstatement of an employee.  For example, the Labour Relations Board, arbitrators under a collective agreement, the Canada Industrial Relations Board, an adjudicator under the Unjust Dismissal provisions of the Canada Labour Code, the Director of Employment Standards and the Workers Compensation Board can all order reinstatement as a remedy for a violation of their statutes or agreements.  Not surprisingly the BC Human Rights Tribunal can order reinstatement of an employee although that specific remedy is not spelled out in the statute.  The Tribunal derives its authority from the broad remedial powers under section 37(2)(d)(i) of the Code: see for example J.J. v. School District No. 43 (No. 5), and Kalyn v Vancouver Island Health Authority (No. 3).

Reinstatement is only rarely claimed as a remedy and even more rarely is it ordered. In Parent v. St. James Community Services Society, 2008 BCHRT 182, the Tribunal noted reinstatement is not a remedy commonly sought (para. 28):

… At the same time, as reinstatement in employment is not a remedy commonly sought, nor often ordered, complete submissions and information on the appropriateness of the order are to be preferred ….

But when a Complainant is successful the consequence can be devastating for the employer.

In Fair v Hamilton-Wentworth District School Board 2016 ONCA 421 the Ontario Court of Appeal upheld the decision of the human rights Tribunal in ordering that the Complainant be reinstated with back wages.  The termination had taken place some 15 years earlier reflecting the snail pace in which these types of cases take to get final adjudication (assuming no successful appeal to the Supreme Court of Canada).

Ms. Fair was terminated in 2004 after her LTD had run out.  Following amendments to the Ontario Human Rights Code she transferred her case to the Tribunal and in 2009 requested reinstatement as a remedy for the first time. The Tribunal found that the employer had failed to accommodate Ms. Fair by failing to consider other appropriate positions available in the workplace.  She was awarded 9 years back pay, and $30,000 for compensation for the injury to her dignity, feelings and self-respect.  The employer was also ordered to reinstate her as soon as reasonably possible to a suitable, equivalent position for which she had the basic general qualifications and that she was to receive up to 6 months of training.

Like the BC Code, the Ontario Code does not contain explicit reference to reinstatement as a remedy. The Court confirmed that the Tribunal had the jurisdiction to order reinstatement and upheld the Tribunal’s decision to order it in this case.  It stated:

[92]      As the Divisional Court correctly noted, “The Code provides the Tribunal with broad remedial authority to do what is necessary to ensure compliance with the Code.”

[93]      The determination of remedy falls within the specialized expertise of the Tribunal, and as such is accorded a high degree of deference: Phipps v. Toronto Police Services Board2010 ONSC 3884 (CanLII), 325 D.L.R. (4th) 701 (Div. Ct.), at para. 42, aff’d 2012 ONCA 155 (CanLII), 347 D.L.R. (4th) 616.

[94]      Further, Ford Motor Co. of Canada Ltd. v. Ontario (Human Rights Commission) (2001), 2001 CanLII 21234 (ON CA), 209 D.L.R. (4th) 465, where this court set aside the reinstatement of an employee, is distinguishable from the present case. Although in Ford Motor, this court pointed to the time that had passed since the employee’s dismissal, it also relied on the internal inconsistencies within the Board’s decision and the lack of consideration of an arbitrator’s prior decision upholding the discharge: see paras. 68-73.

[95]      The passage of years is not, by itself, determinative of whether reinstatement is an appropriate remedy. Rather, the decision as to whether to order reinstatement is context-dependent. In the present case, the Tribunal found none of the barriers to reinstatement that foreclosed reinstatement in the Ford Motor case. Specifically, Ms. Fair’s employment relationship with the School Board was not fractured and the passage of time had not materially affected her capabilities.

[96]      Moreover, the Divisional Court’s reference to the labour relations context was not unreasonable or unusual. For example, the Tribunal in Krieger v. Toronto Police Services Board2010 HRTO 1361 (CanLII), espoused similar principles. This case involved an application by a terminated employee for reinstatement following alleged discrimination. In examining the issue of reinstatement, the Tribunal noted, at para. 182:

While reinstatement orders are rarely requested or ordered in human rights cases, they are “normally” ordered in arbitral cases where a violation of a grievor’s rights has been found, unless there are “concerns that the employment relationship is no longer viable” A.U.P.E. v. Lethbridge Community College, [2004] 1 S.C.R. 727, 2004 SCC 28 (S.C.C.) (CanLII), at para. 56. The goal of human rights legislation, which is remedial in nature, is to put the applicant in the position that he or she would have been in had the discrimination not taken place. See Impact Interiors Inc. v. Ontario (Human Rights Commission) (1998), 35 C.H.R.R. D/477 (Ont. C.A.). Where viable, reinstatement is sometimes the only remedy that can give effect to this principle.

[97]      Finally, there was no error in the Tribunal’s requiring the School Board to determine the appropriate position. The School Board remains in the best position to determine what positions are available or could be made available, and the adjustments that it will be required to make in order to accommodate Ms. Fair.

What does this mean for B.C. employers?  Will the remedy of reinstatement continue to be rarely requested and rarely ordered?  Each case will be determined on its own facts so it is hard to say whether this Ontario decision will prompt more employees to seek this remedy in the non-union sector (ironically if there is a human rights violation under a collective agreement reinstatement would be the normal remedy imposed by an arbitrator).  In many cases the delay in adjudicating the complaint often leads to the complainant finding new employment so reinstatement, even if sought initially, is not practical by the time the hearing is completed.  But given the increased economic woes facing Alberta and on the horizon for B.C. I suspect this case will prompt more complainants’ lawyers to push for reinstatement as the appropriate remedy.  The cost of settlement without reinstatement will then go up.