Ontario employers – know when to get out of a case or it could cost you

In light of a recent court ruling, employers are being urged to adopt timely mitigation strategies and an acute awareness of “when to get out”.

Employers in Ontario are being urged to reconsider their tactics when managing disability discrimination and human rights litigation after the Ontario Divisional Court recently upheld the decision that one worker should be compensated despite a decade passing since her dismissal.

Courts supported the ruling of the Ontario Human Rights Tribunal in the case of Hamilton-Wentworth District School Board v. Fair, wherein the committee ordered Sharon Fair be reinstated into suitable alternative employment with her previous employer and awarded backdated wages from June 26, 2003 until the date she is reinstated in an accommodated or alternative position.

According to Ontario based employment lawyer Michael Stitz, “The case sends a strong message that situations involving discriminatory conduct combined with a wrongful dismissal action may not be analyzed using the typical wrongful dismissal reasonable notice framework given the broad and creative remedial powers the tribunal possesses.”

Reinstatement is certainly an unusual remedy and Canadian courts generally don’t have the ability to issue such orders but when the situation isn’t an acrimonious one, it seems reinstatement remains a realistic possibility, at least to Ontario’s Human Rights Tribunal.

The case leaves some uncertainty as to when reinstatement will be ordered but with very few cases lacking in acrimony, Stitz is sure it will remain a fairly uncommon occurrence. 

“Outside of reinstatement, human rights litigation can also result in creative remedies such as back wages being ordered,” explained Stitz. “Employers need to be aware that their exposure far exceeds the typical 24-month cap placed on liability in dismissal scenarios not involving discrimination.”

Fair’s case shows that compensation orders can easily approach half a million dollars and account for a decade of loss. Financially, this could be devastating for some companies.

“One of the most important takeaways from this case is that timely mitigation strategies can often prevent manageable workplace issues turning into expensive fiascos,” says Stitz. “Sometimes, knowing when to get out of a case is the most important consideration, particularly when an order for back wages and reinstatement are realistic outcomes.”

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