Appeals Court upholds nine years’ back pay

The controversial Human Rights case has edged forward yet again, explains one leading industry lawyer.

Appeals Court upholds nine years’ back pay
CCPartners has previously blogged about the controversial and precedent-setting Tribunal decision in Fair v. Hamilton Wentworth District School Board where Sharon Fair was reinstated to her position with nine years of back-pay and $30,000.00 in general damages after the Tribunal determined that she had not been properly accommodated by the School Board.    The Divisional Court upheld the Tribunal’s decision and recently, the Ontario Court of Appeal also sided with Ms. Fair in dismissing the School Board’s further appeal (click HERE for the Court of Appeal decision).  

Sharon Fair, a supervisory employee with 15 years’ service, was off on a medical leave from 2001 until 2003 for an anxiety disorder when her physician determined she could return to work with certain medical restrictions.  The School Board terminated her employment instead of offering her one of two supervisory positions the Tribunal found were available and fit the medical restrictions provided by the treating physician.  The Tribunal found that Ms. Fair had appropriately participated in the accommodation process but that the School Board had not met its accommodation obligations by actively and diligently assessing available roles for Ms. Fair.   The Tribunal ordered Ms. Fair’s reinstatement with full back pay, having found that none of the delays in the Tribunal proceedings could be attributed to Ms. Fair.

The Court of Appeal found no error in either the Tribunal’s or Divisional Court’s assessment of the facts, law and remedy in the circumstances.  While the remedy of reinstatement was acknowledged to be rarely sought or awarded by the Tribunal, the Court of Appeal found no error in the Divisional Court’s observation that reinstatement is used in the labour relations context by arbitrators and therefore could fall within the broad remedial authority/discretion vested with the Tribunal.   Both levels of court were satisfied with the Tribunal’s analysis of the appropriateness of reinstatement in this case as well as the order for nine years of back pay.

It is not known yet whether the School Board will seek leave to appeal to the Supreme Court of Canada and CCP will keep you updated on any further developments in this precedent-setting decision.

This case is a stark reminder to employers that they must be vigilant in their attempts to accommodate employees who are ready to return to work with or without medical restrictions by considering all possible avenues that can be used to accommodate disabled workers.  Failing to do so could result in significant liability if the Tribunal deems a reinstatement to be reasonable even where a significant passage of time is attributable to the human rights process itself and not any blameworthy conduct on the part of the employer.  

Click HERE for a list of lawyers from the CCP team that can assist employers with all areas of workplace accommodation.

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