On May 31, 2016, the Court of Appeal for Ontario unanimously upheld decisions by the HRTO, which had found that Sharon Fair (Fair) had been subjected to employment-related discrimination by the Hamilton-Wentworth District School Board (the School Board) and had ordered compensation for special and for general damages ($30,000) as well as an order for Fair’s reinstatement. The HRTO’s decisions had earlier been upheld by the Divisional Court.
For a number of years, Fair had held a supervisory position with the School Board, overseeing asbestos removal in its facilities. Fair developed an anxiety disorder related to the potential for her personal liability under the Occupational Health and Safety Act if she made a mistake about asbestos removal. Fair’s disability prevented her from continuing in her old position. Doctors were of the view that Fair could not perform a supervisory job with similar risks of personal liability, but was otherwise capable of returning to work.
While Fair was off work, other supervisory positions at the School Board became available. Those positions did not involve risks of personal liability similar to that which Fair had experienced in her asbestos removal position.
The School Board’s liability was based on its failure to have Fair perform the duties of those two positions.
The case proceeded to the Court of Appeal, most likely because of the size of the award (compensation for lost wages over about 10 years – over $400,000) and the order for reinstatement after a lengthy time.
The Commission intervened in the appeal to argue that:
- The Tribunal's decision and order were consistent with established jurisprudence, and did not create "new and unreasonable" standards of accommodation;
- According to Ontario law, the duty to accommodate includes both procedural and substantive components, and a remedy can be ordered for failing to meet this duty; and,
- Appropriate remedies under the Code are determined by assessing the harm caused to a claimant by the discrimination; if discrimination caused significant harm, then a significant remedy is called for.
The Court of Appeal decision does itself not establish ‘new’ principles, but emphasizes the following principles:
- Assessment of a person’s disability-related needs and the appropriate accommodation to be made is a highly individualized process.
- Accommodation may require an employer to have a person perform a job other than the person’s former job.
- Accommodating an employee’s needs can prevail over the seniority rights of another employee.
- The duty to accommodate has two components: the procedural component is to assess the needs and determine how those needs can be addressed; the substantive component is to make adjustments to the work environment to address those needs. The ‘undue hardship’ limit applies to the substantive component.
- While orders for reinstatement are not common, they are within the HRTO’s jurisdiction.
- A decision to order reinstatement is context-dependent.
- The passage of time is not by itself determinative of whether reinstatement is an appropriate remedy.
Hamilton-Wentworth District School Board v. Fair, 2016 ONCA 421