You may recall that last
year, the Ontario Human Rights Tribunal (“the Tribunal”) raised the
eyebrows of employers when it ordered that a terminated employee be
reinstated to her position with full seniority almost a decade after she
had left the workplace. In
Fair v. Hamilton-Wentworth District School Board, 2013 HRTO 440 (“
Fair”),
the employee was awarded, among other things, reinstatement (which
included nine years of back pay) and $30,000 for compensation for the
injury to her dignity, feelings and self-respect. To read our prior
e-lert on this decision, click
here.
Until recently, the Tribunal
had generally been of the view that its reinstatement powers should be
exercised in limited circumstances. As a result, many were surprised to
see the Tribunal reinstate an employee almost ten years after her
termination. Such a decision results in an uncharacteristically large
damages award and also leaves the employer with the undoubtedly
uncomfortable task of re-integrating the employee back into the
workplace.
It was therefore no surprise that the employer in Fair
brought an application for judicial review of the Tribunal’s decision
before a panel of the Ontario Superior Court of Justice, Divisional
Court (“Divisional Court”). Among the several grounds raised, the
employer challenged the appropriateness of the reinstatement award in
the circumstances.
On September 29, 2014, the Divisional Court released its decision on the application,1
upholding the decision of the Tribunal and awarding an additional
$15,000 in costs against the employer in respect of the judicial review
process.
The Divisional Court made
short order of the employer’s quarrel with the reinstatement award. It
held that the Tribunal has broad remedial authority and that, while
reinstatement is unusual, there is no barrier or obstacle to the remedy
at law. The Divisional Court concluded that the Tribunal’s decision with
respect to remedy is “intelligible, transparent and with justification.
The outcome is within the range of reasonable expectation.”
While one could argue that
such a result was not within anyone’s reasonable expectation at the
time, with Court approval of the Tribunal’s decision in Fair, employers
should now have little doubt that the Tribunal’s power to reinstate is a
risk on any termination that is found to result from unlawful
discrimination.
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1 Hamilton-Wentworth District School Board v. Fair, 2014 ONSC 2411
