The divisional court recently affirmed the Ontario Human Rights Tribunal decision in Fair vs. Hamilton-Wentworth District School Board, reinstating a supervisor after a 9-year absence with back pay of $400,000 and $30,000 for injury to dignity, feelings and self-respect.

This is a significant decision which may signal a change in how human rights cases are dealt with in this province, and in particular, the use of reinstatement as a remedy.  Historically monetary damages and not reinstatement has been the remedy of choice.

Ms. Fair was a supervisor with the School Board responsible for asbestos removal.  She developed a generalized anxiety disorder and was diagnosed with depression and post-traumatic distress disorder.  After two years of receiving long-term disability (LTD) benefits she was cleared to return to work but with certain restrictions.

The School Board took the position that it could not accommodate Ms. Fair’s restrictions without undue hardship.

The accommodation process places a mutual obligation on both employee and employer to cooperate in exploring workplace options.  The Tribunal found that the School Board failed to actively, promptly, and diligently canvass possible solutions to Ms. Fair’s need for accommodation.  In reaching its conclusion, the Tribunal pointed to:

• communication by the employer in the LTD application process suggesting that it would not be open to adopting an active role in canvassing all possible accommodation solutions;
• the School Board’s refusal to meet with the LTD vocational rehabilitation consultant;
• the lack of cooperation responding to Ms. Fair’s request for documentation confirming the essential duties of her position;
• a three month delay in meeting with Ms. Fair to discuss her return to work;
• the availability of other work opportunities Ms. Fair could have been placed in on a temporary or permanent basis.

This case emphasizes that both parties need to participate in the accommodation process.  In my experience employers often acts unilaterally with very little input from the employee.  There are a variety of reasons why this happens, including legitimate concerns about organizational efficiencies and effectiveness.  This decision however establishes that the duty to accommodate an employee’s disability trumps organizational expedience or convenience.

Stay tuned – a motion for leave to appeal has been filed.