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The Ever-Increasing Expense of Human Rights Remedies
In the recent decision of Hamilton-Wentworth District School Board, 2013 HRTO 440, the Human Rights Tribunal of Ontario (the “Tribunal”) awarded an extensive remedy to an employee (the “Employee”), including 9 years of lost wages, after finding that her employer (the “Employer”) had discriminated against her by failing to accommodate the Employee’s disability-related needs and subsequently terminating her employment.
The Employee was employed by the Employer for approximately 16 years. For the last 10 years of her employment, the Employee held the position of “Supervisor, Regulated Substances, Asbestos.”
In 2001, the Employee developed an anxiety disorder in response to the stressful nature of her job and her fear that, in making a mistake related to asbestos removal, she could be held personally liable for a breach of Ontario’s occupational health and safety legislation.
As a result of her disability, the Employee became unable to perform the duties required in her position and began receiving long-term disability (“LTD”) benefits.
In March 2003, the Employer’s LTD benefits provider requested a meeting with the Employer to explore some volunteer or work-hardening activities for the Employee. The Employer declined this request. In October 2003, the Employer met with the Employee and advised the Employee that her medical condition prevented any accommodation. However, the Employer’s position was not supported by the medical evidence. Rather, the evidence established that since 2003, the Employer had failed to take steps to investigate possible forms of accommodation and, further, that various positions became available in the Employer’s workplace for which the Employee was qualified and capable.
In April 2004, the Employee was assessed as being unable to return to her pre-disability position, but capable of other gainful employment. Following this assessment, the Employee’s long-term disability benefits ceased and she resumed collecting sick leave benefits until she was terminated in July of 2004.
After her employment was terminated, the Employee made great efforts to find alternative employment but was only able to find casual and part-time work.
The Tribunal found the Employer had discriminated against the Employee on the basis of disability contrary to sections 5 and 9 of the Ontario Human Rights Code, RSO 1990, c H.19 (the “Code”), by failing to accommodate the Employee’s disability-related needs and by terminating her employment. In this regard, the Employer was found to have failed to actively, promptly and diligently canvass possible accommodation solutions. The Tribunal found the Employee took reasonable steps to mitigate her losses.
In coming to its decision, the Tribunal emphasized the remedial objective of human rights legislation and focused on making the Employee whole. The Tribunal attempted to compensate the Employee for all losses stemming from the Employer’s discriminatory action and breach of the Code. The Tribunal referenced numerous human rights cases which awarded full compensation to employees for the entire period of their unemployment or underemployment resulting from a discriminatory termination.
In its extensive remedial order, the Tribunal ordered the Employer to:
- reinstate the Employee to suitable alternative employment (including the appropriate adjustments to her seniority);
- pay the Employee for 9 years of lost wages in the amount of $419,283.89 + interest;
- pay the Employee $30,000 as compensation for the injury to her dignity, feelings and self-respect;
- reinstate the Employee’s years of service with the Employer’s pension plan and pay the employer pension contributions and additional costs associated with the buy-back of service;
- remit retroactive payment to the Canada Pension Plan, or compensate the Employee for any losses arising from the lost years of Canada Pension Plan contributions;
- pay for the Employee’s out-of-pocket medical and dental expenses that would have been covered by the Employer’s benefit plans; and
- compensate the Employee for any tax consequences flowing from the money owing as a result of this decision.
The total amount of damages awarded exceeded $500,000!
What This Means for Employers
This decision is notable because of its extraordinary remedy. Payment for lost wages, pension contributions and medical and dental expenses were all awarded retroactively for a period of 9 years.
This decision emphasizes the need for employers to consider the potential discriminatory effect of their actions. Employers must also be aware of the magnitude of the financial risks associated with discrimination complaints. Unlike a claim for wrongful dismissal, the default remedy in a successful human rights complaint is reinstatement and full back-pay. As illustrated above, the remedies awarded by a human rights tribunal will typically well-exceed the common law reasonable notice period applicable to the employee.