In 2008, Ontario’s Human Rights Code was revised to specifically permit Ontario courts to award damages for breaches of the Code. Before this, it was only the Human Rights Tribunal that had jurisdiction to award damages for human rights violations in Ontario.
Since then, Ontario plaintiffs have made many attempts to obtain human rights damages in wrongful dismissal and other employment-related lawsuits, but none have succeeded until now. For the first time, the Ontario Superior Court has awarded damages for a breach of the Code in Wilson v. Solis Mexican Foods, 2013 ONSC 5799.
In Wilson v. Solis Mexican Foods, Patricia Wilson, a business analyst, was dismissed without cause after a year and a half of employment. At trial, the employer conceded that the employee had been provided with insufficient notice and proposed she be awarded three months’ notice. The court agreed and awarded her three months’ notice.
But the matter did not end there. The employee had also claimed damages arising from discrimination under the Code because of a failure of her employer to accommodate her disability. The court had to decide whether the employee’s dismissal was related to her back injury and whether she was entitled to human rights damages. The court decided she was, in the amount of $20,000.
The evidence, according to the court, suggested that the employee’s back injury was a factor in the decision to terminate. The judge rejected the employer’s stated reason for dismissing the employee – redundancy following company reorganization. The judge went further and said: “to say that an impression emerges that the defendant was disingenuous is an understatement. Ms. Wilson was given the run around.”
The sequence of events was critical to the judge’s conclusion that the employee was given the runaround.
In early 2010 the employee had positive performance reviews. Later that year the employee complained of back issues. The evidence showed that five days after the employee complained of those back issues, the management team met to consider whether the employee was the right fit for the company. In March 2011, after the management discussions, the employee went on medical leave for her bad back.
During the employee’s time off, the employer and employee engaged in the typical back and forth regarding when and how the employee could return to work. Those exchanges went as follows:
- In March 2011 the employee submitted a doctor’s note that proposed a graduated return-to-work plan.
- A few days later, the employer rejected the plan, insisting the employee be “fully capable of returning to full-time hours and full duties before making the transition back to the workplace.”
- In April 2011 the employee submitted a completed Functional Abilities Form clearing the employee to return to work with some accommodations, which included “a combination of sitting, standing and walking.”
- The employer rejected the requested accommodations, insisting the employee be “completely recovered” before returning to work.
- In late April 2011 the employee submitted a final doctor’s note that stated she would return to work in six weeks.
- In May 2011 the employer terminated the employee’s employment.
The employer’s insistence that the employee return to full-time work and full duties led to the judge’s ultimate decision that the employer had breached the Code – for failing to accommodate the employee and for terminating the employee’s employment because of her disability.
The $20,000 award
Unfortunately, the court did not shed any light on how it arrived at the $20,000 award. However, the reasoning of the court suggests the damages were awarded because the employer failed to accommodate the employee’s disability and behaved in a dishonest manner.
Lessons for employers
Although a decision arising specifically from Ontario’s Code, provincial courts across Canada have the jurisdiction to award moral damages, including for discrimination, in a wrongful dismissal action. Thus employers across Canada should take note of the principles highlighted by this case, whether right or wrong:
- Temporary ailments and illnesses may be considered disabilities under provincial human rights legislation.
- Accommodating a disability is a serious issue and employers are under an obligation to accommodate an employee to the point of undue hardship.
- Do not reject, without due consideration, suggestions for modified work. Refusing to allow an employee to return to anything but full duties may get you in trouble.
- A disability cannot play any part in the decision to terminate employment.
- If terminating a disabled employee for performance issues, ensure that there is documentation to substantiate the performance issues.
- If terminating employment for an issue unrelated to the employee’s disability, ensure there is business documentation to substantiate the business reason for the employee’s termination.
Following these guidelines, in all provinces across Canada, should help keep you out of trouble.