Damages award signals new era in human rights, employment law, The Law Times (November 4, 2013)

04 Nov Damages award signals new era in human rights, employment law, The Law Times (November 4, 2013)

DAMAGES AWARD SIGNALS NEW ERA IN
HUMAN RIGHTS, EMPLOYMENT LAW
By Nikolay Y. Chsherbinin

Lawyers and their clients have wondered for some time whether the civil courts would award human rights damages in the context of a wrongful dismissal action. In its recent decision, Wilson v. Solis Mexican Foods Inc., the Ontario Superior Court of Justice answered this vexing question by awarding the wrongfully dismissed employee $20,000 in human rights damages. Wilson signifies a new era in human rights and wrongful dismissal litigation and reminds employers they’re under a duty to act fairly when dismissing employees with disabilities.

The decision concerned a 54-year-old business analyst, Patricia Wilson, whose employer terminated the job she had held for 16 months under the guise of corporate restructuring. At the time of her dismissal, Wilson suffered from an ailing back and was away on medical leave. On March 7, 2011, Wilson stopped coming to work and produced a medical note that required her “to be off work until further notice.” Unimpressed with its vagueness, the employer requested more comprehensive medical documentation to substantiate Wilson’s back problem. On March 28, 2011, Wilson produced another medical note stating she was “medically fit to start a graduated return to work” but would require some accommodation through a combination of sitting, standing, and walking. This proposal was unacceptable to the employer because it required Wilson to be capable of returning to full-time hours and full duties before making the transition back to the workplace. The employer’s position shocked, dismayed, and angered Wilson. Consequently, she produced the third medical note that ordered her to be off work until June 15, 2011.

On May 19, 2011, the employer dismissed her on a without-cause basis due to restructuring that included the sale of one of its divisions. In response, Wilson sued for wrongful dismissal. As part of her claim, Wilson argued the employer had dismissed her, at least in part, because of her disability and successfully sought both wrongful dismissal and human rights damages.

The Superior Court of Justice’s jurisdiction to consider allegations of a violation of human rights legislation and award the payment of monetary compensation to an employee for an infringement stems from s. 46.1(1) of the Human Rights Code Amendment Act. This section came into force in 2008. While s. 46.1(1) empowered the civil court to order damages for a breach of the code, Wilson appears to be the first decision that actually did it.

In arriving at its award of $20,000 in human rights damages, the court explained that the term disability includes “any degree of disability . . . that is caused by . . . illness.” It reaffirmed the proposition that a decision to terminate an employee based in whole or in part on the fact that person has a disability is discriminatory and contrary to the code. Based on the evidence, the court concluded the employer had orchestrated the dismissal and was disingenuous both before and during Wilson’s dismissal. It was of the opinion that once the employer learned of Wilson’s back problems in 2010, it decided to get rid of her. Despite the fact that Wilson’s disability cost it very little, the employer felt no need to prolong things and nudged her dismissal forward via the corporate restructuring. With regards to the alleged divestiture, the court reasoned that if that was the real reason for Wilson’s dismissal, why did the transaction did “not feature, at all, in a single communication” with Wilson prior to her dismissal?

When assessing the quantum of human rights damages, the only evidence with respect to injury to dignity, feelings, and self-respect the court had was the fact that Wilson was “shocked, dismayed, and angered” by the employer’s pre-dismissal letter. Relying on the Divisional Court’s analysis in Adga Group Consultants Inc. v. Lane, the court concluded that at the time the employer refused to accommodate Wilson’s gradual increase in hours, she lost the right to be free from discrimination and experienced “victimization.”

In awarding Wilson a significant sum of $20,000 in human rights damages, the court sought to recognize both the importance of the right infringed by the employer and the impact of its conduct on Wilson in the context of the particular circumstances of the case. Arguably, if the award of damages was lower, it could have been counterproductive as it would have trivialized the social importance of the code and human rights’ breaches.

The Wilson decision sends a loud message to employers that they have a duty to act fairly. They must be candid, reasonable, honest, and forthright and provide reasonable accommodation of disabilities to employees coming back from medical leaves to the point of undue hardship.

In Wilson, the court exercised only a portion of the remedial powers conferred upon it by s. 46.1(1). It’s unclear whether the court would also exercise its jurisdiction to order reinstatement of an employee in the context of a wrongful dismissal action. One of the central arguments that s. 46.1 confers jurisdiction upon the court to order reinstatement relates to the fact that the true intent, meaning, and spirit of the code is the protection of individuals from discriminatory actions. At the same time, the substantial degree of importance placed upon human rights legislation arguably supports a very broad interpretation of the remedial powers s. 46.1(1) confers upon the court. A counterargument to this proposition could be that the power to reinstate would amount to a fundamental change to the existing common law and, therefore, should only be an option where the statute very clearly provides that remedy. While it’s clear the tools are available for the court to order reinstatement, whether it has the remedial jurisdiction to do so and whether it would actually exercise it are very live issues.

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