In a record-setting decision, Fair v. Hamilton-Wentworth District School Board, the Ontario Human Rights Tribunal (“Tribunal”) has granted the largest award ever received in a Canadian human rights case. In addition to reinstatement, the award included damages for lost wages, retroactive pension adjustments, as well as compensation for injury to dignity, feelings and self-respect.
The employee had worked since 1994 as a supervisor in the regulated substances department of a school board, specifically dealing with asbestos. In 2001, the employee was diagnosed with a generalized anxiety disorder, which the evidence revealed had been a reaction to the stressful nature of her job. In particular, the employee had fears about making a mistake with the asbestos and became anxious about the possibility of being held personally liable for any error.
Following a period in which the employee was in receipt of long-term disability benefits, the employee stated that she was medically fit to return to any supervisor position which did not include asbestos removal. The employer took the position that the medical evidence restricted the employee from all supervisory positions, as all supervisors face potential liability under the Occupational Health and Safety Act. The employee was terminated in 2004 when she refused to return to her previous position.
Approximately 8.5 years after the employee was terminated, the Tribunal concluded that the school board had failed to accommodate the employee by failing to investigate possible forms of accommodation or exploring available alternative work. In an unprecedented decision, the employee was awarded:
In granting reinstatement, the Tribunal considered it important that there was no apparent animosity between the parties, and the individuals responsible for the failure to accommodate were no longer employed by the school board.
While it is anticipated that the decision will be judicially reviewed by the Courts, this case serves as a stark reminder of the broad remedial power granted of Human Rights Tribunals and ever-growing damage awards.
In this respect, awards for injury to dignity, feelings and self-respect have continued to creep higher over the years. Human Rights Tribunals have awarded as much as $35,000 in British Columbia and $40,000 in Ontario for such damages. Thus, even in a more typical case that does not involve such significant liability for lost wages, there remains the potential for significant damages.
If you have any questions about the implications of this decision, or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.
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