After years of waiting, the first decision from an Ontario Superior Court judge to award damages pursuant to section 46.1 of the Ontario Human Rights Code was published to CanLII on September 12, 2013. Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799, a decision of the Honourable Mr. Justice A. Duncan Grace concerned a claim for wrongful dismissal damages plus a claim for damages pursuant to the Human Rights Code.
The plaintiff employee was hired by the employer to work as a controller, shortly thereafter she moved to become a business analyst. She began working for the employer on January 4, 2010 and in November, 2010 her performance review was generally good.
Shortly thereafter there was some concern about issues the employee had with her back. In March, 2011, the employee took time off work pursuant to a doctor's note.
A few weeks later the employee provided her employer with a doctor's note proposing a graduated return to work plan. The employee was to work a few hours one week, then a few more the next week, until she was back to full-time hours. The employer refused the plan taking the position that it would not work.
Thereafter the employee's doctor provided a note that confirmed that the employee could return to full-time hours, with accommodation, namely a combination of sitting, standing and walking. This too the employer had a concern with.
A month later, on May 19, 2011, the employee's employment was terminated, allegedly because of a restructuring.
The decision on wrongful dismissal damages is not really the point of the post and Justice Grace broke no new ground in reaching his decision that the employee with 16.5 months of working experience was entitled to three months of notice.
There appears to be no disagreement in the case that the plaintiff was suffering from a disability at the time of her dismissal. However, the defendant had taken the position that the decision to end her employment was unrelated to her disability.
In deciding that the plaintiff employee was entitled to human rights damages, Justice Grace relied upon the decisions from the Human Rights Tribunal of Ontario, Chen v. Ingeniere Electro – Optique Exfo Inc., 2009 HRTO 1641 and Llano v. Fairweather Inc., 2011 HRTO 556, both of which His Honour noted stand for the proposition that a disability need only be "a" factor leading to dismissal or unfair treatment in employment in order for damages for a human rights violation to be awarded. Based on the evidence that was before him, Justice Grace held that the plaintiff's back was a factor contributing to the termination of her employment.
In the result, citing the factors enumerated in the oft-cited case of ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), (2008), 91 O.R. (3d) 649 (Div. Ct.), Justice Grace awarded the plaintiff $20,000.00. In making the award Justice Grace commented that, "It recognizes the importance of the right that was infringed, the impact of the defendant’s conduct on the plaintiff and the particular circumstances of the case" (Para 92.)
While a decision from the Ontario Superior Court is welcomed, I find myself a bit wanting. Given that no oral evidence was presented at the "trial," I have to wonder what was actually argued in court.
What I found missing from the judgment was any mention of the duty to accommodate. While the facts were clearly considered by the court, no actual mention of the duty or case law surrounding it was mentioned. At paragraph 68 of his decision Justice Grace commented that, "No accommodation was offered or seemingly, even considered." As readers of this blog will know, failure to consider accommodation can be a violation of the duty to accommodate in and of itself. (For more on the duty to accommodate consider my post School Board Learns Lesson in Accommodation.)
Second, I have heard it mentioned that part of the reason that human rights damages appeared to have plateaued as of late is because members of the Tribunal have been waiting for the Superior Court to provide some guidance on where it is prepared to go in terms of an award. Unfortunately there was no consideration by the court as to how $20,000 was arrived at. It could easily be said that the amount is within the range considered reasonable by the Human Rights Tribunal, which would have lead to a bit of the Human Rights Tribunal chasing its own tail.
On the whole the decision is likely correct in the result. I doubt we will see an appeal of this decision, but time will tell. Without question we will see more decisions from the Superior Court and eventually the Court of Appeal for Ontario and Supreme Court of Canada. What guidance those courts will provide is yet to be seen.
The takeaway from this decision for employees is that if you have been fired from your job and believe that your race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability was a factor in the decision to terminate your employment, you can not only sue for wrongful dismissal but seek damages for a violation of your human rights as well. Included in that list, of course, is the fact that you are or were pregnant.
If you are a worker in Ontario and find yourself suddenly unemployed, the employment lawyers at Ottawa's Kelly Santini LLP would be happy to be of service to you.
If you are an Ontario employer and you are considering terminating one of your staff's employment you would be prudent to seek professional legal advice before doing so. If a factor leading to the termination is the employee's disability, or any of the other factors enumerated in section 5 of the Ontario Human Rights Code, you should be mindful that the employee may not be not only sue you for wrongful dismissal but also for violating his or her human rights. Accordingly, it may be prudent to reconsider the option to terminate. At the very least, the duty to accommodate should be considered and, where appropriate, implemented.
If you are an Ontario employer and you find yourself confused by human rights legislation and what it means with respect to your rights and responsibilities towards your employees, the employment lawyers at Ottawa's Kelly Santini LLP can assist.
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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.
Sean Bawden, publisher of the law blog for the suddenly unemployed, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.
Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP, and part-time professor at Algonquin College teaching Trial Advocacy for Paralegals. He is a trustee of the County of Carleton Law Association for 2013.
What Happened
The plaintiff employee was hired by the employer to work as a controller, shortly thereafter she moved to become a business analyst. She began working for the employer on January 4, 2010 and in November, 2010 her performance review was generally good.
Shortly thereafter there was some concern about issues the employee had with her back. In March, 2011, the employee took time off work pursuant to a doctor's note.
A few weeks later the employee provided her employer with a doctor's note proposing a graduated return to work plan. The employee was to work a few hours one week, then a few more the next week, until she was back to full-time hours. The employer refused the plan taking the position that it would not work.
Thereafter the employee's doctor provided a note that confirmed that the employee could return to full-time hours, with accommodation, namely a combination of sitting, standing and walking. This too the employer had a concern with.
A month later, on May 19, 2011, the employee's employment was terminated, allegedly because of a restructuring.
Decision in Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799
The decision on wrongful dismissal damages is not really the point of the post and Justice Grace broke no new ground in reaching his decision that the employee with 16.5 months of working experience was entitled to three months of notice.
There appears to be no disagreement in the case that the plaintiff was suffering from a disability at the time of her dismissal. However, the defendant had taken the position that the decision to end her employment was unrelated to her disability.
In deciding that the plaintiff employee was entitled to human rights damages, Justice Grace relied upon the decisions from the Human Rights Tribunal of Ontario, Chen v. Ingeniere Electro – Optique Exfo Inc., 2009 HRTO 1641 and Llano v. Fairweather Inc., 2011 HRTO 556, both of which His Honour noted stand for the proposition that a disability need only be "a" factor leading to dismissal or unfair treatment in employment in order for damages for a human rights violation to be awarded. Based on the evidence that was before him, Justice Grace held that the plaintiff's back was a factor contributing to the termination of her employment.
In the result, citing the factors enumerated in the oft-cited case of ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), (2008), 91 O.R. (3d) 649 (Div. Ct.), Justice Grace awarded the plaintiff $20,000.00. In making the award Justice Grace commented that, "It recognizes the importance of the right that was infringed, the impact of the defendant’s conduct on the plaintiff and the particular circumstances of the case" (Para 92.)
Commentary
While a decision from the Ontario Superior Court is welcomed, I find myself a bit wanting. Given that no oral evidence was presented at the "trial," I have to wonder what was actually argued in court.
What I found missing from the judgment was any mention of the duty to accommodate. While the facts were clearly considered by the court, no actual mention of the duty or case law surrounding it was mentioned. At paragraph 68 of his decision Justice Grace commented that, "No accommodation was offered or seemingly, even considered." As readers of this blog will know, failure to consider accommodation can be a violation of the duty to accommodate in and of itself. (For more on the duty to accommodate consider my post School Board Learns Lesson in Accommodation.)
Second, I have heard it mentioned that part of the reason that human rights damages appeared to have plateaued as of late is because members of the Tribunal have been waiting for the Superior Court to provide some guidance on where it is prepared to go in terms of an award. Unfortunately there was no consideration by the court as to how $20,000 was arrived at. It could easily be said that the amount is within the range considered reasonable by the Human Rights Tribunal, which would have lead to a bit of the Human Rights Tribunal chasing its own tail.
On the whole the decision is likely correct in the result. I doubt we will see an appeal of this decision, but time will tell. Without question we will see more decisions from the Superior Court and eventually the Court of Appeal for Ontario and Supreme Court of Canada. What guidance those courts will provide is yet to be seen.
Takeaways for Employees
The takeaway from this decision for employees is that if you have been fired from your job and believe that your race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability was a factor in the decision to terminate your employment, you can not only sue for wrongful dismissal but seek damages for a violation of your human rights as well. Included in that list, of course, is the fact that you are or were pregnant.
If you are a worker in Ontario and find yourself suddenly unemployed, the employment lawyers at Ottawa's Kelly Santini LLP would be happy to be of service to you.
Takeaways for Employers
If you are an Ontario employer and you are considering terminating one of your staff's employment you would be prudent to seek professional legal advice before doing so. If a factor leading to the termination is the employee's disability, or any of the other factors enumerated in section 5 of the Ontario Human Rights Code, you should be mindful that the employee may not be not only sue you for wrongful dismissal but also for violating his or her human rights. Accordingly, it may be prudent to reconsider the option to terminate. At the very least, the duty to accommodate should be considered and, where appropriate, implemented.
If you are an Ontario employer and you find yourself confused by human rights legislation and what it means with respect to your rights and responsibilities towards your employees, the employment lawyers at Ottawa's Kelly Santini LLP can assist.
--
As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.
Sean Bawden, publisher of the law blog for the suddenly unemployed, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.
Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP, and part-time professor at Algonquin College teaching Trial Advocacy for Paralegals. He is a trustee of the County of Carleton Law Association for 2013.
Reading the "Commentary" section is always enjoyable. Joy
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