Speaker's Corner: Time for reinstatement to make a comeback as human rights remedy

The issue of reinstatement under the Ontario Human Rights Code has been the subject of fresh attention given the recent decision of the Divisional Court in Fair v. Hamilton-Wentworth District School Board that upheld the Human Rights Tribunal of Ontario ruling ordering reinstatement and 8-1/2 years of back pay.

For many years, reinstatement had been the forgotten remedy of the HRTO. Ironically, in the early years of the code’s interpretation from 1975-99, reinstatement was the default remedy. The first decision made by a board of inquiry under the 1981 Human Rights Code was that of Cameron v. Nel-Gor Castle Nursing Home. The complaint involved a person suffering from a medical handicap.

The complainant had unsuccessfully sought employment as a nursing aide with the respondent nursing home.

Having found a breach of the code, the board then considered remedy and noted the complainant hadn’t requested an order for an offer of employment as she had secured a job elsewhere. Nevertheless, the board made such an order. It concluded this relief should be “the primary remedy to a Complainant who has been denied her right to equal treatment with respect to employment because of handicap.”

Similarly, the board of inquiry in the March 1987 decision in Karumanchiri v. Ontario (Liquor Control Board) found in favour of the complainant and ordered his elevation to a higher-level position.

In its November 1984 decision in Mark v. Porcupine General Hospital, the board of inquiry once again emphasized reinstatement as the prime remedy: “As I emphasized in Cameron . . . the prime remedy in an ‘employment case’ where a complainant has been denied her rights to equality of treatment, is an order under paragraph 40(1)(a) directing that an offer of employment be made. The remedy provisions should be construed liberally to achieve the purposes and policies of the legislation. . . . An overriding objective of the remedies is to achieve restitution: that is, the eradication of the harmful effects of a respondent’s actions on the complainant, and the placing of a complainant in the same position in which she would have been, had her human rights not been infringed by the respondent.”

In Ontario (Human Rights Commission) v. Ford, the Ontario Court of Appeal reversed the reinstatement award made by the board. The initial order granted by the board of inquiry in December 1996 in Naraine v. Ford Motor Co. of Canada is nonetheless instructive of the issues decision-makers are to consider in such a circumstance.

The board noted that arbitral jurisprudence had determined that “so long as the employment relationship appears to be viable, reinstatement orders will issue” and further observed that the remedial powers found in the code were similar to those given to labour arbitrators.

The board also noted that in the arbitral case law, reinstatement orders are the norm even where the parties may have exhibited a long history of interpersonal tension and confrontation. The board also made an order that the reinstatement process would be subject to guidelines issued by it in order to minimize conflict in this process.

The above analyses weren’t the subject of adverse commentary by the Court of Appeal as it set aside the reinstatement order for other reasons.

In her dissenting opinion in the Supreme Court of Canada decision in McKinney v. University of Guelph, the late justice Bertha Wilson voiced a strong view in support of reinstatement as a remedy in an age discrimination case. She noted the specific factors of the age of the plaintiffs, the particular prejudice suffered by them, and the need to redress the wrong.

The majority held against the plaintiffs in the action and hence didn’t address the issue of remedy. But with five opinions in the case, only Wilson’s dealt with the issue of the appropriate remedy. She stated her logic in favouring reinstatement of the plaintiffs.

The modern administrative decisions are bereft of any acknowledgment of the jurisprudence set out above. They haven’t referenced the cited decisions either in support of or opposition to them nor have they accepted, rejected or distinguished them in their recent analyses pondering the award of reinstatement.

The words that described an order of reinstatement as the prime remedy have somehow, for unknown reasons, fallen by the wayside. But reinstatement remains a powerful remedy, particularly given the presumptive award of arrears of wages to its effective date.

David Harris, a former lawyer, is publisher of Employment Law Books (e-mploymentbooks.com) as well as author of Wrongful Dismissal, published by Carswell.

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