Canadian Lawyer InHouse

By Malcolm MacKillop and Hendrik Nieuwland Breaking new ground First case applies Ontario Human Rights Code to wrongful dismissal. I n 2008 the Ontario Human Rights Code was amended to allow judges to grant employees human rights remedies in wrongful dismissal cases. This new judicial tool sat unused for five years until the decision in Wilson v. Solis Mexican Foods Inc., on Sept. 12, 2013. In Wilson, the court concluded the employer fired Wilson because of her disability, and ordered it to pay $20,000 for loss of human dignity in addition to damages for wrongful dismissal. While the court's damages award was unique, the facts underlying the decision were not. Wilson worked as a business analyst, earning a salary of $65,000 per year. Aside from some time management issues, her performance was graded satisfactory or better. In the fall of 2010, Wilson informed her employer she had a bad back. In early March 2011, Wilson stopped coming to work because of her back. One month later, Wilson's doctor proposed a graduated return to work. The employer refused, saying Wilson had to be "capable of returning to full-time hours and full duties before making the transition back to the workplace." On April 28, 2011, Wilson's doctor wrote a note stating she would be off work for "medical reasons" until June 15, 2011. There was no other communication between the parties until May 19, 2011, when the employer advised Wilson for the first time her position had become redundant due to "restructuring" and her employment was terminated. The court concluded the employer's stated reasons for termination were obviously "hollow." The judge awarded over $17,000 for wrongful dismissal, fixing the notice period at three months despite Wilson's short service (16 months) and modest responsibilities. The court awarded the additional $20,000 after finding "without hesitation" that the decision to terminate Wilson was based, at least in part, on her disability. In-house counsel need to pay close attention to the Wilson case. This was the first time a court chose to use its new code powers against an employer, but it won't be the last. There are five key lessons to learn from Wilson: Temporary illnesses or injuries are "disabilities" The bar for what qualifies as a "disability" under the code is low. Both human rights tribunals and the courts have recognized that discrimination occurs if an employer Disability should play no role in termination decisions Wilson makes it clear judges are prepared to accept the principle established by human rights tribunals that discrimination occurs if an employee's disability plays any role, no matter how small, in the employer's decision to terminate. Human rights code general damages awards are increasing The court's damages award against the employer in Wilson was not a mere slap on the wrist. The $20,000 award represented 33 per cent of Wilson's annual salary and would have been higher if she had longer service and a larger salary. The court's higher damages award is consistent with recent awards made by human rights tribunals, which are moving away from historically low awards viewed by many as a mere "license fee" for employers to discriminate. Damages for loss of employment, and reinstatement, are both possible remedies This was the first time a court chose to use its new code powers against an employer, but it won't be the last. treats an employee differently because of a "perceived disability," even if the employee has no actual disability whatsoever. Consistent with this, Wilson affirms that temporary illnesses or injuries are still "disabilities" protected under the code. Employers typically cannot insist on a full recovery before a return to work If a doctor proposes modified duties to assist an employee in a gradual return to work, the code requires employers to accommodate this unless doing so causes undue hardship. The test for undue hardship is very difficult for employers to meet. Since gradual return to work plans are commonplace, in most cases it is unlikely an employer would be able to prove such a plan causes undue hardship. www.ca na dia nl awy e r m a g . c o m / i n h o u s E Damages for loss of human dignity is only one possible remedy a court could award against an employer who violates human rights. The amendments to the code arguably give judges access to other remedies available to human rights tribunals. One remedy is damages for loss of employment, which can far outstrip wrongful dismissal damages. Another powerful remedy is reinstatement. While these remedies have not yet been used by judges, there is little doubt that plaintiff counsel, emboldened by Wilson, will be pushing for these remedies in future cases. IH Malcolm MacKillop and Hendrik Nieuwland practise employment law with the firm Shields O'Donnell MacKillop LLP of Toronto. december 2013/january 2014 • 13

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